Tsoromokos v Australian Native Landscapes Pty Ltd - [2018] NSWSC 321

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Tsoromokos v Australian Native Landscapes Pty Ltd [2018] NSWSC 321
Hearing dates: 20 to 27 March 2017, 6 to 8 June 2017 and 13 June 2017
Date of orders: 15 March 2018
Decision date: 15 March 2018
Jurisdiction: Common Law
Before: Latham J
Decision:
(1) Judgment for the plaintiff in the sum of $1,190,194.20;
(2) Defendant to pay the plaintiff's party/party costs as agreed or assessed;
(3) Judgment for the first cross-defendant on the first cross-claim;
(4) First cross-claimant to pay the first cross-defendant's party/party costs of the first cross-claim as agreed or assessed;
(5) Judgment for the second cross-claimant on the second cross-claim in the sum of $306,179.93;
(6) The second cross-defendant to pay the cross-claimant interest in the second cross-claim pursuant to s 100 of the Civil Procedure Act in the agreed amount of $116,357.00; and
(7) The second cross-defendant to pay the second cross-claimant's party/party costs of the second cross-claim as agreed or assessed.

Catchwords: TORT – negligence – Civil Liability Act 2002 s 5B – contributory negligence – compensation – assessment – liability of contractor – whether employer to be indemnified – Workers Compensation Act 1987 (NSW), s 151Z(1)(d).
Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1987
Cases Cited: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Czatyrko v Edith Cowan University [2005] HCA 14
Fox v Wood [1981] HCA 41
Leighton Contractors Pty Ltd v Fox and Ors [2009] HCA 35
Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34
Shoalhaven City Council v Humphries [2013] NSWCA 390
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
Category: Principal judgment
Parties: John Tsoromokos
Australian Native Landscapes
Representation:
Counsel:
Plaintiff: M Cranitch SC with C Thompson
Defendant: L King SC with R Gambi
Cross Defendant: GJ Parker SC
Solicitors:
Plaintiff: Carroll & O’Dea
Defendant: Wotton & Kearney
Cross-Defendant: Turks Legal

File Number(s): 2010/209561
Publication restriction: Nil

Judgment

On 17 September 2007 the plaintiff, an independent contractor, was carrying out repairs to the fuel tank of a Volvo loader, owned and operated by the defendant, Australian Native Landscapes Pty Ltd (ANL), at Eastern Creek. In the course of attempting to remove the bash plate, which weighed in the order of 200 kilograms, to gain access to the fuel tank, the bash plate fell onto the plaintiff’s right arm, causing serious injuries.
The plaintiff alleges that the negligence of the defendant caused the accident, in that the defendant failed to provide a safe place of work, failed to provide the relevant service manual, failed to provide plant and equipment to allow for the safe removal of the bash plate, permitted the plaintiff to work on a loader which the defendant knew to be defective, failed to rectify that defect, failed to provide the plaintiff with a worker to assist the plaintiff in removing the bash plate, failed to ensure that the loader was in a clean state to allow for the safe removal of the bash plate and permitted the plaintiff to use a forklift which was unsuited to the task.
Pitlane Mechanics Pty Ltd (Pitlane), of which the plaintiff and his wife are the sole Directors and shareholders, was joined by the defendant in a cross claim for breach of contract, indemnity and/or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. Pitlane in turn cross claimed against the defendant seeking indemnity for payments made pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987.
A significant factual dispute in the trial, namely, the method adopted by the plaintiff to remove the bash plate and the circumstances under which his injuries were sustained, falls to be resolved principally upon an assessment of the plaintiff’s credibility, there being no witnesses to the accident.
The plaintiff was a difficult and combative witness. While some allowance should be made for his defensive attitude in the course of cross examination, there were occasions when he refused to acknowledge contradictions in his evidence and refused to make concessions on matters that were self-evident. By way of example, the plaintiff was reluctant to admit that he was the only person capable of relating how the accident occurred. At times the plaintiff’s demeanour was belligerent and evasive. He was, in my view, prone to exaggeration. His reliability, particularly when attempting to relate the circumstances under which the bash plate fell onto his right arm, was called into question by the contemporaneous records of the accident, including statements made by the plaintiff to others. In particular, the plaintiff’s description in his evidence of the position of his body underneath the loader at the relevant time and the use of the spanner in his left hand varied significantly from the account produced in one of the plaintiff’s expert reports.

The Plaintiff’s Performance of Mechanical Work for the Defendant.

The plaintiff was qualified through attendance at TAFE and an apprenticeship as a light vehicle mechanic which related to the service of vehicles under five tonnes.
In about 1994 he commenced a partnership with his wife in the name of Pitlane Mobile Mechanics and traded under that name until March 2007 when the business was incorporated as Pitlane Mechanics Pty Limited.
In 2004 the plaintiff began to undertake contract work for a company known as Prestige Pty Ltd (Prestige). Prestige had a contract with the defendant to undertake mechanical work on the defendant’s vehicles at their Badgery’s Creek premises. The plaintiff charged Prestige $40 an hour plus GST.
Within a few weeks of commencing work for Prestige, the plaintiff was taught to service loaders and trucks. By the time of his accident, the plaintiff described himself as the main plant mechanic at the defendant’s premises, responsible for servicing bulldozers, excavators, forklifts, trucks and wheel loaders across 15 work sites.
In about July 2005 a dispute between Prestige and the defendant over the quality of the work that Prestige was providing to the defendant resulted in the termination of the contract. The plaintiff, at the defendant’s invitation, continued to attend the Badgery’s Creek premises, where he was based, to perform work for the defendant at the same rate that he had been charging to Prestige. There was no written contract.
The plaintiff’s hourly rate for the work he performed for the defendant was $40 an hour. The plaintiff was directed by Mr Lennox (the yard manager at Badgery’s Creek), in terms of which machinery required servicing or repairs. On occasions, the plaintiff was directed by Mr Ferguson (the asset manager and his immediate supervisor) to attend other sites in order to carry out repairs to machinery.
In July 2005 the plaintiff enjoyed some additional income from private customers and other companies whose vehicles he maintained. By the end of the financial year 2006 - 2007 the plaintiff was occupied full-time in his work for the defendant. The plaintiff claimed in evidence that, at the time of his accident, he intended to expand the operations of his company, including the purchase of additional vehicles and equipment in order to employ other mechanics who would repair and service vehicles in the corporate sector and for the defendant. The plaintiff said that he had canvassed with ANL the possibility of charging out his employees at $60 per hour and raising the hourly rate of Pitlane to $60 per hour. The defendant’s Director, Mr Soars, was not aware of that alleged discussion.
The plaintiff was informed that the defendant’s workshop and facilities at Badgery’s Creek were at his disposal, including access to heavy equipment. As from July 2005 the plaintiff supplied his own hand tools and worked five days a week from about 6 am to 5 pm and 6 to 7 hours a day on Saturday. All other necessary equipment such as stands and jacks were to be supplied by ANL. The plaintiff acknowledged that if he did not have time to undertake repairs or maintenance work, or was not qualified to do so, the defendant would outsource that work to Volvo mechanics.
The plaintiff described a general difficulty accessing spare parts and bolts. He said he was not authorised to purchase such items but was required to obtain an order number from Mr Ferguson or Mr Cooper (the yard manager at Eastern Creek) before the items could be supplied. Mr Soars said that the system of requiring order numbers for items above the value of $500 was introduced in an effort to control costs, but that contractors such as the plaintiff could directly order parts up to the value of $500 in their own name as and when required.
The plaintiff claimed that he could not order any parts from a supplier, even relatively trivial parts such as bolts, unless he had an order form or order number from Mr Ferguson or Mr Cooper. In the absence of a stock of bolts at Eastern Creek, he had to obtain them from Badgery’s Creek or by way of an order to the supplier.
Exhibit H was a memo under the hand of Mr Ferguson, dated 24 January 2007. It was directed to all Depot and Yard managers and implemented a change to the procedures for ordering parts from CJD Equipment (Volvo). In summary, the order to CJD was to come from ANL with sufficient detail to identify the date, parts, location for delivery, the machine and the name of the person placing the order.
It was this memo that the plaintiff relied upon to demonstrate that Mr Soars’ evidence was inconsistent with the practice he, the plaintiff, was required to follow after January 2007.
The plaintiff said it was difficult to obtain extension tines to the forklift, stands, hoists and jacks when he needed them for repair work, particularly at Eastern Creek. The plaintiff referred to conversations with Mr Lennox and Mr Ferguson wherein such equipment was requested by him but not made available at the relevant work site. It was part of the plaintiff’s general complaint that he was told to make do with whatever equipment was available at the relevant time, thus dictating that the plaintiff carry out repairs, for example, by the use of concrete blocks in lieu of stands.
The plaintiff gave evidence of requesting workshop manuals several times and being told that there were none. On some occasions, he was able to request information from Volvo relating to a particular job and was supplied with schematic drawings of the relevant parts. Much was made of the contents of a service manual for the relevant loader which allegedly depicted a method for removing the bash plate which comprised a sling on a ratcheted frame. Such a device was never made available to the plaintiff. However, no manual was produced at trial which stipulated that particular method for removing the bash plate and none of the experts in the trial were of the view that the removal of the bash plate using extension tines on a forklift was an inherently unsafe or unsatisfactory alternative.
Mr Cooper’s evidence was that the service manuals for the loaders were kept at Badgery’s Creek and acknowledged that there was no heavy lifting equipment at Eastern Creek, with the exception of the forklift. He also accepted that there were no jacks or stands at Eastern Creek on the day of the accident.
The plaintiff agreed in cross examination that there was a good range of equipment at Badgery’s Creek, including bolts and stands, and that he was able to drive there within about twenty minutes if he needed to retrieve equipment for a job at Eastern Creek. There were service job cards (Exhibit 3) which demonstrated that the plaintiff had accessed stands from Badgery’s Creek and had ordered the necessary parts to complete a repair in April and May 2007. He had also washed down the machinery to remove debris before commencing the repairs.
Mr Lennox saw the plaintiff using concrete blocks and stands on occasions to support the back of the loader. On one occasion, Mr Lennox saw the plaintiff using bottle jacks which Mr Lennox regarded as unsuitable for the weight of the machinery, so he suggested to the plaintiff that he use concrete blocks. Mr Lennox denied that the plaintiff had ever approached him to ask that stands be fabricated because the plaintiff was unable to access them. According to Mr Lennox, the supply of equipment, when it was requested, from Badgery’s Creek to Eastern Creek depended upon availability which in turn depended upon the priority allocated to the various jobs. It was common ground that the Eastern Creek workshop was not as well-resourced as Badgery’s Creek. Mr Lennox maintained that there was no blanket refusal to transport equipment to Eastern Creek.
The plaintiff, Mr Jackson (an employee of the defendant) and Mr Bonarrigo (a contractor) claimed that the forklift which was available at Eastern Creek was in a very unsatisfactory state. It was said that the hand brake did not work, that the forklift leaked fuel, and that it also leaked hydraulic fluid, making it difficult for the tines to support any weight without a driver maintaining pressure on the lever. The plaintiff said that for these reasons he could not use the forklift without an offsider. The plaintiff claimed that he had raised the condition of the forklift many times with Mr Cooper and Mr Lennox. Specifically, the plaintiff said that he had been told by Mr Cooper to keep repairing the forklift and that ANL was not going to replace it. The plaintiff said he did not have time to repair the forklift, given his responsibilities for the loaders.
Mr Bonarrigo gave evidence in the plaintiff’s case which was consistent with the plaintiff’s description of the inadequacy of the resources made available to him. Mr Bonarrigo initially worked for Prestige. He became the manager of the workshop at Badgery’s Creek in 2008/2009. He ordered parts for the trucks, serviced the trucks and trailers, and hired and fired staff. He reported directly to Mr Lennox. Mr Bonariggo went to Eastern Creek about six times over the ten years he worked at ANL.
Mr Bonarrigo recalled a conversation between the plaintiff and Mr Lennox at Badgery’s Creek a day or two before the accident wherein the plaintiff asked for extension tines and stands to be sent to Eastern Creek. Mr Lennox declined the request. Mr Bonarrigo gave evidence of the availability of adjustable stands at Badgery’s Creek and the poor condition of the forklift at Eastern Creek on three occasions that he used it. He claimed to have complained to Mr Cooper about the forklift. He referred to the generally untidy state of the workshop at Eastern Creek.
Mr Lennox disputed that any such conversations occurred between himself and Mr Bonarrigo, or between himself and the plaintiff. Mr Lennox said that there were two pits at Badgery’s Creek and more than enough stands to accommodate each pit. At no stage did the plaintiff or Mr Bonarrigo bring to his attention any shortage of necessary equipment or make any complaints about the forklift at Eastern Creek.
Mr Bonarrigo was terminated from ANL in December 2014 in circumstances that suggest a degree of hostility towards the company. He gave a statement for the first time of these matters in February 2016. Both his reliability and his objectivity were open to question for these reasons.
Mr Cooper and Mr Lennox denied that they had ever been informed of significant problems with the forklift and Mr Cooper denied instructing the plaintiff to continue using a defective forklift. The maintenance and repair of the forklift was within the plaintiff’s area of responsibilities.

