Trtovac v Total Mix Pty Ltd
[2022] VSC 149
•31 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2020 04464
| SUAD TRTOVAC | Plaintiff |
| v | |
| TOTAL MIX PTY LTD | First Defendant |
| and | |
| HOLCIM (AUSTRALIA) PTY LTD | Second Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7, 8, 9, 10, 11, 14, 15, 16 and 21 February 2022 |
DATE OF JUDGMENT: | 31 March 2022 |
CASE MAY BE CITED AS: | Trtovac v Total Mix Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 149 |
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PERSONAL INJURIES – Workplace injury – Concrete truck driver injured on ‘slump stand’ – Plaintiff employed by first defendant – Slump stand owned and controlled by second defendant – First defendant’s concrete truck drivers based at second defendant’s Footscray concrete plant – Circumstances of incident – Negligence – Non-delegable duty of care – Kondis v State Transport Authority (1984) 154 CLR 672 – Occupational Health and Safety Regulations 2007 (Vic), reg 3.5.30 – Identification of injury – Assessment of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | PJ Wheelahan QC with CGK Madder | Carbone Lawyers |
| For the First Defendant | PB Jens QC with S Manova | Minter Ellison |
| For the Second Defendant | D McWilliams with P Santamaria | Sparke Helmore |
HIS HONOUR:
A Introduction
The plaintiff was born in 1977 and completed VCE in 1995. He completed a Certificate IV in Information Technology at Kangan Batman TAFE and commenced but may not have completed a Business Information Systems course at Victoria University.
In 1999 the plaintiff commenced work as a labourer at a packaging company and after about a year and a half was doing agency labouring work on and off. In about 2007 he commenced working as a delivery driver. In 2012 or 2013 he commenced working as an owner driver of a tipper truck. The plaintiff sold the truck and had some months of unemployment. In early 2015 he commenced working for the first defendant as a concrete truck driver. He was then 37 years of age and had no prior back complaint. He was active and played tennis.
The plaintiff performed deliveries from the second defendant’s concrete plant at Footscray. Employees of the second defendant used equipment to load concrete into trucks. There were concrete truck drivers employed by the first defendant, but also by other companies. The drivers would check the load using a slump stand. There were two slump stands adjacent to one another. Annexure 1 depicts the slump stands.
The drivers would move a lever at the base of the stairs to the slump stand in order to lower a platform. The platform was operated via a pneumatic ‘ram’. The driver would climb the stairs and walk out onto the platform in order to inspect and water the load as well as hose the truck. After completing the process, the driver would walk off the platform, down the stairs and move the lever in order to raise the platform to allow the next concrete truck to come into position. The slump stands were in constant use.
By 24 February 2016, the plaintiff had had to use the slump stands on many occasions. He had not experienced any difficulty prior to that day. That day the plaintiff returned to work after two weeks off following the birth of his daughter. In the incident, the plaintiff used the ‘left’ slump stand – identified with an ‘X’ in Annexure 1.
There was dispute at trial concerning the precise circumstances of the incident. That evidence will be examined in more detail below. In broad terms, the plaintiff said that he walked out onto the slump stand platform and it started to raise or, as he described it, ‘see-saw’. That occurred two or three times before the platform ‘slammed down’ to the horizontal. The plaintiff instantly felt pain in his lower back. He said that he attended the batchers’ office and complained about the slump stand. The batchers controlled the loading and associated equipment at the plant and were employed by the second defendant.
The plaintiff completed the rest of his deliveries that day and attended his general practitioner, Dr Mir Mohamed Habib, who later reported as follows –
On examination: Pain and tenderness in the lower back, Tender deep muscles of the back with spasm of the paraspinal masculative [sic: musculature]. He was unable to walk straight. CT scans revealed a broad based posterior disc prolapse at L4-5 and also at L5/S1 with narrowing of the thecal foramina. During the period of his injury, he developed severe upper spinal pain going to his neck and shoulders. I referred him for a CT scan Thoracic Spine and found to have mid thoracic endplate lipping at various levels.
He was referred to Mr Ray Carey spinal surgeon. He is attending Caroline Springs Physiotherapy. He continued to have annoying pain which is preventing him from returning to work. He is supplemented with pain killers and sleeping pills for his sleep disturbance due to his pain. His progress notes, Xray reports, specialist, letter and MRI reports are enclosed. His prognosis is good considering his young age and he would probably take a bit of time to settle. He will have to be referred to a pain management program.[1]
[1]Exhibit M.
There was evidence of another complaint about the slump stand on that day, made by Raymond Gason. Mr Gason was another driver employed by the first defendant. I will also consider that evidence in more detail below.
The slump stand was later attended by Murray Salton, a maintenance fitter who runs a firm known as Murray’s Maintenance. Mr Salton worked for the second defendant for about 27 years before establishing his own business. In connection with his attendance on 24 February 2016, the tax invoice relevantly reads –
Refit and repair air ram on slump stand facing wash pit. BREAKDOWN.[2]
[2]Exhibit H.
Late in the trial, after most witnesses had given evidence (including Mr Salton), the second defendant produced a further tax invoice relating to work performed on 6 March 2016. The invoice relevantly reads ‘supply and fit 2 rams for slump stand’.[3]
[3]Exhibit SS.
The plaintiff has not worked since the incident. There were issues at trial concerning the plaintiff’s capacity for work and other activity as well as the extent to which it could be said that there are any pathological features of his back related to the incident. Several medical practitioners referred to the intervention of a non-organic ‘chronic pain syndrome’ or similar.[4]
[4]Cf. Exhibits I and Z.
The plaintiff claimed damages arising from the alleged negligence of the defendants. He also alleged that the defendants had breached a statutory duty arising from Part 3.5 of the Occupational Health and Safety Regulations 2007 (the ‘Plant Regulations’). The defendants pleaded that the plaintiff was guilty of contributory negligence. Contribution between the defendants was not in issue.
At trial, the essential issues were –
(a) the circumstances of the incident;
(b) any liability of the defendants;
(c) any contributory negligence of the plaintiff;
(d) the nature of any injury suffered by the plaintiff as a consequence of the incident; and
(e) any entitlement of the plaintiff to damages, including for loss of earnings and earning capacity.
B Applicable principles
In address, senior counsel for the first defendant submitted that the case was not one in which significant issues of legal principle arise. In broad terms, I agree.
There was no issue that the defendants each owed a duty of care to the plaintiff to take reasonable care in order that he not suffer injury.
In respect of the first defendant, the plaintiff emphasised the duty of care owed by an employer. In Czatyrko v Edith Cowan University, the High Court stated –
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.[5]
[5](2005) 214 ALR 349 [12]. See also, Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63 [8].
In that regard, the plaintiff placed particular reliance upon the ‘non-delegable’ nature of the duty of care owed by the first defendant to the plaintiff. In respect of such a duty, in Kondis v State Transport Authority, Mason J (as his Honour then was) stated –
… The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.[6]
[6](1984) 154 CLR 672, 687-688 (‘Kondis’).
In that instance, the appellant had been employed by the respondent in a work gang at the Jolimont Railyards. He was injured as a consequence of the ‘casual negligence’ of an employee of a third party. The employee – Clissold – dropped a metal rod which fell and struck the appellant. In that regard, after the statement of principle to which I have referred, Mason J stated –
In the result the respondent’s duty to provide a safe system of work was non-delegable and the respondent was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work. The risk of injury from a falling rod or pin to an employee positioned under the care during the extension procedure was slight, but nevertheless obvious. Avoidance of the risk called for the adoption of a procedure, even an instruction forbidding any employee assisting Clissold from taking up a position under the jib of the crane during the extension operation. If control of this operation was in the hands of Clissold then it was for him to adopt a safe system of work. The respondent is liable for his neglect, not on a vicarious basis, but because Clissold’s omission to adopt a safe system is a breach of the respondent’s duty. Although Clissold was guilty of casual negligence, as it is often called, in failing to keep an adequate look out and to give warning, his omissions in these respects do not inhibit the conclusion that there was a breach of the respondent’s duty to provide a safe system of work.[7]
[7]Kondis (n 6) 688.
In respect of the second defendant, the plaintiff relied upon s 14B of the Wrongs Act 1958 (Vic).
The principles relating to contributory negligence are also settled and no party needed to or did place reliance upon any particular statutory provision or authority.[8]
[8]Cf., McLean v Tedman & Anor (1984) 155 CLR 306 and Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301.
As to Part 3.5 of the Plant Regulations, the defendants pointed to regulations 1.1.8 and 3.5.1. The plaintiff placed reliance upon regulation 3.5.30, which relevantly states –
An employer must ensure that –
(a)plant is inspected to the extent necessary to ensure that the risk associated with the use of the plant is monitored; …
C The witnesses and other evidence
Several witnesses gave evidence directly or indirectly relevant to the circumstances of the incident, namely –
(a) for the plaintiff: the plaintiff, Mr Gason and Roger Lewis (forensic engineer);
(b) for the first defendant: Andrew MacDonald, Steven Riddell, Dion Pizzecco and Davorin Movre; and
(c) for the second defendant: Murray Salton, Pablo ‘Paul’ Follacchio and Daniel Inzillo.
I do not overlook the fact that some of the medical evidence included histories by the plaintiff concerning the circumstances of the incident. Generally speaking, those histories were consistent.
Suad ‘Sam’ Trtovac
The plaintiff gave evidence concerning the incident as follows –
When I was walking on the, up, once I got up on the slump stand, the ramp started to see-saw as I was walking on it, see-sawing up and down. As I have gotten closer to the pivot point, the start of it, it’s raised up even more, as I’ve gone to walk back over towards the chute, towards the middle of the stand, to get access to the chute of the concrete truck, um, it then slammed down hard with me on it causing a jolting, jarring sensation.[9]
[9]Transcript ‘T’ T35.
The plaintiff said that he felt immediate pain in his back and ‘proceeded to report what happened to the batcher’. He said that Daniel (Inzillo) and Andrew (MacDonald) were in the office when he went to report it.[10] In that connection, the plaintiff said –
When I went up to the office, I said, ‘guys, I’ve just jarred my back, what’s the go with this slump stand?’ And the answer was, Andrew happened to answer the question and just said, ‘Sam, they’re working on it, it’s getting fixed’. And I moved on to continue to try to work to the best of my ability.[11]
[10]T35.
[11]T36.
