Talent v Patterson's Earthmoving Pty Ltd (ABN 47 103 530 909)
[2020] VCC 1681
•27 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-00839
| CHARLES JOSEPH TALENT | Plaintiff |
| v | |
| PATTERSON’S EARTHMOVING PTY LTD (ABN 47 103 530 909) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4, 7, 8, 9, 10, 11 and 15 September 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 27 October 2020 | |
CASE MAY BE CITED AS: | Talent v Patterson’s Earthmoving Pty Ltd (ABN 47 103 530 909) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1681 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Industrial accident – negligence – contributory negligence – damages – causation of injury – relationship between injury and the causation of a subsequent injury – other medical conditions – the likelihood of other medical conditions worsening – whether the plaintiff’s damages should be circumscribed
Cases Cited:Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL & Ors; Poseidon Limited v Adelaide Petroleum NL & Ors (1994) 179 CLR; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; Tabet v Gett (2010) 240 CLR 537; Smith v Gellibrand Support Services Inc (2013) 42 VR 197
Judgment: Plaintiff’s injuries caused by negligence of defendant without contributory negligence. Damages assessed for pain and suffering and loss of enjoyment of life, and past and future economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr B Johnson | Maurice Blackburn Lawyers |
| For the Defendant | Mr D Masel SC with Ms R L Kaye | Hall and Wilcox |
HIS HONOUR:
Introduction
1 The plaintiff commenced this proceeding by Writ endorsed with a Statement of Claim. The defendant responded by a Defence. Both the Statement of Claim and the Defence were pleaded in a conventional way; however, the factual and legal basis underwriting the cause of action pleaded in the Statement of Claim changed significantly.
2 Pursuant to the relevant practice note, the plaintiff filed and served a written outline of opening, as did the defendant. The plaintiff opened his case consistently with the written outline of opening. His evidence was consistent with the opening, but it became very apparent to me that the opening and his evidence were inconsistent with the cause of action pleaded in the Statement of Claim.
3 The issue of the pleadings was resolved by the plaintiff applying to file and serve an amended statement of claim. The defendant consented to that application, and I consequently gave the plaintiff the leave that was sought. As a consequence, the defendant applied for leave to file and serve an amended defence which was likewise consented to by the plaintiff. I consequently gave the defendant the leave that was sought.
The Plaintiff’s cause of action
4 The defendant is an earthmoving contractor. Its principal director is Brett Patterson. The defendant had, at the time when the plaintiff was injured, plant and equipment which it applied to the work of earthmoving.
5 The plant and equipment comprised a commercial vehicle which was used to convey an excavator to worksites. It also comprised a tip truck, and a dog trailer attached to it by a drawbar. In short, the plant and equipment would be taken to a worksite. Mr Patterson would operate the excavator removing vegetation, soil and rocks which would then be loaded into the tip truck and into the dog trailer. The contents would then be conveyed to a tipping ground, and the process would be repeated until the time arrived when the job of work had reached completion.
6 The plaintiff was employed as a truck driver by the defendant. The tasks which he performed were essentially driving the truck to a worksite, and then to a tipping ground where the contents would be tipped from the tip truck and the dog trailer.
7 The plaintiff alleges that he was required by Mr Patterson to do work as a “spotter”. It involved mounting the drawbar, mounting a rung welded to the front of the dog trailer and from there observing Mr Patterson loading excavated materials into the dog trailer.
8 On 28 November 2012, the defendant was at a worksite in Eynesbury, which is a locality west of Melbourne. The plaintiff mounted the drawbar and one of the rungs in order to do spotting. He then dismounted, and in the course of doing so, he stood on a triangular bar which formed part of the drawbar. As a result of the movements he then performed when standing on the triangular bar, he suffered a dramatic and significant injury to his left knee.
9 The short summary I have provided thus far is merely to identify the basic facts upon which the plaintiff relied in alleging that the task of spotting involved a foreseeable risk that he would suffer injury when dismounting the drawbar. The Amended Statement of Claim captured these facts as being the basis upon which the allegation of negligence was then based. The defendant, by its Amended Defence, denied negligence and made allegations of contributory negligence.
The evolving cause of action
10 As will be seen as I journey through the evidence relevant to liability, a major focus in the trial was whether the spotting which the plaintiff alleges he performed was a system of work employed by the defendant. The plaintiff and his witnesses said that spotting was part of the overall operation of excavation work, and Mr Patterson and his witnesses essentially said that spotting was not part of it; that they had never engaged in spotting work, and that they had never seen it performed at the worksites where they undertook their work, either as excavator operators or truck drivers.
11 It occurred to me after the plaintiff filed his Amended Statement of Claim and after I had the advantage of reading the written submissions of the plaintiff and the defendant the night before addresses were to commence, that the basis upon which the plaintiff was actually putting his claim had become so much clearer.
12 Whilst it was central to the plaintiff’s case that there was a system of work involving spotting, he also submitted that it was his practice to mount the drawbar and use the rungs on the front of the dog trailer to observe the loading of the dog trailer for three purposes. Firstly, to assist where he thought that was necessary in the distribution of the soil and rocks loaded into the dog trailer. Secondly, to satisfy himself that the load had been distributed evenly to avoid any risk that unevenness would result in the dog trailer tipping, and, thirdly, to satisfy himself whether the load was in excess of the weight lawfully to be carried by the dog trailer which would expose him to a monetary fine.
13 The practice does not necessitate a finding that the plaintiff mounting and dismounting the drawbar was part of a system of work. That is the way I understood the plaintiff relied upon the fact that if he did have that practice, then the plant and equipment, comprising the drawbar, exposed him to a foreseeable risk of injury by necessarily having to stand on the triangular bar marked “D” in the relevant photograph.[1] The relevant particulars of negligence sub-joined to paragraph 4 of the Amended Statement of Claim plead, by particulars (m)-(o), that the access to the dog trailer was unsafe for the use of the plaintiff; that the access to the dog trailer did not have adequate handholds; that the plaintiff was required to descend by standing on the drawbar, which did not provide a level or safe surface, and he was not provided with any or any adequate means of descending from the trailer to ground level.
[1]Exhibit A
14 It was an issue which I raised with the parties during addresses to ensure that they were not proverbially ships in the night in the way in which they were attacking the issues raised by the pleadings.[2] I will return to this later in these reasons, and after I have reviewed the evidence of the liability witnesses.
[2]The point was raised with counsel for the plaintiff at Transcript 642-643, and with the defendant at Transcript 698-699
Orientation
15 The first issue that arose for my consideration was whether the plaintiff suffered injury when dismounting the drawbar. In order for the physical circumstances of what the plaintiff was doing to be understood, it is necessary to examine a photograph which shows the drawbar on the front of the dog trailer. It was a photograph on which the parties concentrated during the part of the trial which focused in on the actual moment of the occurrence of the plaintiff’s injuries.[3]
[3]Exhibit A
16 In the foreground of the photograph are two parallel steel bars with two steel bars running between them, and in the middle of the photograph the drawbar connects to the undercarriage of the dog trailer. It is the second steel bar which is marked “D” which identifies the triangular steel bar on which the plaintiff alleges he was standing when he suffered injury.
17 The other markings on the photograph were applied for the purpose of convenience of reference. The front of the dog trailer has two rungs welded to its face. The uppermost rung is marked “A”, and the second one below is marked “B”. Below the second rung and to the left-hand side is a horizontal plate at the intersecting point between the drawbar and where it connects to the undercarriage of the dog trailer. It is marked “C”. I have already referred to the triangular bar which is marked “D”. The other steel bar is marked “E”. It is the point where a spare wheel was capable of being fixed.
18 Another part of the front of the dog trailer which was not marked with a letter can be seen above the top rung marked “A”. On either side of the front of the dog trailer are wheels connected by a bar. Above the bar and at the top of the front of the dog trailer is a crescent-shaped part of the dog trailer. That is the cover to a tarpaulin which is used to cover a load before the tip truck and the dog trailer are driven to a tipping ground.
19 A facsimile of the excavator operated by the defendant is demonstrated in two films which were produced by the defendant.[4]
[4]Exhibit 5 and 6
20 The plaintiff tendered the report of Mr Tom Dohrmann, engineer, of Dohrmann Consulting dated 29 July 2020 with some redactions.[5] The report contains a number of photographs which are a better illustration of the excavator and the drawbar and dog trailer, and in particular:
[5]Exhibit E
· Figures (as the photographs are described) 3 and 6 show an excavator which is a facsimile of the excavator used by the defendant.
· Figures 4 and 10 are an illustration of the front of the dog trailer and the drawbar, with associated descriptions of each particular relevant part of the front of the dog trailer and the drawbar.
· Figure 5 illustrates the physical association between the excavator and the tip truck consistent with their positioning when excavation work was being undertaken.
· Figures 11, 12, 13, 14, 15 and 16 illustrate the dimensions of the front of the dog trailer and the drawbar, and measurements of each particular relevant part of the front of the dog trailer and the drawbar.
· Figure 17 illustrates a side view of the tarpaulin cover at the top of the front of the dog trailer.
21 None of the plaintiff’s evidence relevant to the work set-up, the tip truck, the dog trailer, the drawbar or the way in which the excavator was used were controversial.
22 I should add at this point that I have referred to certain parts of the tip truck and dog trailer rather more formally than the language which became the language of description during the trial. The plaintiff and the defendant tended to refer to the tip truck as the “truck”, the dog trailer as the “trailer” and the rungs on the front of the dog trailer as the “ladder”. I have referred to each relevant and important part of the tip truck, the dog trailer and the front of the dog trailer more formally in order to avoid any confusion about what is being referred to in questions and in answers to questions.
The Plaintiff’s work tasks
23 The plaintiff said that he was employed by the defendant as a truck driver from about June 2012. He described the work undertaken by the defendant being mainly at house sites. The work involved excavating vegetation, soil and rocks as was required. The personnel who were engaged to undertake work at the worksites generally involved Mr Patterson, who operated the excavator, and sometimes another excavator operator, and the plaintiff as a truck driver.[6]
[6]Transcript 26-27
24 In general terms, Mr Patterson would set up the excavator, and direct the plaintiff to drive the tip truck and dog trailer onto the worksite. Mr Patterson would then operate the excavator by excavating vegetation, soil and rocks, which he would then load into the tip truck and the dog trailer. The plaintiff would wait until the tip truck and the dog trailer were filled, after which he would then drive to a tipping ground, tip the contents, and then return to the worksite.
25 The plaintiff described the tasks that he was required to perform as follows:
Q:“But what was your job?---
A:A truck driver.
Q:What did that actually involve?---
A:It involved driving the truck, with checking the loads and making sure how they’re loaded and how much material is going on.”[7]
[7]Transcript 26
26 The plaintiff was then asked to describe performing a task described during the trial as “spotting” or doing work as a “spotter”. When first asked about performing spotting work, the plaintiff was asked the following:
Q:“Now, you mentioned before that you’d climb up and look at what was going into the trailer. You called it spotting. Tell us a little bit about that. What did you do and why did you do it?---
A:Well, why I don’t it is because it’s on my head. If I get caught – the RTA pull me up and it’s loaded too much, or unsafe, I’ll get into trouble. Plus whoever’s loading it – if you overload, they’ll get into trouble.