Alleged Interference in the Manner of Performance of the Plaintiff’s Work

The plaintiff asserted that on occasions, Mr Ferguson and Mr Cooper would direct the manner of performance of the plaintiff’s work. The specific examples provided by the plaintiff included the repair of buckets and wet brakes at Badgery’s Creek.
It was claimed that Mr Ferguson interrupted the plaintiff when he was repairing buckets and directed him to complete the job in a particular way. On another occasion, approximately 18 months before the accident, Mr Ferguson directed the plaintiff to move the loader from the concrete to a muddy area that was unsuited to the job being undertaken by the plaintiff.
Mr Cooper was said to have told the plaintiff a number of times to “get out of the way” and “you will do as you’re told” when interfering in the performance of the plaintiff’s work. The plaintiff also referred to an occasion about a year before the accident when Mr Cooper told the plaintiff that the loader was going back into the field, before the plaintiff could complete the repair of a quick hitch.
On an occasion at Eastern Creek approximately 18 months before the accident, Mr Cooper was said to have interrupted the plaintiff while he was attempting to remove a differential from a loader. Mr Cooper then used an excavator and chain to pull the differential free, despite the plaintiff’s protests. On another occasion, Mr Cooper used a similar technique to remove a ram from a loader, instead of allowing the plaintiff to remove the ram safely with a sling and forklift. These were provided by the plaintiff in evidence as examples of the many times that his approach to his work was overruled and inspected by his managers, generally on the basis that the work had to be completed under considerable time pressures.
Exhibit C, a memo (dated 22 January 2007) from Mr Ferguson which instructed employees and the plaintiff to cease a number of incorrect repair practices, was put forward as an example of interference in the performance of the plaintiff’s work by the defendant. However, the plaintiff also acknowledged that he regarded the memo as an appropriate instruction to ensure the quality of the work and therefore, something he would have done in any event.
Mr Ferguson died before the hearing. Relevantly, the memo was directed to all Depot/Yard managers and Equipment Mechanics. It referred to a number of unacceptable practices, including the use of hammers to force new pins into loader attachments, the use of incorrect parts and/or patch-up repairs, and the failure to complete all work while the machine was out of service. The memo advised that instant dismissal would follow the detection of any unsafe work practices.
One of the images within the memo related to the use of a pin which was too long for the frame into which it had been inserted. The plaintiff claimed he was instructed to use that pin by Mr Ferguson and that it was the only pin supplied to him from the defendant’s stock.
The plaintiff’s allegations that he was directed by Mr Ferguson to use an inappropriate pin, and that ANL generally accepted unsafe work practices and conditions in its workshops, do not sit well with the content and tone of this memo. Whatever work practices had been tolerated or even sanctioned before this memo issued, the plaintiff was on notice that he would be brought to account if they continued.
The assertions by the plaintiff that he was directed how to do his work were strongly contested. Mr Cooper said that he did not supervise or direct the plaintiff in any way or provide instructions on the manner of performance of his work. It was the plaintiff’s responsibility to ensure that adequate parts and equipment were available or had been ordered to allow him to complete the jobs at hand. Mr Lennox had limited involvement with Eastern Creek and almost no involvement with the plaintiff.
The plaintiff agreed that Mr Cooper, Mr Ferguson and Mr Lennox were not mechanics. However, he maintained that he was routinely directed to complete repairs of machinery in an unsatisfactory manner, probably rendering the machinery unsafe, in the interests of getting the machinery back into the field in as short a time as possible. This type of interference did not occur while the plaintiff was working with Prestige. A recurring theme in the plaintiff’s evidence was repeated directions from Mr Cooper in particular to re-use bolts that were badly worn, rather than incur the cost of new bolts and/or delay the completion of a job. Mr Cooper denied suggesting to the plaintiff on any occasion that he use old bolts instead of ordering new ones.

Given that the plaintiff said that he took pride in his work, it seems unlikely that he would consciously allow unsafe machinery to be returned to the field on so many occasions, in the knowledge that he personally was creating a risk of further breakdowns, at best, and/or injuries to other personnel, at worst. When confronted with this scenario the plaintiff countered that he was dependent on the income and did as he was told. If his evidence is to be accepted on this issue, he undertook that not insignificant risk for approximately two years on a full-time basis.
The plaintiff maintained that the high level of interference by his supervisors over a period of approximately 18 months prior to the accident effectively created a work environment wherein he was under considerable pressure to complete work within an unrealistic time-frame, and with inadequate tools and equipment.
It was against this background that the plaintiff came to adopt a particular methodology for the removal of the bash plate. The plaintiff adopted that methodology on the day of the accident.

