Tattersall v Dormakaba Australia Pty Ltd

[2023] ACTSC 390

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Tattersall v Dormakaba Australia Pty Ltd

Citation: 

[2023] ACTSC 390

Hearing Dates: 

4-7 December 2023

Decision Date: 

14 December 2023

Before:

Mossop J

Decision: 

See [136].

Catchwords: 

CIVIL LAW – NEGLIGENCE – Personal injury claim arising from fault in roller doors – chain box for roller door fell off building and onto plaintiff’s head – weld affixing chain box to building failed and caused harm to plaintiff – first defendant contracted to perform maintenance on the roller door – no defects in welding reported prior to accident – defective welds would have been apparent to inspector exercising reasonable skill and care – first defendant breached duty of care to plaintiff

CIVIL LAW – NEGLIGENCE – Personal injury claim arising from fault in roller doors – chain box for roller door fell off building and onto plaintiff’s head – weld affixing chain box to building failed and caused harm to plaintiff – third and fourth defendants held contract for the installation of chain boxes at the plaintiff’s workplace – whether fourth defendant performed the defective welding that attached the chain box to the building – documentary and witness evidence establishes fourth defendant installed the relevant chain box and welded it to the building – weld fell below standard reasonably expected of a person installing chain boxes – third defendant vicariously liable for the acts of its officer

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT), ss 42, 100, 168

Court Procedures Rules 2006 (ACT), r 443(3)

Cases Cited: 

Cressy v Miloriad [2016] ACTSC 303

Graham v Baker (1961) 106 CLR 340

Griffiths v Kerkemeyer (1977) 139 CLR 161

Luxton v Vines (1952) 85 CLR 352

New South Wales v Broune [2000] NSWCA 3

Wheat v E Lacon & Co Ltd [1966] AC 552

Parties: 

Benjamin Tattersall ( Plaintiff)

Dormakaba Australia Pty Ltd ( First Defendant)

Zavindi Pty Ltd t/as Goulburn Roller Doors ( Third Defendant)

Nathan Flanagan ( Fourth Defendant)

Representation: 

Counsel

A Muller SC with B Jullienne ( Plaintiff)

M Nesbeth ( First Defendant)

J Moffett ( Third and Fourth Defendants)

Solicitors

Blumers Personal Injury Lawyers ( Plaintiff)

Barry Nilsson Lawyers ( First Defendant)

Mills Oakley ( Third and Fourth Defendants)

File Number:

SC 47 of 2023

MOSSOP J:  

Introduction

1․This is a claim for personal injury arising out of an incident that occurred at the plaintiff’s work on 6 February 2019. The chain box for a manually operated roller door fell on the plaintiff’s head causing a deep laceration to the back of his head. He has claimed damages for negligence from a company that was responsible for preventative maintenance on the roller door, the first defendant. He has also claimed damages from the third and fourth defendants. The fourth defendant was the person who the plaintiff alleges performed the welding which secured the chain box to the building. The third defendant is the company of which the fourth defendant was a director.

2․In the event that liability is established, there are notices claiming contribution between the first defendant on the one hand and the third and fourth defendants on the other.

3․The proceedings against the second defendant were settled.

4․For the reasons that follow, I have found that liability of the defendants is established. I have assessed damages in the sum of $347,470. I have apportioned those damages as being 30 percent the responsibility of the first defendant and 70 percent the responsibility of the third and fourth defendants.

Witnesses

5․The following witnesses gave evidence at the trial:

(a)the plaintiff: Benjamin Tattersall;

(b)his wife: Kellie Tattersall;

(c)Claudius Parawiya, formerly a service technician with the first defendant;

(d)Craig Lansom, director of the second defendant;

(e)Alastair Carson, formerly a supervisor in the building where the plaintiff works;

(f)Matthew Henley, manager of the part of ACT Roads where the plaintiff works;

(g)Dr Rajiv Siotia, consultant psychiatrist;

(h)Dr Chris Rikard-Bell, consultant psychiatrist; and

(i)Dr Tim White, consultant forensic engineer.

6․Some other experts provided reports but were not required to give oral evidence. They were David Padfield, an engineer, Dr Ron Brooder, a neurologist, and Dr Kasey Metcalf, a neuropsychologist.

The plaintiff and the accident

7․The following findings of fact are drawn from the evidence of the plaintiff and his wife along with documentary records that were put into evidence. I found both the plaintiff and his wife to be straightforward witnesses whose evidence was likely to be reliable.

8․At the time of the trial, the plaintiff was 41 years old. His mother and two brothers had moved to Canberra when he was six years old. He went to Wanniassa High School. He worked as a labourer. After he met his wife, they moved to Bathurst for a few years and he worked as a labourer doing work on the electric engines for trains. The couple got married in March 2008 and moved back to Canberra in mid-2008. He did work for a tiling company. He and his wife had two children, one in 2009 and one in 2016.

9․In April 2013 and October 2013, he was treated for lower back pain. In April 2013 this included spasming pains down his left leg. In October 2013, it was lower back pain radiating to his right foot. In 2014, he had CT imaging which demonstrated L4/5 and L5/51 disc bulges. The back pain had significantly improved by this stage.

10․In 2016, he got a job working for the Australian Capital Territory (ACT) government in a part of the government known as Transport Canberra. He did labouring work relevant to the management of Canberra’s roads. This included filling potholes, forming part of the hot mix asphalt crew, doing general maintenance and cleaning up after car accidents.

11․In 2018, he saw Dr Shareef, a general practitioner, complaining of low mood, severe anxiety and panic attacks. He was diagnosed with anxiety and depression and he was given a prescription for Valium. A mental health plan was prepared. He saw Dr Shareef again on 22 October 2018. He was referred to a psychologist but did not act upon the referral.

12․The accident giving rise to the proceedings occurred on 6 February 2019. The plaintiff was working in a building on Canberra Avenue known as the Sign Writers shed. The plaintiff’s supervisor asked him whether he could climb up on a ladder and fix something that was wrong with the chain box at the top of a roller door. What might have been wrong with the chain box which prompted this request was not explored in the evidence. While the supervisor was getting the ladder, the plaintiff, who was standing beneath the chain box, moved the chain up and down on each side. At that point, the chain box dislodged from where it was welded to the building and fell down towards him. He was initially struck on his face by the chain. As a result of that, his head moved forward so that he was looking down. He was then struck on the back of the head by the chain box. Had he not moved his head forward it is likely that instead of striking a glancing blow to his head, the chain box would have struck him directly on the top of the head and done more serious, possibly fatal, harm. As a result of the chain box striking his head, he suffered a deep and wide laceration to his scalp. The fourth photograph in Exhibit 1 shows the laceration that he suffered.

13․An ambulance was called. He was given some pain relief and transported to the Canberra Hospital. Treatment at the hospital initially focused upon cleaning up and stitching the wound. However, while in hospital the plaintiff suffered a seizure and lost consciousness. That prompted some further investigations. Scans subsequently showed that some bone had been shaved off his skull and, as a consequence, on 10 February 2019, the wound was debrided and washed out under a general anaesthetic. He had 17 staples put into his head. Those are shown in photograph 2 of Exhibit 1. They were removed on 27 February 2019.

14․Shortly after the accident, records of the rehabilitation service provider indicated that he reported experiencing headaches and increased irritability. At that stage, he indicated that his memory had always been poor and was unsure as to whether or not it had worsened post injury.