The plaintiff did not recall Mr Inzillo saying anything.[12] He said that Mr Gason was next to the office as he walked by and may have been present when he reported the incident, although he could not remember.[13]
[12] Ibid.
[13]T40.
The plaintiff said that he returned to the plant ‘just before 2’.[14] He noticed the slump stand platform ‘see-sawing’ and took a short video.[15] With reference to his video, the plaintiff said ‘that’s not normal’.[16]
[14]Ibid.
[15]Exhibit E. The video was subsequently shown multiple times in the evidence of several witnesses.
[16]T71. See also, T87-88.
At the end of the day, the plaintiff completed an incident report which states the time of the incident as having been 12:45pm.[17] In answer to the question ‘how did the injury occur’, the plaintiff wrote –
Ramp on the slump stand slams down while I was on it jarring my lower back.
[17]Exhibit A. See also, T36-38.
As to a ‘possible solution of how to prevent recurrence’, the plaintiff wrote –
Stop the slump stand and fix the problem or possible air leak.
There were two documents of the second defendant concerning the events of the incident.[18] Neither was prepared by the plaintiff.
[18]Exhibits F, G. See also, T45-49.
In cross-examination, the plaintiff confirmed that the platform had been as close to horizontal as it could be before he walked onto it.[19] He also confirmed that the ‘see-sawing’ involved the platform moving up and down on two or three occasions before it dropped heavily[20] and that it had been a ‘freak situation’.[21]
[19]T79. See also, T91.
[20]T64-70. See also, T75-76, T80-83, T91-93 and T134-136.
[21]T95.
Counsel for the second defendant cross-examined the plaintiff in various respects concerning the claimed ‘see-sawing’ of the platform. Counsel ultimately challenged the plaintiff’s account of the incident on a more fundamental basis, as follows –
What I suggest to you, Mr Trtovac, is the reason you didn’t report it is because the stand didn’t drop, first of all there was no seesawing motion as you describe; that was the real reason you didn’t report it, that the seesawing action didn’t occur?---When I was on it, it occurred, yeah.
And the reason that you didn’t report immediately a significant fall of around 600 mm or thereabouts was that it didn’t fall that distance?---It didn’t - sorry?
It didn’t fall that distance when it slammed down?---Well, roughly, yeah, it was, when I was on it.[22]
[22]T120. See also, T144.
Counsel put a theory to the effect that the plaintiff’s video showed a driver having walked off the platform and walking down the steps to activate the lever. The plaintiff said ‘he may have been’ and later said ‘he couldn’t have got there that quick’.[23]
[23]T125 and T137-138.
It was also suggested that the plaintiff had not taken footage of ‘the bloke standing on the platform’ because ‘it would have shown it [the platform] being at the horizontal’. The plaintiff responded ‘no, that’s incorrect’.[24] It will be evident that this cross-examination, in particular, sought to challenge the plaintiff’s credit and veracity as a witness of truth.
[24]T127. See also, T133.
Counsel for the second defendant cross-examined the plaintiff concerning ‘play’ or ‘movement’ in the platform. In response to the suggestion that the plaintiff’s video showed such ‘movement’, the plaintiff responded ‘no, that’s more significant, more than a little bit of movement’.[25]
[25]T140.
The plaintiff disagreed that he had a discussion with Mr MacDonald at the slump stand.[26] He also rejected the suggestion that he only went to the batchers’ office at the end of his shift.[27] He said that he had a discussion at the slump stand at about 4:00pm with ‘the safety rep, Jonathan’.[28]
[26]T141-142.
[27]T141.
[28]T150.
Ray Gason
Mr Gason was employed by the first defendant as a concrete truck driver. He had been working at the Footscray plant for some years. He was working on 24 February 2016[29] and said that the left slump stand ‘wasn’t behaving how it should have’.[30] Mr Gason said –
…the slump stand wasn’t lowering, maybe not raising, but lowering down the way it usually does, it was slamming down that day.[31]
[29]Exhibit D.
[30]T160.
[31]T162.
Mr Gason said that the procedure was to ‘contact the batchers immediately’.[32] He said that he got back into his truck and ‘would have called the batcher and let him know’. He could not recall the precise words used, but said that ‘it would have been there’s something wrong with the slump stand, you need to get it fixed’.[33]
[32]Ibid.
[33]T162.
Mr Gason said that he then ‘just went and did my load’. He said that after reporting a fault ‘it [the equipment concerned] usually gets tagged out’. His best guess was that he was away from the plant for two and a half hours.[34]
[34]T163.
Mr Gason went to the ‘batchers hut’ after his load. The plaintiff came up ‘right behind’ him and said ‘I’ve just had an injury’, or ‘I’ve just hurt my back, the slump stand’s broken’. One of the batchers said ‘ah, yes, we know it’s broken’. Mr Gason said –
I was gobsmacked. Holcim has some of the most stringent safety issues, and if you, if this guy who said it has let someone work on a broken slump stand he could lose his job. Holcim was notorious for dismissing people for safety breaches, so I was floored that he said that.[35]
[35]T164.
Mr Gason was shown the plaintiff’s video.[36] He was asked whether that was how the slump stand normally operated and replied ‘never’. In connection with a separate video of the slump stand taken some years later and by the solicitor for the first defendant,[37] Mr Gason said ‘that’s perfect’.[38]
[36]Exhibit E. See also, T165-166.
[37]Exhibit D1-2. See also, T166.
[38]T166.
In cross-examination, Mr Gason confirmed that the system was to contact the batcher directly in connection with such a problem because it was ‘Holcim’s equipment’.[39] He had not complained to the first defendant’s supervisor at the plant (Mr MacDonald) because ‘that’s not the procedure’.[40] He also confirmed that he had radioed the batcher on that morning.[41]
[39]T172.
[40]T174-175.
[41]T175.
In the course of the evidence to which I have referred, it emerged that Mr Gason was unclear as to the precise timing and sequence of events on the day. He gave evidence that he attended the batchers’ office on several occasions. That said, the overall impression conveyed by his evidence – confirmed in a further cross-examination undertaken by counsel for the first defendant[42] - was that the ‘slamming’ incident had likely occurred in the morning prior to the plaintiff’s attending the batchers’ office following his injury. Mr Gason could only guess as to which batcher had replied ‘we know its broken’, although he was ‘pretty sure’ it was Daniel Inzillo.[43]
[42]T185-186.
[43]T184-185.
Roger Lewis
Roger Lewis, forensic engineer, gave evidence after I ruled on an objection by the second defendant to the admissibility of his evidence.
Mr Lewis wrote four reports.[44] In oral evidence he explained the elements and operation of the slump stand.
[44]Exhibits MM, NN, OO and PP.
Mr Lewis was shown the plaintiff’s video of the slump stand and gave evidence as follows –
Yes, I can see that the platform moves up and down repeatedly and there’s something wrong, it’s not normal behaviour, in my opinion. It doesn’t stay down. So, yes, I would say that supports my opinion that there is a problem with the pneumatic system.[45]
[45]T361.
In cross-examination, Mr Lewis confirmed that if the platform of the slump stand had dropped like a stone, that would have presented a ‘higher risk’ of injury.[46]
[46]T367.
Mr Lewis was cross-examined about the counterweight and other aspects of the slump stand as well as the incident on 24 February 2016 in which the platform had risen when plaintiff was on it. In that regard, Mr Lewis stated –
In my opinion the air that is admitted to the pneumatic cylinder to pull the platform to the horizontal, if that has leaked out for whatever reason, because of contamination of the piston rod, if in the same circumstance there’s an addition of air to the left side of the piston, then and it could apply an actuating force to put the platform up, it could also be that the counterweight is almost equivalent to the weight of the part of the platform that extends out beyond the pivot, so if they’re almost neutral, then potentially it could take only a small amount of pneumatic malfunction for the platform to start to rise.[47]
[47]T372. See also, T383.
As to the particular problem with the pneumatic system on that day, Mr Lewis confirmed that he could not be clearer without having seen it on the day.[48]
[48]T373.
As to any ‘slamming down’ of the platform from ‘the vertical’, Mr Lewis suggested that there may need to be a ‘very different diagnosis’.[49]
[49]T374-375. See also, T388: ‘depending on how far it fell from, that’s right’.
Counsel for the second defendant put to Mr Lewis that Mr Salton had found ‘variance’ and adjusted the ‘clevis’ at the end of the pneumatic arm in order that the platform was ‘further to the horizontal’. Mr Lewis could not ‘picture that to be true’ and said that he would ‘still be looking at the pneumatic system’.[50] He maintained that the pneumatic system ‘was involved in some way’.[51]
[50]T385-388.
[51]T389.
Mr Lewis was shown the plaintiff’s video, following which it was suggested that the ‘rising’ in the platform was to be explained by the driver having ‘ignited the pneumatic system’. Mr Lewis said it was possible, but also possible that the driver did not ‘get there’ in time.[52]
[52]T390-391.
As to ‘play’ or ‘variance’ being an explanation for the movement in the platform shown in the plaintiff’s video, Mr Lewis said ‘that does seem like a lot of variance’.[53] He did not consider the clevis to be an explanation for the ‘oscillation’.[54] He would not exclude the pneumatic system as being a contributor.[55] He later acknowledged – at least in respect of a particular issue posed – that he is ‘not an expert in pneumatics’.[56]
[53]T392.
[54]T393.
[55]T392-395.
[56]T411.
Andrew MacDonald
In 2015 and 2016 Mr MacDonald looked after the ‘day to day operations’ of the first defendant at the Footscray plant.[57] The drivers would report problems to him and he would inform the second defendant or investigate.[58] If the second defendant was informed of an issue its employees would not hesitate to get ‘the maintenance crew in’.[59]
[57]T489.
[58]T493.
[59]T496.
Mr MacDonald was present on the day of the incident. He said that he found the plaintiff on the platform of the slump stand. The plaintiff said that the platform ‘bounced’ and that he ‘jarred’ his back. Mr MacDonald said that the platform was ‘stationary’, ‘flat’ and ‘unremarkable’. He went upstairs to see the batchers and reported the incident. He was told that they ‘had maintenance on the way’. Reporting to the batchers was the ‘normal procedure’. The first defendant generally encouraged the drivers to report to the second defendant via it.[60] Mr MacDonald said that –
The batchers would follow that up with either getting it repaired in time, they investigate it, which if it was that serious they could lock it out.[61]
[60]T496-502.
[61]T503.
