Turner v Carrington Ginning Pty Limited - [2021] NSWSC 445

Supreme Court

New South Wales

Medium Neutral Citation: Turner v Carrington Ginning Pty Limited [2021] NSWSC 445
Hearing dates: 30 November, 1, 2, 3, 4 and 17 December 2020
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff for the sum of $401,428.46.
(2) The defendant is to pay the plaintiff’s costs.
(3) Should the parties seek a variation on that costs order, I grant liberty to apply on 3 days’ notice.

Catchwords:
NEGLIGENCE – Application of Civil Liability Act 2003 (QLD) – Truck driver off-site accident – Disputed version – Credibility Issues – Causation – Whether contributory negligence – Whether any reduction for employer’s liability pursuant to Workers Compensation Act 1987 (NSW) s 151Z
DAMAGES – Competing medical evidence – Credibility of plaintiff – Contrary objective evidence

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Liability Act2003 (QLD)
Civil Liability Regulation2014 (QLD)
Workers Compensation Act 1987 (NSW)

Cases Cited:
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24
Mason v Demasi [2009] NSWCA 227
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320
Woolworths Limited v Warfe [2013] VSCA 22

Category: Principal judgment
Parties: Jason James Turner (Plaintiff)
Carrington Ginning Pty Limited (Defendant)
Representation:
Counsel:
D Campbell SC with J Ryan (Plaintiff)
S Glascott (Defendant)
Solicitors:
Neville Hourn + Borg Legal (Plaintiff)
Holman Webb (Defendant)

File Number(s): 2018/200769
Publication restriction: None

Judgment

The plaintiff alleges that he sustained injuries in an accident at the defendant’s premises on 28 April 2016.
During the course of his employment with T&FS Woods Pty Ltd, a carrier company, he drove a B-double truck and trailer carrying cotton bales to the premises of the defendant at Goondiwindi.
He says that during the course of unloading, a forklift operator pushed or nudged a bale on the trailer which fell from a height above him, knocking him to the ground. He maintains that he was knocked unconscious and sustained severe injuries, including fractures of the thoracic spine.
Whilst the defendant acknowledges that the plaintiff sustained injury at its premises in Goondiwindi on the particular day, it disputes that the accident was caused by any negligence on its part. It does not accept that the accident occurred as the plaintiff asserts. In particular, it asserts that the accident happened because the plaintiff placed himself in a position of danger, that is, adjacent to the B-double trailer, without warning or informing the defendant’s forklift operators that he was moving into the “danger zone”.
The defendant also asserts that the plaintiff is not as disabled as he maintains and that his entitlement to damages on account of loss of earning capacity and domestic assistance would be limited. The defendant points to what are said to be significant inconsistencies between objective evidence relied on by the defendant and the plaintiff’s claims, which have some expert medical support.
As the accident happened in Queensland, damages must be assessed in accordance with the Civil Liability Act2003 (QLD) (“CLA (QLD)”).

Circumstances of the accident

Having regard to the way in which the case was conducted, the central issue relates to the circumstances of the accident.
The plaintiff relied on his evidentiary statement dated 26 November 2019. He provided some short oral updated evidence on damages issues. He was cross-examined extensively, both on liability and damages. The plaintiff’s evidence as to the circumstances of his accident is thus contained in his evidentiary statement and as further expanded upon in cross-examination.
It is the defendant’s contention that there are significant inconsistencies between the pleaded case, the particulars provided, the evidentiary statement and the oral evidence.
For reasons to which I will refer to throughout this judgment, I have some reservations about the plaintiff’s evidence and his credibility generally.
The defendant served evidentiary statements from the three forklift operators involved at the time of the accident, each of whom was cross-examined.
The plaintiff withdrew reliance on an expert report of Mr David Cockbain. It does not seem to me that expert opinion plays much of a role in the determination of the outcome of this case.
On the plaintiff’s case, he knew that he should not be approaching his truck during the unloading process and whilst the forklifts were adjacent to this truck and unloading the bales. However, he says that he was given the green light to do so by one of the forklift operators and thus did not expect that the forklift operators would be continuing with the unloading of the bales whist he was attending to the struts on the trailer.
The defendant agrees with the general views of the plaintiff about the system of work. It is the defendant’s procedure and system that truck drivers should not leave the safety zone whilst forklifts are unloading the trailers and further that forklift operators should not be unloading the truck or trailer unless the driver is in the safety zone.
The defendant agrees that it would be dangerous for a truck driver to move into any area around the trailers whilst the forklifts are unloading them. It says that the plaintiff did just that. The defendant says he did so without instruction from or with the knowledge of the forklift operators.
The background to his attendance at the defendant’s premises is not in dispute. He was an experienced truck driver. He had extensive experience carrying grain and freight. He was involved in interstate driving, handling grain, cotton modules, cotton bales and general freight between Sydney and Cairns.
He also operated his own business with his own truck for part of the year.
He commenced working with T&FS Woods in early 2015. In the weeks leading up to the accident he had been driving a single B-double combination prime mover carting freight and cotton bales.
On the day of the accident he drove from the T&FS Woods premises at Moree to the Namoi McIntyre Gin at Goondiwindi in Queensland.
He underwent an induction at the Namoi gin and then drove to the Carrington gin where he underwent a further induction. He was unloaded at Carrington and then drove back to Namoi where he was loaded up again around 4.00pm. He drove back to the Carrington gin.
He says that he was waved through the weighbridge and went into the loading bay as directed by the Carrington personnel. He stopped and alighted. He noticed that there were three forklift operators. He walked around to the passenger side of the prime mover to pull the curtains on the trailers so as to allow the unloading to commence.
Thereafter he says that he stood in the safety zone at the front of the prime mover (albeit there is some contrary evidence on this point). He noticed the forklifts removing the bales of cotton, with all three operators working together.
The dispute relates to what happened next.
In the amended statement of claim he pleads that:

“On the apparent completion of Carrington’s three forklift drivers (the forklift drivers) unloading the bales from the driver’s side, the plaintiff left his ‘safety zone’, walked to the rear of the B trailer and reinserted a support post that had come adrift from the base of the B trailer and reinserted a support post that had come adrift from the base of the B trailer on the driver’s side and then walked to the near side of the B trailer to remove a rear support strut (the strut) to enable the curtain on the B trailer to be pushed back to permit access for the forklifts.
The plaintiff’s position at the rear of the trailer to remove the strut was acknowledged by one of the forklift drivers.
The forklift drivers continued to unload the trailers including the B trailer.
Whilst the plaintiff removed the strut a bale of cotton fell from the load (the dislodgement) and struck the plaintiff on the left side of his head and right shoulder propelling him backwards and causing him to land heavily on the concrete surface (the mechanism of injury) and los(e) consciousness.”