15․By March 2019, an MRI scan of his brain was reported to be normal. He told his general practitioner that he was feeling well and had no other issues. The wound on his scalp had healed and he reported having no further issues with his memory. He was recorded as being fit for work from 18 March 2019.

16․In November 2020, he was recorded by his general practitioner as having right-sided headaches on and off since the accident. The doctor also recorded that he had symptoms of depression and Post-Traumatic Stress Disorder (PTSD) following his head injury. He was diagnosed with PTSD and depression. That led to the preparation of a general practitioner mental health plan which included a referral to a psychologist. He commenced using Endep. However, in December 2020 he reported to his doctor that he was constantly reliving the accident, suffering from poor sleep, low energy and low motivation. He was prescribed Amitriptyline for headache and depression. He took this for five or six months, but it gave him a dry mouth and he was unsure if it was effective.

17․By February 2021, his headache and mood improved with Endep so long as he took it. In April 2021, a reporting letter by Next Step, a counselling service run by the Catholic Church organisation known as Catholic Care, indicated that his main problem was having difficulty with sleeping and being frequently “on edge”.

18․He continued to report symptoms of anxiety and rumination to his Catholic Care counsellor. Rumination, anxiety and reliving the trauma of the accident were addressed in counselling. He was discharged in August 2021 with a report of having progressed well during therapy. At that stage he was taking no medication.

19․He received treatment from his general practitioner and also a neurologist. Dr Ronak Patel, consultant neurologist, treated him in 2022 with Botox injections for the nerve pain. He had reported to Dr Patel that his continued headaches did not require him to take time off work, but required him to take paracetamol and Nurofen daily. The Botox treatment was initially successful, but then became less effective and he gave up that form of treatment because it was too expensive. He also had an ultrasound guided nerve block which he found did not help. He took topiramate for headaches from January until August 2022.

20․In December 2022, he commenced taking Duloxetine which was more effective than previous medications in addressing his nerve pain and headaches.

21․The plaintiff’s evidence was that he had not “been the same person” since the accident. He described breaking down two or three days after the accident, thinking about what would have happened to his children and wife if he had died. He suffered headaches from soon after the accident. He has had different treatments for the headaches over the years since the accident. The headaches are now treated with medication, but there are still bad days when he gets them notwithstanding being on the maximum dose of the medication. In those situations, he needs to take additional medication in order to cope.

22․He also described suffering from nerve pain coming from a nerve that travels from near the top of his nose, above his right eyebrow and across his scalp. The pain from this nerve is often combined with headache pain.

23․He described having withdrawn from his friends and family. He gave evidence of a change in his approach to housework. Despite having an awareness of things that he should do, he simply does not do them and cannot really explain why. He gave evidence of suffering from nightmares and anxiety.

24․He also gave evidence of having unexplained outbreaks of anger at work, something which he did not experience prior to the accident.

25․The evidence of a change in the plaintiff as a result of the accident was corroborated by the evidence of his wife. She described him prior to the accident as being social, happy to go out with friends, easy-going and enjoying activities such as motorbike riding and camping. In contrast, after the accident, she described him as withdrawn, and antisocial to the extent that she needed to force him to go out. She recalled that if he did not take his medication, he would easily become aggressive. She said he has difficulties with his memory. He has difficulty sleeping and kicks her or screams in his sleep. Sometimes he is up all night.

The mechanism of the accident

26․The accident occurred on premises owned by the ACT government at 255 Canberra Avenue, Fyshwick. That building had 10 mechanical and four electrical roller doors. The roller door in question was shown at page 4 of exhibit 9. When viewing the door from inside the premises, the chain box was located on the right side of the door, approximately three metres above the ground. The chain box sat below the roller which would roll up the door as it opened. The purpose of the chain box was to connect the chain which was used to open and close the door to the roller onto which the door was rolled. The chain box incorporated a gearing mechanism so as to allow the easy winding of the roller using the chain. In order to fix the chain box in position, it needed to be somehow connected to the structure of the building. In the present case, there was a structural metal column which supported the roof and the wall of the building which was immediately to the right of the chain box. The chain box was connected to the column using a piece of metal angle. The chain box was bolted to the metal angle which was then welded to the column. It was the welding of the angle to the column which ultimately failed.

27․Photographs of the chain box and the metal angle which had detached from the beam were taken after the accident. Within two days of the accident a structural engineer, Mr Ruckschloss, examined the site and said:

The reason for the recent failure of the roller door motor has been deficient welding of the vertical engine mount steel plate to the steel column. The butt weld has not been continuous and the plates have not been prepared for full penetration. The weld appears to be porous and most likely cold with no fusion to the parent steel and weld. Due to frequent vibrations that the welds have been exposed to [over a] number of years during the door operation they have progressively failed.

The inspection of other roller doors has revealed that number of other motors have been attached to the building columns with identical or very similar way using only spot welds between the vertical mount plates and flanges of the columns. These doors should not be used till the rectification works are complete.

The defective welding

28․The nature of the welding the subject of Mr Ruckschloss’ contemporary assessment was the subject of evidence given by Dr Tim White and Mr David Padfield. Dr White was cross-examined by counsel for the first defendant. Mr Padfield was not required for cross‑examination.

29․Dr White is a forensic mechanical engineer. He has a Bachelor of Engineering (Mechanical) and a PhD in Mechanical Engineering from the University of New South Wales. His professional experience extends to being a mechanic, fitter, machinist, welder, mechanical engineer and university lecturer. He regularly uses various types of welding machines.

30․In his report of 9 November 2022, he agreed with the report of Mr Ruckschloss as to the deficiencies in the welds on the steel wall angle that were intended to connect the chain box to one of the building’s structural columns. He expressed the view that the welds were deficient because:

(a)they were not applied after appropriate preparation of the components being welded;

(b)they were not continuous; and

(c)they did not have a consistent cross-section.

31․He expressed the opinion that normal vibration as a result of the use of the opener led to fatigue cracks developing gradually over a period of years.

32․He expressed the opinion that “the cracks would have been apparent during regular inspections of the opener mechanism”.

33․He also expressed the opinion that threaded fasteners would have had a better or more predictable fatigue life than welds. However, it may have been that bolting was not reasonably practicable. He said that the welding attachment could have an essentially infinite life if the welding had been performed with reasonable skill and care. He accepted that it was possible that the mounting plate might have been attached to the column some years prior to 2011, and then reused to mount the subject opener. He considered that it was likely that the angle bracket was not installed by the builder of the original building, because it performed no structural function other than to support the opener.

34․As far as the inadequacy of the welding was concerned, he noted that there were simply three strips of welding (which he referred to as stitches). He considered that these would have been adequate had they “each been an inch or two long, and … effected with reasonable skill and care”. However, he was of the opinion that they were not effected with reasonable skill and care. That was because the stitches themselves were not even continuous along their own length. He illustrated that by reference to a photograph of one of the stitches, which shows that within the stitch there were areas where the weld was fused to the structural column but other areas where it was not.

35․Further, he indicated that the edges were not prepared for full penetration by being “chamfered” or “bevelled”. He observed that the stitches had been applied to the wall angle without such preparation. This had the effect that there was limited fusion between the two pieces of parent material leading to a weaker connection than would be the case if the steel had been so prepared.