Mr MacDonald gave evidence that the drivers preferred the left slump stand.[62] He also said that he did not realise that there was any problem with the platform prior to the incident.[63]
[62]T504.
[63]T505.
Mr MacDonald was shown the first defendant’s video and confirmed that the platform could ‘bounce a little more than that’. He had seen the platform ‘slam down’ when there is ‘no air’.[64] He was then shown the plaintiff’s video and had ‘never seen any slump stands, any plant behave like that’. To him, it looked ‘like someone’s putting the lever up and down’. He would ‘definitely report it and get them to investigate’.[65] If it was his plant, he would ‘lock it out’.[66]
[64]T506-507. See also, T520.
[65]T509.
[66]T510. See also, T515.
Mr MacDonald said that going from the platform to the truck could take ‘five, six to eight to 10 seconds, maybe’.[67] Later, in cross-examination, he said ‘five seconds’.[68]
[67]T510.
[68]T513.
He had received no prior report about the platform, including from Mr Gason.[69] As far as he knew, the platform operated normally until ‘maintenance’ arrived ‘later in the day’. He did not heard anything else about it after that.[70]
[69]T510.
[70]T511.
In cross-examination, Mr MacDonald confirmed that if Mr Gason had complained to a batcher that was not something that would be reported to him.[71] He accepted that the plaintiff’s video showed ‘abnormal behaviour’ by the slump stand. As to drivers playing with the levers: ‘there wouldn’t have been anyone doing that’.[72] He thought that the incident with the plaintiff occurred earlier than 12:45.[73] It was possible that he had said to the plaintiff ‘they’re working on it’.[74]
[71]T513. See also, T516. Later, Mr MacDonald said that if a complaint had been made he ‘would have thought someone would have mentioned it’: T528.
[72]T514-515.
[73]T516.
[74]T516-517.
Mr MacDonald said that he did not see the plaintiff reporting to the batchers. He said that it was his role to report such an incident to the batchers. The plaintiff said that the platform ‘dropped down and bounced up’. He did not say that it behaved in a ‘see-saw motion’.[75] The batchers said to him that they had ‘maintenance on the way’.[76] There could be ‘variance’ in the platform ‘from time to time’ of ‘six inches’ until the driver walked onto the platform.[77]
[75]T519.
[76]T521. See also, T530.
[77]T522.
Counsel for the second defendant showed Mr MacDonald the plaintiff’s video and put the theory concerning a driver activating the lever, to which Mr MacDonald responded ‘possibly, yeah’.[78] He also agreed that the ‘wavering’ of the platform could be the driver having walked off it.[79]
[78]T524-525.
[79]T525.
Steven Riddell and the ‘truck drivers’
The first defendant called its director, Steven Riddell. There was a contract between the defendants.[80] In 2015/16 the first defendant had about eight trucks at the Footscray plant.[81] The second in charge was Mr MacDonald.[82] Mr Riddell drove the trucks too, if required.[83] He confirmed that the plaintiff was a ‘satisfactory employee’ who would have continued working for the first defendant had he not been injured.[84] The first defendant was no longer doing work for the second defendant.[85]
[80]Exhibit LL.
[81]T431.
[82]T432.
[83]Ibid.
[84]T434.
[85]T435.
Mr Riddell gave evidence concerning the safety and other procedures at the plant, including the role of the batchers. He was not aware of any prior or subsequent incident relating to the slump stand.[86] Mr Riddell was not at the plant on the day of the incident.[87]
[86]T444.
[87]T446.
In cross-examination, Mr Riddell confirmed that he would expect that a ‘defective’ slump stand would be ‘tagged out’ by the second defendant. The second defendant was required to ‘tag out’ its own equipment. The role of Mr MacDonald was to report a defect to the second defendant so that it could tag it out.[88] Mr Riddell would also expect Mr Gason to report a defect in the slump stand to a batcher.[89] Risk assessments concerning the slump stand were performed by the second defendant.[90]
[88]T447-449. Cf., Exhibit LL, cl 33.2-33.4.
[89]T452. See also, T458-459 and 461.
[90]T456.
Mr Riddell confirmed that an issue ‘potentially’ might not be a ‘lock out issue’.[91] The second defendant is ‘by far the most safety conscious business’ with which Mr Riddell has worked.[92]
[91]T459.
[92]T460.
The first defendant also called two concrete truck drivers, Mr Pizzecco and Mr Movre.
Mr Pizzecco said that safety issues were reported to the second defendant.[93] He did not recall any issue ever being raised or injury concerning the slump stand. He was not sure that he had worked on the day of the incident.[94] Mr Pizzecco said there is a gate before you go out onto the platform of the slump stand. Mr Pizzecco had not seen the platform ‘bounce’.[95]
[93]T465-466.
[94]T467-469. See also, T470-471.
[95]T469-470.
Mr Movre also said that safety issues with the slump stand would be reported to the batchers. He did not recall any safety issues concerning the slump stand.[96] He completed a work diary daily sheet relating to the day of the incident.[97] He had never seen the platform ‘misbehaving’ or ‘bouncing’ or slamming down.[98]
[96]T476-479.
[97]Exhibit D1-3.
[98]T479.
In cross-examination, Mr Movre confirmed that he had no recollection of the day of the incident.[99] He confirmed that there could be ‘slight movement’ in the platform of the slump stand as it came to the horizontal.[100]
[99]T480.
[100]T481.
Murray Salton
Mr Salton was called by the second defendant. He worked for the second defendant for 26 or 27 years as a maintenance fitter. For about six years he has worked in his own business, Murray’s Maintenance Pty Ltd.[101] It emerged in other evidence that Murray’s Maintenance has other employees.[102]
[101]T541-542.
[102]T630.
Mr Salton gave evidence that he was familiar with the slump stand and had been called to repair it by Jonathon Giokas of the second defendant. He was not told that someone had been injured on the slump stand.[103] The problem was said to be ‘play’ in the ‘main pivot’. He said that the platform varied only ‘very slightly off the horizontal’. If someone walks on it, the platform will go to the horizontal.[104]
[103]T553.
[104]T543-545.
He said that he could have taken one to one and a half hours to get there. He could not say what time of day it had been.[105] He said –
I found out it was a minute little bit of play, we’d lock it out, I locked it out, pull off the – there’s cages around it so I can get to the rod clevis, which is on the end of the air ram, right, which the air ram contracts, makes it go up and down, right, I undone that nut and you bring the rod clevis in, which takes up a bit of the slack.[106]
[105]T545.
[106]T548.
Mr Salton had seen the ‘minute little bit of play’ before, including on this particular slump stand. It developed because of ‘wear and tear’.[107] He said that he examined the pneumatic system to ‘make sure there’s no air leak or anything like that’. He said that the pneumatic system ‘either works or it doesn’t work’.[108] He later came to express the view that, in substance, the plaintiff’s version of events was impossible.[109]
[107]T548-549.
[108]T549. See also, T559-560.
[109]See, T568-569 and T589-590.
Mr Salton was asked about his tax invoice concerning work performed on the slump stand.[110] He sought to explain the time recorded and said that the word ‘breakdown’ meant something that has ‘got to be fixed virtually straight away’. As to the balance of the narrative concerning the work performed, he said –
Well, it means that I had to knock out, to adjust the clevis pin you have to remove the main pin and the locking nut, so you can undo it and retract it.[111]
[110]Exhibit H.
[111]T552.
He had not heard of an incident of injury when the platform descended rapidly.[112]
[112]Ibid.
Mr Salton was shown the plaintiff’s video and ‘can never recollect’ that the platform had ‘that much play, no way’. To him, it looked like ‘it’s going down on the lever and on its way back up’.[113]
[113]T554. See also, T562-563.
In cross-examination, Mr Salton confirmed that he had been at the plant ‘specifically for the slump stand’.[114] He would check that the slump stand was working once or twice a week, but there were not ‘regular maintenance checks’.[115] The problem with the slump stand on this day was ‘mechanical, not air’.[116] After adjusting the clevis, Mr Salton would have tested the slump stand.[117] Mr Salton was asked about the behaviour of the slump stand described by the plaintiff and said –
To my knowledge it wouldn’t have done that because once they are virtually – the weight of that person is on that area there, it’s enough weight to hold that slump stand down.[118]
[114]T556.
[115]T557-558.
[116]T560-561.
[117]T562.
[118]T564.
Shortly thereafter, Mr Salton described the behaviour of the slump stand described by the plaintiff as ‘completely impossible’. He said –
Yeah, well, 60 centimetres, you’d have to have something that was broken or a massive pin that was completely worn out or something and you still wouldn’t get 60 centimetres, 60 centimetres is a hell of a lot.[119]
[119]T565. See also, T567.
As to the suggestion of a sudden drop and a ‘bang’, Mr Salton said that there would not be noise of steel on steel because there was a rubber cushion. He said that ‘the pneumatics were working’[120] and that there was no air leak.[121] He said –
When I went out and had a look at the ram, I was quite happy with the way the pneumatics were running and everything like that, and it just needed a slight adjustment.[122]
[120]T566.
[121]T570-571.
[122]T574.
Mr Salton was asked whether there was an occasion when he had undertaken ‘quite a lot of work’ on the slump stand and ultimately answered ‘not really, it’s a long time ago’.[123]
[123]T574-576.
In cross examination by senior counsel for the plaintiff, it emerged that prior to the hearing Mr Salton had seen the plaintiff’s video with ‘a couple of other employees’. It seemed that Mr Salton had discussed the video and/or incident with Mr Follacchio, Mr Inzillo, Mr MacDonald and Jonathan Giokas.[124]
[124]T577-578, T581-583 and T591.
Mr Salton was taken to his tax invoice[125] and, implicitly, to the difference between the narrative recorded and his claim to have adjusted the clevis. He sought to explain the narrative as follows –
‘Re-fitted’, that’s what I put down, ‘refit and repaired the air ram’, which I had to undo the rod clevis and adjust it, so that’s – I had to remove it, right, drop it down and I – you have to adjust the rod clevis, so that’s just a matter of speaking what I done, to repair it.[126]
[125]Exhibit H.
[126]T579.
Mr Salton confirmed that the extent of his testing for air leaks was to listen.[127] He could not see how the platform would have slammed down.[128]
[127]T580.
[128]T583.
Mr Salton was taken to a spreadsheet of maintenance attendances, including an item dated 16 March 2016.[129] He said that he could not remember that work as ‘it’s a long time ago’. He remembered ‘doing the rod clevis’ (on the day of the incident).[130]
[129]Exhibit QQ.