But I’ve got up there because it’s not right if you leave it. You’ve got to check it, because if there’s too much dirt or it’s loaded to one side, you could roll the vehicle when you go to the tip site. And I had to check it just to make sure it’s safe.”[8]
[8]Transcript 27-28
27 When next asked about it the plaintiff said:
Q:“When you were spotting, would you give any direction to him?---
A:Yeah, sometimes when we’re doing rocks I would point where to throw a few rocks or sometimes, an extra bucket of soil, I’d say throw one in the corner there or - and he just used to do it.
Q:Now, why couldn’t he do it himself? Why couldn’t he see what was inside the trailer?---
A:Because these machines - they weren’t as big as the one he’s got now and he couldn’t see. He actually used to stand up in his machine operating it, trying to see over where to drop the material.
Q:Would he be able to see right inside the trailer from his machine?---
A:Not down into it properly, no.”[9]
[9]Transcript 32
28 It was shortly after the plaintiff gave that evidence that he was shown exhibit A. He was asked to describe the important features of what is depicted in the photograph. What he described are each of the particular features of the drawbar and the front of the dog trailer which are marked with the letters “A”, “B”, “C”, “D” and “E”.[10]
[10]Transcript 32-35
29 The plaintiff then described the manner in which he would perform spotting, and the frequency that he did it:
Q:All right. So to spot for the dog trailer, how would you do that?---
A:Hop down off the truck, walk back to the dog, hop up on the draw bar, go up the steps that were there, and hang on to the top of the tarp and look over - and look.
Q:Had you …?---
A:I used to weigh my chest on that tarp piece on the top.
Q:Did you do that frequently?---
A:Year, a fair bit. Not every single time but a lot, a hell of a lot.
Q:In terms of each day would you do it every day, or some days, or most days?---
A:Yeah, I’ve done it nearly every day there.
Q:And that’s with Brett Patterson?---
A:That’s with Brett Patterson, yes.”[11]
[11]Transcript 31-32
30 The plaintiff had previously worked as a driver with a company known as Envirohaul. He had worked for that company immediately preceding taking up employment with the defendant. He said that he engaged in the same practice of spotting when he worked with Envirohaul.[12]
[12]Transcript 28
31 One of the other reasons why the plaintiff mounted the drawbar and climbed the rungs on the front of the dog trailer was to get into the dog trailer to clean it. He said that there was often mud in the dog trailer that needed to be cleaned away because if it was left it would build up and could lead to the tip truck rolling if an unevenness was created. He added that another reason for performing the cleaning was to avoid mixing materials that might be carried, for example if he was carrying crushed rock or rocks, he needed to avoid mud getting stuck on that product.[13]
[13]Transcript 29
32 The plaintiff described the way he would climb into the dog trailer. He said:
Q:“To do that, how would you do that?---
A:Go up the same way as on the drawbar, up the steps and the[n] you had to go to the side of that big round thing, try and - hold on to that and try and wiggle yourself over the side because there was one little step in the corner of the dog trailer at the front in the corner which would only fit your toes on anyway to get down about halfway down it and that was it.
Q:If I can just clarify what you’re saying. Was there actually a step inside the trailer as well?---
A:Yes, one little one, yes.
…
Q:What was the purpose of the small step inside the trailer or what did you believe to be the purpose?---
A:To stand on to get in to clean it.”[14]
[14]Transcript 30-31
33 Whether the plaintiff engaged in spotting work at all was seriously contested by the defendant. The plaintiff called evidence from two other drivers who essentially said that they engaged in spotting, and in their experience, it was commonplace. Mr Patterson denied that the plaintiff engaged in spotting work or that it was required by him, and he called evidence from three other drivers who said they did not engage in spotting, and in their experience, it was not commonplace.
34 Whether the plaintiff climbed into the dog trailer to clean it was also seriously contested by the defendant. Mr Patterson denied that the tip truck and the dog trailer were cleaned in the way described by the plaintiff. He, and the other drivers he called, described different ways of cleaning the tip truck and the dog trailer, including using the excavator to scrape debris from the dog trailer.
What the Plaintiff did
35 Immediately before the plaintiff suffered injury to his left knee, he alleges that he had mounted the drawbar to perform spotting, and was in the course of dismounting the drawbar when the incident occurred which resulted in the left knee injury.
36 The plaintiff described what occurred as follows:
Q:“In the afternoon, did something happen?---
A:Yeah, in the afternoon I was on the back of the dog and I just – yeah, once we were loaded I climbed down and that’s how it happened.
Q:Let’s just start from that. You said you were on the back of the dog, were you in the process of doing what you described before that is spotting for him?---
A:Yes, that’s right.
Q:Do you recall actually giving him any directions while you were doing that?---
A:I think I waved me (sic) hand a couple of times for him to put a couple of buckets in the front area but I can’t exactly remember properly but I done (sic) that on a few occasions.
…
Q:Which of those rungs – you see we’ve marked the top one A, the bottom one B, do you recall whether you were standing on one of those and if so which one you were on?---
A:When I climbed down?
Q:No, before you started to climb down.
A:I was on A.
Q:Then to go down, how did you come down?---
A:I moved my legs from A to B and then I grabbed that rail there, the---
Q:Which we can see across the top of the trailer?---
A:Yes, I used me (sic) hands.
Q:---but below the---?---
A:---on that and then put my foot from A to B and then from B to C use the handrail down to B and then when I had my hand on B I moved my feet to D and then as I went to let go of the – B, I’d spun around and sort of wobbled a little bit and that was it, just hurt my knee, the pain in my knee was shocking.
Q:Why did you turn around?---
A:I had to turn around to get down from the drawbar.
Q:At that stage, do you recall whether you had both feet on the drawbar?---
A:Yeah, both feet were on that unlevel bar there.
Q:You said you had had your hand on which, on A or B?---
A:I think it was on A, me (sic) hand was on A.
…
Q:Did you have your hand on A or did you have to realise it?---
A:No, as you turn around you have to release it to turn around.
Q:As you did that I think you said you slipped and what did you feel?---
A:Yeah, I wobbled a bit on that unlevel bar there on D and, yeah, me (sic) knee just went – I don’t know, just locked up and it hurt really bad.”[15]
[15]Transcript 38-39
37 Subsequently, the plaintiff said that he got Mr Patterson’s attention. He thinks he waved to him and yelled out and said that he “told him what I’d done”,[16] which I understood to mean that he told Mr Patterson that he had injured his left knee. He also told Mr Patterson that he was not able to drive.
[16]Transcript 42
38 The defendant undertook a sustained attack on the creditworthiness and reliability of the plaintiff. It submitted that if I was satisfied that the attack had significantly undermined the plaintiff’s creditworthiness and reliability, then I should have a doubt about whether the plaintiff injured his left knee as he alleges, or whether in fact it occurred in entirely different circumstances. I propose to now deal with the cross-examination of the plaintiff in the same order that particular topics were raised by the defendant in cross-examination.
39 Under cross-examination, the plaintiff was asked whether Mr Patterson would use the excavator to tip soil into the dog trailer until he saw a peak rising above the sides of the dog trailer. Additionally, once he had done that, he would use the bucket of the excavator to “damp down the peak” and spread the soil. The plaintiff agreed, but he said that Mr Patterson would throw soil “all over the place”, and that he used to overload it, making it difficult to pull the tarpaulin over the load.[17]
[17]Transcript 77-78
40 Next, it was put to the plaintiff that Mr Patterson did not use a spotter. The plaintiff said that he did. He said that when he got up onto the dog trailer while Mr Patterson was performing loading with the excavator, he never told the plaintiff to get down from where he was standing. He did agree that there were occasions when Mr Patterson did the loading without him performing the task of spotting, but he said that was rare, describing it as “one or two times that I didn’t”. He described where he would be standing and what he would be holding onto, and in the context of that part of the cross-examination, it was put to him that he was making it all up, which he denied.[18]
[18]Transcript 79-82
41 Next, the plaintiff agreed that he had not driven the excavator.
42 In relation to his understanding of what Mr Patterson could see when operating the excavator, he said that he had seen Mr Patterson stand up in the cabin of the excavator while operating it. He said that Mr Patterson could not see what he was loading properly.[19]
[19]Transcript 87-88
43 Next, the plaintiff denied that one way of cleaning out debris from the tip truck and the dog trailer was to elevate the tip truck and the dog trailer and then apply the brakes. He said that he had done it that way a couple of times, but he did not do it that way, because the dirt would stick, requiring him to use a shovel to remove it.[20]He said that using the brakes in that way would not loosen the debris. He denied that Mr Patterson used the excavator to scrape out any debris from the tip truck and the dog trailer. He said that Mr Patterson asked him to do it. He said that he could not perform the cleaning work using a stepladder and entering the tip truck and the dog trailer through the tailgate because no stepladder was available. He was not aware that when he performed the cleaning at Mr Patterson’s home, that there was a stepladder available.[21]
[20]Transcript 88-90 and 93-96
[21]Transcript 91-92
44 Next, the plaintiff said that he had asked Mr Patterson to move the steps, presumably referring to the rungs on the front of the dog trailer, similar to what was provided on other trucks. He said that Mr Patterson “didn’t even give me a comment”. In answer to the question that he had never made such a complaint, he said that he had.[22]
[22]Transcript 97
45 Next, he denied that an assessment of the weight of the load can be assessed by looking at the load. He agreed that Mr Patterson would distribute the load, but he said that he would put more in, which resulted in overloading. He said that overloading created a risk of the vehicle rolling, which is something he had seen at tips because of them not being loaded properly.[23]
[23]Transcript 97-98
46 Next, the plaintiff was shown two photographs[24] and was asked to point out where he says there was a step which he used when he climbed into the dog trailer. He agreed that the photographs demonstrated that there was no such step. The first photograph shows the interior of the dog trailer facing to the front of the dog trailer, as does the second photograph. The plaintiff said that the step he was referring to might have been in the corner of the tip truck. He marked the second photograph with an “x” to mark where he thought the step was situated. He described that he used to climb over the front of the dog trailer and slide down into it.[25]
[24]Exhibits 1 and 2
[25]Transcript 100--105
47 Next, the plaintiff was referred to dirt staining shown in both photographs on the sides of the dog trailer some distance just below the top level of the dog trailer where there is obvious blue paint. He agreed that the staining had either occurred through dirt or rust against the sides of the dog trailer. He was asked whether the staining represented the level of the soil when loaded into the dog trailer. He repeated that he had seen the dog trailer “loaded full”.[26]
[26]Transcript 100
48 Next, the plaintiff was referred to a Worker’s Injury Claim Form which he completed in his own hand, signed by him on 7 December 2012.[27]Specifically, his attention was drawn to an answer he gave to a question – “What happened and how were you injured?” The plaintiff wrote:
“STEPPED ON TO DRAW BAR OF TRAILER, TURNED TO LOOK
IN TIPPER. KNEE CRACKED AND FELT EXCRUCIATING PAIN.”