36․He considered that the “appearance of the subject welds would give rise to concern to anyone with trade qualifications in metalworking trades”. He expressed the opinion that a “suitably-qualified inspector would have realised that the welds required particular attention”. He considered that an inspector’s attention would be drawn to the welds simply because the welds were of such a non-uniform, messy, appearance. He also expressed the opinion that “their gradual failure would have been apparent during regular inspections of the opener mechanism”.

37․Dr White prepared a second report dated 20 September 2023. This addressed whether or not deficiencies in the welds would have been observable shortly after the door opener was installed and whether, if the deficiencies were detected at the time the door opener was installed, the deficiencies could have been remedied. He expressed the view that the deficiencies in the welds would have been observable at the time the welds were applied or decades later. That is because the appearance of the welds would not have changed over time. It would be reasonably practicable to remedy the deficiencies by applying additional welds adjacent to the deficient welds. This could have been done in 30 minutes and would have required an elevated work platform.

38․In cross-examination, he said that the crack in the weld would have travelled from the top of the highest of the three stitches down through that stitch and then halfway through the middle stitch before the chain box fell off. He said that he was confident that the top weld would have cracked all the way through but that he could not be very particular about the development of the crack in the second stitch.

39․On the assumption that the force with which the chain was pulled down did not vary greatly over time, he was confident in saying that the “crack took years to grow rather than months or weeks”. He agreed that over the life of the growth of the crack, the rate of growth would accelerate over time.

40․His concern was not so much with the length of the welds, but rather “that they were crappy welds”. He says that there was “discontinuance” and they had “poor fusion”.

41․It was suggested to him that there was nothing obvious about the weld that would “tip [a] person off” that there might be something wrong with it. He agreed that he would not expect the average person to be able to look at the weld and say they were substandard, but said “I would hope that somebody charged with actually inspecting this installation … had the [relevant] training or experience to be able to identify what was a good weld and what was a bad weld”.

42․In relation to propagation of the crack, he said:

I just cannot accept, based on my experience that there was no crack at all a year or two prior to this falling off and then that all the cracking happened in the last year or two. Again, the one qualification I make to that is if this door got very hard to open in that last year or two and the amount of force being used to pull down on the chain then greatly increased over that last year or two.

43․In relation to the period from October 2018, he accepted the proposition that “you couldn’t say that [the crack] was necessarily visible from the material that you have”. However, in re-examination he was asked about the year or two prior to the structure falling. He said that “[i]f someone had looked at that with the focus of looking for a crack, I think they would have been able to see a crack travelling down to that top stitch”. He also said:

So I guess, by the time we got to that last four months, I think there is a pretty good chance that that top stitch would have been cracked all the way through and that the fatigue crack would have then started to travel down through that middle stitch. In that case, look, I would expect there to be some visible dislocation of the two halves of that broken top stitch. I think somebody looking at that, you know, spending a second or two looking at that would have realised there was some dislocation there and if that person had then actually bothered to give this thing a wiggle, then they would have noticed that that top stitch was broken. There would have been material flexibility in that top stitch as of four months prior to the whole thing falling down.

44․In further cross-examination it was suggested to him that this was entirely speculation. He said he could not say that “[e]xplicitly from what is shown in the photos”. However, he said that his opinions were based upon his experience, his understanding of engineering structures and of fracture mechanics, and his understanding of the way the chain box was attached to the column.

45․Mr Padfield, a Senior Materials and Testing Engineer, was asked to review the report of Dr White and express an opinion as to whether a visual inspection of the welds could have detected any failure or inadequacy with the welds. He was also asked whether he was of the opinion that the only method by which the welds could have been tested was an invasive test.

46․He agreed with Dr White that the failure of the welds caused the opener to fall to the ground.

47․He agreed with Dr White that the welds were not uniform and consistent in cross section. He agreed that this made them more susceptible to fatigue cracking. He said that there were “inconsistencies in material”, which created “poor shape geometry”.

48․He said that the welds in the photographs did not comply with the Australian Standards requirement in relation to “lack of fusion or incomplete penetration” or “loss of cross‑sectional area”.

49․He agreed that the welds were not part of the structure of the building and said that they should have been performed in accordance with the relevant Australian Standards and in consultation with a structural engineer.

50․He said that the ability to interpret the quality of the welds was dependent upon the competence and training of the technician. It would require close visual contact with the weld in a well-lit environment. It was unlikely that a person inspecting the overall condition of the roller door from the ground would be able to observe fine weld defects or cracking.

51․The appearance of the welds indicated them to be of poor quality. He said that “[a] properly trained person should have identified this and reported them on the inspection checklist as being such”. The welds should have been scheduled for removal and replaced with welds which complied with the relevant Australian Standards.

52․He said that fatigue cracks in their early stage are very fine and may not be immediately obvious under normal lighting and without the aid of magnification. Whether fatigue cracks are identifiable was also dependent upon the experience of the inspector. If the percentage of fatigue crack growth was small and visual access was difficult, they may have been missed by the technician. However, if the fatigue cracking was extensive with one of the welds being cracked, “it is likely that the crack would have opened up as the weight of the chain and box resulted in flex of the connection”. That would have been visually obvious.

53․He said he agreed with Dr White that “the poor-quality appearance of the welds should have drawn the attention of an inspector working with reasonable skill and care”.

54․In answer to the specific question of whether a visual inspection of the welds would have detected any failure or inadequacy with the welds, he said:

Yes, a visual inspection by a suitably trained and competent person, with close visual access to the welds, should have noticed various visual weld defects. If observed, these defects should have been reported and rectified through their replacement. The welding should have been conducted in accordance with the relevant Australian Standards … by a trained and competent person.

The defects associated with the weld should have been reported in each visual inspection. Whether progressive failure of the welds through a fatigue cracking mechanism was detectable visually is dependent on the training, skill, and experience of the inspector. If the fatigue cracking was fine, and the crack faces close together, it may have been difficult to observe, however if the cracking had resulted in the separation of the fracture faces, this should have been more obvious. It is not possible to determine from the photographs supplied how extensive the fatigue cracking might have been.

55․He then discussed whether or not there were any other methods of non-destructive examination, but it is not necessary to set out his opinion on that issue.

56․The evidence of Dr White was that the development of fatigue cracks in the welds would have occurred over a long period of time, and hence was likely to have been visible to a reasonably competent technician inspecting them. However, that was subject to the qualification that there had not been a significant increase in the force applied to the opening of the door. There was no evidence that this had been the case in relation to the door during the period when the chain box that fell on the plaintiff was in place. Mr Alistair Carson gave evidence that the issue which led to the replacement of the chain box on door five was that “[i]t got to the stage where it was extremely difficult to lift the door with the original chain box arrangement … The chain would actually slip on the cog which meant that you had to apply a certain amount of downward pressure to actually make sure that the chain engaged with the cog”. However, that was the situation which led to the replacement of the chain box. There was evidence of some difficulty with the chain box which led to the request by the plaintiff’s supervisor to climb up and have a look at it immediately prior to the accident. As pointed out above, the nature of the problem that led to the request was not explored in the evidence.

57․I accept the evidence of Dr White that the propagation of the crack would have been from the top of the top stitch and it is likely to have been visible to a person who was properly qualified to undertake an inspection of the door for safety and maintenance purposes as at October 2018.