Earlier Repairs to the Loader

In mid-April 2007, the plaintiff was directed by Mr Cooper and Mr Lennox to repair a fuel blockage on the L180 loader. It was necessary to remove the bash plate, drop and clean the fuel tank and hoses, then replace all the parts, re-fill the fuel tank and bleed the system.
On that day, the plaintiff adopted his usual practice of cracking the bolts on the bash plate with a long-handled spanner, directing the fork lift driver (Mr Follers) to drive the forklift with extension tines under the bash plate where the tines took the weight of the bash plate, then removing the bolts and allowing the bash plate to be lowered by the forklift. The bash plate would then be removed some distance from the loader by the forklift. At the completion of the job, the bash plate would be re-positioned by the forklift and re-secured by the insertion of the bolts.
The plaintiff cracked the bolts by lying underneath the loader, something he said he was taught to do. He lay on his right side, using his left hand to reach up with the spanner and crack the bolts. The plaintiff said that, despite the fact that he was right-handed, he had more strength in his left arm, owing to an earlier injury which had weakened his right shoulder. After the forklift had taken the weight of the plate, the plaintiff again lay underneath the loader to remove the bolts completely. The plaintiff said he had adopted that same methodology five or more times previously and had not encountered any problems.
The plaintiff also said that he could not access the bolts to crack them from a standing position next to the loader, and that his shoulders didn’t “favour that position”. Similarly, he maintained that he could not crack the bolts after the bash plate had been supported by the forklift because there was no room for him to position himself underneath the loader. He was forced to concede that there was sufficient room for him to position himself underneath the loader to remove the bolts after the forklift had taken the weight of the bash plate. However, he maintained that the removal of the bolts required much less effort, so that he was able to occupy less physical space.
On this particular occasion in April 2007, the loader was on the concrete apron within the shed at Eastern Creek. When the bash plate was re-positioned by the forklift after the fuel blockage had been cleared, it was discovered that the bolts did not align on the left side of the loader (that is, the left side from the rear of the loader). The plaintiff noticed that the thread end of the bolts appeared tapered and worn and the heads were rounded. The plaintiff said that he phoned Mr Cooper and explained the problem. The plaintiff requested new bolts to finish the job but was instructed to get Tom Jackson to weld the left side and re-use the bolts on the right side of the loader.
According to the plaintiff, this occurred near the end of the day. The plaintiff said that he and Mr Jackson were just trying to finish the job. According to the plaintiff, Mr Jackson spoke to Mr Cooper and told him it would be unsafe, but was directed by Mr Cooper to “do as you’re told”. Mr Cooper said that he would rectify the problem within a week. The plaintiff said he left the site before Mr Jackson completed the weld.
The plaintiff was confronted with his job service cards for 13, 16 and 17 April (Exhibit 4) which recorded the job the subject of the weld. There was nothing in the job service card that referred to the weld on the side of the bash plate, despite the plaintiff’s reluctance to follow, and his dissatisfaction with, Mr Cooper’s direction. The job appears to have extended over two days, suggesting that it was not the rush job at the end of the day which the plaintiff described in his evidence. It was put to the plaintiff that Mr Cooper did not direct that the bash plate should be welded, rather it was the plaintiff’s idea and that he directed Mr Jackson to do so. The plaintiff vigorously denied that proposition.
The plaintiff also reluctantly conceded that if his evidence in relation to the condition of the bolts was to be accepted, it followed that he had re-inserted unsatisfactory bolts on this occasion and on previous occasions.
Two bolts depicted in Exhibit D were described by the plaintiff as tapered and worn, with 90% of the thread missing. They were considered unserviceable by both the plaintiff and Mr Simpson, one of the plaintiff’s experts. They were not satisfactorily identified as bolts from the loader. In fact, Mr Simpson considered that, in view of the corrosion, they had not been used for many years. Two further bolts depicted in Exhibit E were said to have come from the loader on the day of the accident. The thread on these bolts was more pronounced and they were not as tapered. The parties proceeded on the basis that it was not possible to establish with certainty that Exhibit E consisted of the actual bolts from the right side of the loader, but that they were recovered from the concrete near the loader shortly after the accident.
Mr Jackson largely supported the plaintiff’s account, save that Mr Jackson said the tack weld was done in the morning. Mr Jackson was also confronted with a statement he made in July 2010 wherein he said “I believe that Tom Cooper told me to weld the plate to the loader but I’m not 100% sure, there is a possibility that John Tsoromokos could have told me to do the welding.” Notwithstanding that he agreed that his memory in 2010 would have been better than in 2016 or 2017, Mr Jackson insisted that Mr Cooper told him to do the weld.
Mr Berry, a solicitor engaged by the defendant and Mr Cooper, gave evidence of his presence at an interview between an investigator and Mr Jackson in April 2008. Mr Berry produced notes of a conversation with Mr Jackson, apparently in the presence of Mr Cooper, before the interview with the investigator had begun, wherein Mr Jackson said that the plaintiff had instructed him in December 2006 to weld the bash plate.
The plaintiff’s submission in respect of this apparent conflict is that the notes are not clear on their face and they are in any event hearsay. More importantly, they are not inconsistent with the proposition that Mr Cooper directed the plaintiff to instruct Mr Jackson to weld the bash plate.
Mr Cooper’s evidence was that the loader had a recurring problem with a blocked fuel line. The plaintiff had attempted to fix the problem a number of times. Mr Cooper had no clear recollection of the repair to the loader’s fuel tank in April 2007, but denied that he would have given any such instruction to Mr Jackson or to the plaintiff, on the basis that he did not interfere in the manner of the mechanical work carried out by the plaintiff. Mr Cooper said that he was simply unqualified to determine how to affix the bash plate assuming that the requisite bolts were unavailable.

The Plaintiff’s Account of the Accident

The plaintiff’s evidence was that he was told by Mr Cooper and Mr Lennox to attend Eastern Creek on Monday 17 September 2007 to service the L180 loader and that he only had one day to complete the job. On that basis, the plaintiff demanded the assistance of an offsider to drive the forklift for the duration of the job, to which Mr Cooper agreed.
When the plaintiff arrived, Mr Follers and Mr Jackson were there. The loader was not entirely within the workshop owing to the presence of a quantity of scrap metal behind the loader. The loader was caked in fertiliser and mulch, to the extent that the Plaintiff could not see the bolts on either side of the loader. The plaintiff expected the loader to have been washed down, a practice that usually preceded a routine service of the loader. The loader had been booked in for a service on this day, but had been kept out in the field on a job.
The defendant maintained that the loader was not booked in for a service, but had been troublesome for over a week. In those circumstances, it was not unusual for the loader to be pulled in for repairs straight from the field, without washing it down. The plaintiff acknowledged that on a previous occasion at Eastern Creek, he had washed down machinery or arranged for it to be washed down before working on it.
Mr Cooper drove up in his car at about 9am and insisted that the plaintiff complete the job within the day. The plaintiff said that it was not a normal conversation in that Mr Cooper was swearing. The plaintiff complained about the metal at the rear of the loader, querying how the forklift was able to access that area. Mr Cooper said “he didn’t want to know” and ordered Mr Follers to take his morning tea break, then clean the mill, leaving the plaintiff without the offsider he had been promised. Mr Cooper then left.
The plaintiff said he was unable to move the scrap metal because it required two men, one to drive the forklift and the other to pass a chain around the scrap metal. The forklift itself was said to be in poor condition, including an ineffective handbrake. The plaintiff could only find one extension tine for the forklift. He claimed he could not balance the bash plate on one tine, so he rang Mr Lennox at Badgery’s Creek to request the tines. The plaintiff expected delivery of the tines but that did not eventuate.
In the meantime, the plaintiff decided to prepare the job and take it as far as he could. The plaintiff cleaned the muck from the right side of the loader with a screw driver so that the bolts were exposed. The plaintiff could provide no satisfactory explanation for why he did not do the same thing on the left side before he commenced to crack any bolts. Had he done so, he would have seen the tack welds.
The plaintiff either forgot that the tack weld was there or he assumed that it had been repaired. He acknowledged that had he seen the tack weld, he would have realised that he could not safely crack the bolts and that it would have been necessary to get a welder to cut the weld with a grinder.
The plaintiff positioned himself underneath the right side of the loader, on his right elbow, his head towards the front of the loader, his legs slightly splayed, the right side of his upper torso slightly elevated, and with his left hand he reached up with a spanner to the bolt the farthest to the rear of the loader.
The plaintiff cracked that bolt then shuffled forward in the same position and commenced to crack the second bolt. As soon as he cracked the second bolt, he heard a loud noise. He started to move from underneath the loader but was unable to clear his right arm when the bash plate came down, left side first. His right arm was crushed under the plate. The plaintiff said he saw the bolts on the ground after it fell.
The plaintiff called out for help. Mr Jackson came and levered the plate up, after two failed attempts, allowing the plaintiff to remove his arm from under the plate. The plaintiff claimed in evidence that he had seen some bolts lying on the ground underneath the loader during this time. While waiting for the ambulance to arrive, and in considerable pain, the plaintiff said repeatedly to Mr Jackson “I fucked up”. The plaintiff said the same thing to Mr Soars within a day or two of the accident during a visit by Mr Soars to the hospital.
The plaintiff contended that the poor condition of the bolts was causally related to the accident, in that they were of insufficient strength to hold the bash plate once the weld failed. On the basis that Mr Cooper instructed the plaintiff to use unsuitable bolts on the occasion that Mr Jackson tack welded the other side of the loader, the plaintiff maintained that the defendant was therefore wholly responsible for the accident. The plaintiff did not explain in what way he had “fucked up”.
Mr Jackson’s evidence conformed to that of the plaintiff except that Mr Jackson did not see the bash plate fall. The last sighting of the plaintiff by Mr Jackson was as he was walking past the loader on his return to the workshop from the mill. He observed the plaintiff lying on his right side with an arm outstretched on the right hand side of the loader. Mr Jackson said that after the accident, he saw a number of bolts on the ground of which the threads were stripped and they were rusted and corroded. The bolts did not appear to be bent or snapped short.
It was submitted that Mr Jackson’s evidence was tailored to assist the plaintiff’s case. Reliance was placed upon inconsistencies between Mr Jackson’s earlier statements and later statements, similar to those identified in the plaintiff’s evidence (with respect to the condition of the forklift and the existence of a pile of scrap metal). Mr Jackson’s evidence was that he had minimal contact with the plaintiff since the accident. He remained firm in the face of robust cross examination.
Mr Cooper denied that he placed any time restriction on the plaintiff on the morning of the accident. He conceded that his interest was ensuring that the loader was back in the field at the earliest convenience and that the only equipment available at Eastern Creek for supporting the bash plate was the forklift.