[130]T589.
Pablo ‘Paul’ Follacchio
Mr Follacchio was a senior batcher employed by the second defendant. He gave evidence concerning the system of inspection of equipment at the Footscray plant, including in respect of the slump stand. He said that he had checked the equipment on daily ‘walkabouts’. He had not heard an air leak in the slump stand, although the effect of his evidence seemed to be that there had ‘probably’ been an incident involving an air leak at some point.[131]
[131]T600-601.
As to the day of the incident, Mr Follacchio stated –
Um, vaguely, all I can basically remember is he came upstairs and he was telling us that he injured his back or his body from using the slump stand, and then when I asked him what happened, it was very confusing, what he was telling me.[132]
[132]T613. See also, T646.
Mr Follacchio ‘went for a walk’ with Mr Giokas and inspected the slump stand which, to him, did not look unusual. He had never heard of an injury on the slump stand.[133]
[133]T614. See also, T634.
He said that if there was an air leak in the slump stand it would not ‘work properly at all’.[134] He also said that if there was a problem with the slump stand he would stop it immediately and place a ‘safety bollard or whatever’ in the way.[135] As to his inspections, he said –
When I say do an inspection of the slump stand, I’m visually looking at the whole lot, steps, the handrails, the bottom rails, where the pneumatics are all joined up, I’m just doing a visual check on it.[136]
[134]T623.
[135]T628.
[136]T631.
As to the check on the day as to whether the slump stand platform was working, Mr Follacchio said –
I’ll be honest, because it was that many years ago, I can’t even remember if I did check it, didn’t check it, but I do remember from what I can gather it was working.[137]
[137]T635.
In respect of the account by Mr Gason concerning the slump stand dropping and that being reported to a batcher, Mr Follacchio said it was ‘all new to me’. That said, Mr Follacchio said that such a thing was ‘not good, you’ve got to react to that immediately’. If it was true, he would park a forklift in front of the slump stand and not use it until Mr Salton arrived. It would not matter that the drivers would be slowed down from getting their loads out.[138]
[138]T638-640. See also, T654.
Daniel Inzillo
Mr Inzillo was a production supervisor for the second defendant at the Footscray plant. He gave evidence concerning risk assessments of the slump stand. He said that would include making sure that the ‘pneumatics’ were working.[139]
[139]T662.
As to the risk that the platform would ‘crash down with someone on it’, Mr Inzillo said that he had never witnessed such an event and so would not have considered it.[140]
[140]T664.
Mr Inzillo was shown the plaintiff’s video and said ‘that’s exactly what it looked like when the platform would go down’. As to the driver shown to go down the stairs, he posited a theory concerning the driver having remembered to go and get a docket, PPE, hearing protection or eyewear from the truck.[141]
[141]T667.
In cross-examination, Mr Inzillo confirmed that the second defendant set ‘the rules’ and was responsible for the safety of its plant.[142] The drivers were encouraged to report safety concerns to the batchers.[143] He was again shown the plaintiff’s video and said –
…at the very start of it, it looks like, to me, it looks like it has just been released down, that first initial when it’s going up, that looks like from – when it first comes down, that first initial bounce that it does, that’s what it looks like it’s doing at the very start of this video, and if the video continued you would see the platform stopped.[144]
[142]T669.
[143]T672.
[144]T675.
Mr Inzillo confirmed that if the slump stand ‘was doing that while it was down’, it would be ‘locked out’. He said that he had not seen the video before coming to court.[145]
[145]T677. See also, T684-685.
Mr Inzillo confirmed that maintenance of the slump stand was ‘in Holcim’s domain’.[146]
[146]T678.
In cross-examination by senior counsel for the plaintiff, Mr Inzillo confirmed that inspections of the slump stand would not involve looking at the ‘clevis rods’ unless something was noticed causing them to be examined.[147] The risk assessment, which post-dated the plaintiff’s date of injury, did not identify any risk with pneumatics and did not refer to the incident involving the plaintiff.[148]
[147]T679.
[148]T679-680. Cf., Exhibit D2-6.
Mr Inzillo did not recall the repairs referred to in the invoice from Murray’s Maintenance dated 6 March 2016,[149] however he had known Mr Salton ‘to replace the slump stand rams’.[150]
[149]Exhibit SS. See also, T682-683.
[150]T681.
In re-examination, Mr Inzillo said that the works referred to in the invoice dated 6 May 2016 ‘indicates that we had a full shut down for preventative maintenance of the plant’.[151]
[151]T684.
Other witnesses and evidence
The witnesses to whom I have referred gave additional evidence not summarised. In particular, several witnesses gave further evidence concerning risk assessment of the slump stand and processes of inspection and maintenance at the plant.[152]
[152]Particularly, Mr Riddell, Mr MacDonald, Mr Salton, Mr Follacchio and Mr Inzillo.
A body of documentary evidence was also received concerning, in particular, the incident and the processes of inspection and assessment.[153]
[153]See, Exhibits F, G, LL, QQ, RR, SS, D2-5, D2-6 and D2-7.
The plaintiff called several medical witnesses concerning his injury, treatment, capacity and prospects; namely, Dr Habib (treating general practitioner), Dr Simon McCallum (medico-legal anaesthetist and practitioner in pain medicine), Mr Raf Asaid (medico-legal orthopaedic surgeon) and Dr Clayton Thomas (treating consultant in rehabilitation and pain medicine). Their reports were tendered.[154]
[154]Exhibits I, J, K, L, M, R, S, T, X and Z.
No other medical witnesses were required for cross-examination and their reports were tendered by consent, including several reports of radiological examinations.[155]
[155]Exhibits N, O, P, Q, U, W, Y, AA, BB, CC, DD, EE, FF, GG, HH, II and JJ.
The plaintiff did not require the defendants’ medical witnesses for cross-examination and their reports were tendered by consent.[156]
[156]Exhibits D1-4, D1-5, D1-6, D1-7, D1-8, D1-9, D1-10, D1-11, D1-12, D1-13, D1-14, D1-15, D2-8, D2-9 and D2-10.
D The incident
There was ultimately no issue that something had occurred on the day of the incident in which the plaintiff had suffered injury. The issue was what specifically had occurred.
The plaintiff submitted, in substance, that the evidence of Mr Gason and the plaintiff ought be accepted. It was submitted that the slump stand ‘misbehaved’ as described and the plaintiff was injured.
The position between the defendants varied slightly. The first defendant did not submit that the plaintiff was not a witness of credit. Indeed, it accepted that something must have occurred on the platform of the slump stand.[157] The difficulty was what that incident may be said to have involved. In that regard, there was no prior or subsequent report of ‘misbehaviour’ of the slump stand of the kind described by either Mr Gason or the plaintiff. Further, Mr Salton described the plaintiff’s version as ‘completely impossible’.[158]
[157]T701-704.
[158]T565.
By contrast, the second defendant submitted that the Court ought to have reservations about the credibility and reliability of the plaintiff. The second defendant made the same points that had been made by the first defendant concerning the slump stand and Mr Salton. However, counsel for the second defendant also emphasised the plaintiff’s claims that the platform ‘see-sawed’, the late discovery and explanation concerning the plaintiff’s video, some of the plaintiff’s evidence concerning his disability and some of the medical evidence – including Dr Barton’s reference to ‘illness behaviour’ and, indeed, the opinion of Dr Brazenor that the plaintiff was ‘perpetuating a ruse’.[159] I have considered those submissions and taken them into account.
[159]Outline of submissions on behalf of the second defendant, [32]-[33].
By my assessment, Mr Gason and the plaintiff were straightforward in their evidence concerning events on the day of the incident.
It was plain from the way in which Mr Gason gave his evidence that he remembered the incident in which he saw the platform ‘slam down’ and reported it to a batcher by radio. He had reason to recall the incident because of his ‘gobsmacked’ reaction when he later saw the plaintiff report his injury to the batchers. I do not accept the submission of the second defendant that Mr Gason was ‘gobsmacked’ for some other more limited reason.[160] Mr Gason was ‘100 per cent’ clear about that part of his evidence.[161]
[160]Outline of submissions on behalf of the second defendant, [46].
[161]T173-174.
I also do not accept the submission of the second defendant that Mr Gason’s call to the batchers was not made because there was no record of it by the second defendant. There was no evidence concerning any system of the second defendant involving the recording of such complaints. In any event, in a case in which the batcher concerned did not act on Mr Gason’s report in the manner that seems to have been expected – by ‘locking out’ the left slump stand – a failure to record Mr Gason’s report may have been part and parcel of the failure to act upon it.[162]
[162]Outline of submissions on behalf of the second defendant, [45].
Notwithstanding the above, I am conscious that Mr Salton ultimately attended to inspect and repair the slump stand on that day. No real attempt was made to establish with any precision via the evidence of Mr Salton that either the call out to Mr Salton could not have originated as a consequence of a complaint by Mr Gason, nor that it must have occurred as a consequence of the complaint made by the plaintiff. In that regard, Mr Salton gave evidence that when called out by Jonathan Giokas, the safety representative of the second defendant, he had not been told that somebody had been injured on the slump stand.[163]
[163]T553.
In this context, Mr Gason acknowledged that he was less clear about some other aspects of his evidence, including the sequence and timing of events on the day and another incident in which he had seen a slump stand platform rise. Those acknowledgements tended to enhance his credit as a witness rather than the reverse.
One of the matters about which Mr Gason was less clear was when in the day he had made the radio call and then been in the batchers’ office and seen the plaintiff report his injury. That said, Mr Gason gave evidence in cross-examination that the report was in the morning and, as I have indicated, the impression conveyed by the whole of his evidence was to the effect that his incident and report to the batcher must have occurred in the morning.
In that regard, Mr Gason recalled reporting his incident, doing a load and later being in the batchers’ office when the plaintiff reported his incident. The handwritten incident report completed by the plaintiff on the day recorded the time of the occurrence as 12:45.[164] I consider that to be a more reliable indicator of timing on the day than some of the oral evidence given at trial some years after the event.[165] If Mr Gason saw the plaintiff at the batchers’ office shortly after 12:45, then it is most likely that his report to the batcher by radio occurred some hours earlier and therefore in the morning.
[164]Exhibit A.
[165]Including, in particular, that of Mr MacDonald.