[27]Exhibit 3
49 It was put to the plaintiff that what he wrote amounted to a description of him “on the way up, not on the way down”. The plaintiff conceded that he had wrongly written down what had occurred, and said “it was the other way anyway”. He could not explain why he wrote an account of the incident that way, repeating that he had written it down wrongly.[28]
[28]Transcript 110-111
50 Next, the plaintiff was referred to an affidavit which he swore in support of an application for serious injury. The particular paragraph to which he was taken was not tendered into evidence, but the content captured in the questions put to him about the account he gave relevant to the occurrence of the incident:
Q:“You said in order to see into the trailer I had to climb up and onto a draw bar between the trailer and the truck. Yes?---
A:Yes, yes.
Q:And then onto a spare wheel, and then onto a ladder so that I could see over the upper edge of the trailer. Would you have a look---?---
A:Yeah, well, I’ve corrected that. There wasn’t a spare on it.
Q:Yes. While coming back down from the ladder and on stepping back onto the spare wheel, I badly twisted my left knee. That’s what you swore to be true, isn’t it?---
A:Yes, but then I corrected it because there wasn’t a spare on it. It was that bar that was there that done the knee.”[29]
[29]Transcript 113-115
51 The plaintiff was referred to exhibit A and his evidence that the incident occurred when he stood on the triangular bar marked “D”, and his reference to standing on the spare tyre would mean that he was referring to the point marked “E” in the photograph. He conceded that his evidence, the Claim Form and the affidavit potentially demonstrated three versions of how the incident occurred.[30]
[30]Transcript 114-115
52 Next, the plaintiff was referred to Answers to Interrogatories he swore, and in particular, his Answer to Interrogatory 10.[31]The Interrogatory reads:
“10.Where was your right foot placed at the time you twisted your left knee in the incident?”
[31]Exhibit 4
53 The plaintiff’s answer was:
“My right foot was either on the ladder or I was in the process of removing the right foot from the ladder in order to step down to the draw bar.”
54 The plaintiff was asked whether the answer he gave was very different to the evidence he had given about the occurrence of the incident. He said that he supposed that it was, but he repeated that he knew that he twisted on the triangular bar on the drawbar.[32]
[32]Transcript 116
55 The plaintiff was recalled for further cross-examination relevant to evidence given by Mr Patterson on matters of some importance, which were not put to the plaintiff during cross-examination. I will firstly set out the evidence of Mr Patterson, which gave rise for the need to have the plaintiff recalled. Mr Patterson was asked whether he remembered the day when the plaintiff alleges he suffered injury. He said that he remembered some of the day, and then he said:
Q:“And best you can recall, how did you become aware in the afternoon that Mr Talent had a knee pain?---
A:I don’t recall how, but I either loaded the truck, finished loading the trailer, and then he got my attention somehow, and yeah, I hopped out and seen – seen him standing at the back of the – rear of the truck, in that area – in that vicinity there, holding his knee.”[33]
[33]Transcript 445
56 Mr Patterson was asked to describe the position of the plaintiff when the plaintiff drew to his attention that he had suffered the left knee injury. He said that when the plaintiff attracted his attention, the plaintiff was standing at the rear of the tip truck. He then described a further conversation he had with the plaintiff:
Q:“After you hopped out and saw him at that point, at the back of the tipper, what happened next?---
A:He just said he – he twisted his knee when he hopped down off the drawbar, and he felt excruciating pain in his – in his knee. And then – yeah. So I can’t really recall exactly what happened after that but his wife ended up coming out and away, they went.
…
Q:And when he told you that he’d hurt himself hopping off the draw bar, what did you understand by that?---
A:He said he was looking in the back of the tipper.
…
Q:And how would he have looked into the back of the tipper from the draw bar?---
A:Stood up on top of it.”[34]
[34]Transcript 446
57 Mr Patterson was then asked to identify where the plaintiff would stand in order to look inside the tip truck. He was shown a photograph which he marked with an “x”, being the point on the drawbar where someone would stand in order to look inside the tip truck.[35] He said that he had seen the plaintiff stand at that point on three or four occasions.[36]
[35]Exhibits 10 and 11
[36]Transcript 449
58 Under further cross-examination, the plaintiff was reminded of earlier cross-examination during which he was asked whether it was possible to stand on the drawbar at the tip truck end of it.[37] He was then shown exhibits 10 and 11 and asked whether he could stand at the point marked by Mr Patterson, and that he did from time to time. He said that he did not remember whether he had stood there, but he said that he could not stand there while the tip truck was being loaded because it would knock his head off.[38]
[37]Transcript 112
[38]Transcript 478
59 Next, the plaintiff was asked whether the conversation he had with Mr Patterson immediately after he suffered the left knee injury occurred at the back of the tip truck. He said that it did not occur there. He repeated that he climbed down the ladder, turned on the drawbar “and that’s where I talked to him”. I understood that to mean that the conversation occurred closer to the point where he says the incident occurred.[39]
[39]Transcript 478-479
60 Under re-examination, the plaintiff said that Mr Patterson’s use of the ripper (referred to by the cross-examiner as a “pick” or “hoe”) could not clean the dog trailer because it could not get into all areas of the dog trailer, and the head of the excavator was too big to get into some areas.[40]
[40]Transcript 131
61 Next, in relation to the spotting task, the plaintiff said that Mr Patterson would overload the dog trailer by putting in more soil until it was full and that he had filled every corner of it.[41]
[41]Transcript 131
62 Next, the plaintiff said that braking the tip truck to dislodge material in the dog trailer would not remove the material that was stuck in the dog trailer. He had tried it once or twice.[42]
[42]Transcript 131-132
63 Next, the plaintiff was referred to a position description which described one of the tasks he was required to perform as cleaning vehicles. He said that was part of his job with the defendant.[43]
[43]Transcript 131 and exhibit C
64 Next, the plaintiff said that he would sometimes perform spotting without being asked by Mr Patterson.[44]
[44]Transcript 131
65 Next, the plaintiff was asked about other trucks and dog trailers which had ladders affixed to them for the purpose of access, which the plaintiff said was a much safer way of obtaining access to the tip truck and the dog trailer.[45]The plaintiff agreed that the tip truck and dog trailer shown in exhibit D was a quarry truck and not a dirt truck.[46]
[45]Transcript 141-143 and exhibit D
[46]Transcript 146-147
66 Next, in relation to Mr Patterson’s evidence that the plaintiff had stood on the drawbar behind the tip truck in order to see into the tip truck, he said that he had done that a couple of times, but he mainly stood on the door of the tip truck to observe the loading of the tip truck.[47]
[47]Transcript 479
The Plaintiff – a system of work?
67 In addition to the plaintiff’s evidence that there was a system of work of the kind he described, he called a body of evidence for the purpose of demonstrating that not only was he observed on the rungs on the front of the dog trailer, but it was something of an industry system or practice undertaken by other truck drivers.
Diane Talent
68 Diane Talent is the plaintiff’s wife. She and the plaintiff had a Tattslotto win of $7,600 in October 2012. She decided to go to the worksite where the plaintiff was working on the day she first knew of the Tattslotto win to tell him. She said that she went to the worksite the day of the win and that it was a day in October 2012.
69 An issue, which I think is of little substance, occurred with Mrs Talent identifying the date on which she attended a worksite. At first, she gave evidence that there were other events which had occurred in October 2012 which assisted her in identifying the date. She took her grandson, Bray, to a hotel for lunch to celebrate his birthday. Following lunch, she went to the Tattslotto shop with her ticket to find that she and the plaintiff had won $7,600. She rang the plaintiff to find out where he was working, telling him that she had something exciting to tell him. A second event which she used to identify the date was her birthday, which was 5 October 2012 when she turned sixty years of age. It was of some significance, because the plaintiff had purchased her a 2012 Holden Captiva motor car.[48]
[48]Transcript 152-153 and 174-175
70 Before turning to what Mrs Talent observed when she went to a worksite with her grandson, I will firstly turn to additional evidence Mrs Talent gave in identifying the date that she went to a worksite. Under cross-examination, Mrs Talent thought that the day she went to a worksite was no earlier than 3 October and no later than 17 or 18 October 2012;[49] however, after several breaks in her evidence, and the provision of documents and photographs, she said that she believed she had attended the worksite after 29 October 2012.[50]
[49]Transcript 173-177
[50]Transcript 331-333 and 383-384
71 When Mrs Talent arrived at the worksite, she said that she observed the following:
Q:“All right. And when you arrived, what was Charlie doing?---
A:Charlie was up on the trailer sort of just looking, and - yeah, just working. Just a normal day, I think.
Q:Well, what - when you say up on the trailer what do you mean by that?---
A:Oh, well, when you load the trailer you load it sort of thing but you don’t - if you have ever been on the highway and you get behind a tipper, and you will get gravel rash sometimes. You’ve got to be really careful with the truck, and that’s what he used to do. He used to make sure it was loaded properly, that it wouldn’t – so he used to – it was like a ladder behind the – behind the dog truck but on the dog, so he used to just climb up and sit up there and just watch – he’d point and say, look, yeah, you need a little bit more or something, and I had to wait until he finished that for him to come down to me.
Q:Had you seen him do that on a number of times at various jobs?---
A:Oh, at various jobs, yeah. He did it all the time. It was part of the job. Yeah.
Q:Well, I’m particularly asking about not what you understand but what you have actually observed. When you went up there ---?---
A:Yeah.
Q:--- on this day in October 2012 to a building site in Caroline Springs where he was with Brett and just him---?---
A:Yeah.
Q:--- where was he when you arrive[d]?---
A:When I got there, he was up the ladder. On the ladder on the trailer – the dog, sorry.
Q:And is that at the front or the back - as in the truck end of the dog or the rear end of the dog?---
A:Yeah, the truck end of the dog, but he’s on the front of the trailer, the dog trailer. Yeah.”[51]
[51]Transcript 153-154
72 Mrs Talent’s grandson, Bray, was with her. She observed rocks being loaded into the dog trailer. It was while she was watching the loading process that the plaintiff dismounted from where she saw him and came over to her and her grandson.[52]
[52]Transcript 155
73 The cross-examination of Mrs Talent did not appear to me to directly challenge what she observed on the day of the Tattslotto win when she went to the worksite with her grandson. The particular focus of the cross-examination was her inability to identify the date when she went to the worksite, and her inability to identify the address of the worksite. She thought that the worksite was in a street which she described as 4 Dorman Boulevard, Taylors Hill.[53] Over the ensuing weekend between when she commenced her evidence on Friday, 4 September and when she completed her evidence on Wednesday, 9 September 2020, she drove to the worksite. What became clear was that the worksite was at 4 Morton Boulevard not 4 Dorman Boulevard. Under further re-examination, the plaintiff was shown a photograph of the street and a street sign which read ‘Morton Boulevard’.[54]
[53]Transcript 332-333
[54]Transcript 396
74 The defendant submitted that I should be slow to accept Mrs Talent’s evidence, that she went to a worksite and actually saw the plaintiff on the rungs of the front of the dog trailer, for a number of reasons. She struggled to identify the date when she visited the worksite. She could not identify the name of the street nor the suburb where the worksite was situated. When she attended the worksite, the focus was on her grandson’s interest in seeing the earthmoving machinery at work. The recounting of the incident and the plaintiff’s injuries and attendances at numerous medical appointments and the effluxion of time has resulted in her becoming confused and her memory becoming distorted.[55] The conclusion which the defendant submitted I should reach is not that Mrs Talent is untruthful, but rather the effluxion of time, her attempts to reconstruct when it was that she went to the worksite, and the probability that she has engaged in some repetition in recounting the incident which caused the plaintiff’s injuries to render her account of visiting a worksite on that day unreliable.