58․More significantly, I accept the uncontradicted evidence of Mr Padfield that a suitably trained person conducting a proper examination would have noticed the visual defects in the welding and recorded those defects so that they could be rectified.

Liability of the first defendant

59․The first defendant had a contract with the ACT government for the maintenance of the roller door in question, along with a significant number of other roller doors on the site. The contract was entitled “Preventative Maintenance Agreement”. It involved four services of each door per year. The cost per roller door for each service was $90 plus GST. Thus, for the manual roller doors in the relevant building (described as “Maintenance Workshops”) the annual cost was $3600 plus GST. As part of the contract there was a “Preventative Maintenance Schedule – Roller Doors”. That included the following:

The preventative maintenance program is designed to ensure the continuous safe and efficient operation of your roller doors. During maintenance worn items are detected and can be replaced preventing a future failure of the door. All safety sensors are tested and adjusted to ensure your duty of care to your customers, staff and general public are met and the risk of injury due to an automatic door incident is reduced to an absolute minimum.

·     The contract ensures the safety and security of your building, your staff, your customers and the general public.

·     Regular servicing of your roller doors ensures that they are maintained to the highest possible standard,

…

Servicing the roller door includes:

…

·     Check security of components        - Motor/Gearbox,

- Drum

…

·     Tighten any nuts and bolts which may have become loose,

At the completion of each service a fully documented service report is provided detailing each of the above operations.

60․On the standard form recording periodic maintenance for each door there was a checklist of things which needed to be done. This included “Check welds”.

61․Although the existence of a duty of care to persons within the building may have been disputed, it was admitted in the pleadings. The scope of the duty was put in dispute. Further, the first defendant denied the separate claim that it was an occupier of the premises or that it owed a duty of care as an occupier under s 168 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act).

62․Having admitted the existence of a duty of care, the question was its scope and standard of care. So far as scope is concerned, the first defendant’s duty was clearly limited to the scope of activities required pursuant to its contract. It extended (at least) to persons who were employees of the ACT government who worked in the building.

63․So far as the standard of care is concerned, that is provided by s 42 of the CLW Act. The duty extended to determining the safety and operability of the roller doors. That included the adequacy of the welds to perform their function. Having regard to the duties under the contract, it is clear that there was a foreseeable risk of harm if the components of the roller door, including the chain box, were not secure, and this involved checking the adequacy of any welds involved in securing it.

64․Records from the first defendant show that inspections of what is identified as “Roller Door 6 Signwriters” occurred on:

(a)17 July 2015;

(b)7 June 2016

(c)27 October 2016;

(d)4 August 2017;

(e)3 November 2017;

(f)8 June 2018

(g)6 August 2018; and

(h)26 October 2018.

65․On each occasion, the report indicates that the welds were checked. No issues were reported with them. Five different technicians are identified as having carried out these inspections. Claudius Parayiwa carried out the inspections on 8 June 2018 and 26 October 2018. An inspection on 6 August 2018 was carried out by a Robert Barnes. The inspections involved a visual inspection only of the welds. In each case, the welds were checked and no issues reported.

66․Mr Parayiwa gave oral evidence and was cross-examined. I accept that he gave evidence honestly and carefully and that his evidence is likely to be reliable. He had started working for the first defendant in 2010 or 2011. In relation to the process that he followed when making an inspection of the welds, he said that he would “carry out just some visual inspections to see whether there are any forms of cracks”. He said that if there were no visible cracks, there was nothing to report. He described the balance of the inspection and said that it would take around 15 to 30 minutes per door. He said that if there were any visible cracks, then it would be recorded on the report. Rather unfortunately, having regard to the evidence that he was giving, he forgot to bring his glasses to court and had to examine documents using a magnifying glass. However, I have not assumed for the purposes of these reasons that he had any particular unremedied problems with his eyesight at the time he performed inspections, as he gave evidence that he would take his glasses with him and use them when necessary.

67․He could only recall one occasion when he had picked up defects in welding. That was an occasion in Belconnen where he saw some broken welds on the actual guides for the doors.

68․In cross-examination by counsel for the third and fourth defendants, he indicated that he had probably attended the site nearly 30 times and that he had never reported any issue with the welds.

69․In cross-examination by counsel for the plaintiff:

(a)He said he did not have any welding qualifications.

(b)He did not know how many other technicians were filling the same role as him in the period from 2010 to 2019, but accepted that there were “quite a number of us”.

(c)He did not know whether any of the other service technicians had any qualifications in welding.

(d)He was asked whether he was familiar with fatigue cracks in welding and said, “[w]ell, I just hear about it. I don’t know much about doing the welding. All we were doing is the inspection of whether to see whether there any possible cracks on the – on the weld itself. That’s all”.

(e)No one had trained him in the identification of a fatigue crack. That was a term with which he was not familiar. He said that he only had basic training in welding at college.

(f)He was asked whether he had ever received training in identifying defects in welding and said, “[w]e never had any – or training with the company about welding, or the company doesn’t conduct welding training”.

(g)He said that checking the welds was simply one of the items on the checklists of things they had to cover.

(h)He said that when checking the welds, he was less than a metre from each weld. He said that the light in the Sign Writers shed was not bright, but it was adequate enough to see. He never had any difficulties with lighting in the Sign Writers shed.

(i)He said he would use his glasses if it was necessary to perform his work assessing the adequacy of a weld.

(j)He was not familiar with the term “butt weld”.

(k)It was suggested to him that his training or experience would not enable him to assess whether a butt weld was adequate. His answer was:

I’ve got – for a service technician, we got, a service technician, normally they are not expected to be, like, say, doing the welding as such. If they pick, like, say, any problem with the welds, they always have to call in a qualified welder to clear out that, so which means whoever, like, say, during the installation is the one who can – have to be really a qualified welder and knows all about those but welding and …

(l)He later said he was “looking for any possible separation of welds which are visible and also some cracks that might, like, say develop”.

(m)It was suggested to him that there may have been occasions when he missed some fatigue cracking. He said:

Like as I said before, I couldn’t, like, say, tell the difference between the fatigue you mentioned, and visible of cracks, I was looking for and visible separation of welds from where it was attached or usually that’s what we were looking for.

(n)It was suggested to him that there may have been occasions when he missed some visible cracking and he said, “[w]ell, if I did, I don’t know, because I – or it would have been not intentional because what I was looking for is to see things right, or if I did, I don’t know”.

70․The effect of the evidence was that Mr Parayiwa had no relevant training that would allow him to identify a defective weld. The task as he had understood it was to simply visually examine the weld so as to see whether there was a visible crack.

71․There was no evidence that he had any training that would allow him to identify a weld which was defective other than because of a visible crack.

72․The only evidence as to how the check was performed was by getting within a metre of each weld and visually examining it with whatever light was available in the shed.

73․There was no evidence that he touched the chain box or tested the security of its connection in any other way.

74․There was no evidence as to whether this door was checked by using a scissor lift or by a ladder.

75․There was no attempt by the first defendant to qualify the conclusion reached by Mr Padfield that a properly trained inspector would have been able to detect deficiencies in the weld. There was no suggestion that this was a skill that was confined to trained welders or engineers, or that it would be inappropriate, for some reason, to expect that somebody conducting a preventative maintenance inspection would not have some capacity to assess the adequacy of the weld.

76․Similarly, there was no attempt by the first defendant to qualify the effect of Dr White’s evidence by suggesting that the detection of fatigue cracks would have been difficult or time-consuming, or otherwise inappropriate for somebody conducting an inspection which involved an examination of the adequacy of the welds.