The Expert Evidence

Mr Simpson, a consulting engineer, was retained by the solicitors for the plaintiff to prepare two reports, namely 15 September 2011 and 20 April 2012. The latter report was prepared in response to a report by Mr Scott on behalf of the defendant. Mr Simpson was deceased at the time of the hearing.
Mr Simpson was instructed by the plaintiff during a conference on 6 July 2011 that the plaintiff was using his right arm and the appropriate spanner to crack the bolts, whilst waiting for the arrival of another extension tine. The plaintiff further instructed Mr Simpson that he was lying at approximately 90 degrees to the loader, head first towards the bash plate and not underneath it. He had finished cracking two bolts and was in the process of cracking the third bolt on the right-hand side of the machine when the bash plate suddenly dropped, shearing or otherwise breaking the three bolts. (Mr Underwood and Mr Scott, for the purposes of their expert opinions, rejected this description of the plaintiff’s position as inconsistent with the occurrence of the accident.)
Mr Simpson’s inspection of the tack welds on 1 September 2011 led him to the view that the bash plate fell as a result of the failure of the welds. Mr Simpson suggested that the welds were cracked at the time of the accident. In effect, the bash plate was held in position by just three bolts along the right-hand side of the loader, such that the weight of the bash plate was cantilevered, placing the heads of the three bolts under extreme tensile and bending stresses. This in turn led to the failure of the bolts that would otherwise hold the bash plate in position.
Mr Scott, an automotive engineer of 46 years’ experience, provided a report on behalf of the defendant dated 18 January 2012. Mr Scott attended the defendant’s Eastern Creek workshop on 19 December 2011. Mr Scott observed a forklift (described as similar, albeit not the forklift available to the plaintiff on the day of the accident) which he maintained was sufficient to support the bash plate of the loader, without extension tines. This aspect of Mr Scott’s report was qualified during his evidence at trial, in that he accepted that his measurements as to the point of balance were affected by an additional thickness welded to the rear of the plate, of which he was unaware in December 2011.
Mr Simpson strongly disagreed that the tines of the forklift could extend underneath the loader to a sufficient length to allow the bash plate to be safely and stably supported. On Mr Simpson’s measurements, the centre of the bash plate did not necessarily coincide with the centre of gravity of the bash plate. The use of the forklift without extension tines was considered by Mr Simpson as dangerous and irresponsible.
Mr Scott was further of the opinion that, assuming the tack welds were the only means of securing the bash plate to the loader at the time of the plaintiff’s accident, the remaining three bolts on the right-hand side of the bash plate would have failed at or very soon after the welds had failed.
Mr Scott accepted that the cracking of the bolts by the plaintiff before removing them is a usual practice, but that the position of the plaintiff underneath the bash plate without a suitable means of support was not a normal or safe practice.
Mr Scott examined two bolts which were said to have been recovered after the accident from the floor of the workshop (Exhibit E). He described these bolts as “totally unserviceable”, and in a very poor condition for some extended period of time. The threads were extensively worn and the shorter of the two bolts was almost totally devoid of any remaining visible thread. These bolts were of very little use in securing the bash plate to the loader. Mr Scott later qualified this opinion in some respects. During his evidence, he clarified that the bolts should not have been used, but that they nonetheless had a capacity to clamp and hold the plate in position, albeit at a much reduced capacity. However, there was no evidence that the bolts suffered a failure by bending or shearing.
A further report from Mr Scott dated 27 June 2013 followed upon a further site visit on 19 February 2013. During that site visit Mr Scott observed the removal of the bash plate from the loader the subject of the accident by a forklift of similar dimensions to the forklift available to the plaintiff on the day of the accident. The forklift which effected the removal of the bash plate during the site visit was not fitted with extension tines. The forklift was positioned under the rear of the loader with the tines raised to support the bash plate. Three bolts were then removed from each side of the bash plate by a mechanic using an air power tool and a standard socket. The bolts were removed whilst the mechanic stood beside the rear of the vehicle. The fork tines were lowered with the bash plate. The tips of the fork tines extended approximately to the centre of the bash plate. It was noted that as the fork tines were lowered to the ground, the bash plate slowly tipped forward. However the rear of the plate remained in contact with the frame of the loader as the plate was lowered.
Mr Underwood, a consulting Engineer, prepared a report of 24 March 2016 on the plaintiff’s behalf. His conclusion was that the three bolts holding the bash plate in position had failed because the threads were stripped and that the previous tack weld had cracked and completely fractured. In Mr Underwood’s view, had serviceable bolts been used on the right side of the loader, the bash plate would not have fallen even after the bolts had been cracked.
A further report by Mr Scott, dated 30 September 2016, referred to a site visit on 10 September 2016. Once again Mr Scott observed the removal of the bash plate, which had been held in position by the use of two bolts each side. A forklift of similar dimensions to the forklift available to the plaintiff on the day of the accident and not fitted with extension tines was used to lower the bash plate. Once again the two bolts on each side of the bash plate were removed by a mechanic standing or crouching to the side of the loader. As the fork tines were lowered, the bash plate remained supported without sliding forward or rearward. This demonstration was recorded by video (Exhibit 14).

Mr Scott stated that it was standard work practice in the vehicle and plant mechanic industry for suitable and adequate support to be utilised before working underneath any vehicle or machine.
Mr Underwood responded to Mr Scott’s further report with a supplementary report of 7 November 2016. Mr Underwood viewed the video recording of the removal of the bash plate. He maintained that a second worker would have been required to assist the plaintiff, on the assumption that the forklift supplied to the plaintiff was defective. Mr Underwood also disputed that the use of the forklift without extension tines was sufficient to fully support the bash plate. He noted that the video did not depict the complete lowering of the bash plate in a controlled fashion. He noted that the worker carrying out the exercise was of a different stature and shape to the plaintiff, allowing him to gain access to spaces that the plaintiff may not have been able to access.
Mr Underwood’s conclusion was that cracking the bolts without supporting the bash plate could have been safely undertaken if all six bolts were in position. He agreed with Mr Scott that removing the bolts and the bash plate without support while lying underneath the loader was clearly dangerous.
On 8 November 2016, Mr Underwood visited the defendant’s work site to inspect a loader similar to that involved in the accident. A further report of 11 November 2016 assumed that there were two bolts on each side of the loader. Mr Underwood supplemented his opinion by reference to an extract from a Volvo manual for the loader, supplied to him by the plaintiff which was obtained from a web search. He considered that the method described in the manual, a ratchet and sling device, was “much safer and simpler” than the use of a forklift.
Mr Scott and Mr Underwood provided a joint report (Exhibit G), dated 17 November 2016, which was based upon assumptions not altogether consistent with the plaintiff’s evidence. They agreed that the most probable mechanical cause of the bash plate falling was that the securing mechanism, whether it was the bolts and/or the weld, had failed or was removed. Based on the assumptions that were made, the most probable sequence of events was that the weld finally broke between the start of work and before the plaintiff had commenced to crack the third bolt. At this point the plate dropped immediately.
Both experts considered that if the weld had failed prior to the plaintiff commencing work, the left side of the plate would have noticeably dropped or detached in the field. Moreover, even if the threads of the bolts were not fully engaged on the right-hand side of the loader, they would nevertheless have acted as support pins if the weld had not broken, and the plate would not have dropped.
Assuming that the weld had failed before the plaintiff commenced to crack the bolts, the plate would not have fallen provided that all of the bolts’ threads remained engaged on the right-hand side. However, the excessive load to one side of the plate would result in the bolts or threads demonstrating stretching, bending or excessive thread damage. Neither expert saw such evidence in any of the bolts to which they had access.
Mr Scott considered that it was possible for the plaintiff to crack the bolts whilst in a standing or crouching position next to the loader. Mr Underwood thought that the answer to that question depended upon the ability of the plaintiff to get into a comfortable working posture. Assuming that the plaintiff could stand or crouch next to the loader when cracking the bolts, there was no impediment to positioning the forklift tines at the rear of the loader and under the plate so as to support it during that procedure.
Mr Scott and Mr Underwood considered it possible for a forklift without any extension tines, or with only one extension tine, to be used in order to support the bash plate, prior to cracking the bolts, at whatever point in time the weld failed. Mr Underwood considered the use of a forklift unnecessary for the purposes of cracking the bolts. Mr Underwood’s opinion was that there was a propensity for the plate to slide forward when being lowered by a forklift without extension tines.
Mr Underwood was also of the opinion that the particular forklift provided to the plaintiff was not safe for the purposes of holding and lowering the plate. Mr Scott regarded the forklift as appropriate to the task, even without extension tines, on the basis that there was no evidence of its alleged faults.
Assuming the forklift was in good condition, the work was able to be carried out by one person. Assuming however that the forklift was faulty and should not have been used, particularly if the park brake and lift ram were defective, the work should have been carried out by two persons. In summary, cracking the bolts was able to be accomplished by one person with the right equipment in good condition, otherwise two persons would have been required for lowering the plate and reinstalling it.
It was agreed that the ratchet and sling device would obviate the risk of the plate falling or being dislodged through some intervention. Mr Underwood considered that the ratchet and sling device ought to have been made available, while Mr Scott considered that the means of lowering the plate was within the bounds of usual and normal trade knowledge. Mr Scott’s evidence at trial was that a ratchet and sling was more commonly used in the field where uneven terrain may make the use of stands or jacks difficult.
The use of concrete blocks or jacks was considered by both experts as an appropriate method for removing and lowering the plate, subject to the availability of a heavy vehicle trolley jack. The Volvo service manual produced in answer to a subpoena from the plaintiff’s solicitors in fact referred only to the use of a jack to support the removal of the plate and did not refer to a ratchet and sling device at all.
It was also agreed that the loader should have been cleaned so that the state of the plate and its support would have been obvious to anybody preparing to undertake work upon it.
In the course of the trial, after the plaintiff’s senior counsel had put assumptions to both Mr Scott and Mr Underwood that more closely conformed to the plaintiff’s evidence, there emerged some variations and refinements to the opinions expressed in the joint report.
Both experts agreed that it was reasonable for the plaintiff to attempt to gain better purchase on the bolts with the spanner. (Both experts were of the view that the description of the plaintiff’s position in Mr Simpson’s report (assumption 19) would have inhibited the effective performance of the task.) Mr Scott however maintained that it was not safe practice to lie underneath a load to crack a bolt without supporting the load. In Mr Scott’s view, the plaintiff was able to gain the same purchase with the spanner standing or crouching at the side of the loader and leaning against the chassis rail. Such a position was the usual method adopted in the heavy plant and machinery industry.
Mr Underwood was of the contrary view. He maintained that, assuming the bolts were tight and difficult to crack, standing or crouching at the side of the loader where movement was obstructed by the wheel was awkward or inconvenient. He considered that a prone position under the loader was less awkward for the purpose.
The plaintiff’s description of his position at the time he commenced cracking the bolts that was given during his evidence (lying on his right side, elevated to some extent by his right arm and using his left hand to crack the bolts) was put in turn to Mr Scott and Mr Underwood. Mr Scott considered that scenario as unlikely as assumption 19. Mr Underwood thought that it was not inconsistent with achieving some purchase on the bolt.
There was nothing unreasonable about the plaintiff commencing to crack the bolts on one side before moving to the other side. Both experts agreed that the appearance of the bolts (Exhibit E) was consistent with the occurrence of the accident as described by the plaintiff. In effect, the bolts may not have been sufficiently engaged in the thread, so that upon the failure of the weld the weight of the plate caused it to fall away from the bolts, without shearing or bending damage.
The defendant’s theory, namely that the bolts had in fact been removed and the plaintiff was lying underneath the loader applying a levering force to the bash plate, was considered by Mr Scott to be a simpler explanation of the accident. Mr Underwood considered it an alternative explanation, but remained of the view that, had the bolts been removed, the weld would have broken of its own accord. Mr Scott was doubtful that the weld would have broken within seconds of the removal of the bolts, given that the loader had been operating in the field for some months and the weld had held the left side of the plate in position.
Mr Scott maintained that safe practice dictated an inspection of both sides of the loader in order to ensure the integrity of the affixation of the bash plate. Mr Underwood’s response was premised upon the proposition that the plaintiff was entitled to expect that there were bolts securing both sides, that is, that it was reasonable in those circumstances to crack the bolts without making an inspection of both sides. However, he conceded that from a risk perspective, it would be preferable to undertake such an inspection. Had the plaintiff done so, Mr Underwood agreed that the appropriate course would have been to refrain from going underneath the loader until the bash plate was supported.
Both experts agreed that the use of extension tines ensured greater stability and security. Mr Underwood conceded that the bash plate had been supported, lowered and removed on two occasions by a forklift without the use of extension tines and that the use of one extension tine would result in an improvement, as far as a reduced tendency of the plate to slide forward and backward.