The plaintiff gave evidence concerning the incident of injury on the slump stand simply and without embroidery. He was asked about whether the platform was ‘horizontal’ when he walked onto it and acknowledged that he did not remember, but that it was ‘as low as possible’.[166]
[166]T69. See also, T79-80.
The plaintiff acknowledged that his version of events had the platform raising and then falling heavily while he was standing on it. He also acknowledged that the platform did not literally ‘see-saw’.[167]
[167]T66.
The strength in the plaintiff’s account emerged in his initially uncomprehending responses to the suggestions made by counsel for the second defendant to the effect that his account had not occurred at all, together with his later blunt rejection of persisting suggestions.[168] Having seen those responses, I could not accept that the plaintiff’s evidence concerning the incident of injury was given other than truthfully.
[168]T120 and T144.
In that regard, I consider the plaintiff’s account of the incident of injury to be corroborated by the incident report handwritten by him on the day.[169] That account is essentially consistent with the description of the incident later appearing in the plaintiff’s signed claim form.[170]
[169]Exhibit A.
[170]Exhibit D2-1.
As against those accounts, I place little weight upon the second defendant’s documents relating to the incident. Those documents were not prepared by the plaintiff and, indeed, the second defendant’s incident form[171] seems to have been completed by Jonathan Giokas – who was said to have been the second defendant’s ‘safety rep’. Mr Giokas was said to have viewed the plaintiff’s video and discussed it or the incident (or both) with Mr Salton shortly prior to trial, but was not called to explain the origins of the contents of the incident form.[172]
[171]Exhibit G.
[172]T591.
The plaintiff’s evidence concerning his video was also straightforward. I reject the suggestion that he, in effect, took a favourable video when he could have taken an unfavourable one. After all, he effectively lost the video for many years and nearly went to trial without it until a family friend suggested that his telephone be examined and repaired.[173]
[173]T122.
The second defendant also submitted that the repair invoice simply showed that the screen of the plaintiff’s old iPhone had been repaired.[174] I am not sure what the narrative description in the invoice means.[175] In any event, I could not conclude that such a repair would necessarily be inconsistent with one that allowed the plaintiff to access and view the video stored on his old iPhone. In my view, the plaintiff explained the late discovery of the video quite adequately in his evidence.
[174]Outline of submissions on behalf of the second defendant, [23].
[175]Exhibit D2-11.
The plaintiff’s video is consistent with his evidence concerning the ‘unusual’ behaviour of the slump stand platform on the day. Practically every witness who was shown the video remarked that the behaviour shown was unusual. The only exception was Mr Inzillo, and I do not accept his observation to the effect that the slump stand is there shown to behave essentially normally. The abnormal nature of the operation of the slump stand shown in the plaintiff’s video may be contrasted with that shown in the video of the first defendant.
I have noted that there were attempts to suggest that the plaintiff’s video showed the platform moving after a driver walked from it and otherwise showed the raising of the platform after activation of the lever at the bottom of the stairs. All of that evidence was speculative in nature and none of it was conclusive. More than one witness dismissed the suggestion that it could be explained by drivers playing with the lever. I am not satisfied that the video shows anything other than the abnormal behaviour of the platform of the slump stand spoken of by the plaintiff in his evidence, albeit that, of course, no worker is there shown to be on the platform of the slump stand while it is ‘oscillating’.
The plaintiff’s evidence was obviously bolstered by that of Mr Gason in the sense that both spoke of the slump stand platform malfunctioning on the same day and, indeed, each spoke of it ‘slamming down’.[176]
[176]Cf. Exhibit A and T162.
In my view, there is little in the point made by the first defendant concerning Mr Gason seeing the platform slam down from the ‘vertical’ and the plaintiff experiencing it having risen and then ‘slamming down’. It was not wholly clear that Mr Gason saw the platform slam down from the vertical – that seems to have been assumed rather than actually established – and I am conscious that the first defendant’s video shows the platform descend from lower than the vertical. In any event, it seems to me to be of much more significance that both Mr Gason and the plaintiff experienced it to ‘slam down’ on the same day.
Nor, in my view, is there anything in the submission that the slump stand could not have ‘slammed down’ and made a noise of ‘metal on metal’ because of the evidence of Mr Salton to the effect that there is a rubber cushion under the platform.[177] The slump stand is a heavy piece of industrial equipment that moves and has metal components. If the platform were to ‘slam down’, it is not hard to imagine that some part or parts of the slump stand would shake and rattle making a significant sound of ‘metal on metal’.
[177]T566.
I also consider the plaintiff’s account concerning the behaviour of the slump stand platform to have been bolstered by the evidence of Mr Lewis. Mr Lewis was an impressively careful and considered witness. Despite the challenge made to his capacity to give expert opinion evidence, he presented as knowledgeable and qualified to speak concerning the mechanics and operation of the slump stand.
Both defendants sought to emphasise Mr Lewis’ acknowledgement in oral evidence that he was not an expert in pneumatics, however the relative nature of that acknowledgement was evident in his answer to the question that followed.[178] From the evidence that Mr Lewis gave, it was evident that he could speak to the operation of the pneumatic system on the slump stand with considerable authority even if there might be others who are even more expert or qualified.
[178]T411.
In this context, it was of significance that Mr Lewis considered the plaintiff’s video to show ‘something wrong’ with the slump stand and that there was ‘a problem with the pneumatic system’.[179] The scenario involved – that the platform had been said to be raising while the plaintiff was on it – was put to Mr Lewis, and he plainly understood it, but he maintained there was nonetheless an ‘issue’ with the pneumatic system.[180] That Mr Lewis could not precisely diagnose the problem does not detract from the substance of his oral evidence that it was a ‘pneumatic’ one.
[179]T361. See also, T383.
[180]T370-373.
In this sense, the evidence of Mr Lewis gave a technical and mechanical plausibility to the plaintiff’s account of the incident and cast doubt upon the defendants’ suggestion that the event was to be explained by Mr Salton’s mere adjustment of the clevis: Mr Lewis could not ‘picture’ that explanation ‘to be true’.[181]
[181]T387-388.
The fundamental assault upon the plaintiff’s version of events (and, implicitly that of Mr Gason) was, however, advanced via the evidence of Mr Salton together with that of the various drivers and others who could not recall problems with the slump stand before and after the day in question.
In that regard, Mr Riddell was not present on the day and Mr Pizzecco was not sure that he was there. Mr Movre had no recollection of the day and, remarkably, Mr Inzillo gave no evidence concerning the day of the incident, albeit that the plaintiff had given evidence of reporting the incident to him and Mr Gason had also ‘guessed’ that Mr Inzillo was there.[182] None of that evidence amounted to much that could be decisive in respect of the incident on the day or the condition of the slump stand on the days that followed.
[182]T184-185.
Mr MacDonald gave evidence that he met the plaintiff on the slump stand just after the incident. He said that the plaintiff then left to perform his load. In substance, Mr MacDonald had the meeting occurring on the slump stand and the plaintiff had it occurring in the office. The relevant puttage to the plaintiff was not complete, but little presently turns on it. I accept the substance of the plaintiff’s account, as Mr Gason saw the plaintiff reporting the incident at the batchers’ office and so did Mr Follacchio; albeit that neither could precisely remember Mr MacDonald being present.
Mr MacDonald also gave evidence of inspecting the slump stand and that it was ‘flat’ and ‘unremarkable’. That inspection seems to have occurred before the arrival of Mr Salton. I do not regard that evidence as strongly supportive of the proposition that there was nothing wrong with the slump stand.
Mr Follacchio also said that the slump stand did not look ‘unusual’, although he also could not recall testing whether it worked.
In this context, the real thrust in the defendants’ contest of the plaintiff’s version of events was advanced via the evidence of Mr Salton. In essence, he said that he had inspected the slump stand, including the pneumatic system, and had only needed to perform a minor adjustment to the clevis in respect of ‘variance’ or ‘play’ in the platform that tended to occur by reason of ‘wear and tear’. He otherwise said that the plaintiff’s version of events was ‘impossible’.
In this sense, Mr Salton’s account was very much contrary to that of the plaintiff: he said that he witnessed the slump stand to be in a condition quite different to that of which the plaintiff gave evidence. That difference was most evident in Mr Salton’s evidence concerning the plaintiff’s video: he said that the slump stand ‘didn’t look like that to me’.[183] Repeatedly, in being asked to consider the plaintiff’s account of events, it was evident that Mr Salton was attached to his own account of events and was unable to envisage that of which the plaintiff had given evidence.
[183]T562-563.
Mr Salton did not strike me as in any way dishonest in giving his account, however there were aspects of his evidence that have required careful consideration.
As I have indicated, Mr Salton gave a relatively precise account of inspecting the slump stand and repairing ‘play’ in the platform by adjusting the clevis. He explained that ‘play’ was ‘a slight little thing’ involving the platform not being ‘perfectly horizontal’. He said that ‘as soon as someone walks down [the platform] with the weight of the person it will go to horizontal’.[184] Mr Salton explained that ‘play’ arose from ‘wear and tear’ in the use of the slump stand and I gained the impression that it arose regularly, including in respect of the slump stand in question.[185]
[184]T544. See also, T564.
[185]See, T548-549. See also, T557.
There was, however, a tension between Mr Salton’s account in evidence and the description appearing in his tax invoice.[186] Among other things, the narrative in the tax invoice made no direct mention of adjustment to the clevis and the capitalised reference to ‘BREAKDOWN’ tended to suggest a more major reason for Mr Salton’s attendance than that indicated by his explanation in oral evidence. I have noted that Mr Salton sought to explain the content of the written narrative,[187] however I did not consider that satisfactorily to explain the features to which I have referred.
[186]Exhibit H.
[187]T551-552 and T579.
Mr Salton’s account and tax invoice also did not really sit with aspects of the incident report apparently completed by Jonathan Giokas, the safety representative of the second defendant. Mr Salton said that he had been called by Mr Giokas to repair ‘some play’ in the slump stand platform.[188] The incident report apparently completed by Mr Giokas recorded a description of the incident that differed from that appearing in the plaintiff’s incident report, in that it made no mention of ‘slamming’. Mr Giokas’ version of the event was considerably more demure, in that it referred to ‘a slight bounce movement as the driver stepped onto the platform’. In respect to Mr Salton, however, it said ‘engage with maintenance fitter to change clevis pins and bushes’.[189] The tension between the notation recording that the clevis pins and bushes were ‘changed’ and the relatively minor ‘adjustment’ of which Mr Salton gave evidence was unexplained.