77․In those circumstances, accepting the evidence of Dr White and Mr Padfield, I conclude that the first defendant breached the duty of care which it owed to the plaintiff as an employee of the ACT government working in the shed to take reasonable care in its examination of the adequacy of the welds forming part of the roller door the subject of the maintenance contract.

78․That breach was causally related to the harm suffered by the plaintiff because:

(a)Had the defective welds been detected at any time prior to the accident, then the reporting of those facts would have resulted in the weld being repaired and the accident avoided.

(b)The fatigue cracks were likely to have been detectable by at least 26 October 2018 and had the first defendant ensured that its workers were properly trained, the fatigue cracks would have been detected on that occasion and remedied prior to the accident occurring.

79․Finally, I do not accept the claim by the plaintiff that the first defendant was also separately liable as an “occupier” pursuant to s 168. The extent of control that it had over the premises pursuant to its contract with the ACT government was not sufficient to make it an “occupier”: Wheat v E Lacon & Co Ltd [1966] AC 552 at 578-580; New South Wales v Broune [2000] NSWCA 3 at [70].

Liability of the third and fourth defendants

80․The liability of the third and fourth defendants depended upon whether or not the plaintiff had established that the welding that failed was done by the fourth defendant. It was essential that the plaintiff prove that it was the fourth defendant that did the welding as the claim was pleaded on the basis that he had done so.

81․An alternative case which was sought to be advanced by the plaintiff in closing submissions was that, even if the fourth defendant had not done the welding, because at the time of installation of the chain box the bracket was attached to the steel upright that formed part of the building, he would still be liable because he had failed to detect the inadequacy of the welds. Although that conclusion would have been available on the evidence of Dr White and Mr Padfield, it was different to the case that had been pleaded which was dependent upon the fourth defendant being the welder. In circumstances where the alternative case may have affected the approach that the first defendant took to the evidence, the plaintiff is bound by his pleadings and as a consequence that alternative case could not be advanced.

82․The plaintiff relied upon a number of admissions made or deemed to have been made in the pleadings. Some of these admissions arose as a result of the operation of r 443(3) of the Court Procedures Rules (2006) (ACT). Although it would appear that the non‑admissions that were deemed to be admissions under the rule were made because of insufficient regard being paid to the operation of the rule, there was no attempt to depart from the deemed admissions following counsel for the plaintiff making it clear in his opening that they were relied upon.

83․Amongst those admissions were that Capital Doorworks supplied the chain boxes and subcontracted the third defendant to attend the premises and install the chain boxes. It also included the admission that the fourth defendant installed the chain boxes.

84․By the end of the case, it was uncontroversial that the basic structure of the transaction which led to the installation of two new chain boxes in the Sign Writers shed was as follows:

(a)The first defendant quoted for the installation and was awarded the contract by the ACT government.

(b)The first defendant subcontracted with Capital Doorworks for the installation of the chain boxes.

(c)Capital Doorworks supplied the chain boxes and contracted with the third defendant for the installation of the chain boxes on the site.

(d)The fourth defendant performed the installations.

85․The evidence from Capital Doorworks establishes that it had subcontracted the installation of three chain boxes to the third defendant. Two of those were identified as being in the Sign Writers shed. It was therefore necessary for the plaintiff to prove that the chain box that fell on the plaintiff was one of the chain boxes that was installed on that occasion.

86․That was done by the evidence of Mr Carson. Up until 2013, he was the store supervisor in the Signs and Lines store. The reference to the Signs and Lines store appeared to be a reference to what, in other evidence, was referred to as the Sign Writers shed. He had the office immediately adjacent to the door that was the cause of the plaintiff’s injury. In 2013, he left the premises to work in a different building. Two or three years prior to that move, the chain box for the door next to his office was replaced. He recalled seeing a man up a ladder. He believed the memory was of a man installing the chain box because he can “remember at the time there being arc welding flashes”. In cross-examination, he repeated that evidence: “I can remember when the chain block was installed on this door. I can remember somebody up the ladder with a – using an arc welder”. I considered the evidence of Mr Carson to be honest and likely to be reliable. The timing of the incident that he described was consistent with the documentary material that showed that the new chain boxes were installed in June 2011.

87․Counsel for the third and fourth defendants submitted that the following circumstances meant that the plaintiff had not established on the balance of probabilities that the fourth defendant welded the angle that broke. He pleaded significant reliance upon the following:

(a)There was no specific reference to welding in the documentation associated with the subcontract from Capital Doorworks to the third defendant. In particular:

(i)There was no reference to welding in the description of the works given by Capital Door works in 2020.

(ii)There was no reference to the need for welding on the quote for the installation work provided by Bright Lights Electrical dated 13 April 2011.

(iii)The tax invoice dated 23 June 2011 numbered 9326 sent by Capital Doorworks to Bright Lights Electrical made no reference to welding in the description of the works carried out.

(b)The recipient-created tax invoice dated 28 June 2011 arising from the invoice given by the third defendant to Capital Doorworks only recorded a payment of $250 related to the invoice 9326. This would appear to be a modest amount if the work involved welding.

(c)The installation manual for the chain boxes did not make any specific reference to welding, although it did refer to the need to fix a mounting plate via a wall angle or similar existing fixture.

88․Counsel also pointed to the fact that the second defendant’s answers to interrogatories made no reference to welding and when called to give evidence, the second defendant’s director was not asked about the requirement for welding.

89․Counsel submitted that in a circumstantial case, inferences should only be drawn where “the circumstances appearing in evidence give rise to a reasonable and definite inference”: Luxton v Vines (1952) 85 CLR 352 at 358. It is not enough if they simply “give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture”.

90․In my view, the plaintiff has established on the balance of probabilities that it was the fourth defendant that performed the welding. It is admitted that the fourth defendant installed the chain boxes in the Sign Writers shed. Mr Carson saw the person installing a chain box on the door where the plaintiff was injured at about the time when the documents show that the fourth defendant installed the chain boxes in the shed. When that was occurring, Mr Carson saw arc welding flashes being generated by the person up the ladder. Those circumstances are sufficient to establish on the balance of probabilities that it was the fourth defendant. In light of the direct evidence from Mr Carson, I do not consider that the absence of specific reference to welding in the documents means that a finding on the balance of probabilities cannot be made. Similarly, although the payment for the installations does seem to be a modest one, that, in combination with the other factors pointed to by counsel for the third and fourth defendants, is not sufficient to preclude a finding on the balance of probabilities. No evidence was given by the fourth defendant that would detract from the appropriateness of drawing the inference from the circumstances pointed to by the plaintiff.

91․I conclude that the plaintiff has established on the balance of probabilities that the fourth defendant was the installer of the relevant chain box and that as part of that installation process he welded the edge of the angle bracket to the structure of the building. It was that weld which ultimately failed, resulting in injury to the plaintiff.

92․In its defence, the third and fourth defendants denied that they owed the plaintiff a duty of care. This contention was not pursued at the hearing. I am satisfied that the third and fourth defendants owed to the plaintiff a duty to take reasonable care. A person installing the chain boxes using welding was obliged to take reasonable care that the welds were of a size and standard that they would not, as a result of the expected use of the chain box, suffer fatigue cracking leading to a catastrophic failure.