[55]Transcript 178-179, summarised in the written submissions of the defendant dated 14 September 2020
75 I think it is more probable that Mrs Talent went to a worksite where the plaintiff was working on a date in late October 2012 with a very good reason – to tell the plaintiff that they had a Tattslotto win. I accept her evidence that when she arrived at the worksite, the plaintiff was standing on one of the rungs on the front of the dog trailer. I do not accept the fact that she was with her grandson, that his interest in seeing his grandfather and the earthmoving equipment distracted her from seeing what the plaintiff was doing at the time when she arrived at the worksite. I do not accept that the fact that she was unable to initially remember the date when she went to the worksite, the name of the street and the suburb where the worksite was situated, reduces the reliability of her account of what she saw. Nor do I accept the fact that she attended so many medical appointments with the plaintiff and played some part in informing medical practitioners of the plaintiff’s medical condition reduces the reliability of her account of what she saw.
76 Although, Mrs Talent tended toward sometimes rather long-winded and partly non-responsive answers to questions, and seemed sometimes to be easily distracted from what she was being asked, I accept that she was endeavouring to answer questions in the best way that she could and truthfully. I accept that after she had the opportunity to reflect on her initial evidence, that there was a sound basis upon which she was able to more accurately identify not only the approximate date on which she went to the worksite, but also the precise name of the street and the suburb where the worksite is situated. I see nothing in her evidence consistent with the submission of the defendant that in some manner and at some time she has become confused and her recollection of that occasion has become distorted by the effluxion of time and other events.
Keith Baker
77 Keith Baker was called by the plaintiff. He worked with the plaintiff about eight years ago with Envirohaul over a period of about two years as a truck driver. One of Envirohaul’s customers was the defendant. He performed truck driving work for the defendant when he was an employee with Envirohaul. He did that work on about fifteen occasions when he was an employee with Envirohaul, and on another five to ten occasions when he was an owner driver.[56]
[56]Transcript 250-251 and 292
78 Mr Baker described the work he performed for the defendant at site cuts, which involved clearing a block of land for the purpose of a house being built on it.[57] He used a tip truck and dog trailer similar to the tip truck and dog trailer which the plaintiff used.[58] He then described how he went about performing work when engaged by the defendant:
Q:“Can you briefly describe what was required of you as a driver of a tipper and dog whilst working for Patterson’s?---
A:Oh we’d go there and we’d pull up in the morning, wait for him to come. He’d set his levels and that up and say, ‘Righteo, we’ve got to take this dirt to such and such tip’. So the truck would back in. He’d scrap the dirt off as much as he needed. Put it into the back of the truck. We’d get up on top of the truck or on the side of the truck, the drawbar or the back of the ladder to make sure that it wasn’t over full, make sure we could roll the tarps out. Make sure nothing was hanging over the sides and that. If that was all okay, we’d roll the tarps back once he tooted the horn, get in the truck and we’d take it away.”[59]
[57]Transcript 251
[58]Transcript 253-254
[59]Transcript 252
79 Mr Baker was then asked to describe what he would step up onto. He said:
Q:“You described a process, and correct me if I’m wrong, where you stepped onto the drawbar and up a ladder at the rear of the trailer?
A:From the front of the trailer you step on the drawbar. On the back there’s a ladder. There’s different – some people have got the ladder on the back. There’s a little ladder weldings is on the front side of the trailer and then there’s a drawbar. You sort of – the drawbar’s, I don’t know, one and a half, two foot of[f] the ground, you step onto that, onto the ladder, have a look, make sure it’s all good. There’s no rocks hanging off the side of the bin, if you know what I mean, and then, yeah, that’s all okay, or you’d say, ‘Listen put a bit more dirt up the front’ because it’s not loaded properly and there might be too much weight on the back or too much weight on the back (sic), you could tell by looking at it.”[60]
[60]Transcript 252-253 and 258
80 Mr Baker estimated that nine out of ten times that he performed those tasks, that Mr Patterson was the operator of the excavator. He estimated that he would check every load. He said:
Q:“When you performed work for Patterson’s Earthmoving, or the vehicle that you used, how often would you climb onto the vehicle?---
A:Every load… I’d stand up there every day and make sure the load’s straight or make sure he’s not overloading me because not just Patterson but everybody likes to get an extra couple of buckets in … .”[61]
[61]Transcript 255
81 Mr Baker described a problem that might occur if the load is all at the back of the dog trailer. That might result in the dog trailer jack-knifing under braking.[62] He was then asked who would make sure the load was level. He said:
“Me. I get up there – I have to go get up there and do it. I have to climb up and first of all I check the truck. I get on the drawbar, like the front of the drawbar where D and E is now. You go backwards towards the front bottom of the picture where the drawbar meets the truck, you’ve got to stand on the drawbar there to look over the trike to make sure the truck’s all right. Then you go along, look at the trailer. Everything’s all right. You get down, roll the tarps out, get onto the road and away you go.”[63]
[62]Transcript 258
[63]Transcript 258-259. In the course of giving that answer he was shown exhibit A and used it to demonstrate what he was describing.
82 Under cross-examination, Mr Baker accepted that an experienced operator of an excavator would have a pretty good sense of whether the tip truck and dog trailer were overweight or not in the course of loading it. He said that he accepted that such an operator would be able to do that within two “ton” of being within or outside the correct weight. He also accepted that he would not stand on the “ladder”, which I presume meant the rungs on the front of a dog trailer, while the operator was swinging the bucket of the excavator. He added that he would stand at the front of the drawbar within 1.5 meters of the bucket on the spare wheel which is shown as “E” in exhibit A. He said that he would stand in that position, have a look, and tell the operator of the excavator how many more bucket loads he thought he could put into the dog trailer.[64]
[64]Transcript 279-281
83 Under further cross-examination, Mr Baker accepted that an experienced excavator operator would make a mound in a pyramid shape in the course of filling the dog trailer and then use the bottom of the bucket to “damp it down”. He did not accept that using the bucket in that way would spread the load nor push the load to the front or the back of the dog trailer.[65]
[65]Transcript 284
84 Mr Baker was asked about how he would get into the tip truck and the dog trailer. He described a different system than the one described by the plaintiff. It would appear that he was describing what he does with his own tip truck and dog trailer.[66]He said that when he worked for the defendant he did not get any assistance from Mr Patterson to remove excess soil from the tipper or the dog trailer. If, however, it was a wet day and the load was wet, he would lift the body of the tipper and the dog trailer to a 45-degree angle, and Mr Patterson would use the bucket to scrape out the residue. Otherwise he would do the cleaning of residue himself.[67]
[66]Transcript 262
[67]Transcript 263-264 and 284-285
Michael Shane Hartnup
85 Michael Hartnup worked with the plaintiff about ten years ago with a company known as Cartage Australia. He drove tip trucks and dog trailers. He had not worked for the defendant.[68]
[68]Transcript 308-309
86 Mr Hartnup said that when he worked for Cartage Australia the dog trailers had fold-down ladders and a step inside the body for the purpose of giving access into the dog trailer. He was asked why he would require access. One of the reasons he gave was cleaning out the body of the dog trailer,[69] and more pertinently he was asked:
[69]Transcript 309-310
Q:“Now, is there any other purpose that the ladders were used for?---
A:Also if you were loading – loading in a – in a paddock, so to speak, where there’s no weighbridges and things like that, majority of the time a driver would stand on those ladders or steps to observe the loading, to ensure that – also he would stand there to ensure that the load was loaded evenly, which prevented – you know, you could – the load would become unstable when you go to tip off, hence the trailer could tip over sideways.
And also, you know, to spread the load out evenly, because you didn’t have no weighbridge to weigh the – weigh the – the load, to sort of try and make sure it was loaded evenly. And also if you had to wind out wind out tarps, you’d want it loaded evenly, or if the loader driver or excavator driver – however it was getting loaded – to – to tap down the load to make sure that the tarps would wind out, because a lot of times they would leave it heaped up in a – in a – in a sort of pyramid shape sort of heap, and you wouldn’t be able to wind the tarps out.
So that’s a lot of times why you would stand up on the – on the – on the ladder or the steps to observe loading.
Q:Was this a practice that you saw regularly performed?---
A:Yes, yep, yep. All the time … .”[70]
[70]Transcript 310
87 Mr Hartnup was shown exhibit A. He said it was a set-up which he had seen before. It was my impression that it was a setup which he had not used himself, but he commented that the rungs seen in the photograph were there to stand on, to gain access to either get into the body of the dog trailer or to observe the loading of the dog trailer.[71]
[71]Transcript 311
88 Under cross-examination, Mr Hartnup agreed that the excavator operator would use the bucket of the excavator to make a mound along the length of the dog trailer and then use the bucket to tap it down and spread the peaks dispersing the soil to the sides; however, he said that the excavator operator could not see into the body of the dog trailer, which is the reason why he would stand up on the ladder observing the loading process. He agreed that an experienced excavator operator would be able to estimate the weight of the load; however, that did not mean that they would estimate the weight correctly, and he added that it was not just a matter of assessing weight, but the distribution of the load to avoid the dog trailer tipping.[72]
[72]Transcript 315-316
89 Under re-examination, Mr Hartnup said that from a personal point of view, he would not leave it to the excavator operator to determine whether the dog trailer had been loaded correctly and safely.[73]
[73]Transcript 317
The Defendant’s case
90 Mr Patterson’s evidence, and the evidence of three truck drivers he called, was diametrically opposite to the plaintiff’s evidence or the evidence of the two truck drivers he called. Essentially, their evidence was that there was no system of which they had knowledge consistent with the plaintiff’s evidence relevant to mounting the drawbar and climbing the rungs on the front of the dog trailer, and in relation to the defendant, Mr Patterson said that he never saw the plaintiff climb the rungs on the front of the dog trailer.