Resolution of the Factual Issues

No Interference in the Manner of Performance of the Plaintiff’s Work.

I am unpersuaded that the conditions under which the plaintiff generally worked were as he described them. The plaintiff’s evidence relating to the condition of the forklift at Eastern Creek, the difficulty he experienced in securing the supply of parts as minor as bolts, the unavailability of jacks and stands (including the refusal of the defendant to make them available), and the somewhat aggressive and belligerent treatment he received from Mr Cooper and Mr Ferguson cannot be reconciled with other evidence.
The plaintiff’s senior counsel in submissions portrayed the plaintiff as “a very poor historian”. That is certainly true, but insufficient to account for the objective inconsistency between the defendant’s proven efforts to maintain safe and efficient standards of work and the plaintiff’s representation of the defendant’s management of the workplace as wholly negligent, if not incompetent. The plaintiff’s work with Prestige before their dismissal obviously met the defendant’s requirements sufficiently to warrant the engagement of the plaintiff as an independent contractor with responsibility for heavy vehicle maintenance. The ongoing viability of the machinery upon which the defendant’s operations depended was the plaintiff’s responsibility under that arrangement and he was paid accordingly. There is no logical or reliable evidentiary basis upon which to conclude that, having entered into that arrangement, the defendant’s managers wilfully obstructed the performance of the plaintiff’s work by refusing to supply him with the necessary equipment.
No doubt, the defendant put systems in place to manage the cost of its operations that made the supply of some spare parts more time-consuming for the plaintiff. No doubt, if the plaintiff was instructed to repair a particular piece of machinery, he was required to obtain whatever equipment and order whatever spare parts were necessary for that purpose. Less than six months before the accident, the plaintiff had done that very thing (Exhibit 3). The plaintiff had no difficulty accessing schematic drawings from Volvo in relation to particular parts, nor did he have any difficulty gaining on-line access to information relevant to the repair of Volvo machinery (some of which he passed on to Mr Underwood for the purposes of his report). There was nothing preventing the plaintiff from attending Badgery’s Creek at any time he needed to access jacks and stands or obtain bolts. In short, he was being paid on an hourly basis to carry out all tasks necessary for the performance of his contract with the defendant.
At no time was it suggested that if the plaintiff was required to travel to Badgery’s Creek to obtain the necessary equipment, it would not be within the scope of his contract. It was not disputed that the plaintiff was told that he had full access to the workshop and facilities at Badgery’s Creek. The plaintiff’s evidence to the effect that he was told to make do with whatever equipment was available at the time and place where he was carrying out maintenance or repairs and that he was often met with a blanket refusal to make available the necessary equipment, is rejected. Mr Bonarrigo’s evidence that he heard Mr Lennox refuse a request from the plaintiff for extension tines and stands to be sent to Eastern Creek shortly before the accident is suspect, given Mr Bonarrigo’s partisanship, Mr Lennox’s likely role in his dismissal and the lapse of eight and a half years between the alleged conversation and Mr Bonarrigo’s statement. It is implausible that the defendant would continue to pay the plaintiff pursuant to a contract, the performance of which the defendant would constructively frustrate, thereby compromising the defendant’s own commercial operation. To the extent that there were occasions when the necessary equipment was not available to the plaintiff at a specific site, Mr Lennox’s evidence that the availability of equipment was a product of the priority allocated to particular jobs constitutes an obvious (and a far more mundane) explanation.
The condition of the forklift at Eastern Creek was the responsibility of the plaintiff. He admitted that he did not service and repair it because of the pressure of other work. I accept that Mr Lennox and Mr Cooper were not informed of any significant problems with the forklift. Had they been so informed, it would have fallen to the plaintiff to rectify the problem. Whatever the condition of the forklift, it has no bearing on the circumstances of the accident, given that the plaintiff made a conscious decision to crack the bolts, preparatory to the use of the forklift to support the bash plate.
I accept that the defendant’s representatives were concerned to ensure that machinery which required repair and/or servicing was returned to the field as quickly as possible. They had an economic interest in ensuring that jobs were completed on time and on budget. Machinery was a critical component of the business. I do not doubt that they impressed that urgency on the plaintiff from time to time, but the evidence suggests (Exhibit C) that expediency was not tolerated if it rendered the machinery unsafe or prone to repeated breakdown.
I do not accept that Mr Cooper would have taken it upon himself to remove heavy machinery parts in circumstances where his lack of knowledge and training placed himself and other employees at the risk of injury, leaving to one side the increased risk of damage to the very machinery upon which the business depended. Neither Mr Cooper nor Mr Lennox possessed the knowledge necessary to direct the manner of the plaintiff’s work in carrying out repairs to, and servicing, heavy machinery to the extent suggested by the plaintiff.
In summary, I formed the view that the plaintiff sometimes adopted a less than conscientious approach to the maintenance and repair of the machinery, failing on occasions to obtain the necessary parts and equipment from Badgery’s Creek or elsewhere in sufficient time to allow him to complete the job within the time frame expected by the defendant. Rather than jeopardise his contract with the defendant, he completed some jobs by using unsuitable tools and equipment, such as the pin the subject of Exhibit C. The plaintiff’s default explanation for these shortcomings was that the defendant’s managers were wholly responsible.

The Defendant’s Responsibility for the Condition of the Loader

To the extent that I found the plaintiff to be a generally unreliable witness, I accept his evidence where it is supported by other more reliable sources. There is no sound basis for rejecting the evidence of Mr Jackson with respect to the welding of the bash plate, particularly when he was not shown to have any close association with the plaintiff and his evidence was on occasions unfavourable to the plaintiff. For example, I accept the evidence of Mr Jackson, despite the plaintiff’s denials, that Mr Jackson had seen the plaintiff use the forklift with one extension tine to support the bash plate, on about three occasions.
On balance, I accept that the plaintiff and Mr Jackson were directed by Mr Cooper to affix the bash plate by welding the left side, in the hope that it would allow the loader to be used in the field for some further short period. Mr Cooper has no recollection of the incident but asserts he would not have done so. However, Mr Cooper was responsible for production at Eastern Creek and such a direction from Mr Cooper is consistent with the deployment of the loader being interrupted by the fuel malfunction, rather than for the purposes of regular servicing. The plaintiff’s positive evidence and Mr Jackson’s firm belief that Mr Cooper gave that instruction cannot be discounted. The evidence of Mr Berry relating to the conversation with Mr Jackson is not inconsistent with the instruction coming originally from Mr Cooper through the plaintiff. There was nothing in the plaintiff’s demeanour on this aspect of his evidence that suggested he was deliberately misrepresenting the position.
There is nothing particularly mechanical or technical about welding metal parts. As such, it was well within the experience and capacity of Mr Cooper to give that instruction. The misalignment of the bolts was not an easy fix – it required a significant amount of additional work to rectify, including grinding and re-tapping, and there was undoubtedly a pressing need to get the loader working again. It is more likely that Mr Cooper, who had direct authority over Mr Jackson, authorised Mr Jackson to carry out the weld, rather than such an instruction originating from the plaintiff. Recognising that the weld was not a satisfactory permanent solution to the misalignment of the bash plate, Mr Cooper issued the instruction with the assurance that he would arrange for the misalignment to be properly rectified within a week. Mr Cooper obviously forgot that he had authorised the weld and failed to ensure that the bash plate was later re-aligned and securely bolted in place.
The bolts depicted in Exhibit E are consistent with having come from the right side of the loader. That accords with the joint expert opinion on the mechanics of the bash plate falling away from the bolts following the failure of the weld. The bolts used by the plaintiff on the occasion of the weld, notwithstanding their condition, were able to hold the plate in position (according to Mr Scott’s evidence). In the light of the plaintiff’s admission that he had re-used unsuitable bolts on the loader on more than one previous occasion, his evidence that he informed Mr Cooper on this occasion that the bolts were unsuitable is doubtful. However, ultimately it was the failure of the weld, not the condition of the bolts, which caused the bash plate to fall, according to the joint expert opinion (see [85]).