93․In light of the evidence of Dr White and Mr Padfield, I am satisfied on the balance of probabilities that the welding performed by the fourth defendant fell below the standard reasonably expected of a person installing chain boxes. That failure caused the injury to the plaintiff. The third defendant is responsible for the conduct of its officer, the fourth defendant.

Summary of conclusions on liability

94․Both the first defendant and the third and fourth defendants are liable to the plaintiff for the damages that he suffered as a result of the accident on 6 February 2019.

Apportionment

95․The third and fourth defendants were those responsible for the installation of the chain box with the defective welds and hence created the ultimate hazard. The first defendant failed to detect the defects in the welding and its cracking. It was not responsible for the creation of the hazard in the first place. In my view an appropriate apportionment of damages is 70 percent to the third and fourth defendants and 30 percent to the first defendant.

Medical Evidence

Dr Metcalf

96․Dr Kasey Metcalf, a clinical neuropsychologist, prepared a report dated 14 August 2019. That involved a review of previous documentation, an interview with the plaintiff and the administration of a variety of psychological tests. She indicated that the plaintiff did not appear to have suffered a significant traumatic brain injury. Rather, he suffered a mild traumatic brain injury. Some of the test results reflected the application of variable effort and hence may not reflect his optimal cognitive performance. Overall, the majority of his results reflected intact cognitive functioning. That is expected to follow from a mild traumatic brain injury at six months post injury. It reflects full cognitive recovery. She recorded that the plaintiff reported symptoms of poor tolerance to frustration, elevated stress, depression and anxiety. She said that these symptoms and his rumination on the accident may affect his perception of his cognitive failures. She recommended that he be referred to a psychologist to assess those symptoms.

Dr Brooder

97․Dr Ron Brooder, a consultant neurologist, provided a report dated 7 July 2021. He outlined the circumstances surrounding the accident, the course of treatment that the plaintiff undertook and performed a clinical examination. He reviewed imaging investigations. His diagnosis was that the plaintiff suffered continuing intermittent transient throbbing headaches which were consistent with post-traumatic headaches related to his head injury. He said that the plaintiff’s increased anxiety may contribute to the headaches. The increased anxiety was also contributing to forgetfulness and intolerance of loud noises. His prognosis was “reasonably favourable”. There is a “reasonable prospect that with continuing treatment and the further passage of time an improvement in his current symptoms is likely to occur”. He did not consider that the plaintiff was prevented from engaging in his current employment or in any areas of employment in the future. He said that the plaintiff would benefit from undergoing assessment and treatment with a consultant neurologist relating to his headaches as well as regular psychological counselling. He estimated that the cost of his treatment could be obtained by projecting his current treatment costs over a further period of two years and adding $2000 for assessment and treatment by a neurologist.

98․Dr Brooder prepared a supplementary report dated 11 November 2022. In addition to the diagnosis of headaches, he said that there was a slight numbness in the right side of the plaintiff’s forehead with associated local tenderness and increased sensitivity that extends from the residual scar into the right side of his scalp. He referred again to increased anxiety and difficulties with short-term memory and intolerance as a result. He said that the plaintiff’s prognosis remained reasonably favourable and that there is a reasonable prospect that with continuing treatment an improvement in his persistent symptoms is likely to occur. He continued to recommend conservative treatment. That included further drugs for his continuing headaches and the possibility of a local anaesthetic or corticosteroid injection to deal with the sensations from the supraorbital nerve. He also recommended further psychological assessment and counselling. He assessed the cost of treatment as involving a projection of his current treatment over an additional period of two to three years.

Dr Siotia

99․Dr Rajiv Siotia, a consultant psychiatrist, prepared a report dated 17 October 2022. He conducted a telehealth interview with the plaintiff and reviewed his medical records. He made a DSM-5 diagnosis of PTSD. This involved acceptance of the history of hypervigilance, avoidance behaviours, intrusive thoughts, increased anxiety and low mood, which have had a significant impact on the plaintiff’s day‑to‑day function.

100․He was guarded about the plaintiff’s short and medium-term prognosis. He said that, with appropriate treatment, his long-term prognosis is likely to be favourable. Based on the plaintiff’s reports of concentration and motivation levels being low, the doctor considered that his current and future work capacity is likely to continue to be affected. He recommended referral to a psychiatrist for consideration of psychotropic medications and approximately monthly consultations for a year as well as a further 10 sessions with a psychologist.

101․Dr Siotia provided a further report dated 23 November 2023. This was also conducted by telehealth. He considered a report of Dr Rikard-Bell, a psychiatrist, and letters from Dr Patel, a neurologist. The plaintiff reported continuing to struggle with his mental health. His nightmares had increased in intensity and frequency. He advised that he does not do much at work. He reported problems with anger at work and a reluctance to engage in social activities. Amongst his medications were Duloxetine at 120 mg daily. Dr Siotia diagnosed him with PTSD and Major Depressive Disorder.

102․Dr Siotia noted some differences in his conclusions compared to those reached by Dr Rikard-Bell. Those differences were largely determined by the extent of acceptance of the statements of the plaintiff as to his capacity.

103․The ultimate conclusion was that the plaintiff has a poor prognosis. Dr Siotia concluded that “he does not have work capacity at this stage”. He recommended seeing a psychologist weekly to fortnightly for three months and a psychiatrist on a three to four weekly basis for six to nine months.

Dr Rikard-Bell

104․Dr Chris Rikard-Bell, a psychiatrist, provided a report dated 14 September 2023. He assessed the plaintiff by video conference in June 2023. He reviewed relevant documents. He said that the plaintiff told him that he possibly had slight depression before the accident. He described the current symptoms reported by the plaintiff and his current level of functioning. His diagnosis was of PTSD caused by the accident and a pre-existing Major Depressive Disorder which was exacerbated by the accident.

105․He considered that the plaintiff would benefit from another 20 treatments of trauma focused cognitive behaviour therapy at a cost of $300 per session and up to eight sessions with a psychiatrist at about $400 per session for reviewing medication and for his ongoing anxiety.

106․He considered that the plaintiff was able to do his pre-injury duties and that he was not incapacitated for work. His retirement age was not affected by the accident. He did not consider that the plaintiff required any domestic assistance as a result of his psychological injury.

107․Dr Rikard-Bell also gave some oral evidence. In cross-examination, he said that if there was a pre-existing depressive condition, then it may either have exacerbated the plaintiff’s PTSD or made him more vulnerable to developing PTSD. He said that he reached the conclusion that the plaintiff was able to do his full duties based upon the evidence of a return to those duties. He accepted the plaintiff’s report that the plaintiff was working adequately but not necessarily optimally when completing his full duties. He said that struggles with motivation, concentration and anger outbursts were consistent with PTSD and that was a reason why he had said that the plaintiff would benefit from some further treatment for that condition. He accepted that if the symptoms persisted then there might be some impact on the plaintiff’s work capacity. He described the labels of PTSD and depression as being fairly arbitrary but important in terms of trying to communicate the essential issues and likely treatments. He said that 90 percent of single-event trauma patients respond well. After 12 months, most have recovered or improved significantly. The more complex cases tend to be where there are other mental health conditions or multiple traumas. The complicating factor for the plaintiff would be the pre-existing mild depression, but overall, the prognosis would be good, notwithstanding the four-and-a-half year duration of his symptoms.