Mr Patterson
91 Mr Patterson is one of two directors of the defendant. The other is his wife. He trained as a truck mechanic. In about 1990, he joined his father’s earthmoving business, and after his father passed away, he purchased the business from his mother. By 2012 the employees of the business comprised Mr Patterson, another excavator operator and a truck driver. The plant and equipment comprised a vehicle used to transport an excavator, an excavator and a tip truck and dog trailer.[74]
[74]Transcript 415-416 and 419 and 421-422
92 Mr Patterson said that a typical episode of work which the defendant performed was levelling out ground on new estates for the purpose of a concrete slab being laid.[75]
[75]Transcript 416
93 The plaintiff was employed by the defendant in 2012. Mr Patterson made enquiries of Envirohaul when he was looking for a truck driver. He employed the plaintiff because he wanted someone with experience, and considered that the plaintiff had the level of experience he was looking for. He was impressed by the plaintiff’s experience and the way he drove trucks.[76]
[76]Transcript 417
94 Much of the evidence given by Mr Patterson regarding how he entered a worksite, how the machinery was set up and how the work was undertaken was not controversial, except for the method of loading the tip truck in the dog trailer, and the role which the plaintiff played in the loading process.
95 Mr Patterson described the loading process as involving loading the tip truck first and then the dog trailer.[77]Under examination-in-chief, he was shown two films which he made showing the use of the excavator loading soil into either the tip truck or the dog trailer. The film showed the use of the excavator to flatten down the soil that had already been loaded into either the tip truck or the dog trailer.[78]
[77]Transcript 427
[78]Exhibits 5 and 6
96 Mr Patterson was then asked about whether he had anyone spotting for him in the work shown in the films or whether he needed anyone to perform that task. He said:
Q:“Do you need to have someone to assist you to direct you where to put the dirt?---
A:No.
Q:How do you know where to put it on when to stop?---
A:Experience. I can see – clearly see it from where I’m sitting in the machine.
Q:What can you see from where you’re sitting in the machine that assists you?---
A:I can see and even peak through the centre of the bodies.”[79]
[79]Transcript 428
97 Mr Patterson then described how he loaded soil into the tip truck or the dog trailer:
Q:“What do you do as you’re filling it to keep – to know when to fill and went to stop, what do you do?---
A:I start at the rear of the bodies, I put every bucket in there until I can see it come up high and then I move – move another bucket over, fill it up to their until I see it higher and then maybe three – three buckets across that’s about the full length of the body until I can see it all peaked and then I just knock it flat.”[80]
[80]Transcript 429
98 By reference to exhibit 2, Mr Patterson said that the soil would be filled generally to below the blue line evident in the photograph of the interior of the dog trailer.[81]
[81]Transcript 429
99 In relation to whether more soil can be loaded into either the tip truck or the dog trailer, Mr Patterson said:
Q:“What tells you whether it’s appropriate to put in more after you’ve gone through the first cycle of peak and press down, what tells you whether you can or can’t put in more?---
A:Generally, if you get some like powdery material, you can pat that down and it’ll go down a long way, so as – and you can sense that by how far your bucket’s stops (sic) in the bottom, in the – in the back, in the bottom of the bucket, you can see – feel how much was in there, so sometimes you might top it up.”[82]
[82]Transcript 429-430
100 In relation to judging the weight of what has been loaded into the tip truck or the dog trailer, Mr Patterson said:
Q:“How do you know when you’re filling the truck or the trailer combined, that is within weight or not within weight; what method do you use?---
A:Method, you can generally – whether the material’s dry or wet, how fine the material is. How chunky the material is. If it’s chunky material it takes up a lot more air space inside the body, so you can put more material in, and you’re still not as heavy. Generally, you can feel the weight when you’re picking it up in the machine bucket, if it’s a bit heavy you can feel it in the excavator.”[83]
[83]Transcript 430
101 Mr Patterson described loading rocks into the tip truck or the dog trailer as being much the same process as loading soil. Generally, if there were rocks at an excavation site they would be stockpiled until the builder would give him authorisation to remove them. They are then removed separately from soil. He described depositing rocks into the tip truck or the dog trailer as being like a rough jigsaw puzzle. He relies on his experience in the way in which he loads them, and his memory as he is loading rocks by putting the larger ones on the bottom and then working up a pile and then loading smaller and smaller rocks which can be moved around and repositioned.[84]
[84]Transcript 433-444
102 Mr Patterson was again asked whether he required a spotter when loading rocks. He said that he did not and that if he needed to find a hole for a rock he would lean out of the cabin of the excavator and stand up and look into the tip truck or the dog trailer. He added that he has never required a spotter to assist him with his work.[85]
[85]Transcript 434
103 Mr Patterson said he had never seen “a site cutter use a spotter in my life”. He described site cutting as the work that he did excavating house blocks. He said that over the time that the plaintiff worked for him that the plaintiff had never worked as a spotter, nor had he asked him to nor had he seen him stand on the rungs of the front of the dog trailer while he was loading the dog trailer.[86]
[86]Transcript 434-435
104 Mr Patterson was then asked about cleaning of the tip truck and the dog trailer. He described a number of methods of doing that, including what was shown in photographs and a further video taken by him. One photograph showed the tip truck elevated with the excavator bucket in the trailer. It demonstrated one way of cleaning which he said he used.[87] The video showed the use of a “ripper” attached to the arm of the excavator which was then used to remove material such as mud that became stuck within the tip truck or the dog trailer.[88] He was asked what he would do if a driver informed him that there was material stuck in the tip truck or the dog trailer, and what he would do:
Q:“Now, you’ve said that sometimes the drivers would come back and say, ‘Look, there’s a bit too much that’s stuck in there’, and what did you do in order to deal with that situation, where there was a build up of dirt that remained in the tipper or in the trailer after the person had been to the tip? Just describe how you went about dealing with that?---
A:You put the bodies up in the air, either stagger the truck – and if it’s truck and trailer, he has to stagger to put the trailer drawbar to the side, so I can come up behind him. Put the body up in the air, get it out with my bucket if there’s – sometimes I tap the bodies with the bucket, and that sort of jolts it out. If that doesn’t work, I’ll put the ripper on, and that gets in all the corners.”[89]
[87]Exhibit 8 and Transcript 440-441
[88]Exhibit 9 and Transcript 441
[89]Transcript 439
105 Mr Patterson said that there was no way that the plaintiff could climb up and over the front of the dog trailer to get into the dog trailer because there are no steps. He said that the only way to get into the dog trailer was to swing open the tailgates and then use a ladder to get into the dog trailer. He said that he had no recollection of the plaintiff ever asking him to provide a ladder so that he could get into the dog trailer in that way. He said that he had never seen the plaintiff climb over either into the tip truck or the dog trailer without using a ladder.[90]
[90]Transcript 443-444
106 Under cross-examination, Mr Patterson repeated that he had never known drivers to climb up the rungs on the front of the dog trailer for any reason, and not in the business which he conducted.[91] He agreed that it was important that in loading the tip truck and the dog trailer that the load be relatively well-balanced, and that the drivers would want to know that the tip truck and the dog trailer were properly loaded. He also agreed that if the tip truck and the dog trailer were not loaded properly, that the drivers would be the ones in trouble if the load was unsafe or would be exposed to a fine if the tip truck or dog trailer were overloaded.[92]He also agreed that the only way that a driver could check the dog trailer for himself would be to climb up the rungs on the front of the dog trailer, and that there was no other way such checking could be undertaken.[93]
[91]Transcript 483-484
[92]Transcript 485, 487-488
[93]Transcript 487-489 and 498
107 Next, Mr Patterson agreed that he had used the rungs on the front of the dog trailer to gain access to inspect the tarpaulin cover when he had observed cracks in it. He described, by reference to exhibit A, that he would hop up onto the drawbar, stand on point E, then maybe to point D and then on to point C and up onto the rung marked B. It was the means he used to gain access to the tarpaulin cover to visually inspect cracks in it.[94]
[94]Transcript 497-498
108 Next, Mr Patterson said that the plaintiff was completely wrong in his evidence that he gave guidance to Mr Patterson where to place soil in the dog trailer. He agreed that he had no idea how drivers would check to see if the load in the tip truck and the dog trailer were safe during a period when he was an inexperienced excavator operator, and he added that he had no recollection of drivers spotting for him when he was an inexperienced excavator operator.[95]
[95]Transcript 500
109 Next, he agreed that he had no reason to believe that the plaintiff injured his left knee hopping down from the cabin of the tip truck or walking on uneven ground.[96]He agreed that when he spoke to the plaintiff immediately after the incident, that the plaintiff was in excruciating pain and that the plaintiff told him that he had hurt it on the drawbar. He repeated that the plaintiff said that the plaintiff told him that he was looking into the tip truck at the time when the incident occurred.[97]
[96]Transcript 502
[97]Transcript 502-503
110 Next, Mr Patterson was taken to a Claim Form to be completed by the employer. He agreed that the Claim Form he was shown was the one completed by his wife, who is a fellow director of the defendant, based on what he told her of the incident. He was taken to an entry answering a question “What happened and how was the worker injured?” the answer provided is:
“Went to step up onto trailer.
He felt his leg go pop and pain.”[98]
[98]Exhibit Y
111 Mr Patterson, when confronted by the entry on the Claim Form, said that he always believed that the incident occurred as he described earlier, on the drawbar at the tip truck end of it. He said that he had no idea why there is a reference to the dog trailer.[99]
[99]Transcript 503-50
112 Next, he repeated that the purpose of the rungs on the front of the dog trailer were to provide access to the top of the trailer; that the driver of the truck had an obligation to make sure that the tip truck and dog trailer were not overweight, and that the tip truck and dog trailer were evenly loaded. He agreed that it was reasonable for a driver to check that for himself if he wanted to, and if he wanted to, he would climb up the rungs on the front of the dog trailer. It was in this context that he was asked whether the plaintiff asked him to change the rungs on the front of the dog trailer and put a ladder on the dog trailer. He said that if he had been asked by the plaintiff to do that, that he would have “approached it”. He was asked whether the plaintiff asked him about that, and that he did not give the plaintiff an answer. He said that would have been out of character for him.[100]
[100]Transcript 506-507
113 Next, Mr Patterson said he had never seen the plaintiff clean the dog trailer. He referred to a previous driver cleaning the dog trailer. He gained access to it using a ladder at the yard where the tip truck and dog trailer are stored, and with a ladder obtained from a nearby shed. The cleaning occurred by swinging open the tailgate of the dog trailer against which the ladder was placed.[101]
[101]Transcript 507-508
114 Under re-examination, Mr Patterson said that if he wanted to use the ripper to clean around parts of the dog trailer then he would reposition the excavator, and it was something that he had done in 2012.[102]
[102]Transcript 508
115 Next, Mr Patterson said that the occasions that he used the rungs on the front of the dog trailer were to check the tarpaulin cover for cracks and corrosion, and to apply grease to grease points at the bar at the top of the dog trailer.[103]
[103]Transcript 514
The Defendant – a system of work
116 In addition to Mr Patterson’s evidence that there was no system of work of the kind described by the plaintiff, the defendant called a body of evidence for the purpose of demonstrating that there was no such system nor seen as part of an industry system or practice performed by other truck drivers.
James Joseph Cowling
117 Mr Cowling has been employed in the earthmoving industry for twenty-five years. Most of his work has been as an excavator operator, but he has also worked as a truck driver, grader driver and operator of other plant. He worked for the defendant between 2003 and 2005. He estimated that about 70 per cent of the time he worked as an excavator operator, with the balance of the time as a truck driver.