The Accident

The defendant disputed that the accident occurred in the manner described by the plaintiff. It was the defendant’s contention that the injury to the plaintiff and the statements to Mr Jackson immediately after the accident, and to Mr Soars at the hospital, were consistent with the plaintiff lying under the loader, after completely removing the bolts on the right side, knowing that the left side was welded and attempting to prise the bash plate away from the underside, in the expectation that the tack weld would break. It was suggested that the plaintiff performed that manoeuvre in ignorance of the true weight of the bash plate.
A number of features of the plaintiff’s account of the accident in the course of the hearing were not consistent with the instructions given by the plaintiff to experts, including his own and one of the defendant’s medical experts. In September 2011 and April 2012, the plaintiff instructed one expert (Mr Simpson) that he had gone beneath the loader from the side and used his right hand to crack the bolts. In December 2015, the plaintiff gave the same account to Dr Schutz.
There was clear evidence from a demonstration carried out during a view on 21 March 2017 that a worker, said to be approximately the same size as the plaintiff in September 2007, was able to comfortably access the bolts on the loader standing to the side of the machine. The forklift was driven into position, the bolts loosened and removed, and the bash plate lowered without the need to insert any part of the body of the worker beneath the loader. The plaintiff reiterated that in September 2007 he could not fit beside the loader to access the bolts.
An inconsistency arose between the evidence given by the plaintiff at trial and the contents of a statement he provided to his company’s insurer on 15 October 2007. In the statement, the plaintiff described a procedure which included removing the bolts, after the forklift was in position, with an air ratchet gun from the side of the loader. The plaintiff insisted that that statement was incorrect in that he never used an air ratchet gun or any pneumatic tool on the bolts. Owing to his injury at the time, the October 2007 statement was not signed.
There was no mention in Mr Simpson’s reports of the pile of scrap metal at the rear of the loader. The plaintiff’s response to the questions of an investigator on 15 October 2007 and his evidentiary statement of July 2012 did not contain any references to the defective forklift or to the pile of scrap metal in the workshop. The first time these matters appeared in the plaintiff’s statements was in February 2016. This was also a feature of Mr Jackson’s evidence.
These factual inconsistencies cast significant doubt on the plaintiff’s account of the circumstances of the accident. I am not able to find as a fact that the plaintiff was lying in the precise position he described in evidence, using his left hand. I am not able to find as a fact that there was a quantity of scrap metal at the rear of the loader, or that there was anything preventing the plaintiff from using the forklift to support the bash plate while he cracked the bolts. The presence or absence of scrap metal behind the loader is not a significant matter for the purposes of the plaintiff’s case. The plaintiff had not taken any steps to use the forklift. In that regard, the alleged restricted access to the rear of the loader has little or no bearing on the circumstances of the accident.
The plaintiff’s only explanation for commencing to crack the bolts without waiting for the extension tines from Badgery’s Creek was the unreasonable demands imposed by Mr Cooper.
That Mr Cooper or anyone else at ANL placed these demands upon the plaintiff was denied. However, I accept that Mr Cooper communicated to the plaintiff the importance of speed and efficiency in carrying out repairs to essential machinery. I reject the plaintiff’s evidence that he challenged Mr Cooper on this occasion, or any other occasion. The plaintiff valued the work at ANL, was aware of the disadvantage to the business of the unavailability of machinery, and wished to retain the contract which provided him with a steady and satisfactory income.
The plaintiff’s account was consistent in so far as he had cleared the muck from the bolts on the right side and was lying underneath that side of the loader when he cracked the bolts. It is ultimately of little significance, in my view, whether the plaintiff was using his left or his right hand to crack the bolt. It is abundantly clear that the plaintiff was lying underneath the loader to the extent that the right side of his body was directly underneath the bash plate. In this regard the plaintiff is supported by the evidence of Mr Jackson. In addition, the joint expert opinion tended to support the plaintiff’s description of the accident in so far as the condition of the bolts in Exhibit E was consistent with that description.
The scenario proposed by the defendant and denied by the plaintiff is, in my view, so reckless and irresponsible that a mechanic of the plaintiff’s experience would not have entertained it. Moreover, common sense dictates that, had the weld broken and the bash plate fallen to the concrete, there was nothing to facilitate the return of the bash plate to the loader. The plaintiff would have made the job of accessing the fuel tank and cleaning out the lines more difficult, if not impossible, if the bash plate remained underneath the loader.
The fact that the plaintiff expressed to Mr Jackson and to Mr Soars that he had “fucked up” is equivocal as to the basis of that statement. It is a contemporaneous acceptance of some measure of responsibility for the fall of the bash plate onto the plaintiff’s arm, which might include the plaintiff‘s failure to inspect the other side of the loader or to ensure that the bash plate was supported before he took up a position underneath the loader. It does not justify the inference that the plaintiff was acknowledging the existence of the weld and a deliberate attempt on his part to prise the bash plate away from the loader.
It was not disputed that the loader was dirty and it was accepted that there was no proper visual inspection of the left side of the loader. At least five months had elapsed since the weld to the left side of the loader.

The Basis of Liability

The plaintiff accepted that he was not owed a duty of care as an employee, rather that the level of interference by Mr Ferguson and Mr Cooper in the manner of performance of the plaintiff’s work gave rise to the “more attenuated” (Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [99]) or “more stringent” (Leighton Contractors Pty Ltd v Fox and Ors [2009] HCA 35 at [21] (‘Leighton’)) duty propounded by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at 47–48 (‘Stevens’).
Given my rejection of the factual basis for such a claim, I also reject that submission. More fundamentally, the exercise of a supervisory role in directing the plaintiff to work on machinery at different sites and according to schedules for service is insufficient to give rise to a duty of care. The repair and maintenance of the machinery was under the control of the plaintiff; Stevens; Leighton; Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167.
For the reasons already given, the condition of the forklift, the failure to supply a service manual for the loader and the failure to supply a ratchet lifting device do not give rise to any basis for a finding of liability in the defendant. The plaintiff‘s contract with the defendant conferred responsibility for the condition of the forklift on the plaintiff. The service manual ultimately produced by the plaintiff did not refer at all to a sling and ratchet lifting device and the methods by which the bash plate could be supported (including jacks and stands) were within the plaintiff’s knowledge and expertise, and able to be obtained by him from Badgery’s Creek.
The matter falls to be resolved by having regard to the principles embodied in the Civil Liability Act 2002 in the light of the finding that the defendant was responsible for the condition of the loader, in particular the existence of the tack weld, when the plaintiff was instructed to service the loader.
The risk of harm by way of personal injury to persons working on or near the loader was foreseeable, in that the defendant knew or ought to have known that the bash plate was at risk of separating from the loader (s 5B(1)(a)). That much is clear from Mr Jackson’s advice about the temporary nature of the weld and the defendant’s stated intention to rectify the weld within a short period of time. The risk of harm was not insignificant given the size and weight of the bash plate and the conditions under which the loader was operated in the field (s 5B(1)(b)). A reasonable person in the defendant’s position would have ensured that the weld was rectified and appropriate bolts inserted after re-alignment of the plate within a short time after the weld was carried out. The probability that serious harm would be occasioned by the dislodgement of the plate to persons on or around the loader was appreciable and the burden of taking the necessary precaution to avoid that risk fell to the defendant (s 5B(1)(c)).
But for the failure by the defendant to rectify the weld over a period of five months, the plate would not have fallen and injured the plaintiff. The joint expert opinion confirmed that, most probably, the weld broke just before the plaintiff was beginning to crack the third bolt, whereupon the plate dropped immediately.
The defendant was responsible for rectifying any known defect that would expose the plaintiff to the risk of serious injury in carrying out maintenance or repairs. The defendant owed the plaintiff a duty of care in this respect which was breached by the defendant’s failure to rectify the weld. The plaintiff suffered serious harm as a result of the breach.

Contributory Negligence

The question of contributory negligence also falls to be determined on the basis of the principles established under s 5B of the Civil Liability Act 2002 (s 5R). The question is whether the plaintiff failed to take precautions, which a reasonable heavy vehicle mechanic would have taken, against the risk that the unsupported bash plate might fall while he was lying prone underneath it, undertaking the task of cracking bolts. For these purposes, the actual or constructive knowledge of the plaintiff with respect to the weight of the bash plate and the factors contributing to its safe removal is an essential consideration.
The defendant contends that the plaintiff failed to take care for his own safety, failed to use the forklift or other equipment to safely carry out the repairs (and prior to cracking the bolts) and failed to properly inspect the loader before commencing work. In short, it was submitted that the position adopted by the plaintiff to crack the bolts of an unsupported plate, and his failure to carry out a proper visual inspection of both sides of the loader before commencing to do so, amount to very substantial contributory negligence.
The plaintiff’s contention, and that of the cross-defendant, is that there was no contributory negligence, if it is accepted that it was “permissible” to work underneath the loader to crack the bolts, and that the plaintiff did not know and could not have been expected to know that the weld had not been rectified. It was submitted that the plaintiff’s inattention or inadvertence to the possibility that the weld had not been rectified cannot support a finding of contributory negligence; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34. It was further submitted that any such inadvertence was in any event the product of the demands placed upon him by the defendant.
The plaintiff agreed that it was essential to carry out a full visual inspection of machinery before commencing work. The plaintiff also acknowledged that the condition of one side of the loader could affect the other side and that he was able to wash down the machinery himself or request that somebody else do so. He agreed that if he had scraped away the mulch from the left hand side with the screwdriver, he would have seen the weld and appreciated that it was unsafe.
The expert evidence was that it was not unreasonable for the plaintiff to commence to crack the bolts on one side before moving to the other. However, the point of departure was whether a full visual inspection of both sides of the loader should have preceded that exercise and whether it was unsafe to lie underneath a load to crack a bolt without supporting that load.
Mr Scott regarded an inspection of both sides of the loader as a matter of safe practice within the industry, while Mr Underwood was only prepared to say that it would have been preferable. Similarly, Mr Scott regarded suitable and adequate support as standard practice before working underneath any heavy machinery, whereas Mr Underwood considered that there was nothing unsafe about the plaintiff’s actions, assuming that all six bolts were affixing the bash plate.
Having regard to the fact that a plaintiff bears personal responsibility for his or her own safety (Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 at [67]-[68] per Ipp JA), and taking into account the plaintiff’s knowledge and experience of the conditions under which the defendant utilised heavy machinery, the plaintiff’s failure to carry out a proper visual inspection of both sides of the loader before commencing work was objectively unreasonable. The plaintiff previously worked on machinery that was caked in mulch and took the time to wash it down. The failure to do so on this occasion, or at least to scrape away the mulch with the screwdriver on both sides before starting work, and the consequences of that failure go well beyond “inadvertence”.
Mr Underwood’s assumption that the plaintiff was entitled to expect that the weld had been rectified and that there were six bolts properly securing the bash plate is not consistent with the plaintiff’s own evidence to the effect that he used unserviceable bolts from time to time in the course of his work. The plaintiff ought to have known that it was not safe to lie underneath heavy machinery without supporting the bash plate. There was nothing to prevent the plaintiff from using the forklift, even without extension tines, to provide that support. The plaintiff exercised his own judgment in deciding to crack the bolts in unsafe circumstances. I reject the proposition that the defendant’s demands were responsible for the plaintiff’s course of action.
I am satisfied on the balance of probabilities that had the plaintiff taken the precaution of conducting a full visual inspection of the loader, he would have seen the tack weld and realised that it was unsafe to go further unless the plate was supported. In the absence of such an inspection, proper support for the bash plate assumes more importance. The plaintiff’s contributory negligence is assessed at 40%.