108․He considered that there was still an opportunity for a good outcome. He did accept that there were some cases where PTSD could become chronic. Further, he accepted that there was the potential for relapse with further trauma or triggering events.

109․In re-examination, he was asked questions based upon the proposition that the plaintiff had acted in a supervisory role. Dr Rikard-Bell, unsurprisingly, said that if the plaintiff was performing well in the workplace, it would indicate at least adequate functioning. He described the types of treatment that a skilled clinical psychologist could provide to treat the plaintiff.

Conclusions on medical evidence

110․I accept the conclusion of Dr Metcalf that the plaintiff suffered a mild traumatic brain injury and that his current difficulties are likely to be more a result of his psychological reaction to that injury than the injury itself. So far as the evidence of the psychiatrists is concerned, I accept that the plaintiff suffers from PTSD arising from the accident and suffered a deterioration of his Major Depressive Disorder. I do not accept the opinion of Dr Siotia that he does not have work capacity at present. That is inconsistent with his current full-time work, including overtime obligations. The plaintiff’s work capacity appears to me to be more appropriately assessed in a manner consistent with Dr Rikard‑Bell’s approach, namely, that he was performing adequately but not optimally in his job. Both doctors recognised the potential for further treatment. I accept Dr Rikard‑Bell’s evidence that there is the prospect of improvement if he receives further psychological and psychiatric treatment.

General damages

111․The plaintiff suffered a very nasty head injury. He was extremely fortunate, and it was purely by chance that the injury was not fatal. Following a relatively short period of recovery from the physical effects of the accident, the plaintiff has suffered PTSD and a Major Depressive Disorder. He has an ongoing tendency to experience headaches associated with damage to a cranial nerve which are now, most of the time, successfully managed with medication. He has been able to return to work but, as a result of his psychological condition, is unable to perform as well as he previously did. Both at work and at home, he tends to lack motivation. He also has a tendency towards anger outbursts. His life outside work is affected by a loss of motivation and loss of enjoyment of social activities. His condition is likely to improve gradually over time with treatment. In my view, an appropriate award of general damages is $170,000 with $120,000 attributed to the past. This gives an award of interest on the past component of $11,664 ($120,000 x 0.02 × 4.86).

Economic loss

Past economic loss

112․The plaintiff claims past economic loss in the sum of $11,187.20. This was calculated on the basis that, between the accident and 9 November 2022, the plaintiff had taken 320 hours of personal leave. His average pre-injury net hourly rate was $34.96. He therefore claimed the value of that personal leave.

113․The first defendant agreed with this award. The third and fourth defendants submitted that an amount of between $10,000 and $20,000 should be awarded.

114․The claim made by the plaintiff assumes that he suffered loss as a result of being required to take his personal leave. As his periods of absence from work were covered by his entitlement to personal leave, he has not suffered any actual economic loss. However, he may be entitled to damages for the loss of those personal leave entitlements. The amount of damages for loss of personal leave entitlements is assessed having regard to the chance that he will need to use those spent entitlements in the future, and thereby “incur a loss” because he is forced to take leave “at his own expense”: Graham v Baker (1961) 106 CLR 340 at 351. There was no evidence directed towards Mr Tattersall’s use of personal leave entitlements prior to the injury. His current personal leave entitlement is 5 hours and 26 minutes. At the start of 2023, Mr Tattersall’s personal leave balance was 149 hours. This suggests that he has been able to accrue and use personal leave at a manageable rate since the accident in 2019. However, the low personal leave balance at the time of the hearing demonstrates there is an unquantified risk that Mr Tattersall will be forced to take leave at his own expense at some time in the future. As was the case in Cressy v Miloriad [2016] ACTSC 303 at [84]:

(a)there was no identified reason why the plaintiff might need to take more personal leave between now and retirement than he has or would have available when it was needed; and

(b)there was no actuarial evidence providing a basis for assessing the likelihood of a person of the plaintiff’s age, who had the personal leave entitlements that he did, of needing more than that balance prior to retirement.

115․Given the state of the evidence, there is no basis for making any specific award for loss of personal leave entitlements and any such loss is within the scope of the buffer which I allow for future economic loss. Therefore, there will be no award of damages for past economic loss.

Future economic loss

116․In relation to the future, the plaintiff submits that this should be dealt with by way of a buffer. The plaintiff approached the question of future economic loss by proposing a buffer because, at present, any loss of work capacity has not been productive of financial loss. That is because the plaintiff has managed to return to his pre-injury employment and is able to do that on a full-time basis, including being on the relatively lucrative after‑hours on-call roster. It is therefore only a possibility that he will, in the future, suffer some loss as a result of the ongoing effects of the accident. That could arise if he is no longer able to work in the area of roads where he is currently working. Theoretically, that could occur if management became less sympathetic or if there was some restructuring of the business in which he lost his employment. An example of a circumstance in which that could occur would be if the government made a decision to privatise the provision of the road services that his area of employment currently provides. Counsel for the plaintiff emphasised the fact that he was only 41 years old and hence there was a very long time over which such a loss might manifest itself. He pointed out that the plaintiff currently has a taxable income of $102,294, or $1472 per week. The proposed buffer was calculated on the basis of a loss of two years’ worth of income over a future working life of 29 years (assuming he worked until the age of 70).

117․The first defendant submitted that a buffer of $10,000 was appropriate, to take account of the possibility that the plaintiff may require some time off work in the future.

118․The third and fourth defendants submitted that only a nominal buffer was appropriate and suggested a figure of between $20,000 and $25,000.

119․The plaintiff has suffered a modest loss of working capacity. That arises from his psychological condition. It has made him a less enthusiastic and less motivated employee and someone who is less able to get along with other people in the workplace. According to his former supervisor and current manager, Matthew Henley, he has gone from a “very easy-going staff member” who would do anything asked of him, to somebody who is withdrawn from other staff members, who gives responses that are quite blunt, sometimes bordering on rude, and who is not as hard a worker any more. That has not caused him economic loss to date.

120․The chance of this loss of work capacity manifesting itself in an economic loss would depend upon a number of contingencies:

(a)his condition not returning over time to his pre-injury attitude and motivation;

(b)something happening so as to cause him to leave what would generally be considered to be very secure work with the Territory government; and

(c)the loss of capacity being recognised within the market by potential or future employers.

121․Counsel for the first defendant placed significant emphasis upon the fact that the plaintiff has temporarily performed higher duties within the workplace. While this is of some significance, I do not consider that it undermines the evidence that he lacks some of the motivation and enthusiasm that he previously had. The evidence of Mr Henley in relation to one of those periods of higher duties was to the effect that nobody else had expressed interest in “acting up” and that he had been given the opportunity in order to broaden his skills. That appears to reflect the supportive nature of his current work environment rather than demonstrating that he is performing at a level equivalent to what might have been expected if the accident had not occurred.

122․Given that he has a likely working life of at least another 19 years and probably 26 years, and the uncertainty as to the future extent of his recovery, I consider that an award of damages by way of a buffer is appropriate. Recognising all of the uncertainties, I will award an amount of $100,000 inclusive of superannuation.

Out-of-pocket expenses

Past out-of-pocket expenses

123․These were agreed at $9683. No interest was claimed on this amount.