118 Mr Cowling said that in the two years or so that he worked for the defendant, he had no need at any time to climb onto the exterior of the tip truck or the dog trailer to look at material loaded into the tip truck or the dog trailer nor for any other reason.[104]
[104]Transcript 523
119 Mr Cowling described loading the tip truck and the dog trailer in much the same way described by Mr Patterson. He would fill up the middle of the tip truck or dog trailer and work his way from one end to the other. He said that he would be able to see the soil in the middle of the tip truck or the dog trailer. He described the mound that developed as he was doing the loading as being “like a tepee”.[105]
[105]Transcript 524
120 Mr Cowling said that he could see the soil as he was pushing it around spilling it into the corners of the tip truck and the dog trailer which would give him a very good indication that the load was evenly distributed.[106]
[106]Transcript 525
121 Mr Cowling said that determining whether there was overloading was very much a matter of experience. He said that as loading was occurring, the heaviness of the material would give him a rough idea of how much he needed to load into the tip truck and the dog trailer. He added that the soil would feel heavy through the hydraulics of the machine which would give him an indication of whatever he was picking up was heavy. He said that applied whether the soil was wet, very heavy or dry.[107]
[107]Transcript 525
122 Mr Cowling said that he used the bucket of the excavator to clean the inside of the tip truck and the dog trailer. He would back up the truck to the excavator, lift the body of the tip truck and the dog trailer, allowing him to see inside each, and then reach inside with the arm of the excavator to scrape material away. He said that was a technique he used when he worked for the defendant.[108]
[108]Transcript 525-526
123 Under cross-examination, Mr Cowling agreed that it is the responsibility of the driver if the tip truck and the dog trailer are overweight, exposing the driver to a fine, and that if the load is unbalanced, then it is a danger to the driver. He agreed that it would be wise for the driver to make sure that the load is evenly balanced. He said he was not sure how a driver would check because it is not something he had done.[109]
[109]Transcript 526-527 and 532-533
124 Mr Cowling disagreed that most dog trailers have external access steps. He was shown exhibit A and his attention was directed to the rungs on the front of the dog trailer. He said that he did not know what they were for. He had seen rungs like that from time to time but not on the majority of trucks which he had seen. He said that he thought the purpose of those rungs was as a form of access to adjust tarpaulins, and when there were no tarpaulins fitted, he said he had not seen rungs like that on dog trailers. He was then shown the photograph of a tip truck and a dog trailer in exhibit D which he described as a quarry truck. He said they were trucks with which he was not familiar.
125 Mr Cowling agreed that it was up to the driver of the tip truck and the dog trailer to make a judgement for himself whether it was necessary to undertake that task.[110]
[110]Transcript 529
126 Mr Cowling was shown exhibit X and he agreed that a significant imbalance might occur when loading rocks unless the rocks were placed properly. He said that loading rocks was no different than loading soil except that it is a matter of the care taken and the manner in which they are loaded.[111]
[111]Transcript 531-532
William James Price
127 Mr Price is a retired operator of excavator and earthmoving equipment. He still engages in some casual work in that respect. He entered the earthmoving industry in about 1970 operating backhoes, excavators, trucks, graders and bulldozers. He worked for Mr Patterson’s father between 1990 and 2002, and with Mr Patterson in 2013. He estimated that he spent equal time driving trucks and operating an excavator.
128 Mr Price said that he had no need at any time to climb onto the exterior of the tip truck or the dog trailer. He said that supervision, and I presume he meant when loading the tip truck and the dog trailer, was performed from ground level because it was too dangerous to do it from the tip truck or the dog trailer. He said that he climbed on the exterior of the tip truck or the dog trailer “Very rarely - no, very rare, if you had to. It’s very rare.”[112]
[112]Transcript 539
129 Mr Price said that in the course of loading the tip truck and the dog trailer, he would count how many buckets full he would load, and then rest the bucket into the body of the tip truck and the dog trailer which would tell him how full it was. If the bucket of the excavator was exposed on top of the body of the tip truck and the dog trailer, then he considered that it was a “pretty well full load”. He said that he would sometimes stretch his neck out and look out from the cabin of the excavator to see how high the load was as another way of checking.[113]
[113]Transcript 539-540
130 Mr Price said that in relation to cleaning the interior of the tip truck and the dog trailer, he would reverse them up to the excavator, put the body up and scrape the floor of the body of each with the bucket of the excavator, and also use the ripper.[114]
[114]Transcript 540
131 Under cross-examination, Mr Price said that when he started in the industry people would get into the tip trucks and dog trailers to clean them and to perform repairs. He disagreed that a lot of trucks were provided with a broom and shovel to perform cleaning. If a shovel was provided it was usually for the purpose of cleaning along the edges of the tip truck and dog trailer to avoid dirt falling off onto roads, presumably when the tip truck and dog trailer were driven from the worksite. He said that the cleaning was usually done in the yard, presumably where the truck and dog trailer were kept, by swinging open the tailgate, and using a ladder to climb into the back of each.[115]
[115]Transcript 542-543
132 Mr Price disagreed that the driver needed to know what was going into the tip truck and the dog trailer. He disagreed that a tip truck and dog trailer would be unbalanced because the excavator operator would level out the load that was going into the tip truck and dog trailer. He said that a careful driver should not be “going that hard”, which I assume meant a reference to speed of driving, if the tip truck and dog trailer were slightly unbalanced. He disagreed that a driver would make sure the load was properly balanced because to do that would put him in danger, and I presume he meant being in close proximity to the arc of operation of the excavator. He said he had never seen drivers checking loads to see if they were overweight or evenly balanced.[116]
[116]Transcript 544-546
133 Mr Price was shown photographs of steps providing access. He agreed that they are provided as a means of access and looking into the back of a tip truck or dog trailer. He said that the steps were there for the owner to use, and when asked what he meant, he said that the driver was not expected to get up onto the back of the tip truck or dog trailer at any stage, that “it should be done by the operator”, and by his next answer it would appear that he was referring to a point in time when the tarpaulin was pulled over the load.[117]
[117]Transcript 548-549
134 Mr Price disagreed that loading rocks would, in his experience, unbalance the tip truck or the dog trailer. He said that in his experience of loading rocks, it did not unbalance the tip trucks and dog trailers he had driven. He said that the only time unbalancing would occur is when the tip truck and dog trailer are tipping, and I assume he meant at the tipping site. He said that whether the excavator operator is experienced or inexperienced, it is for the driver to trust what the operator is doing.[118]
[118]Transcript 549-550
135 Under re-examination, Mr Price said that the operator would rely on feel and experience in picking up and loading rocks. He said there was no need for the driver to check whether the load is balanced or even because the operator will know how much he has loaded.[119]
[119]Transcript 553-555
Jayden Pickering
136 Mr Pickering has been employed in the earthmoving industry during two periods – about fifteen years ago he worked in the industry for about twelve to eighteen months, and then over the last five years. He worked for the defendant from 2015 to early 2019 as a truck driver.
137 Mr Pickering said that he had no need at any time to climb onto the exterior of the tip truck or the dog trailer to look at material loaded into the tip truck or the dog trailer.[120]
[120]Transcript 557
138 Mr Pickering described the different techniques used by excavator operators in loading tip trucks and dog trailers. He said generally, the tip truck and dog trailer would be lined up to a point where they could be reached by the excavator, and then the excavator operator would proceed to load the tip truck and the dog trailer. He said that the larger excavators would allow the operator to see into the back of the tip truck and dog trailer and observe whether they were full. With the smaller excavators, the small dirt mound in tip truck or dog trailer, and then lower the bucket down to feel the height of the soil.[121]
[121]Transcript 558
139 Mr Pickering said that in relation to questions of safety, that he was told “from the first day” by Mr Patterson never to get close to the excavator within reach of the bucket of it. Around the excavator he would use a two-way radio to make contact with Mr Patterson when he was in the tip truck, and when he was out of the tip truck he would make contact with Mr Patterson “I just sort of wave my arm, to get his attention”, and then he would approach him when the bucket of the excavator had been placed on the ground. He would never approach the excavator from the blindside, but from the offside where the operator would be sitting.[122]
[122]Transcript 559
140 Mr Pickering described the same system for cleaning the tip truck and the dog trailer as did the defendant’s other witnesses. If there was dirt stuck in the back of one of them, then the body would be tilted and the bucket of the excavator would be used to loosen whatever was stuck. He said there was never a need for him to climb into the body of the tip truck or the dog trailer to undertake cleaning.[123]
[123]Transcript 559-560
141 Under cross-examination, Mr Pickering said that at the bigger excavation sites he would not be allowed out of his truck; however, with the defendant he was allowed out of the tip truck as long as he kept away from the excavator.[124]
[173]Transcript 46
[174]Transcript 58-60-65
[175]Transcript 64-65
251 Under examination-in-chief, the plaintiff was asked about a subtalar fusion of his right ankle in 2018 and what he believed to be the cause of the right ankle problems which led to that surgical procedure. He said:
Q:“What had caused that? What made you get treatment to your ankle?---
A:Because I fell over a few times on it and twisted it bad or – yeah, folded it under, sort of sprained it and rolled it over.
Q:So what caused you to fall?---
A.Oh my knee, it’s - my knee let go and I just went over, twisted and went over.”[176]
[176]Transcript 48
252 I was referred to a number of other entries in the notes of the Medical Centre which the plaintiff submitted demonstrated that there was a causal connection between the plaintiff’s left knee giving way and resulting in injury to his right ankle requiring the further treatment he obtained, including the subtalar fusion:
· 16 October 2015 – the entry firstly refers to the plaintiff’s left knee injury being a work-related injury, and following that is the following relevant entry “gave way this morning when went down a small step and twisted right ankle”. On examination, it was noted that the plaintiff had a “swollen and bruised right ankle” and the conclusion reached was that he had a “Moderate Right Sprained ankle”. There are two entries bearing the same date. Dr Williams said that the reason for that was that one was in relation to WorkCover, and the other was in relation to the right ankle injury which he considered to be separate from the WorkCover part of the consultation.
· 4 January 2016 – the entry reads “Right ankle pain. Injury – about eight weeks ago had a fall.” On examination, it was noted that his right ankle was swollen, tender and movements of it were restricted.
· 18 January 2016 – the entry refers to “Ankle swelling”. There is a musculoskeletal problem and a suspected cardiovascular problem related to noted “Ankle swelling”. A further entry relied upon by the plaintiff is 21 January 2016, when ankle swelling was noted, but in a cardiovascular context, with a diagnosis of vasculitis. It does not appear to be related to the injury to the right ankle.
· 15 March 2016 – the entry reads “3 days ankle pain twisted R ankle”. On examination, it was noted that the plaintiff had bruising and swelling around the right ankle and was in significant pain.
· 1 April 2016 – the plaintiff had previously been referred to have an x-ray of his right ankle. The results of the x-ray were provided to the plaintiff at a consultation on 2 April 2016. There is nothing in the entry to suggest any abnormality disclosed by the x-ray.
· 18 July 2016 – the entry reads “rolled right ankle when walking outside last week - ankle has remained stiff since then - see injury back in March 2016 with x-ray then following USS in January”.