The Defendant’s Cross Claim against Pitlane (the First Cross Claim)

Pitlane, as the plaintiff’s employer, owes a non-delegable duty of care to the plaintiff to avoid exposing him to unnecessary risk of injury, including avoiding 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”; Czatyrko v Edith Cowan University [2005] HCA 14 at [12].
As senior counsel for Pitlane has submitted, the liability of the employer is not absolute. The employer must be in a position to know the risks that are occurring or are likely to occur. In circumstances where I have found that the defendant’s failure to rectify the weld was the relevant causative omission, Pitlane did not know and could not have foreseen the risk of harm to the plaintiff; Shoalhaven City Council v Humphries [2013] NSWCA 390 at [127]–[132]).
Accordingly, the defendant’s cross claim fails.

Pitlane’s Cross Claim against the Defendant (the Second Cross Claim)

The negligence of the defendant entitles Pitlane to indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987.
Pitlane’s cross claim against the defendant succeeds.

Damages

The plaintiff was born on 13 August 1966 and is presently 51 years of age. His early education, secondary schooling and vocational training were unremarkable. It was not in dispute that his retirement age is 67. His life expectancy is to age 85.
The plaintiff said he was a keen sportsman, particularly in relation to his interest in motorcycles. Before the accident the plaintiff had been in good health apart from some injuries occasioned whilst playing sport, including the dislocation of his left shoulder in 1983. He suffered further dislocations of his left shoulder in 1997 and 2002, following which he underwent surgery in about 2003. After the repair of his left shoulder, it was stronger than the plaintiff’s right shoulder.
The plaintiff is married with two children presently aged 20 and 18. The plaintiff and his family live in a double story four-bedroom house on an 800 square metre block with a backyard swimming pool.
The plaintiff worked six days a week for between nine and 10 hours per day, although on Saturday he worked either a half or full day. His wife worked part time in office administration. They shared the domestic work. The plaintiff’s evidence was that he did the vacuuming, mopping, dusting and taking out the garbage. He also performed maintenance work around the house. The evidence of the plaintiff’s wife supported the plaintiff’s contribution in this regard.
The plaintiff built the upstairs veranda and an additional outside shower and toilet. He looked after the pool, washed and serviced the family’s three cars and three motorbikes and a 20 foot powerboat. He also mowed the lawns and looked after the garden.
The plaintiff enjoyed an active life with his family which included motorbike riding and cycling, go-karting, cross-country dirt bike riding and motorbike drag-racing, in addition to playing soccer and going fishing.

Post Accident Treatment

The plaintiff was admitted to Westmead Hospital where he was diagnosed with a compound fracture of the right humerus with nerve damage. Surgery was performed by way of internal fixation of the right humeral fracture and repair of the right brachial artery.
Two days after the accident, the plaintiff had an emergency operation for compartment syndrome, which included an ischaemic right arm, requiring harvesting of the saphenous vein from the left thigh for use in the right brachial artery and performing fasciotomies.
On 21 September 2007 the plaintiff underwent further surgery to close the right arm fasciotomy wounds. His right arm was immobilised in a half plaster cast and sling for two months and the plaintiff was not permitted to weight bear on that arm.
The plaintiff was discharged from hospital on 24 September 2007. He commenced physiotherapy on 13 November 2007 and hydrotherapy in February 2008.
Since that time the plaintiff has undergone five surgical procedures to his right arm, namely on 12 September 2008 (bone grafts, plate fixation, removal of right triceps adhesions, release of the right elbow capsule), 30 March 2010 (day surgery including removal of hardware), 23 November 2010 (removal of plates and neurolysis), 25 September 2012 (following the re-fracture of his right distal humerus) and 6 May 2014 (revision surgery for non-union of the refracture of the right humerus). Following this surgery the plaintiff’s arm was immobilised in a plaster and sling for six weeks. The plaintiff had ongoing paraesthesia in the whole of his right hand.

Diagnoses

In May 2015 the plaintiff was reviewed by Dr Kirkham, the orthopaedic surgeon who performed the majority of the surgery upon the plaintiff. He noted significant elbow flexion deformity and varus angulation of 15 to 20 degrees. Flexion was noted at 115 to 120 degrees. The plaintiff was able to reach his mouth and his buttocks with the right arm but had difficulty performing hygiene tasks with the right hand. It was noted that the right shoulder had ongoing tendon or subluxation issues. The plaintiff was found to have severe numbness involving most of the right limb from the shoulder to the fingertips including slow hand function. Significant neuropathic pain of the right upper limb and limited lifting capacity was observed. The plaintiff was treated with analgesic medication and physiotherapy. Dr Kirkham reported his doubts that there would ever be complete uniformity in the three sections of the bone.