Future out-of-pocket expenses

124․In final submissions, the plaintiff submitted that an award of $50,000 for the future would be appropriate. This comprised the costs of treatment by a psychologist and a psychiatrist, Botox injections, ongoing use of Duloxetine, increased general practitioner attendances, the cost of other medication and a buffer to take account of the possibility of relapses and further specialist psychological care. The first defendant submitted that the amount of $20,000 would be appropriate for future treatment. The third and fourth defendants submitted that a nominal amount of between $5,000 and $10,000 would be appropriate.

125․In my view, the award of damages for future out-of-pocket expenses should be derived as follows:

(a)There should be amounts for treatment by a psychologist and psychiatrist as recommended by the Dr Siotia and Dr Rikard-Bell. Although the requirement for future treatment was very similar as between Dr Siotia and Dr Rikard-Bell, given the importance of future treatment for the plaintiff, the award will be based on the regime supported by Dr Rikard-Bell, which is slightly more generous. That is $9200.

(b)There should be a limited amount for Botox injections. The evidence was not specific enough to indicate what a usual course of treatment would be or whether it might decrease in effectiveness over time. However, the plaintiff did give evidence that he had been treated with this modality and would have continued but for the cost. The plaintiff submitted that a course of treatment of 20 injections would be appropriate. This was not based on any particular evidence. In the absence of this evidence, I would award an amount for Botox treatments, having regard to the potential for it to provide longer term relief from the nerve pain for which he takes medication. I would calculate damages for future treatment on the basis of no more than five treatments. The cost of these is $495 per treatment. Therefore, an award of $2475 is appropriate.

(c)The claim for future medication appeared to be based on a requirement for Duloxetine and Panadeine Forte over approximately 20 years. There was no evidence addressing the likely duration of the need for Duloxetine or the extent of the need for Duloxetine if there was further Botox treatment of the relevant nerve. The plaintiff also contended for a further amount for medication of approximately seven dollars per week until the age of 75. I do not consider that this is established by the evidence. It is certainly likely that he will continue to need to use Duloxetine for a considerable period. He is likely to need Panadeine Forte for bad days when the Duloxetine is not completely effective. Otherwise, the evidence did not establish a regular need for other medication. An award for Duloxetine, Panadeine Forte and other medication for a period of 10 years is as far as the evidence allows without becoming pure speculation. Allowing $10 per week for a period of 10 years gives $4518 ($10 x multiplier 451.8).

(d)General practitioner costs are likely to increase over what would have been the case in the absence of the accident. The evidence shows a pattern of attendance of three visits in 2021 attributable to symptoms arising from the accident, six visits of that type in 2022 and five such visits in 2023. In my view, it is likely that general practitioner visits will continue at this rate for approximately another three years. Given the likelihood of improvement over time, the requirement for additional visits will have reduced. I will award an amount corresponding to three additional visits per year between years four and 10. After that, the position becomes very uncertain and I would simply allow a buffer of $5000 to cover the prospect of additional general practitioner visits beyond that time. For the first three years, this gives a sum of $1723. For years four to 10, this gives an amount of $1740. The total is therefore $8463 ($1723 + $1740 + $5000).

(e)There is some risk of a relapse in the plaintiff’s PTSD. The plaintiff submitted that a buffer of $10,000 was appropriate. I accept that there is some prospect of a relapse and a corresponding need for further psychological or psychiatric treatment beyond that which is allowed above. I would allow an amount roughly equivalent to seven visits to a psychiatrist, namely $3000.

126․This gives a total award of $27,656 ($9200 + $2475 + $4518 + $8463 + $3000).

Griffiths v Kerkemeyer / s 100

127․The plaintiff made a claim which was a mix of Griffiths v Kerkemeyer ((1977) 139 CLR 161) damages and s 100 of the CLW Act. In final submissions, the plaintiff contended for an award of damages based upon three hours per week for the past, and two hours per week for the future until the age of 75. The first defendant submitted that an award could be made for the period until the plaintiff returned to work, but not after that. The third and fourth defendants submitted that an amount of $5,000 might be awarded for past care. Both defendants submitted that there should be no award for the future.

128․The main evidence on this issue was given by Ms Tattersall, who described that prior to the accident, she had a problem with her back which meant that the plaintiff did the washing, vacuuming, mopping, gardening and assisted with the shopping. She could do things at bench height.

129․Following the accident, the plaintiff did very little during his time off work. On his return to work, he became less house-proud. The problem was not with physical capacity, but instead with attitude or motivation. He helped more after he was prescribed Duloxetine. He is gradually getting better and more able to do the gardening, which is almost back to pre-accident levels. She is probably doing about an hour of work per week that he would have done prior to the incident.

130․Overall, the problems are due to motivation, rather than physical capacity. The introduction of Duloxetine has made a difference. The general trajectory is towards improvement in his functioning.

131․So far as the rate is concerned, no evidence was led as to the appropriate rate for an award of Griffiths v Kerkemeyer or s 100 damages. The plaintiff contended for a rate of $50 per hour, the first defendant contended for a rate of $45 an hour. In the absence of evidence, the award will be based on a rate of $45 per hour.

132․In relation to the past the award will be as follows:

(a)five hours per week for the period 6 February 2019 to 18 March 2019, approximately six weeks. This gives $1350 (6 × 5 x 45).

(b)Two hours per week from March 2019 until December 2022 when he was prescribed Duloxetine, 194 weeks. This gives $17,460 (194 × 2 × 45).

(c)One hour per week from December 2022 until the date of judgment, 54 weeks. This gives $2430 (54 × 1 × 45).

133․The total award will be $21,240. Interest on past loss calculated at Court Procedures Rules rates and assuming uniform incurring of liability over the period is $2668.

134․So far as the future is concerned, I have indicated earlier that the trajectory is a positive one. I do not consider an award of damages calculated up to the age of 75 is appropriate. Rather, having regard to the psychological basis for the award and the potential for improvement with appropriate treatment, it is only appropriate to make an award that is consistent with the award for future treatment costs. That involves a defined period of further treatment, including cognitive behaviour therapy. The award will be based on a continuing requirement for one hour of assistance per week for a period of two years. That gives an award of $4559 (45 x multiplier 101.3).

Summary

135․In summary, the award of damages will be as set out below.

Head of damage	Amount
General damages	$170,000
Interest on general damages	$11,664
Past economic loss	$0
Interest on past economic loss	$0
Future economic loss	$100,000
Past out-of-pocket expenses	$9683
Future out-of-pocket expenses	$27,656
Past Griffiths v Kerkemeyer / s 100	$21,240
Interest on past Griffiths v Kerkemeyer / s 100	$2668
Future Griffiths v Kerkemeyer / s 100	$4,559
Total	$347,470.00

Orders

136․The orders of the Court are:

1.Judgment in favour of the plaintiff against the defendants in the sum of $347,470.

2.Declare the first defendant on the one hand and the third and fourth defendants on the other are entitled to recover contribution from each other so that the first defendant bears 30 percent of the liability and the third and fourth defendants bear 70 percent of the liability to the plaintiff.

3.Liberty to apply on seven days’ notice in relation to any further order necessary to give effect to order 2.

4.The proceedings are listed on 15 December 2023 at 9:30am for any argument in relation to costs.

I certify that the preceding one hundred and thirty-six [136] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 14 December 2023

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Amendments

25 January 2024        Replace “(Second Defendant)” with “(Third Defendant)” and “(Third Defendant)” with “(Fourth Defendant)”, Cover page: “Parties”.