The defendant sought particulars of the statement of claim. The plaintiff declined to answer most of the particulars but did say that one or two bales fell from the load and that one or two bales struck him and, further, that the bales fell from the passenger side of the trailer. I do not understand why there was any suggestion of more than one bale falling.
The plaintiff sets out the precise circumstances of his accident in his evidentiary statement as follows:

“After some of the bales were taken off, I was required to walk around the trailers to remove the ‘struts’. Struts are poles that hold the aluminium roofs on both of the A-trailer and B-trailer. The struts were moved so as to allow the forklifts to continue to remove the bales of cotton. The struts are situated on rollers. There are two struts on each side of each trailer.
I am usually able to remove 2-3 struts, however, cannot take out four. If four struts are removed, the roof will drop.
I had walked out to the left side of the B-trailer and noticed the strut on the other side, the right side of the trailer. I walked around behind the B-trailer and replaced the strut on the back right side. At this time the forklifts were continuing to dislodge the bales. I re-engaged the strut and then walked around to take out the second strut on the left side of the rear of the B-trailer.
As I removed the left rear side strut on the B-trailer, I heard a forklift on the other side moving into the cotton bales. I had lifted the strut out and was looking at the strut and then notice[d] the top bale fall and hit me to the right side of the head. The bale fell from a distance of approximately 4.2m. The bale hit the right side of my head and the strut post simultaneously, and I was knocked falling backwards a distance of approximately 2m.”

The plaintiff did not adduce any further evidence on liability-in-chief but was cross examined.
He acknowledged in cross-examination that he was not permitted to move from the safety zone to further prepare the trailers for further unloading, that is by removing any of the support struts or pulling the curtain over the tautliner back further, until such time as he was instructed and given permission to do so by those unloading the trailers, that is, the forklift operators. Although he was reluctant to identify his own signature on documents such as the induction form, it is clear that he underwent an induction and part of the induction involved the notion of safety zones whilst the truck was being unloaded.
He said:

“Q. This process of unloading which meant that sometimes it was staged and that you had to stop, or rather the forklifts have to stop unloading and let you as the truck driver come in to move the curtains--
A. Yep.
Q. --that was something you had done, what, hundreds if not thousands of times?
A. Yeah.
Q. To do that, you would communicate with the forklift driver or the forklift drivers if there was more than one--
A. Yeah.
Q. --to let them know--
A. Yeah.
Q. --‘I need to come into the trailer’?
A. Yep.
Q. How would you - you’d wave at them or tell them?
A. They’d, yes, beep the horn.
Q. That’s if they thought you needed to come in to--
A. Yeah.
Q. --move the curtain or do something?
A. Yeah.”
………
“Q. But a forklift driver couldn’t necessarily see you if he was on the opposite of the truck and trailer?
A. Yeah.
Q. So as you described earlier, that the forklift driver would sound his horn--
A. Yeah.
Q. --when you had to go round, for instance, to move the curtains or struts?
A. Yeah.
Q. Or the posts?
A. Yeah.
Q. You would wait for that horn before you would leave either the cabin or the truck, or one of those positions marked there?
A. Yeah.
Q. That’s a common sense practice isn’t it, that there’s some communication between the truck driver and the forklift driver?
A. Yeah. It would be.
Q. So you’re not near the trailers when, for instance, bales are being unloaded from the trailer?
A. Yeah, that’s right.”

He agreed that one of the instructions given to him during the induction was as follows:

“Q. You had signed documents like this on previous inductions?
A. Yeah, definitely, yeah.
Q. One of the instructions that you were supposed to do, as it says - it’s about the fifth instruction from the bottom.
A. Yeah.
Q. It says, ’Get instructions from forklift/loader operator for moving curtains, load strapping.’
A. Yeah.
Q. That’s something you had understood had been instructed by Carrington Ginning previously?
A. Yeah. Yeah.
Q. More importantly, that’s something that you acknowledge was the standard practice even before, as you said, inductions became common?
A. Yeah. Yeah. Yeah.”

All of this cross-examination was intended to establish that the plaintiff knew he should not move from the safety zone whilst the forklift operators were unloading the trailer and without an appropriate signal from the forklift operator.
At the time of this questioning, there was no mention in any document of the plaintiff having received the appropriate signal. It was not pleaded that he did. Further, as already referred to, he had said in his evidentiary statement that the forklift operators had continued to dislodge the bales as he replaced the struts. In his evidentiary statement he said that he saw the forklift operators continuing to remove the bales as he was removing and replacing the struts on both sides of the trailer.
It must follow on his evidence (that is in his evidentiary statement) not only that the forklift operators were not complying with the acknowledged system of work but also that he was not complying.
Having agreed during cross-examination that he should stay in the safety zone unless otherwise instructed, he was then taken to his evidentiary statement. It was put to him that there is no mention of any communication from the forklift operators permitting him to approach his trailer.
The following exchange ensued:

“Q. What you don’t mention there at any time is that a forklift driver sounded a horn, or communicated with you to permit you to go to the trailers?
A. Well I would’ve only done that once they’d actually give you that. They always give you two green lights and that’s when you first pull up there, and you give them the paperwork. They go away and they let down the strap, uncurtain and u(m) - take the posts out, and then I wouldn’t start the second procedure until they’d given me the horn.
Q. What I want to suggest to you is that no forklift driver there gave you a horn or any other indication that you could approach the trailer?
A. Yeah.
Q. Do you agree with that?
A. I, I agree with, that they give me the horn, because you wouldn’t go in there while they were trying to unload it. It wouldn’t serve a purpose.
Q. It’s an important matter though, isn’t it, in the coordination between truck drivers and forklift drivers?
A. Yeah.
Q. To communicate what each is doing?
A. Sure, but it’s a, it’s a really - in the, in the truck as well you, you’ve got to abide by the rules and you never go in there and you never move out of your safety zone until you’re give permission to, to - and they’ll either give it to you with a horn or they’d actually come up and tell you.
Q. None of those matters - that is there’s no form of communication between the forklifts to you to permit you to approach the trailer - none of that is mentioned in your statement, is it?
A. It should be.
Q. Should be?
A. Because - should be, because I wouldn’t, like, it’s just common knowledge that you don’t walk in there. Like, you - I would’ve beeped - they would’ve beeped the horn.
Q. At paragraph 49 of your statement you say ’I walked around’. That is you’d left your safe zone on the passenger side of the front of the prime mover and you’d walked down, or walked to the passenger side of the B trailer, and in fact walked right round behind the B trailer to replace the strut on the driver’s side and you said the forklifts were continuing to dislodge bales?
A. Well, basically‑‑
Q. That can’t be right, can it?
A. Well, well that isn’t how it happened. They actually give me the horn because it was at a point where the curtains had to be changed out and reversed so as they could get more bales and they’d gone off. They were, they were reversing bales that they had on the ground and scanning bales when I went to do that. So there was no forks there.
Q. I think what you’re saying is there were no forklifts beside the trailer. They were off doing something else?
A. Yeah they were running‑‑
Q. So you approached the trailer?
A. Well what happens is when they get to that point that, that there’s no real accessible bales left, that they’ll give you the horn and then you’ll go round and you’ll reverse the procedure with the curtains. So - but before I can do that, I’ve got to have at least one strut in the roof. So if I would’ve taken the one out on the passenger side rear of the trailer, the roof would collapse. So to make that happen, and they were off putting bales away, and it was my turn to, to change out the, the curtains.
Well for me to, to do that procedure, to get that strut out that was on the passenger side back of my trailer, first I’ve got to put the one back in that was on the right. Because sometimes they fall out. They’ve got a groove at the roof and if they get a bit worn in there, they can just vibrate out. So I had to put it back in, come round and I went to take the passenger’s one out and for some reason he’d come back, one of them, and hit the load to get more bales off.
Q. I understand what you’re saying, but see in your statement, none of that version is there. That is, what you are saying there, that you’d walked to the B trailer and the forklifts were continuing to dislodge bales, which means that the first part of the load hadn’t been unloaded yet, it wasn’t complete?
A. No, well, there was, there was no more bales to be able to be pulled off. They’d already given me the horn, and they’d drove away, reversing and scanning bales that they already had on the ground. They were off doing their own thing, and that’s why I felt a hundred per cent safe to go in and change my curtains out.
Q. I understand. But that comes back to what I said before, is you felt safe because you thought they were off doing something else. But there was certainly no communication or horn sounded to permit you to go to the trailer?
A. Yeah.
Q. You’re agreeing with that?
A. No, I’m agreeing with it, that they give me the horn, because you just wouldn’t go in there until they give you the, the horn to go.”

The plaintiff was adamant that he only moved away from the safety zone once he had been given the “green light” by a forklift operator. Further, he was adamant that the forklift operators had moved away from the trailer as there was no more unloading that could be done until he adjusted the struts and curtain.
This is quite contrary to his evidentiary statement. He said that his version as set out in his evidentiary statement “was not how it happened”.
He accepted that the reference to being given the green light or permission was not included in his evidentiary statement but said that it should have been. He accepted that having regard to his oral evidence, parts of his evidentiary statement were incorrect.
He was taken to differing versions provided to both his expert, Mr Cockbain, and his medico-legal expert, Dr Hopcroft. There are certainly differences, with the version set out in Dr Hopcroft’s report of 4 July 2017 being quite different. The version in the doctor’s report tends to suggest that a deficiency in the loading of the bales onto the trailer caused the bale to become unstable. I am mindful that I should treat a history in a doctor’s report with some caution[1] .
1. Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA); Woolworths Limited v Warfe [2013] VSCA 22 at [112] (Kaye AJA).

It is puzzling that there was no mention of the plaintiff being given the green light by a forklift driver using the horn in any document prepared by or on behalf of the plaintiff. He does not plead that he was informed or instructed by the defendant’s employees that it was safe to approach the trailer. There is nothing in the particulars or any reference to this in any other documents such as a medical report or the instructions given to the plaintiff’s expert (based on what was put to the plaintiff). The opening written submissions do not refer to this.
It is puzzling that, having said in his evidentiary statement that the forklift operators had continued to unload the bales whilst he attended to struts on both sides of the trailer, he maintained in cross-examination that this was incorrect and that he did not approach the trailer until they had gone from the area surrounding the truck.
It is difficult to understand why they recommenced unloading from the other side of the B trailer when, having regard to the plaintiff’s evidence, he had replaced the strut on the driver’s side because loading had finished on that side.
On the plaintiff’s case the critical question must be how he came to be adjacent to the trailer when a forklift operator was unloading from the other side of the trailer. The plaintiff says that the answer is that he was given the green light by one of the forklift operators but this only emerged during cross-examination of the plaintiff, following cross examination as to the need for that to occur as part of a safe system of work.

The defendant’s evidence

The defendant served evidentiary statements of all three forklift operators being Cyril Mayberry, Lewis Knox and Darren McDonald. Each was cross-examined. All agreed that a truck driver should not be near the trailer whilst the forklift operators are unloading the bales of cotton and vice versa.
Mr Knox was not working on the trailer at the time as his role was to remove the bales of cotton from the concrete pad into the warehouse. He says that he was never closer than 20 metres and sometimes up to 100 metres away from the trailer.
He says he did not hear anyone tell the plaintiff to move the curtain. He says that he was waiting on the passenger side to take another load to the warehouse. He then noticed the plaintiff go from sitting or leaning against the bale pad on the passenger side to over to the middle of the passenger side of the B trailer. He observed that the plaintiff was having trouble releasing a strut. It is notable that the plaintiff denied being near the bale pad before he approached the trailer. The bale pad was up to 15 metres from his truck. It was not in the safety zone.
Mr Knox did not observe the plaintiff then move to the driver’s side. He continued driving his forklift with the bales to the warehouse. When he returned, he saw a single bale on the ground. It was not a bale that he had left behind. It was adjacent to where he had seen the plaintiff trying to remove the strut, that is, on the passenger side.
Mr Knox agreed that he did not see what happened between the time he went to the warehouse and came back and saw the plaintiff on the ground. He agreed that there was no purpose in a truck driver being anywhere near the unloading unless the need arises and that the truck driver will come back in as a result of being requested to come back in by words or by horn. I took this question and answer to be acceptance by Mr Knox that the use of the horn was one way of signifying to the truck driver that he could approach the truck (consistent with the plaintiff’s evidence).
Mr Knox’s evidence tends to confirm that something happened involving the plaintiff and a bale falling from the truck, but his positioning was such that he may not have heard or saw what happened immediately prior thereto. Having said that, the plaintiff’s version is inconsistent with Mr Knox’s evidence as to where he was standing before he moved into the trailer and whether he was on the driver’s side when the bale fell.
Mr McDonald is an experienced forklift operator. He had been working as a forklift operator for the defendant since 2010.
He says in his evidentiary statement:

“I was operating a forklift to unload the bales from the trailers on the driver’s side of the Plaintiff’s truck. I was placing the unloaded bales parallel to the truck on the driver’s side for collection by another forklift operated by Lewis Knox to be taken to the shed/warehouse on the driver’s side of the truck.
I recall Cyril Mayberry was operating a forklift to unload the bales from the passenger side of the Plaintiff’s truck. He would place the unloaded bales on the passenger side of the truck.
Lewis Knox was collecting the bales that had been unloaded by myself and Mr Mayberry and carting them from where we placed them into the sheds/warehouses on the driver’s side of the truck. Lewis was not unloading bales from the trailers.
Once I started unloading the bales from the front of the A trailer, I was not aware of the Plaintiff being anywhere near where I was unloading on the driver’s side.
I was about half way through unloading the B trailer from the driver’s side when I noticed that Cyril had stopped unloading on the passenger side. I drove around the front of the prime mover in the forklift to see what was happening. I saw the Plaintiff on the ground and a bale about one (1) metre from where he was sitting. The Plaintiff walked and sat away from the truck.
Cyril and I continued to unload the B trailer.
After unloading was finished I cannot recall how the truck left the Carrington Gin. I had no further involvement with the Plaintiff.
I never had any discussion with the Plaintiff as to why the bale had fallen off.
I did not see how the bale fell.”

He was operating his forklift on the driver’s side and Mr Mayberry was operating on the passenger side. When he noticed that Mr Mayberry had stopped unloading, he drove around to the passenger side to see what was happening. It was then that he observed the plaintiff on the ground.
In cross-examination he agreed that he had spoken to the plaintiff after the incident and saw the plaintiff on the ground with a bale next to him. He did not recall speaking to Mr Mayberry although he might have.
Importantly, he agreed that the forklift should be out of the way whilst a truck driver is making adjustments to the truck. He said that he would not take his forklift anywhere near the truck/trailer in those circumstances. Again, there can be no doubt that the system of work at the gin required the forklift operators to ensure that they were not using their forklifts in the vicinity of a truck driver as he was attending to his truck.
Mr McDonald said:

“Q. It was plain to you that the forklift was in the area of the truck in operation when Mr Turner was attending to something at the truck; correct?
A. Could you say that again?
Q. It was plain to you from what you saw that Mr Turner was doing something at the truck at the same time when a forklift was being used?
A. Yes.
Q. Somehow, you don’t know how, a bale fell off?
A. No, I don’t.
Q. You know a bale was on the ground that wasn’t there before?
A. No, that’s when I come around the other side from my side to, to the other side.
Q. It didn’t fall out of the sky, did it?
A. No.
Q. It had to fall off the truck, didn’t it?
A. Yeah.
Q. But you don’t know how it fell off the truck?
A. No, I don’t know how it fell off the truck. I recall it was bar - when he released the bar, I thought the bar had hit him.”

That is, he agreed that Mr Mayberry was using his forklift to unload whilst the plaintiff was also doing something to the trailer. As he (Mr McDonald) was on the other side he did not see what happened.
In my view, the following exchange is particularly significant:

“Q. The golden rule, as it’s called when you’re unloading bales from a truck is to make sure that there’s no-one other than the person on the forklift anywhere near the truck; correct?
A. Correct.
Q. And, in particular, that the truck driver is clear of the truck before you do anything in relation to removing the load?
A. Correct, yeah.
Q. That means you’ve got to look to see where he is before you go in and start to unload bales from the truck, doesn’t it?
A. Yeah.
Q. Make sure he’s visible to you; correct?
A. Yeah. Correct.
Q. If you can’t see him you don’t do anything until you satisfy yourself that he’s out of harm’s way; correct?
A. Correct.
Q. That couldn’t have happened on this day, could it?
A. No, well, I couldn’t see over that side.
Q. The point is he couldn’t have got hit by a bale if you and Mr Mayberry had looked to make sure he wasn’t anywhere near the truck, could he?
A. No.”

Mr Mayberry gave evidence. He had no specific recollection either of the plaintiff delivering cotton on the day or an incident involving the plaintiff. This is surprising having regard to the evidence of both Mr Knox and Mr McDonald.
He agreed that he would have been there on the day but remembered little else.
He acknowledged the danger posed by forklifts operating in the vicinity of truck drivers. Indeed, he identified the precautions which should be taken in his evidentiary statement as follows:

“As an experienced forklift driver I was involved in the training of less experienced forklift drivers at the Premises. The basic rules were as follows:
(a) Ensure that the truck driver is in the safety zone away from the forklifts at all times during loading and unloading. This safety zone could be on the earth or dirt part of an apron which the forklift cannot access as the dirt will bog its wheels, or in front of the truck or in the cab of the truck.
(b) When the truck driver needs to approach the trailer to remove curtains or struts the forklifts must be away from the trailer.
(c) The forklift driver should call the truck driver over from the safety zone if the driver needs to prepare the trailer for access to the bales.
(d) The truck driver and the forklift drivers need to work together so both are aware of each other’s movements. The truck driver should only approach the trailer when he has been requested to do so by both [of] the forklift drivers who are unloading the truck.”

He agreed that, if there was an incident involving a truck and a bale of cotton, it would be necessary to complete an incident report, which he certainly would have done, although he qualified this with reference to whether an ambulance was called. It would have been his responsibility to do so. Further, he would have spoken to the manager of the complex.
Having regard to the plaintiff’s evidence that he was knocked unconscious and remained on the ground adjacent to the trailer for a lengthy period before being attended to by others, it is surprising that there is no incident report or other record of the incident and that Mr Mayberry has no recollection of such an incident.
In terms of the use of the horn, he said:

“Q. There are two ways in which the forklift operator can communicate with the truck driver and arrange the respective responsibilities, are there not? Firstly, they can speak to one another?
A. Yes.
Q. Secondly there is a system where a horn can be operated?
A. We do not use the horn around the trucks near the gin because you have got a cotton gin less than 60 metres away and it creates a lot of noise and a lot of other, other vehicles are in that area‑‑
Q. But there are—
A. It can be misconstrued.
Q. There are places in your gin where horns are used?
A. There is, that’s correct yes.
Q. Whether or not signals on this particular day were by way of verbal communication or horns, given that you have no recollection of the event, you would be unable to say, correct?
A. That’s correct.”