· 10 October 2016 – the entry notes that the plaintiff’s right ankle was worsening. He was prescribed Mobic with consideration given to a referral to physiotherapy.
· 14 October 2016 – the entry reads that the plaintiff’s right ankle was “really sore and feels like knife stabbing and aching all the time”. A reference was made in the clinical note to CT scan taken in 2008 and management by Mr Nelson, to whom the plaintiff was referred for treatment in 2008.
· 21 December 2016 – the entry reads that the plaintiff had a “tubi grip (sic) application” on his right ankle.
· 2 June 2017 – the note refers to left knee, right ankle and right foot pain in the prescription of medication.
· 14 August 2017 – the entry refers to left knee and right ankle pain. It cryptically referred to a CT scan of the right ankle/foot and a reference to chronic pain/swelling and to question whether it was related to an “injury 18 months ago from fall”. It also refers to the prescription of medication.
· 22 August 2017 – the entry refers to right ankle and right foot pain and referral to another medical practitioner.
· 26 August 2017 – the entry refers to left knee and right ankle pain, and on examination, swelling of the right ankle, tenderness and restriction of movement.
· 28 August 2017 – the entry refers to right ankle pain, but the purpose of the visit appears to be for other medical conditions.
· 14 September 2017 – the entry refers to right ankle pain and swelling of the right ankle, tenderness and restriction of movement. It also refers to a referral for an orthopaedic assessment.
· 16 October 2017 – the entry refers to ongoing issues with right ankle pain more than when compared with the left knee pain.
· 18 October 2017 – the entry refers to swelling in the left knee and right ankle and tenderness and restriction of movement in both.
· 16 February 2018 and 9 March 2018 – both entries refer to the subtalar fusion of the plaintiff’s right ankle.
253 Dr Williams was the principal medical witness who gave evidence regarding the plaintiff’s past problems with his right ankle, whether he injured it in October 2015 because his left knee gave way, and whether it was probable that his right ankle would have interfered with his capacity to work at some stage prior to the time when the plaintiff submitted he would have continued working but for his left knee injury, and whether he would have come to surgery to his right ankle sooner than he did.[177]
[177]Transcript 356-362
254 It would appear that the plaintiff had a problem of sufficient significance with his right ankle prior to the incident that required medical treatment in 2008 and 2009 by reference to the clinical notes of the Medical Centre; however, there are no entries suggesting that the plaintiff’s right ankle was an issue for him of such significance that he required any treatment between 14 May 2009 and 16 October 2015.
255 The incident which occurred on 16 October 2015 when the plaintiff’s left knee gave way, resulting in the plaintiff suffering injury to his right ankle, appears to have been an incident of real significance, and I think that is well established by the content of the clinical note of the Medical Centre of that date. It is clear that subsequently, the plaintiff sought and obtained medical treatment for a troublesome right ankle which ultimately led him to requiring a subtalar fusion in 2018.
256 I think it is probable that if the plaintiff had not suffered the twisting of his right ankle, that it would not have interfered with his capacity for work, nor would he have come to surgery sooner. Under re-examination, he was taken to a number of the entries in the clinical notes for the purpose of then being asked the following critically important question:
Q:“… What would you say, having looked at those, was the prime – was the causative incident which caused the right ankle to start causing further problems?---
A:The left knee giving way, and stepping down and twisting it, ---
Q:And ---?---
A:--- injury on the – 16 October.”[178]
[178]Transcript 378
257 I think what this evidence demonstrates is that despite having pre-existing degenerative changes in his right ankle, it took the occurrence of a significant twisting injury to make it symptomatic, and significantly so. It is difficult to see what the course of events would have been had that significant twisting injury not have occurred. I think it is probable that the plaintiff would have continued working with the same degree of difficulty that he was experiencing prior to the twisting injury. Those problems were not sufficient to interfere with the plaintiff’s capacity for work.
The other medical conditions
258 The defendant submitted that the plaintiff had a history of other medical conditions which would either individually or collectively interfere with the plaintiff’s capacity for work. I will deal with them individually.
Faints
259 Under examination-in-chief, the plaintiff described having suffered a cerebral aneurysm in 1999. It had a dramatic effect upon him. He said he had to learn to read, write and spell all over again. He recovered his faculties to the point where he was able to obtain a licence to drive trucks, and was then able to work without incident.[179] One impact that it did have on him was loss of memory for events which occurred around the time that he suffered the aneurysm, and I infer during the period of his recovery.[180]
[179]Transcript 24-25
[180]Transcript 53
260 Under cross-examination, the plaintiff denied that there were any residual consequences of the aneurysm which continued to cause him problems. The basis of the cross-examination was found in the clinical records of the Medical Centre. The plaintiff saw Dr Williams on 24 October 2016 due to an episode of collapse. He recorded the following:
“had an episode last night of lying in his seeat (sic) last night and turned red and making choking sound lasted about 1 minute
had little awareness of event
see previous investigations in July 2014
has apparently happened about 5 times
does seem to be related to choking/coughing.”[181]
[181]Exhibit 19
261 Dr Williams referred the plaintiff to Neurology Outpatients at Ballarat Health Services. His letter of referral dated 24 October 2016 is as follows:
“… who had 3 cerebral aneurysms repaired in 1999 and has been essentially well since. Since mid 2014 he has had 5 witnessed episodes of loss of consciousness associated with choking or cough and some post episode confusion. There seems to be no movements or incontinence associated and CT scan in 2014 was only showing operative changes.”[182]
[182]Exhibit 19
262 Next, the plaintiff was referred to the clinical note and the letter of referral. He was prepared to accept that the content of both was accurate, however, it was my impression that he had no independent recollection of the factual content of either.[183]
[183]Transcript 70-72
263 Next, Mrs Talent was referred to the clinical note. She said that she attended the consultation with the plaintiff, and was probably the person who informed Dr Williams of the events referred to in the clinical note. She described the events as the plaintiff having fainted for a second, after which he woke up not realising what had just happened. She agreed that he was confused after the last event she witnessed.[184]
[184]Transcript 191-194
264 Next, Dr Williams considered that what he was informed about which was recorded in the clinical note was a faint not an episode consistent with epilepsy.[185] He said that the episode would not have seen him advise the plaintiff to stop truck driving because he did not think the episodes were “a serious issue”.[186]
[185]Transcript 350
[186]Transcript 352. The cross-examination on this issue occupied a significant part of the cross-examination of Dr Williams from Transcript 352-356
Lumbar spine
265 Under cross-examination, the plaintiff was asked whether he recalled suffering injury to his lower back on the following occasions:
· Hurting his lower back when he slipped in a van when working for Don Watson.
· In 1988, aggravating his lower back when he fell two feet when working for Blue Line Meats.
· In 1998, hurting his lower back while shovelling a footpath when working for the Bacchus Marsh Shire.
· In 1991, hurting his lower back, and also his shoulders when he fell from a truck.
· In 2003, he had an episode of lower back pain for which he attended a medical practitioner at the Medical Clinic.[187]
[187]Transcript 54-56
266 Next, Dr Williams was referred to the clinical notes of the Medical Centre, and in particular, 30 July 2003, 16 April 2007, 21 May 2014 and 31 August 2015 which refer to the plaintiff suffering lower back pain.[188]
[188]Transcript 364 and exhibit 15
Left shoulder
267 Under cross-examination, the plaintiff was asked whether he suffered pain in his left shoulder in 1991 after he fell from a truck.[189] He was asked about whether he suffered chronic pain in his left shoulder region in November 2017. He was referred to the clinical notes of the Medical Centre of 22 November 2017. Dr Williams recorded that the plaintiff was suffering chronic pain and that the reason for his visit was a left supraspinatus tendon tear. It would appear that he was referred to have an ultrasound and was prescribed Norspan.[190]
[189]Transcript 54-55
[190]Transcript 68-69 and exhibit 15
268 Next, Dr Williams was referred to the same entry in the clinical notes. He said that the plaintiff was suffering from chronic long-standing pain in his left shoulder. He agreed that the left shoulder, in addition to other medical conditions the plaintiff acquired, were indicators of different stresses on the plaintiff’s body over his working life.[191]
[191]Transcript 367-368
Right shoulder
269 Under cross-examination, the plaintiff was asked whether he suffered pain in his right shoulder in 1991 after he fell from a truck.[192]
[192]Transcript 54-55
Neck and headaches
270 Under cross-examination, the plaintiff was asked whether he suffered pain in his neck and from headaches in 1991 after he fell from a truck.[193]
[193]Transcript 54-55
Hand pain
271 Under cross-examination, the plaintiff was referred to the clinical notes of the Medical Centre of 10 and 18 April 2016 which referred to him suffering joint pain in his hands. He was referred to have an x-ray, and on 18 April 2016, he discussed the results of the x-ray. A cryptic note of that occasion refers to “Osteoarthritis of hand”. He was provided with a prescription for Panadol Osteo and Mobic.[194]
[194]Transcript 56-57 and exhibit 15
272 Next, Dr Williams was referred to the same entry in the clinical notes. He said that it was consistent with some sort of osteoarthritic process consistent with an ageing body.[195]
[195]Transcript 366
Right knee
273 Under cross-examination, Dr Williams was referred to the clinical notes of the Medical Centre and to entries dated 16 April 2014 and 22 April 2016 which refer to the plaintiff suffering right knee pain.[196]
[196]Transcript 365 and 367 and exhibit 15
Plantar fasciitis
274 Under cross-examination, Dr Williams was referred to the clinical notes of the Medical Centre and a referral dated 27 July 2012 to a Mr Miles White at Ballan District Health & Care for osteoarthritis of the foot and plantar fasciitis. Dr Williams believed that Mr White was a physiotherapist.[197]
[197]Transcript 364-365 and exhibit 15
The effect of the other medical conditions
275 The defendant submitted that the collection of the other medical conditions adversely affected the plaintiff’s functioning, either individually, but more importantly collectively, exposing the plaintiff to a likelihood that they would worsen and become symptomatic in time.
276 That proposition was put to both Professor Pirpiris and Dr Williams. Professor Pirpiris was provided with a timeline taken from the clinical notes of the Medical Centre relevant to the plaintiff’s lower back, right ankle, hands, left shoulder and what the defendant contended was a general deterioration in the plaintiff’s body orthopaedically.[198] In answer, he said:
“Yes, I think people can sort of form opinions as to what the timeline may represent, but you know, unfortunately in clinical practice, we really like the substance behind each of the presentations before we can form a – an opinion that’s strong for the court. And you know, I – I mean Ms Kaye, I can – and depending on what His Honour would like to do – I really would like to see the – the details of those incidents before I – I provide a court opinion.
So one opinion, one – one assumption may be that they’re a chronology in the form related to the various degenerative conditions that have occurred in Mr Talent, but without – which is your, I think suggested opinion, that you asked me to comment on – but really you’d need – I – I would need more substance, or any clinician would need a little bit more substance in order to form an opinion as to what they represent in clinical practice.”[199]
[198]Transcript 232-237
[199]Transcript 237
277 Dr Williams was asked a series of questions canvassing the same point:
Q:“And leaving aside the knee incident that this case is about, there is a real likelihood, isn’t there, that any of those other orthopaedic degenerative problems that I’ve just taken you through, could flare or become symptomatic at any time?---
A:Yes.