[188]T543.
[189]Exhibit G.
The impression created by the tension between Mr Salton’s account of events and the documents to which I have referred was compounded by elements of vagueness in Mr Salton’s evidence surrounding his account. At various points, Mr Salton could not recall details and referred to the events concerned as having occurred ‘a long time ago’. For example –
(a) Mr Salton could not remember the date or year when the slump stand had been installed;[190]
[190] T558.
(b) Mr Salton could not recall what time of day it was when he was called out;[191]
[191]T545.
(c) Mr Salton could not remember whether he was at home when he was called;[192]
[192]T556.
(d) Mr Salton could not recall how long it was before he was able to start working on the slump stand after he arrived at the plant;[193]
[193]T546.
(e) Mr Salton said that he worked on the slump stand for ‘around about an hour or so’, but considered the question to be ‘testing his memory’;[194]
[194]T550.
(f) Mr Salton could not remember precisely what the time allocation in his tax invoice related to and whether he had been ‘doing another job’;[195]
[195]T555.
(g) Mr Salton could not remember ever doing any ‘major work’ on the slump stand;[196]
[196]T575.
(h) Mr Salton could not remember being called back to do work on the pneumatic system of the slump stand while it remained ‘in commission at Footscray’;[197]
(i) in respect of a maintenance record that Mr Salton considered to show a ‘massive amount of work’ on 16 March 2016, Mr Salton could not recall the work concerned and said ‘it’s a long time ago’;[198] and
(j) when asked about his recent discussion with Mr MacDonald, Mr Salton said ‘I’m lucky to remember what I done, you know a few days ago let alone last week’.[199]
[197]T576.
[198]T589.
[199]T582.
In the end, the position was best expressed in the following evidence of Mr Salton given at the conclusion of cross-examination by senior counsel for the plaintiff –
Listen, as I’m saying, I remember, what I do remember, I remember doing the rod clevis. I’m sorry that I can’t remember everything that I’ve done during the day.[200]
[200]T589.
To me, there was an uncomfortable contrast in the apparent certainty and precision in Mr Salton’s account of events concerning the inspection and repair of the slump stand on the day in question and his uncertainty or vagueness in recalling the many details surrounding those events.
In that regard, in respect of a repair that, on Mr Salton’s account, seems to have occurred more than once and even regularly, it made me wonder how it could be that Mr Salton could remember such an unremarkable event so clearly but not several of the similarly unremarkable details that surrounded it. It also made me wonder whether it might be that Mr Salton had a memory of either another event or a combination of similarly unremarkable and regular events rather than any memory of the actual events on the day. As that suggestion was not put to Mr Salton, however, I do not act upon it.
Notwithstanding the above, as I have noted, in oral evidence Mr Salton declared that the plaintiff’s account was essentially impossible.[201] That said, aspects of his evidence may have contemplated potential explanations for at least parts of the plaintiff’s account of the condition of the slump stand shown in the plaintiff’s video.[202] Those potential explanations remained undeveloped.
[201]See, T565 and T589-590.
[202]See, in particular, T560 (‘a faulty solenoid valve’ or ‘faulty air breather’), T565 (‘something that was broken or a massive pin that was completely worn out’), T567 (‘something a lot more wrong than just adjusting a clevis’) and T583 (‘I’m talking about a massive air leak, yes, there would be a problem because it would not get full pressure to put it down’).
It was, nonetheless, striking that Mr Salton gave that evidence in plain terms, commencing in examination in chief,[203] yet the proposition that the plaintiff’s account was ‘pneumatically impossible’ had not earlier been put to Mr Lewis.[204] The surprising nature of that state of affairs was further compounded later when an element of the same proposition emerged in the evidence in chief of Mr Follacchio.[205]
[203]T549.
[204]T745.
[205]T614.
In this regard, and perhaps most surprising of all, were the revelations in the evidence of Mr Salton that prior to giving evidence he had been discussing the plaintiff’s incident and/or plaintiff’s video with Mr Follacchio, Mr Inzillo, Mr MacDonald and Mr Giokas.[206] As I have noted, Mr Giokas was not called.
[206]T578, 581-583 and T591.
In these circumstances, while I should repeat that I do not consider Mr Salton to have been a dishonest witness, the features to which I have referred leave me concerned that his recollection concerning the events on and relating to the day have been influenced by processes or elements of external suggestion or reconstruction.
For the reasons which I have sought to outline, I prefer and accept the account of events given in evidence by Mr Gason and the plaintiff.
In light of the above, I find as follows –
(a) on the morning of 24 February 2016, Mr Gason witnessed an incident involving the ‘slamming down’ of the left hand slump stand platform from an unspecified height;
(b) Mr Gason radioed a batcher and reported the problem;
(c) it was Mr Gason’s expectation that the problem would be attended to by the second defendant, at least by ‘tagging out’ the left hand slump stand;
(d) at about 12:45pm the same day, the plaintiff used the left hand slump stand platform and experienced it to raise up on two or three occasions while he was standing on it before falling suddenly in the course of which he jarred his lower back;
(e) it is likely that the problems with the slump stand encountered by Mr Gason and the plaintiff arose by reason of a failure that commenced on that day;
(f) in that regard, the problem with the slump stand encountered by the plaintiff – namely oscillation with a man standing on it and then ‘slamming’ – had not occurred prior to 24 February 2016;
(g) in that sense, it was most likely unusual and unanticipated behaviour – confirmed by the plaintiff in evidence to have been a ‘freak situation’ – albeit that a precursor to or part of it – the slamming down – may previously have been witnessed by Mr MacDonald and was, of course, witnessed by Mr Gason earlier the same day and reported to the second defendant;
(h) I am not satisfied that Mr MacDonald saw the plaintiff and spoke with him at the slump stand immediately after the incident;
(i) it is more likely, that the plaintiff attended the batchers’ office after the incident and reported the problem and his injury to the batchers in the presence of Mr MacDonald;
(j) in the course of reporting to Mr MacDonald and the batchers, the plaintiff was told that the slump stand was being attended to;
(k) I accept that in the course of that event Mr Gason was also present;
(l) Mr Gason was ‘gobsmacked’ at the plaintiff’s report because he had expected that the left hand slump stand platform would have been ‘tagged out’ as a result of his earlier report;
(m) I am satisfied that the plaintiff’s attendance at the batchers’ office occurred shortly after 12:45pm and that later the same day the plaintiff filled out his incident report;
(n) the slump stand was attended later that day by Mr Salton, although I am not satisfied that the repairs performed by him related only to an adjustment of the ‘clevis’ in order to counter ‘play’ in the platform of the slump stand brought about by ‘wear and tear’;
(o) I am satisfied that there must have been a ‘pneumatic’ problem with the left hand slump stand platform and its repair occurred on that day and/or on 6 March 2016;
(p) I am unable to say precisely what the nature of the ‘pneumatic’ problem was and I am specifically unable to conclude that it was brought on by ‘wear and tear’;
(q) I do not attach any significant weight to the evidence of various witnesses to the effect that the slump stand was ‘unremarkable’ on the day or that they could not ‘recall’ any issue with it in the days that followed;
(r) in that regard, various witnesses – unsurprisingly – were unable to be definitive in their evidence concerning the day and the fact is that loading could have continued via the right hand slump stand even if the left hand slump stand had been ‘tagged out’;
(s) further, none of the witnesses (with the exception of Mr Inzillo) gave evidence concerning the repairs undertaken on 6 March 2016, although Mr Salton initially could not recall ever having performed any major works on the slump stand and then could not remember having performed the works recorded (in the maintenance schedule, and in respect of a different date; as opposed to those recorded in the later produced tax invoice relating to 6 March 2016); and
(t) I do not accept the speculative evidence of Mr Inzillo to the effect that the repairs undertaken on 6 March 2016 are to be explained as ‘preventative maintenance’.
E Liability
The plaintiff ultimately advanced his negligence case in three ways –
(a) failing to ‘tag out’ the left hand slump stand following notification by Mr Gason to the batcher;
(b) failing to implement a proper system of maintenance and inspections; and
(c) failing to implement mechanical solutions to obviate the risk of a malfunction, such as ‘housing’ the pneumatic ram, a locking pneumatic ram or locking pin.
All three allegations were advanced against the second defendant.
The first two allegations were also advanced against the first defendant; the first via a nuance to the effect that Mr Gason had reported to the batchers in circumstances where, it was said, he should have reported to the first defendant (particularly, Mr MacDonald).[207] In that regard, in address, senior counsel for the plaintiff submitted –
If Gason was required by the first defendant to report the fault to it, the slump stand would have been tagged out and the plaintiff would not have suffered injury.[208]
[207]T757.
[208]Ibid.
Senior counsel elaborated, as follows –
The failure to have it reported, even to itself, the first defendant. So its position, its system of work, was to say, “If there’s a fault, go and report it to the second defendant, not us. Not our problem, not our plant.’ And if they had a proper system in place and it was reported, the evidence you’ve heard from numerous – both witnesses of the first and second defendant, the slump stand would have been tagged out, cone put in place and stopped.[209]
[209]T758.
As to maintenance and inspections, senior counsel for the plaintiff explained –
… the first defendant could not have been satisfied that there was a system in place to adequately maintain the slump stand, and the reason it couldn’t be satisfied, because the evidence of Mr Salton was that there were no maintenance checks to the slump stand despite it being subject to obvious wear and tear.[210]
[210]T757.
Senior counsel for the plaintiff described the case advanced pursuant to the Plant Regulations as ‘auxiliary’ to the case directed to the system of maintenance and inspections.[211] No separate argument was directed to that claim.
[211]Ibid.
Notification
Many witnesses gave evidence concerning the seriousness with which safety was approached at the plant, particularly by the second defendant.
There were several facets to the relevant evidence, including the clauses in the contract between the defendants. Clause 33.2 of that contract stated –
The Owner [first defendant] shall immediately advise Holcim of any incident, including any near miss, whether or not involving injury to people or damage to property, or an accident involving the delivery of concrete or the Concrete Truck, by contacting the Holcim Representative at the Plant from which the Owner is working on the day of the incident.[212]
[212]Exhibit LL.
Clause 33.4 also required the first defendant to advise the second defendant of any ‘defect’ immediately in writing.
The relevant evidence included that of Mr Gason, who said –
Holcim is pretty full-on with safety, so as soon as you see a fault or you have a near miss, or anything that could be classed as a slip or fall you contact the batchers immediately.[213]
[213]T162.