It is difficult to reconcile the plaintiff’s evidence with that of the defendant’s witnesses.
Whilst it is surprising that Mr Mayberry could not recall anything about the incident, I accept that Mr Knox and Mr McDonald were doing their best to recall the events that happened, despite the passage of time.
When considered together, the effect of the defendant’s evidence is that:

immediately prior to the accident the plaintiff was observed (by Mr Knox) leaning or sitting on the bale pad (not in the safety zone) and then observed to move to the passenger side of the trailer, where he was doing something to a strut;

the plaintiff was next observed adjacent to the trailer with a bale beside him (by both Mr McDonald and Mr Knox) which must have fallen off the truck but why it fell is not known (although there is a reference to a belief that it might have had something to do with a strut);

there were forklifts operating in the area at the same time as the plaintiff was close to his trailer. This must be so as Mr McDonald says that he and Mr Mayberry were unloading the trailer and that, when Mr Mayberry stopped, he went around and saw the plaintiff on the ground;

it follows that Mr McDonald must have been operating his forklift on the opposite side to the plaintiff at the very time when the bale fell from the trailer. Mr Mayberry must have been operating his forklift on the same side as the plaintiff when the bale fell;

the system of work which was supposed to be in place did not permit the forklift operators to operate the forklifts whilst the plaintiff was in the vicinity of the trailer. Further, the forklift operators were supposed to check that the plaintiff remained in the safety zone at all times whilst they were operating the forklifts in the vicinity of the trailer;

the plaintiff was supposed to be in a safety zone whist the forklifts were unloading. He was not; and

according to Mr Knox, the use of a horn was an accepted method of informing the truck driver that he may approach his trailer to adjust it for further unloading, although none of the witnesses recalled or accepted that there was a toot of the horn.

This all leads to the conclusion that a bale of cotton fell from the trailer whilst the plaintiff was adjacent to it and also whilst two of the defendant’s forklift operators were using the forklifts adjacent to the trailer.
This means that there was a fundamental breakdown in the defendant’s system of work. The forklift operators should not have been near the trailer unless the plaintiff remained in the safety zone. Further, the plaintiff should have remained in the safety zone at all times whilst the forklift operators were in and around the trailer.
Whilst I do not accept the plaintiff’s submission that Mr McDonald actually agreed that the bale must have been dislodged either by him or Mr Mayberry, Mr McDonald did accept that it was dislodged whilst the unloading process was taking place.
In my view, even on the defendant’s evidence, there was a breakdown in the defendant’s system of work.
How this came about remains a critical issue.
I have considerable reservations about the credibility of the plaintiff. Many of his answers in cross-examination were inconsistent with contemporaneous records such as the hospital report and records of treating health professionals. There were inconsistencies between his evidentiary statement and his oral evidence. His evidence cannot be reconciled with the evidence of the defendant’s witnesses. The plaintiff’s evidence that he was knocked unconscious and attended to by the defendant’s employees for a significant period and then simply sent on his way, that is, given the documentation and allowed to drive off, is difficult to accept.
He did not report to the hospital on admission that he had been knocked out. It is surprising that the defendant has no documentary record of an incident as significant as the plaintiff maintains.
There are inconsistencies in his description of what occurred. He even acknowledged this. For example, on his case, he was given the signal to move back into the trailer and the forklift operators went off somewhere else. He said specifically that “there was no forks there” when he went back to remove the strut from the trailer. Yet, very shortly thereafter, his accident occurred on his case because there was a forklift operator removing bales from the other side, being the side he had just been at only moments before. On Mr McDonald’s evidence, he had been removing bales continuously on the driver’s side.
He seemed unwilling to admit to signing documents at least until he understood why the question was being asked.
He avoided answering many questions directly. He often answered in a non-responsive way. His approach to his difficulties in reading documents was inconsistent. There are significant credit matters on his damages case.
However, doubts about the credibility of the plaintiff does not necessarily lead to a judgment for the defendant. I may reject parts of his evidence but accept other parts.
As was observed by Bell P (Bathurst CJ and Leeming JA agreeing) in ET-China.com International Holdings Ltd v Cheung [2] :

“…an adverse finding about an aspect of a particular witness’ evidence does not mandate that his or her evidence must or should be rejected on all issues. A trial judge is entitled to believe part of the evidence given by a witness and to reject the rest, and there is no rule of law or practice that states that an adverse finding on any aspect of the evidence of a witness means that the whole of that witness' evidence must be rejected.”
2. [2021] NSWCA 24 at [188].

The absence of any pleading, particularisation, evidence-in-chief or any reference at all (until it emerged in cross examination) about the plaintiff being given the green light through a tooting of the horn, coupled with the evidence from the defendant’s witnesses and my reservations about the plaintiff’s credibility causes me to have a significant doubt as to whether there was such a tooting.
I do not know why the plaintiff approached the trailer when he did but I do not accept that he was given the green light to do so.
However, I am satisfied that he and the forklift operators were working around the trailer at the same time. The forklift operators should have seen that the plaintiff was not in the safety zone (if they had checked).
The plaintiff may have approached the trailer to fix a strut. Having regard to the evidence of both the plaintiff and the defendant’s witnesses it is likely that he was working on one side of the trailer when Mr McDonald was on the other side.
Despite the defendant’s attempt to make something out of the history given to Mr Cockbain (the report is not in evidence), there is no evidence of any alternative explanation for the bale falling. The likely explanation is that it fell because the bales were nudged by Mr McDonald just as the plaintiff was working on the other side.
As is often said, most accidents are the result of a combination of unfortunate circumstances. The combination of both the plaintiff and the defendant failing to comply with the system of work that was well-known to them led to this accident.

Negligence

The parties agree that CLA (QLD) applies. Section 9 is in similar terms to s 5B CLA (NSW).
Whilst there was little attention directed to the provisions of CLA (QLD), I must apply s 9.
As set out in s 9(1), a person does not breach a duty to take precautions against a risk of harm unless the risk was foreseeable and the risk was not insignificant and in the circumstances, a reasonable person in the position of the person would have taken the precautions.
Further, as set out in s 9(2) in deciding whether a reasonable person would have taken precautions against the risk of harm, the Court is to consider, amongst other relevant things, the probability that the harm would occur, the likely seriousness of the harm, the burden of taking precautions and the social utility of the activity that creates the risk of harm.
Assuming that a duty of care is owed by a particular defendant, as it is in this case, the first step is the identification of the risk of harm. Only once the risk of harm has been properly identified can the Court consider whether the risk was foreseeable and not insignificant and whether a reasonable person would have taken the precaution suggested: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [3] (“Uniting Church v Miller”).
3. (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] (Leeming JA, Basten and Simpson JJA agreeing).