Q:And could cause Mr Talent – if he was still working – real problems in continuing to work?---
A:Depends on the individual circumstance, yes. People with tendon tears can struggle with trucks because you have to reach up to get in them. So yes. All of these things depends (sic) on how severe it is in context of what they’re doing, yeah.
Q:With a number of the problems that he’s talked about – take for example the left shoulder?---
A:M’mm.
Q:--- likely to be progressive? That is they’re likely to get worse rather than better?---
A:Not necessarily the tendon tear, that tends to be – that’s an acute event. There’s acute inflammation, acute pain. That tends to resolve over, you know, six weeks to six months. If you don’t do anything about them, they – it tends to resolve, the body tends to heal things if you leave them be. Certainly something like that. That’s different to an osteoarthritic thing, that’s an acute – an acute event. So if we’re talking the shoulder, that’s an acute tear. You know, I reach up, I tear the tendon, it gets inflamed, it gets painful. If I do nothing, the acute soreness goes away, the body tends to make things better.
Q:But the other problems are likely attributable to some sort of osteoarthritic degeneration?---
A:Yeah, the foot. The foot would just keep getting worse as it – as it did. And – and I’m sure the osteoarthritic knee on his right side that we’ve been alluding to, is going to degenerate over time as well, yeah.”[200]
[200]Transcript 368-369
278 Dr Williams was asked about the plaintiff’s obesity and the impact upon his left knee. He said that the plaintiff was probably a real candidate for left knee problems, leaving aside the occurrence of the incident.[201]
[201]Transcript 369-370
Legal principles
279 The defendant referred me to a number of authorities relevant to the manner in which I should assess the plaintiff’s damages.[202]The submission requires me to make a judgement as to the likely consequences which might have been caused by the worsening of the other medical conditions if the plaintiff had not suffered the left knee injury and the right ankle injury.
[202]Watts v Rake (1960) 108 CLR 158 (“Watts”); Purkess v Crittenden (1965) 114 CLR 164 (“Purkess”); Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”); Sellars v Adelaide Petroleum NL & Ors; Poseidon Limited v Adelaide Petroleum NL & Ors (1994) 179 CLR; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 (“Seltsam”); Tabet v Gett (2010) 240 CLR 537, and Smith v Gellibrand Support Services Inc (2013) 42 VR 197 (“Smith”)
280 Additionally, the defendant submitted that it is permissible to treat the other medical conditions potentially as constituting evidence of a basket of conditions demonstrating an orthopaedic deterioration in the plaintiff over his working life.[203]
[203]Smith at paragraph [66]
281 The plaintiff emphasised that in the context of the principles enunciated in the authorities, that the process that I must undertake should align with what was also observed in Purkess, that the evidence relied upon by the defendant should establish “with some reasonable measure of precision” the future effects of the medical conditions, including their nature and what their future development and progress were likely to be. A not dissimilar observation was made in Seltsam, that the process of reasoning relevant to the possible ongoing consequences of a pre-existing condition, for example, is that the consequences be capable of reasonable definition.[204] I take the use of that language to be consonant with what was said in Malec.[205]
[204]Seltsam at paragraph [103] and Smith at paragraph [73]
[205]Malec at 643
282 The effect of the defendant’s submission is that the plaintiff’s damages must, therefore, be significantly circumscribed.
Damages – the Defendant’s submission
283 I do not propose to recapitulate the very particular treatment I have given to each of the other medical conditions, but on any reasonable view, most of them are of little or no consequence. To simply refer to the plaintiff’s weight, fainting spells, lumbar spine, left shoulder, right shoulder, neck and headaches, hand pain and plantar fasciitis, and to then submit that there was a likelihood that they would worsen in the fashion submitted by the defendant at some point in the future, is to draw a long bow.
284 The evidence which the defendant relies upon, in submitting that it has discharged its onus, was through cross-examination of Professor Pirpiris and Dr Williams. Again, I do not intend to recapitulate their evidence, but it was not my impression that Professor Pirpiris accepted any of the propositions that were put to him, and dealt with the timeline in a fashion which I think demonstrates the quality of the evidence relied upon by the defendant in this respect. Professor Pirpiris made it very clear that it is necessary to look at the detail of the medical conditions in order to provide an opinion of any validity. The defendant made no effort to do that except on the run as it were through cross-examination.
285 I think the only medical condition of any substance which may be consistent with the submissions of the defendant is the plaintiff’s right ankle; however, after analysing the nature and extent of the pre-existing condition of the plaintiff’s right ankle, I am satisfied that it was not troubling the plaintiff very much. The fact that he came to a subtalar fusion is of itself significant, and indeed, Dr Williams considered that to be so. However, the question whether there was a likelihood that it would have worsened and would have disabled the plaintiff to some extent is very difficult to determine if not entering the realms of speculation.
286 In the background of what might have been a low-level grumbling problem with his right ankle, the plaintiff otherwise appears to me to have been rather stoic in putting up with it and doing his work. It took a serious twisting of his right ankle for it to become symptomatic. It was a very different incident which promoted it to being symptomatic than simply climbing in and out of a truck or walking on uneven ground as the defendant proposed might have been the precipitator of a more symptomatic right ankle resulting in disablement.
287 I think I have dealt with the defendant’s submission in as much detail as I think is necessary. In an overall sense, and looking at all of the evidence relevant to its submission, I am just not satisfied that it has discharged the onus which it bears to satisfy me that there was a likelihood that these medical conditions would have worsened subsequent to the occurrence of the incident resulting in disablement, and warranting a circumscription of the plaintiff’s damages in any respect at all.
288 For the sake of absolute completeness, I include in the consideration I have just given to the defendant’s submission the pre-existing degeneration in the plaintiff’s left knee. Again, Professor Pirpiris dealt with that in a way which I accept. I think the incident was one of real significance, resulting in an injury consistent with real force being applied through the plaintiff’s knee.
Pain and suffering/loss of enjoyment of life
289 The plaintiff is now sixty years of age. He was born in July 1960. He is a married man with children and grandchildren. He had limited secondary schooling, going part of the way into Year 9 at Mildura Tech, before leaving school altogether. He pursued farm work before obtaining a truck licence. He then pursued truck driving as his occupation from about the age of twenty-one years.
290 Before the occurrence of the incident, the plaintiff and his wife lived on a 6-acre property at Greendale. The property was divided into three paddocks. They ran a few sheep. They had a few dogs. The property was treed. The plaintiff looked after the property. He mowed the lawns using a ride-on mower. He raked leaves by hand. He looked after the swimming pool at the property. The plaintiff’s habit was to work about six days a week, and sometimes seven days a week.
291 The plaintiff and his wife sold the Greendale property because the plaintiff was no longer able to do the work required to maintain the property because of his injuries. He felt very disappointed that he had to sell the property.
292 The plaintiff’s present circumstances are that his mobility is dramatically affected by his left knee injury and right ankle injury. He takes a walking stick with him every day. He has pain in his left knee all of the time. It is pain which is through the knee and behind it. His sleep is interrupted three or four times each night. It is interrupted because of pain. He continues to use Panadol Osteo and Mobic for pain relief.
293 His mood has been affected by the consequences of his left knee injury and right ankle injury. He uses Lexapro to control his mood. He was not moody before the occurrence of the incident. He described himself as easygoing.
294 I am in little doubt that the overwhelming injury which has brought the plaintiff to the position which I have summarised is the left knee injury, and, to a lesser extent, the right ankle injury, and their consequences. For reasons which I will set out shortly, I am not convinced that the other medical conditions have resulted in the degree of interference with the plaintiff’s life and activities contended for by the defendant.
295 I think it is fair to say that the injuries to the left knee and left right ankle have impacted gravely upon the plaintiff’s overall life. He has lost his capacity to work completely, and he is reduced to almost the position of an invalid who is reliant upon medication to deal with a persisting level of pain in his left knee. I think that calls for a significant measurement in damages. I consider that a full, fair and reasonable assessment of his damages for pain and suffering and loss of enjoyment of life is $200,000.
Past economic loss
296 The plaintiff and the defendant provided me with an updated list of special damages. They agreed on the calculation of past economic loss. In summary:
· Net weekly wages as at the date of injury – $1,123.00.
· Weekly superannuation as at the date of injury – $93.60.
· An assumption that the plaintiff would have obtained wage increases of 1.8 per cent per annum.
· A calculation based upon the foregoing amounts to $485,195.78 for past loss of earnings, and $44,400.67 for past loss of superannuation, amounting to $529,596.45.
297 The plaintiff claims future loss of earnings as follows:
· Net weekly wages at an indexed rate of 1.8 per cent – $1,295.27.
· Weekly superannuation at 9.5 per cent of gross earnings of $1,687.43.
298 On these calculations, the plaintiff’s past economic loss is $529,596.45. I am satisfied that the plaintiff is entitled to recover the whole of his past economic loss.
Future economic loss
299 The plaintiff was asked to forecast the age to which he would have worked before retiring. He did not nominate a conventional retirement age, but merely referred to someone he knows who is still working in his seventies. I do not accept that the plaintiff would have worked to that age. It was submitted arbitrarily that I should calculate the plaintiff’s future economic loss to sixty-seven years of age. There was no evidence adduced by the plaintiff to demonstrate the general age to which truck drivers in the earthmoving industry generally work to, so the age to which I think the plaintiff would have worked is left in an unsatisfactory state.
300 I think that it is probable that the plaintiff would not have worked beyond sixty-five years of age. I note that, although I asked the parties to provide me with a range of multipliers, that they have only provided me with one relevant to seven years into the future. That 6 per cent multiplier is 299.9. I do not know the source of it, and I am not prepared to locate a different multiplier without the plaintiff and the defendant turning their collective minds to a multiplier to five years into the future.
301 The vicissitudes are always difficult to assess because they incorporate a global view of relevant factors which present risks and possibilities of events in the future which must be accommodated in an appropriate reduction. I think a reduction from future economic loss of 15 per cent is in order.
Other medical opinions
302 The plaintiff tendered a number of medical reports which he did not refer to in either his written submissions or his oral submissions. I have read the reports. I have not ignored them, but it would appear that the plaintiff, by omitting reference to them, preferred the evidence of Professor Pirpiris and Dr Williams as the basis of the medical evidence in his submissions. I am not satisfied they add much to the body of medical evidence relied on by the plaintiff.
Conclusion
303 I will, therefore, award the plaintiff $200,000 for pain and suffering and loss of enjoyment of life and $529,596.45 for past economic loss. I will ask the plaintiff and the defendant to recalculate the plaintiff’s future economic loss by the application of the multiplier relevant to five years into the future, reduced by 15 per cent for vicissitudes. I will then hear the plaintiff’s motion for judgement, and any other applications which the plaintiff and the defendant consider they need to make.
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