He later said that that the second defendant was ‘notorious for dismissing people for safety breaches’[214] and that it had an approach to safety that was the ‘best I’ve ever worked with’.[215]
[214]T165.
[215]T170.
Similarly, Mr Riddell gave detailed evidence concerning the safety systems of the first defendant as well as those of the second defendant.[216] More generally, Mr Riddell stated –
Holcim is by far the most safety conscious business I’ve ever worked for and I still, you know, I don’t work for them anymore, but where I currently work are not as safety focused as what Holcim were, absolutely.[217]
[216]T436-438.
[217]T460.
The focus of the second defendant upon safety seems to have extended to the slump stand. As Mr Follacchio explained –
Well the slump stand’s obviously a very important part, because it gets used continuously all day long every day.[218]
[218]T627.
Mr Follacchio added –
So it has to be safe so it eliminates the probability of anything happening to the driver, for his safety, so yeah, that’s an important part of the concrete plant.[219]
[219]T627-628.
While the evidence of the witnesses concerning the first defendant’s approach to safety was not in terms as effusive as those concerning the approach of the second defendant, I have noted that Mr Riddell gave detailed evidence concerning the first defendant’s system of training and inspections in connection with its own processes and equipment. That system seems to have operated in combination with the second defendant’s system of ‘pre-starts’, risk assessment, safety meetings and the like.[220] Mr Inzillo confirmed that Mr MacDonald – the first defendant’s second in charge – was ‘very safety conscious’.[221] I am satisfied that the first defendant also took safety seriously.
[220]T434-438.
[221]T677.
In that context, I have found, relevantly, that the faulty operation of the slump stand arose that day and was notified to a batcher by Mr Gason.
As I have noted, the batchers supervised the plant. It follows that notification to a batcher was sufficient and appropriate to notify the second defendant. The second defendant owned and controlled the slump stand.
Almost uniformly, the witnesses confirmed that such a pathway of notification was appropriate and that the established procedure in response to such a notification should have been immediately to ‘tag out’ the equipment concerned.
In that regard, Mr Gason said that the procedure was to notify the batchers because that was ‘a part of the safety meetings’ and ‘it was Holcim’s equipment’.[222] Having notified a batcher on the morning of the incident, Mr Gason gave evidence concerning his expectation –
That the faulty equipment would be tagged out and you would lose your ability to drive your truck to the slump stand, with the cone, the bollard, there’s all sorts of things they would put, as general, they put a witch’s hat on the side you couldn’t drive on, and if they know where the fault was they would tag it out.[223]
[222]T172-175.
[223]T165.
The other drivers – Mr Pizzecco and Mr Movre – gave evidence that notification could be to the batchers,[224] as did Mr Riddell;[225] as well as the relevant witnesses called by the second defendant, Mr Follacchio and Mr Inzillo.[226]
[224]T465-466 and T476.
[225]T452 and T461.
[226]T625 and T672
As to ‘tagging out’, Mr Follacchio said –
If I identified that there was a problem, we would stop using it instantly, straight away, and put a safety bollard or whatever and then obviously try to attempt to rectify the problem.[227]
[227]T628.
In respect of notification by Mr Gason that the platform of the left hand slump stand had ‘simply dropped’, Mr Follacchio said –
If it’s what you’re saying and I believe it, it’s not good, you’ve got to react to that immediately, you can’t just say, “oh, let’s wait till the end of the day”…[228]
[228]T638.
In re-examination, Mr Follacchio confirmed that such a notification would be ‘super high priority’.[229]
[229]T654.
Similarly, to the extent that the witnesses to whom I have referred were shown the plaintiff’s video, they largely confirmed that if the slump stand was behaving in such a manner it should have been ‘tagged out’. Even Mr Inzillo said –
If it was reported to me it would be locked out and that side of the slump stand would have been closed down.[230]
[230]T677.
In the cross-examination of Mr Riddell and one or two other witnesses, there was an attempt to generate evidence to the effect that the second defendant’s system of tagging out might be subject to the discretion of the batcher if an examination of the equipment concerned did not reveal anything serious. The operation of a discretion of that kind never really emerged with any clarity. In any event, the fact that the established pathway seems to have been to ‘tag out’ such equipment and call out Mr Salton suggests that it could only have been in only the most inconsequential circumstances that a batcher should be making such a call and even then not readily in any case in which Mr Salton had been called out to assess the situation himself.
Notwithstanding the endeavour to which I have referred, the evidence made it clear enough that in the specific circumstances of the notification made by Mr Gason to the second defendant, the second defendant should immediately have ‘tagged out’ the slump stand.
In those circumstances, there must have been a failure in the second defendant’s system which saw the slump stand not ‘tagged out’ following that notification. In that regard, the plaintiff gave evidence to the effect that when informing the batchers of his incident he was told by Mr MacDonald that the slump stand was ‘getting fixed’. Mr MacDonald gave different evidence, albeit to the effect that maintenance was ‘on the way’. Either version suggests that there had been some action upon the notification earlier made by Mr Gason – in that Mr Salton had been called out – but that it was incomplete: the slump stand was not ‘tagged out’ and remained in use.
In my view, the second defendant breached its duty of care to the plaintiff in failing completely to implement its system of responding to notifications of the kind made by Mr Gason. That breach was a cause of the injury suffered by the plaintiff.
The related question is whether the first defendant breached its duty of care to the plaintiff by failing to obtain or act upon Mr Gason’s notification.
F Contributory negligence
The second defendant contended that the plaintiff breached his duty to take care for his own safety by failing ‘step off’ the platform when it moved two or three times prior to ‘slamming down’ causing him to suffer injury.
The first defendant pleaded contributory negligence, but did not further develop the allegation.
It should be borne in mind that the negligence of the defendants to which I have referred led to the plaintiff being on the slump stand at all. The slump stand should have been tagged out, or the plaintiff otherwise prevented from accessing it.
In any event, the allegation of contributory negligence seems to me to owe more to the benefit of hindsight than to any realistic assessment of the circumstances in which the plaintiff found himself.
In that regard, no-one had ever seen or contemplated the ‘freak situation’ that led to the plaintiff suffering injury. In particular, while the platform was rising and falling, the plaintiff had never seen or heard of such a malfunction and, indeed, confirmed that he ‘still didn’t think it was going to be a problem’.[263]
[263]T92-93. See also, T119.
Further, when asked about ‘stepping off’ the plaintiff said that he could have done so, but also said that he ‘could have kept going’. The plaintiff said ‘I’m proceeding to carry out my duties to the best that I can’.[264]
[264]T95.
It was not suggested to the plaintiff that he ought reasonably to have anticipated that he could be at risk of injury.
Further, I do not accept that the circumstances required that the plaintiff immediately ‘step off’ for fear he might be injured; particularly because ‘stepping off’ could have involved moving or jumping from a diagonal and raised surface that may well have involved its own risks of injury.
In the circumstances, I reject the submission that the plaintiff is guilty of any contributory negligence.
G Injury
There was ultimately no issue that the plaintiff suffered some form of injury to his low back in the ‘jarring’ incident on the slump stand on 24 February 2016. Most likely it was some form of soft tissue injury or aggravation of pre-existing degenerative changes in the plaintiff’s lumbar spine.
The injury suffered on that day may also have involved the precipitation or aggravation of a disc bulge, although the balance of opinion now seems to be that any such pathology was later wholly or largely re-absorbed.
The plaintiff has been treated by his general practitioner, Dr Habib, and also by Dr Hmood in the same practice. Since the incident, the plaintiff has complained of lower back pain together with incidents of shooting pain. At some point he also commenced to complain of pain in his neck, shoulders and upper spine.
It seems that in accordance with the advice of his general practitioner the plaintiff has undertaken physiotherapy and also hydrotherapy. He has not worked. On the other hand, it seems that he has also been advised to undertake pain management. He started but did not complete pain management courses in 2017 and 2021.
Dr Thomas gave evidence concerning the plaintiff’s attendances upon him in connection with pain management. To Dr Thomas, the plaintiff presented as disinterested in treatment.[265] He later described the plaintiff as having gone through the motions.[266]
[265]T323.
[266]T327-328.
Dr Thomas did not consider the MRI in 2021 to show significant pathology that would explain the plaintiff’s current presentation. In that regard, he stated –
… it means there’s a non-organic component to his presentation. Somatic symptom disorder is a disorder which is primarily diagnosed by psychiatrists, they just need someone who is highly focussed on their symptoms, they are consumed by it, it absorbs a lot of time and energies and there is nothing you can do which takes them away from worrying about something which may or may not be relevant.[267]
[267]T325.
The plaintiff has been examined by a number of other doctors; several for medico-legal purposes. Most of those doctors did not give oral evidence. Their opinions range from there being essentially nothing much wrong with the plaintiff to the suggestion that he has suffered a significant organic and/or non-organic injury.
I have read the reports tendered and also considered the evidence of Dr Habib, Dr Asaid and Dr McCullum. Dr Thomas was impressive in his evidence and I prefer and accept it.
In this context, I make the following findings –
(a) the plaintiff suffered some form of soft tissue injury or aggravation of pre-existing degenerative changes in his lumbar spine in the incident on 24 February 2016;
(b) the plaintiff has since engaged in conservative treatment – surgery has not been suggested and it is not seriously suggested that it is any kind of imminent prospect;
(c) the plaintiff has twice commenced but not completed a pain management programme; and
(d) I do not accept that the plaintiff is ‘perpetuating a ruse’, although I do accept that the plaintiff’s condition is now significantly psychiatric in origin or nature.
H Damages
The plaintiff claims damages for pain and suffering and past and future loss of earning capacity.
I have accepted the plaintiff as a reliable witness in respect to the events of the incident. I do not take a significantly different view concerning his evidence concerning his disabilities, although for reasons which will become apparent I accept that it is important to balance that against the medical opinion evidence and the presentation of the plaintiff generally in the course of his giving oral evidence.
In that regard, it was evident in the plaintiff’s oral evidence that while he has suffered pain and seems to have rather fallen in a heap since suffering injury, he is young and has not really engaged with treatment in a way that might be thought to maximise his prospects of recovery. There might be said to be some form of psychiatric explanation for parts of that response.
However, that such a course might or should be available to the plaintiff tends to be shown by both the fact that he has engaged in the treatment which he has preferred (which has not assisted in providing him with anything other than temporary relief) and the fact that there was evidence of him being able to manage his disability – at least to some extent – such that he could remain active in his hobby relating to motor vehicles, including travelling to Sydney.