Although the question of breach must always be considered prospectively, in identifying the risk of harm the Court may have regard to what actually happened.
In my view, the risk of harm was the risk of a cotton bale falling from a trailer during the process of unloading.
Despite the apparent absence of earlier similar accidents, there can be no doubt that that risk was foreseeable and not insignificant.
It is hardly necessary to consider further what a reasonable person in the position of the defendant might have done as the very system which the defendant set up and emphasised to both truck drivers such as the plaintiff and its own forklift drivers was designed to prevent harm to a person such as the plaintiff.
Having regard to my findings as to the circumstances of the accident, it is only necessary to say that the defendant failed to exercise reasonable care through its forklift operators in that they failed to comply with the system of work which it had put in place to prevent injury to persons such as the plaintiff.
As I have said, I am unable to determine precisely what the plaintiff was actually doing with the strut on his side of the trailer immediately before the accident but whatever he was doing, he should not have been there and the defendant’s forklift operators should have ensured that he remained in the safety zone prior to continuing with the unloading on either or both sides of the trailer.
In circumstances in which I accept that the bale likely fell due to some action of the forklift operator on the other side of the trailer contemporaneously with the plaintiff doing something to the strut, the plaintiff would not have suffered injury but for the failure of the forklift operators to comply with the system of work.
Many of the particulars of negligence set out in para 16 of the amended statement of claim are merely alternative ways of saying the same thing, being that the defendant failed to ensure that the plaintiff remained in the cab of the prime mover or a designated safety zone whilst the unloading was taking place and that the forklift operators should not have continued to unload the bales whilst the plaintiff was not positioned in that safety zone.
I accept that the defendant was negligent in those ways and that the failure to take care caused the plaintiff’s injuries.

Contributory negligence

As set out in s 23 CLA (QLD), the principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence. The standard of care required that the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be decided on the basis of what the person knew or reasonably ought to have known at the time.
As I have already identified earlier in this judgment, the plaintiff knew that:

he was required to get instructions from the forklift operator before moving into the trailer to move the curtains or load strapping;

he should not move away from the safety zone without an appropriate signal from the forklift operator; and

it would be dangerous to approach the trailer whilst the forklift operators were in the process of unloading it.

Even on the plaintiff’s evidence as set out in his evidentiary statement, he noticed that the forklifts were continuing to work on the trailer as he was removing the struts. He said:

“At this time the forklifts were continuing to dislodge the bales. I re-engaged the strut and then walked around to take out the second strut on the left side of the rear of the B-trailer. As I removed the rear left side strut on the B-trailer I heard a forklift on the other side moving into the cotton bales”.

Leaving aside that this is quite inconsistent with his oral evidence, (he maintained that he moved in after the forklifts had ceased unloading and moved to another area), even on the plaintiff’s case, he knew that the forklifts were continuing to operate whilst he was attending to the struts. He failed to follow the system of which he was aware.
In Pollard v Baulderstone Hornibrook Engineering Pty Ltd,[4] McColl JA set out the proper approach to the assessment of contributory negligence in a case such as this:
4. [2008] NSWCA 99 at [13]–[14] (Mason P and Beazley JA agreeing).

“[13] At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act which provides:
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.

[14] The words ‘reasonable person in the position of that person’ in s 5R are equivalent to the words ‘a reasonable person in the plaintiff’s position’: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects ‘the expectation that, in general, people will take as much care for themselves as they expect others to take for them’: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing).”

Assessment of relative culpability is very much an evaluative exercise. I am assessing the relative culpability of the plaintiff in moving into the trailer to attend to a task that he thought he needed to attend to as against the failure of the forklift operators to comply with the defendant’s system of work. If the defendant had been complying with its system of work for unloading the trailer, the forklift operators would not have been adjacent to the trailer unless the plaintiff was in the safety zone. They would have ensured that they were not using the forklifts in the vicinity of the trailer unless they could see the plaintiff in the safety zone. They would not have been merely assuming that the plaintiff was in a safe position.
Irrespective of my doubts as to the plaintiff’s version of events, even on the defendant’s case, Mr McDonald should have known that the plaintiff was not in the safety zone. Mr Mayberry, who was operating a forklift on the same side as the plaintiff, would have been able to see that he was not in the safety zone. They were well aware of the risks to truck drivers from forklifts. Yet by his own admission, the plaintiff also knew that it would be dangerous to leave the safety zone and attend to his trailer, unless given the green light to do so. In my view, the plaintiff’s verdict should be reduced by 35% on account of contributory negligence.

Liability of employer

In its defence, the defendant relies on s 151Z(2) of the Workers Compensation Act 1987 (NSW) on the basis that T&FS Woods, the plaintiff’s employer, would have been liable as a tortfeasor but for the provisions of the Workers Compensation Act. The defendant has pleaded that it was entitled to a reduction in its liability based on the notional contribution of the employer.
The defendant did not make any reference to this aspect of its defence in its closing submissions. This is probably because, in my view, the employer could not have been found liable to the plaintiff. The plaintiff did not need additional instruction from his employer about not approaching the trailer whilst it was being unloaded. This accident was not caused by any deficiencies in the system at the defendant’s premises but, rather, a failure on the part of the defendant’s employees and the plaintiff to comply with the system.
The defendant is not entitled to any reduction in its liability based on the notional contribution of the employer.

Damages

The assessment of damages is a difficult task in this matter because there is a disconnect or inconsistency between the generally supportive medical evidence provided by those medico-legal practitioners who have examined the plaintiff in recent times (at least most of them) and significant objective material.
Further, my doubts about the credibility of the plaintiff, both in terms of his evidence on liability issues and his damages issues, impacts upon the extent to which I could necessarily accept the opinions of some of the medico-legal practitioners.
As a result of the accident, the plaintiff alleges he sustained a number of injuries, primarily being a fracture of the T4 vertebrae, a fracture of the T3 vertebrae and other injuries to his cervical and lumbar spines as well as injuries to his left and right shoulders.
As set out in his evidentiary statement, he maintains that as a result of the accident, he was knocked unconscious. He says that he remained on the ground for approximately 20 to 30 minutes whilst persons from the defendant’s premises, including the forklift drivers, were continuing to talk to him. He was eventually assisted up by those forklift drivers and taken a distance of 30 metres to a wall where he sat. He remembers being left for a period of 30 minutes before a forklift driver approached him and told him that his truck had been unloaded and gave him his paperwork. He says that he rose slowly and walked back to the prime mover. He was feeling very messed up. He felt extreme pain in his chest area, head and neck.
He managed to drive to a roadhouse, which was located a distance of approximately 20 kilometres away from the gin. He called his wife. He then waited for her. She arrived 2 hours later and they went to Goondiwindi Hospital. They arrived at Goondiwindi Hospital at around 8.30pm to 9.00pm and remained at the hospital for an hour. He says he could not stop urinating at the hospital.
He and his wife then drove back to the motel where they were booked in. He could not sleep. On the next morning, he arranged for the prime mover to be picked up. He went back to the hospital. He says he managed to drive the ute back to Moree whilst his wife drove her vehicle. He said he was struggling to drive.
He first attended his general practitioner the next day, being 30 April 2016. By this stage he says that he was experiencing severe pain and limitation of movement to his neck, left shoulder, mid back and lower back. He was referred to Dr Paul Licina, a spinal surgeon in Brisbane. He continued to seek treatment from his general practitioner, Dr Coote. He ultimately changed general practitioners to Dr Hamze at the Pious X Aboriginal Medical Centre in Moree.
He says he underwent rehabilitation and his employer arranged a gradual return to work program involving truck driving but he could not cope with the job. He last worked on 13 March 2017.
He says that he continues to experience severe pain in his thoracic spine, although his injuries to his elbow and central chest have resolved. He experiences vertigo with swaying motions. He experiences pain extending into his left arm with numbness in his 4^th and 5^th fingers. He also has pain in his right arm. He says it occurs every few days. He has pain in the lumbar spine. He also says that he has become depressed, anxious and easily frustrated.
He says that he is unable to assist his wife with any domestic duties. He says that he has been diagnosed with post-traumatic stress disorder and chronic pain syndrome. He maintains he is no longer involved in social activities or any activities in the home. He is no longer able to undertake any work in the yard or home improvements. He is unable to wash his motor vehicles or engage in truck repairs. He cannot collect firewood.
In his evidentiary statement he says:

“I rarely drive, and when I do, I drive only to and from Warialda.”

He further says in his evidentiary statement that he has short term memory problems and difficulties with comprehensive problem-solving. He is overwhelmed when he is asked to perform tasks.
He says he is unable to care for his children and his wife undertakes all care in respect of the raising of the four youngest children. His son, Jai, attends to yard maintenance and fetching firewood.
He does not consider that he will be able to return to work at any time in the future. He says he does not know how to use a computer and has limited numeracy and literacy skills.
The effect of the plaintiff’s evidence on damages is that he maintains that:

he continues to suffer from a severe disability, such that he has never been fit for work since his injury and will never be fit for work;

he has not performed any work since his return to work trial in 2016 and 2017;

he has considerable restriction and movement;

his pain levels are always high;

he has benefited little from treatment;

he spends most of his time at home. He said in further evidence–in–chief that his typical day consists of trying to get up and go for a walk, sitting down for a period of time and then laying down once he has sat for too long. He may accompany his wife to IGA to get groceries before going to bed at 8pm; and

he is unable to care for himself or assist in any domestic duties, that he is unable to look after his property, he rarely drives and cannot drive any long distances himself.

His presentation and complaints are inconsistent with contemporaneous medical records being the records of those that assessed and treated him in the period from 2016 to 2017. His evidence is inconsistent with objective material. His complaints are inconsistent with his presentation in the witness box. The complaints and history provided to doctors for the purposes of this case are inconsistent with the records of his treating doctors from 2016 to 2017.
His response to extensive questioning on such inconsistencies was to maintain that the doctors and other health professionals have not recorded accurately what he said, that they have inaccurately recorded his pain levels and restriction of movement and they have seemingly made statements in the reports which are simply incorrect. Further, he says that he was bullied by his own doctors, including his former general practitioner, Dr Coote and his specialist, Dr Licina, as well as the rehabilitation providers appointed by the worker’s compensation insurer.
He says he was never fit to return to work, but he struggled to do so as he would not have been able to survive financially unless he did what the insurer wanted.
The idea that his own treating doctors were bullying him to force him back to work and not accepting what he was saying is difficult to accept. Indeed, I do not accept it.
Further, it is most puzzling that the plaintiff and his wife apparently continue to live in a property that they purchased in 2016 without power or water. They moved in on 16 January 2017. They have five children. They say that they were intending to renovate the property but they have not been able to. It is asserted that the reason is financial and physical.
Yet, because of the receipt of ongoing worker’s compensation payments, the plaintiff’s before and after income has remained relatively constant. It is not a high income, but I would not accept any suggestion that the plaintiff would have been able to afford the cost of putting power and water on, but has not been able to since the accident.
Apart from anything else, the bank statements produced under subpoena in respect of one account show funds of over $36,000 at the beginning of January 2018.
On one view, there are really only two views which can be taken, being either:

the plaintiff is deliberately exaggerating his level of disability and has consciously done so when examined by doctors for the purposes of this case and as part of this claim; or

the inconsistencies (even as observed and noted by the medico-legal practitioners), rather bizarre statements and the exaggerated complaints are a reflection of a pain syndrome coupled with an abnormal illness behaviour of a genuine nature.

On the plaintiff’s case, he must be entitled to a significant sum on account of damages. He seeks in excess of $2m.
He claims that all of his disabilities are permanent and that he will never work again. Further, he claims a significant sum on account of care.
There are a number of matters which lead me to reject much of his extensive damages claim.

Inconsistencies between the treating material of 2016 to 2017 and the complaints and evidence of more recent times

It became apparent, as a result of the thorough cross-examination, that there is a significant disparity between the observations, comments and opinions of the medical and other health professionals who had treated the plaintiff and the plaintiff’s own views as to his level of disability.
This was particularly apparent in respect of the period 2016 to 2017. Examples of inconsistencies within the material from 2016 to 2017 include, but are not limited to:

despite references in the contemporaneous records to the plaintiff citing his pain level at 1 out of 10 (that is only limited pain), he says he never did that and it always would have been at a level of 6 out of 10;

despite references to the plaintiff being able to move various parts of his body in an unrestricted way or with only limited restrictions, he says he never exhibited that;

despite records of the plaintiff being able to lift weights as part of an exercise program, he disputes that he was able to lift the weights; and

despite the reference in reports to the plaintiff being able to undertake exercises such as repetitively lifting 15 kilograms, he says that did not occur.

In seeking to explain disparities between his evidence and what is recorded in many of the notes and records of the treating health professionals, the plaintiff adopted an approach that those health professionals were bullying him and that they were really only interested in him going back to work and not pursuing a claim.
This apparently includes his former general practitioner, Dr Diana Coote, who the plaintiff maintains had in some way insisted on becoming his treating general practitioner over his preference for another doctor.
The plaintiff underwent extensive treatment following his accident through his general practitioners, his specialist, Dr Licina, rehabilitation coordinators, physiotherapists and other persons involved in seemingly assisting the plaintiff’s rehabilitation and return to work.
In cross-examination, the plaintiff maintained that those persons were not interested in his health and were really only interested in somehow forcing him back to work, despite his level of disability.
It is not necessary that I record a comparison or contrast between what is recorded in the notes and records of the plaintiff’s treating doctors and health professionals and the plaintiff’s evidence. It is only necessary to say that I accept that there is a considerable disconnect between the level of disability complained of by the plaintiff for the purposes of these proceedings and the complaints made to his treating doctors in the period 2016 to 2017 and the opinions of the health professionals.
The consensus of the treating medical opinion (that is, leaving aside the psychiatric component) is that the plaintiff’s frank injuries should have resolved to the extent that, at the very least, he could have returned to truck driving on a part-time basis by the end of 2016.