In a joint report dated 16 November 2016 by two orthopaedic experts, Dr Bodel and Dr Schutz, the plaintiff’s injuries as a result of the accident were summarised as a right supra condylar humerus fracture; a brachial artery injury requiring vascular surgery; ulnar neuropathy; and radial neuropathy as a result of a later operation performed in connection with the initial injury. The injuries affected the right arm only. There was no injury to the cervical spine, lumbar spine, left or right shoulder, or left or right knee, despite the plaintiff’s complaints of symptoms in those regions.
The joint experts noted that there were considerable difficulties with non-union and a requirement for additional operations. Notwithstanding those difficulties the joint experts’ opinion was that “union appears to be occurring satisfactorily, if very slowly.” The prognosis for the right humeral fracture was assessed as “good”, as was the prognosis for the vascular condition. The ulnar nerve was said to be practically fully recovered. The plaintiff was left with a restriction in the range of movement of the right elbow which correspondingly caused a restriction in the use of the right arm. That restriction arose from the fracture and symptoms. However, there was no real cause of restriction when the right forearm wrist and hand were working in a close to neutral position.
As at November 2016 the plaintiff continued to suffer disabilities causally related to the accident, namely, shortening and angulation of the right humerus, permanent restriction in a range of movements in the right elbow, slight sensory diminution in the right forearm, and restriction in a range of movement of the shoulder and the elbow, preventing use of the right arm and in particular use of the arm in a position far removed from the body. The right shoulder condition was unlikely to have been caused by the accident, however investigation and treatment was considered reasonable in the context of the other right upper extremity conditions.
To the extent that the joint report suggests a better prognosis than was suggested by Dr Kirkham, I accept the joint expert report on the basis that the authors of the joint report reviewed all of the medical reports over the history of the plaintiff’s treatment leading up to the hearing of the plaintiff’s claim. The joint report represents a more comprehensive overview of the plaintiff’s injuries and their sequelae.
In addition, the more optimistic prognosis outlined in the joint expert report is supported by the evidence of the plaintiff under cross examination by the defendant. Despite saying that he would not drive a car without power steering and that he attempted to restrict any driving to within 10 km of his home (because otherwise he was compelled to drive with one arm), the plaintiff conceded that he rides a Suzuki 1300 touring bike on the road. Since the accident he has driven to various locations with his son for the purposes of go-karting, attending the dragway at Eastern Creek and attending South Maroota which is approximately 50 km from the plaintiff’s home. The plaintiff also denied motocross riding, despite the fact that he was shown photographs of riding a motorbike in an off-road area, pushing a motorbike with both hands and conceding that he had done mechanical work on motorcycles from time to time since his injury.
With respect to the remainder of the expert evidence on the plaintiff’s injuries, it must be qualified by the joint expert report which post-dated the examinations and materials upon which the reports of Prof Brew and Dr Ling were based.
Prof Brew, a neurologist, assessed the plaintiff in August 2015. Prof Brew recorded damage to the brachial plexus and the median, ulnar and radial nerves at the level of the mid humerus. In his opinion, the plaintiff would not experience any improvement in the weakness or sensory disturbance of the right arm. Any improvement was unlikely to be significant in relation to his pain. The plaintiff was also at increased risk of arthritis in the elbow and possibly in the neck, given that he will have to use his left arm more than his right arm in the future.
Dr Monica Ling, a consultant physician in rehabilitation medicine, prepared a report on 15 February 2016, in which Dr Ling noted there would be permanent impairment of the plaintiff’s right shoulder, elbow, wrist and hand, neck and lower back with ongoing pain, stiffness, weakness and sensory impairment at these sites. The weight to be attached to this opinion, to the extent that it attributes injuries to the neck and lower back, is diminished by the fact that it preceded the joint expert report and provides no basis for a causal link between those injuries and the accident, other than that attributed by authors of other reports upon which Dr Ling relied. According to Dr Ling, the plaintiff will have ongoing musculoskeletal overuse pain in the left shoulder and left knee due to compensatory work by the unaffected left upper and lower limb joints. Over the next 5 to 15 years, it is anticipated the plaintiff will have ongoing degenerative changes in the right elbow and shoulder joints and this may result in gradual further impairment of the right upper limb function.
The plaintiff was assessed by Dr Stephen Allnutt in August 2011 and again in December 2012. In August 2011 Dr Allnutt diagnosed the plaintiff with an adjustment disorder with a depressed and anxious mood. The most significant stressor related to his then situation and the difficulty he was having coming to terms with the consequences of his injury. In the 2012 report, the plaintiff was reassessed after the re-fracture of the right distal humerus. According to Dr Allnutt, the further injury aggravated his chronic adjustment disorder to the extent that the plaintiff manifested symptoms consistent with a depressive disorder, characterised by poor sleep, reduced energy levels, ongoing impaired concentration, reduced capacity for pleasure, loss of interest in usual activities, social withdrawal, increased irritability and poor anger management. These symptoms impacted on the plaintiff’s social and occupational capacities, in particular his interpersonal relationships and his occupational abilities.
A joint report, dated 10 October 2016, by Dr Allnutt and Dr Revai establishes that the plaintiff suffers from a psychiatric condition of a depressive nature causally related to the accident and significantly due to the non-resolution of his orthopaedic problems. The joint experts agreed that the plaintiff’s symptoms were chronic and that his reluctance to engage in treatment, together with his age, resulted in a poor prognosis for his depressive disorder. In Dr Allnutt’s opinion the plaintiff’s psychiatric condition affected his functional capacity to a significant degree, whereas Dr Revai considered that it was affected to a minor degree. Given the evidence tending to suggest that the plaintiff somewhat exaggerates the limitations imposed upon him by his injuries, I would regard Dr Revai’s assessment as closer to the mark.
In the light of this evidence, and accepting that any permanent impairment arises solely out of the injury to the right arm and elbow, I would evaluate the plaintiff’s noneconomic loss at 35% of the most extreme case which equates to the sum of $214,500.00. I have arrived at this estimate having regard to the requirement to assess that percentage by reference to a most extreme case, which can correspond with significant spinal cord injury and brain damage.
The defendant does not contest the claimed out of pocket expenses, provided it is accepted that the payments made by Pitlane’s workers compensation insurer relate solely to the injuries caused by the accident. I accept that to be the case. These expenses amount to $172,079.00.
The plaintiff was earning $40.00 per hour at the time of the accident. There is no evidentiary basis for concluding that his hourly rate would have increased to $60.00 per hour by the end of 2007. Given the plaintiff’s evidence that he was working up to 67 hours a week at ANL, there was no scope for profitable work to be carried out by the plaintiff outside of the contract with the defendant. For the reasons given by Mr Kahler, the viability of any business operated by the plaintiff, which required capital expenditure on other vehicles and the management of other less-experienced mechanics, is extremely dubious. The plaintiff’s evidence was that he was fully engaged with the defendant’s machinery for six days of every week. The joint report of the accounting experts fixes the plaintiff’s net weekly earnings before the accident at $810.48 which I adopt for the purposes of assessing past economic loss. I also allow for past superannuation on these earnings and on the basis of Fox v Wood [1981] HCA 41.
The plaintiff has some residual earning capacity since 2015. In addition to the surgery in 2007 and 2008, there were periods of recovery from operations in March and November 2010 (removal of hardware), in September/October 2012 and in May 2014. Mr Soars gave evidence, which was not contradicted or qualified, that he offered the plaintiff a supervisory position with the defendant shortly after the accident, but the plaintiff declined. The plaintiff’s general practitioner thought the plaintiff was capable of returning to the workforce in 2015. He has demonstrated a resistance to undertaking further training or acquiring new skills that might improve his chances of securing other employment. The plaintiff maintained that he could not use a computer, even to the extent of not being able to navigate emails, and he has made no effort since the accident to overcome that deficit. It is difficult to assess to what extent the plaintiff’s depression contributed to the plaintiff’s passivity in this respect, but I accept that, even allowing for the influence of his depression, he has failed to mitigate his loss to the extent that a discount of $100 per week should apply to this component of the damages.
With regards to future economic loss, the plaintiff’s most likely future circumstances but for the injury were said to be established by his evidence to the effect that he intended to purchase two additional vehicles, equip them with the necessary tools and employ mechanics to work for him. The plaintiff also attended an interview with another company on the day of the accident in anticipation of acquiring another contract. The defendant currently pays its contracted mechanics $50.00 per hour.
The plaintiff’s assertions with respect to expanding his business have already been dealt with (at [171]). The plaintiff had worked virtually full-time in the defendant’s business for three years. The plaintiff’s suggestion that he would raise his rate to $60.00 per hour would not have been met with approval, according to Mr Soars. In these circumstances, I am prepared to assume that the plaintiff would have remained working pursuant to his contract with the defendant and that his hourly rate would have increased to $50.00 per hour as at the date of trial.
I would calculate future economic loss on the basis of the plaintiff’s pre-accident net weekly income of $810.48 over the plaintiff’s future working life, and allow an additional 25% for the increased hourly rate. I would discount that amount by $100 per week having regard to the plaintiff’s residual earning capacity. I allow an amount for future loss of superannuation. I discount future economic loss by 15% for vicissitudes.
I allow the amount of $196,400.00 for past domestic assistance on the basis of the plaintiff’s calculations in his Schedule of Damages up to 28 October 2013 (between 25.5 and 28 hours per week). However, the level of domestic assistance claimed by the plaintiff since that time (25.5 hours per week) does not take account of the objective evidence (the joint orthopaedic report), which establishes that the plaintiff’s arm has improved over time, and that the plaintiff’s permanent disabilities are effectively confined to a restricted range of movement in the right arm, nor does it take account of the evidence at trial which established by analogy that the plaintiff is capable of pushing a shopping trolley, is capable of riding a motor bike and is capable of performing some mechanical work. That evidence suggests that the plaintiff is capable of performing a number of domestic duties.
The opinion expressed by Ms Castle-Burton in the joint report of 10 November 2016 includes 10.5 hours per week of care from a “Personal Care Attendant” “to ensure that he is carrying out his personal care at regular and age-appropriate intervals, due to his reduced psychological state”. In other words, approximately half of the 25.5 hours per week said to be required post July 2012 are solely referable to the plaintiff’s hygiene and grooming regime. This is excessive, in my view, given that there is nothing in Dr Allnutt’s report which might support such an assessment. On the contrary, Dr Allnutt in his report of 19 August 2011 describes the plaintiff as well-groomed, “showering regularly and eating regular meals”.
I accept that the plaintiff experiences ongoing pain and discomfort as a result of his injuries and that analgesics may provide temporary relief. That pain and discomfort no doubt affects the quantity and intensity of domestic work that the plaintiff can undertake on a daily basis. Accordingly, I allow ten hours per week at $26 per hour from 29 October 2013 to date.
I allow the same number of hours per week (10) for the purposes of assessing future domestic assistance at commercial rates. The plaintiff’s submissions recognise that, despite the generous assessment of Ms Castle-Burton, Dr Ling’s assessment of the plaintiff in August 2015 suggests a much more modest allowance.
I allow an amount of $1000.00 per annum for the remainder of the plaintiff’s life for vehicle maintenance which the plaintiff would otherwise have performed.
With respect to future medical treatment, I am unable to accept that the plaintiff requires the level and variety of consultations for the remainder of his life that was submitted on his behalf. The joint orthopaedic report post-dates Dr Ling’s report by more than a year, during which time the plaintiff made some progress and demonstrated ongoing improvement. The joint report establishes that two GP visits per year, further X-rays ($600), and over the counter medication at $90.00 per annum is sufficient to meet the plaintiff’s future needs. The plaintiff agreed at the hearing that he manages his condition with general painkillers. That fact also militates against an allowance for a pain management programme.
Whilst the defendant contested the plaintiff’s willingness and preparedness to engage in any further psychiatric treatment on the basis that he has not had any such treatment in the past, I am of the view that a modest amount ought to be allowed for the purposes of that future treatment, including antidepressant medication. The plaintiff claims future fortnightly consultations with a psychiatrist for one year and weekly consultations with a psychologist for one year. That regime appears excessive in the circumstances of this case. I would regard an amount of $10,000.00 as appropriate to the plaintiff’s future treatment for depression, on the basis that fortnightly consultations with a psychologist and monthly consultations with a psychiatrist for one year are sufficient for the plaintiff’s needs.
I allow $5000.00 for physiotherapy and $1000.00 for a gym programme that should assist the plaintiff to improve his strength, mobility and flexibility. I allow $5,000.00 for future surgery on the plaintiff’s right arm. Occupational therapy is unnecessary, as is the need for special equipment.
I make the following orders:-
(1) Judgment for the plaintiff in the sum of $1,190,194.20;
(2) The defendant to pay the plaintiff's party/party costs as agreed or assessed;
(3) Judgment for the first cross-defendant on the first cross-claim;
(4) First cross-claimant to pay the first cross-defendant's party/party costs of the first cross-claim as agreed or assessed;
(5) Judgment for the second cross-claimant on the second cross-claim in the sum of $306,179.93;
(6) The second cross-defendant to pay the cross-claimant interest in the second cross-claim pursuant to s 100 of the Civil Procedure Act in the agreed amount of $116,357.00; and
(7) The second cross-defendant to pay the second cross-claimant's party/party costs of the second cross-claim as agreed or assessed.

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Amendments

04 July 2018 - Decision has been amended to reflect costs orders made by consent 4 July 2018.

Decision last updated: 04 July 2018

Medium Neutral Citation:	Tsoromokos v Australian Native Landscapes Pty Ltd [2018] NSWSC 321
Hearing dates:	20 to 27 March 2017, 6 to 8 June 2017 and 13 June 2017
Date of orders:	15 March 2018
Decision date:	15 March 2018
Jurisdiction:	Common Law
Before:	Latham J
Decision:	(1) Judgment for the plaintiff in the sum of $1,190,194.20; (2) Defendant to pay the plaintiff's party/party costs as agreed or assessed; (3) Judgment for the first cross-defendant on the first cross-claim; (4) First cross-claimant to pay the first cross-defendant's party/party costs of the first cross-claim as agreed or assessed; (5) Judgment for the second cross-claimant on the second cross-claim in the sum of $306,179.93; (6) The second cross-defendant to pay the cross-claimant interest in the second cross-claim pursuant to s 100 of the Civil Procedure Act in the agreed amount of $116,357.00; and (7) The second cross-defendant to pay the second cross-claimant's party/party costs of the second cross-claim as agreed or assessed.
Catchwords:	TORT – negligence – Civil Liability Act 2002 s 5B – contributory negligence – compensation – assessment – liability of contractor – whether employer to be indemnified – Workers Compensation Act 1987 (NSW), s 151Z(1)(d).
Legislation Cited:	Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Workers Compensation Act 1987
Cases Cited:	Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Czatyrko v Edith Cowan University [2005] HCA 14 Fox v Wood [1981] HCA 41 Leighton Contractors Pty Ltd v Fox and Ors [2009] HCA 35 Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34 Shoalhaven City Council v Humphries [2013] NSWCA 390 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
Category:	Principal judgment
Parties:	John Tsoromokos Australian Native Landscapes
Representation:	Counsel: Plaintiff: M Cranitch SC with C Thompson Defendant: L King SC with R Gambi Cross Defendant: GJ Parker SC Solicitors: Plaintiff: Carroll & O’Dea Defendant: Wotton & Kearney Cross-Defendant: Turks Legal
File Number(s):	2010/209561
Publication restriction:	Nil