In my view, that evidence did not show the plaintiff to be ‘perpetuating a ruse’, or anything like it. Nor, in my view, did the plaintiff ‘play down’ his involvement in the restoration of vehicles when giving evidence about it. However, that evidence did tend to show that the plaintiff has retained a capacity to do some things when he wants to and plans to do them, which may suggest that he could also engage in treatment more likely to provide longer term relief if he set about it in the same way.
In any event, a significant part of the present task is directed to the evaluation of future possibilities and so perhaps depends less strictly upon the plaintiff’s reliability as a witness and more upon overall impression and prognostication.
Prior to the incident, the plaintiff seems to have been fit and healthy. He played tennis and was not relevantly restricted in his work or pastimes. He was described as a good or satisfactory worker.
Since the incident, the plaintiff has complained of back pain and related pain. Those pains include shooting pains, but also upper back, shoulder and neck pains. The latter do not seem to be disabling in the same way as the back pain, but may well be related to it owing to the involvement of psychiatrically mediated pain of the kind referred to by Dr Thomas.
In this context, the plaintiff has not played tennis and the like and he has not worked. He says that he now requires assistance from family members, including his elderly parents.
The plaintiff presently undertakes physiotherapy and hydrotherapy and takes medication. None of it seems to give him any sustained relief. He did appear to be in discomfort, particularly towards the end of his oral evidence.
The plaintiff confirmed that he has ‘good days’ and ‘bad days’.[268] Perhaps consistent with that, the material contains varying accounts concerning the extent to which he has been or is able to perform some of his daily activities.
[268]T100.
Similarly, perhaps, I have noted that the plaintiff’s involvement in the restoration of motor vehicles emerged in his oral evidence. That seems to be undertaken in conjunction with others and has involved him travelling to Sydney by air and by car. He said that the driving is mostly undertaken by another and he has to lie down in the vehicle. Nonetheless, that evidence made it clear enough that the plaintiff has been able to remain involved with those around him and in a pastime of some significance; albeit that the extent of his present activity should probably not be overstated and I accept that he presently experiences regular pain, weakness, altered sensation and functional restriction as a consequence of his injury.
It follows that I do not accept the opinion evidence to the effect either that the plaintiff has been fit for work and, presumably, other similar activity, since the expiry of a period of two years following his injury, or that he is currently ready and fit for work. In evidence, he presented as a man who was deconditioned by several years of relative inactivity as well as chronic pain.
Notwithstanding all of the above, as I have noted, the plaintiff is still a relatively young man and his injury seems now to be largely psychiatric in nature – which even now allows him some ‘good days’ and permits him to remain involved in social connections and his motor vehicle-related pastime.
In this context, counsel for the plaintiff accepted – correctly – both that the plaintiff has adopted a rather passive stance in his approach to treatment and that he would benefit from pain management.[269]
[269]Plaintiff’s outline of closing submissions dated 18 February 2022, [90] and [96].
In that regard, I have already referred to the evidence of Dr Thomas concerning the plaintiff’s presentation. Dr Thomas contemplated the potential for the plaintiff to undertake ‘back friendly work duties’.[270]
[270]Exhibit X.
There was other evidence of a broadly similar kind. In particular, the plaintiff’s treating general practitioner, Dr Habib, reported that he has encouraged the plaintiff to ‘give [it] a chance’, albeit that he has also been certifying the plaintiff as unable to work. In the report to which I have referred, Dr Habib referred to ‘sedentary work’ and ‘office work’ for ‘a few hours a day’.[271]
[271]Exhibit T.
Mr Asaid, orthopaedic surgeon, also gave evidence to a somewhat similar effect;[272] as did Mr Michael Dooley, orthopaedic surgeon, in a report dated 24 August 2020.[273]
[272]Exhibit K. See also, T249-250 and T255-257.
[273]Exhibit D1-12.
In respect to the psychiatric condition of the plaintiff, Dr Timothy Entwisle considered him to have an ‘adjustment disorder’, a ‘strong illness conviction’ and to have ‘a capacity for alternative duties, modified pre-injury duties or suitable duties’.[274]
[274]Exhibit D1-8.
Similarly, and more recently, Dr Justin Lewis considered the plaintiff to have suffered a ‘significant aggravation of a pre-existing adjustment disorder with depressed mood’. In that regard, he referred to a depressive episode in the setting of unemployment prior to the plaintiff obtaining employment with the first defendant. Dr Lewis thought that the plaintiff would likely benefit from further psychological therapy.[275]
[275]Exhibit II.
In the context described, Mr Sharma, occupational therapist, assessed the plaintiff’s functional capacity on 23 June 2021. Mr Sharma considered the plaintiff to be experiencing ‘chronic pain, associated anxiety and reactive depression’ and stated –
… his ongoing pain requires attention, Mr Trtovac will benefit from pain management advisee [sic], counselling and related treatments to persevere with his self-exercise program to improve ranges and build strength to improve his conditioning for more independent and fruitful lifestyle.[276]
[276]Exhibit FF.
Mr Sharma also stated that –
Based on his present condition and limited capacity as stated above, Mr Trtovac is currently unfit to return to his pre-injury duties and will remain unfit until significant physical and psychological progress is made.[277]
[277]Ibid.
That evidence is essentially consistent with the evidence to which I have earlier referred and I accept it.
I do not accept the further evidence of Mr Sharma to the effect that the plaintiff has no realistic capacity to return to any employment. In the circumstances described, that seems to me to be a possibility, but not the only possibility; particularly if the plaintiff were to engage in treatment of the kind identified and bearing in mind that he completed both VCE and some aspects of tertiary study. I am also conscious that in oral evidence the plaintiff said both that he would propose to engage in such treatment and that he wants to work.[278]
[278]T57-58 and T153-154.
In that sense, there does seem to me to be a palpable prospect that with motivation and appropriate treatment the plaintiff could be re-trained in office, sedentary or some other form of ‘back friendly’ duties. That is, of course, by no means a certainty. However, it does underline that there is a significant future prospect of some improvement in the plaintiff’s condition combined with a potential for the resumption of work and as well as wider and more sustained function.
In these circumstances, counsel for the plaintiff proposed an appropriate award of general damages would be in the sum of $300,000. Counsel for the first defendant said somewhere in a range between $150,000 and $200,000. Counsel for the second defendant suggested less than $150,000.
Having regard to the circumstances to which I have referred, I would assess the plaintiff’s general damages in the sum of $200,000.
In my view, the circumstances to which I have referred also support an assessment of damages for a total past loss of earning capacity.
There was no dispute about the figures. The plaintiff claims $460,698.50 (inclusive of superannuation) to the date of trial.
No submissions were made concerning vicissitudes in respect of any assessment for past loss of earning capacity. Mr Riddell described the plaintiff as a satisfactory worker and said that but for injury the plaintiff would have continued to work with him.[279]
[279]T434.
That said, it was evident that Mr Riddell’s business had also changed away from concrete trucking since 2016. Other drivers had continued to be employed in his business. The plaintiff gave evidence that it would have been his intention to continue working as a truck driver.[280] However, it was perhaps not so clear that the plaintiff would necessarily have continued to work in those different duties when Mr Riddell’s business changed or been happy to be transitioned to such duties rather than seek other employment.
[280]T54.
I am conscious of how unstable trucking can be. So much is apparent in the plaintiff’s work history in the years prior to 2015 and, in that regard, the plaintiff had a period of some months of unemployment prior to commencing with the first defendant.
No great discount should be applied to the assessment of the plaintiff’s past loss of earning capacity, although it relates to a long period in which quite a lot has and could have happened in respect of the plaintiff’s employment.
For these reasons it does not seem to me to be a case in which it would be appropriate to make no discount at all. I would discount the assessment of damages for past loss of earning capacity by 5%.
In respect of the future, the plaintiff claims a full assessment calculated at $989,517 (inclusive of superannuation) to the date of trial. Again, there was no dispute concerning the figures.
It will be evident that I do not consider the prospects in the plaintiff’s future necessarily to be as bleak as some of the assessments made. Nor do I consider the prospects in his future necessarily to be as rosy as some of the other assessments made.
In truth, as I have indicated, the plaintiff is still a relatively young man and several medical practitioners have suggested that he would benefit from appropriate treatment. Underneath all of that, he has essential attributes that could see him return to work and therefore considerably greater function and activity in the future.
It follows that there is a possibility that the plaintiff will not return to work but, it seems to me, there is also a significant possibility that he will. There are also possibilities in between.
In these circumstances, I do not accept that the plaintiff should be awarded the full assessment claimed. Nor would the evidence allow me comfortably to embrace either of the scenarios posited by the defendants; either return to work two years from now with a graduated return to full time work in a further four years or an award in the nature of a Farlow.[281] It seems to me that neither scenario properly takes account of the possibility that the plaintiff either may not return to work at all, or, at least, not for several further years.
[281]In that regard, counsel for the second defendant pointed to the decision of Macaulay J (as his Honour then was) in Coughlan v United Precast (Vic) Pty Ltd [2020] VSC 671. With due respect to that submission, the circumstances in the present case bear no real resemblance to the circumstances before his Honour, in which the plaintiff subsequently returned to work successfully and in more remunerative employment. See also, Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594.
It seems to me that the more appropriate way to approach the present award of damages for future loss of earning capacity is to recognise that the plaintiff is and is likely to remain significantly affected by his injury in at least the near term, but that beyond that the possibilities may be considerably more open, particularly if he were to obtain appropriate treatment.
It follows that whilst the plaintiff might never return to significant work; one cannot dismiss the prospect that he might be able to return to work beyond the near term and therefore, in those years, come to suffer no or no significant loss. As I have indicated, there must also be scenarios potentially available between those two extremities.
In my view, the only appropriate way to take into account of such a significant range of disparity in the potential scenarios is to increase the discount for vicissitudes from the usual figure and in a manner intended to be fair to all parties. Doing the best I can, I would discount the proposed assessment of future loss of earning capacity by 50%.
I am conscious that in the awards to which I have referred account will or may need to be taken of interest, any deductions and Fox v Wood (as the case may be).[282]
[282]Fox v Wood (1981) 148 CLR 438.
I will hear counsel concerning the final calculation of the plaintiff’s assessment of damages as well as the issues of orders and costs.
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