Indeed, after undertaking light duties involving yard work, the plaintiff did return to truck driving on a limited basis. He said that he was given a passenger to assist him, but he also maintains that he was not really fit to be doing the truck driving. He says that he was forced to, just to survive, having regard to what he says was the continued wrongful conduct of the worker’s compensation insurer in making him do things in order to receive payments.
Ultimately, his employment was terminated in March 2017. On his case, he has been incapable of work since then despite the apparent belief of those treating him in 2017 that he would be quite capable of undertaking work.
In addition to the plaintiff’s continued refusal to accept that which must have occurred, being that he did perform the exercises (there are even photographs), and that he did report some improvement and he did suggest that he was suffering a lesser level of pain that he maintains for the purpose of these proceedings, there other aspects of the evidence which give rise to a considerable concern about the plaintiff’s veracity including:

the plaintiff exaggerated the version of what occurred in the period immediately after the accident. On his version he was on the ground for up to half an hour and then placed near a wall whilst the forklift drivers were talking to him. He had been knocked unconscious and must have been in a bad way. However, also on his version, he was then merely handed his paperwork and told he could leave. It seems somewhat unlikely that any organisation would simply send a truck driver driving such a large and potentially dangerous vehicle on his way having suffered such an apparently severe injury;

he maintains that he was knocked unconscious, but when questioned at the Goondiwindi Hospital, he or his wife apparently said he was not knocked unconscious;

his treatment and rehabilitation appears to have diminished or ceased such that by the first half of 2018, he appears not to have been seeking any treatment. He first saw Dr Hamze, his new general practitioner on 29 May 2018. Of course, it may be that by this stage, he felt that he was achieving little and not seeing the point in pursuing any further treatment. That may have been a reasonable enough approach, except that the bank statements which are in evidence suggest that someone using his card was quite active in the first half of 2018, in particular, regularly driving around various places around New South Wales; and

to a lesser degree, that his presentation in the witness box during a long period of cross-examination was quite inconsistent with his alleged severe restrictions of movement. Indeed, he also demonstrated a greater capacity for reading and understanding than he originally asserted.

There is also objective evidence which is quite contradictory to his claimed level of disability.

Renewal of his heavy vehicle licence

In 2020, the plaintiff applied to renew his heavy vehicle driver’s licence for a period of five years. As he acknowledged, in order to renew such a licence, it would be necessary for him to be medically assessed.
He was medically assessed by Dr Hamze. According to that medical assessment dated 8 January 2020 (wrongly dated 2019), he suffered from no disability, disorder or condition which would impact upon his ability to drive a heavy vehicle. He had no mental health condition. Every question was answered in the negative. Further, according to Dr Hamze, he took no medication which would impact on his ability to drive.
At least, on the face of the document, the plaintiff signed the application declaring that he suffered from no muscle disorder or any other illness or condition which would impact upon his ability to drive a heavy vehicle.
When cross-examined on these documents, he gave a number of unsatisfactory explanations. He pointed to his wife having completed the form and probably just putting down what she thought was necessary. Of course, this hardly inspires confidence in Mrs Turner’s evidence generally.
He gave inconsistent answers as to whether he was actually asked the questions. He maintained it was probable but that he could not read the questions. As was apparent from his time in the witness box he demonstrated an inconsistent approach to his ability to read.
When asked why he was even applying for a licence, he maintained that it was in case WorkCover required him to have it (presumably, again, suggesting that he might be forced to go back to work by WorkCover). When taken to the doctor’s assessment, he said that the doctor got it wrong. For example:

“Q. But to get your licence renewed, you must’ve known you needed a medical certificate otherwise you wouldn’t get it?
A. Well I did realise that, cause I actually went and got it, I went to the doctor and he checked me, done obs (sic) and whatever else they do there. It’s only a simple check.
Q. Did you read the certificate?
A. Not really, because it was just a licence check. There wouldn’t be that much on it other than I had to, to just get him to what he had to do and then take it to the motor registry.
Q. You must’ve done this a few times because it’s a commercial driver’s licence that you have to supply a medical certificate for, correct?
A. I’ve actually been to doctors many a times to do that, but it just the same test, just an obs (sic) test. It was fairly simple.
Q. One of the questions in the certificate that Dr Hamze completed‑‑
A. Yeah.
Q. ‑‑and signed, sorry, Dr Hamze did sign. Question 8, these documents are at tab 162 and this medical assessment is at 1371. One of the questions to the doctor was ‘Does the patient have a neuromuscular condition’ and there’s been a tick on ‘no’. You understand that?
A. Not really.
Q. Question 11 was ‘Does the patient have mental health issues’?
A. Yeah.
Q. And then boxes for anxiety disorder and chronic depression?
A. Yeah.
Q. Dr Hamze appears to have ticked ‘no’?
A. Yeah.
Q. Do you agree with that? Is that right or was it wrong?
A. I think it was wrong.
Q. Question 12 says ‘Does the patient have a musculoskeletal disorder’?
A. Yeah.
Q. There are a number of boxes to be ticked, one of which includes ‘chronic pain’?
A. Yeah.
Q. It appears Dr Hamze has ticked ‘no’?
A. So, yeah‑‑
Q. You agree with that?
A. No.
Q. Dr Hamze got those wrong?
A. I’d say so.”

When Mrs Turner gave evidence and was asked questions on the same subject, she volunteered that she thought the doctor might have filled in the application form.
I have difficulty accepting her evidence on this subject. It is improbable that the doctor completed not only the medical assessment form but also the application form.
Further, Dr Hamze was and remains the plaintiff’s regular general practitioner. His records are in evidence but only up to April 2019, being the time of service of the subpoena. At that time, the doctor was certifying the plaintiff as being unfit for work.
The plaintiff maintains that Mrs Turner attends all of his medical examinations with him. It is clear from some medical records that she might be viewed as being very supportive of his level of complaint, particularly when there might be any contrary opinion.
The application for renewal of the licence is no minor or trifling matter. The plaintiff is now in receipt of a Class MC licence as a result of his application and the doctor’s assessment. Such a licence qualifies him to drive B-doubles and very large vehicles (which might often be used to transport goods long distances). The renewal process and health assessment process is an important part of ensuring that only persons who are fit to drive are on the road and the roads are safe for everyone.
In his evidentiary statement he says:

“I have had intermittent counselling, initially with a Counsellor called Sue Humphreys, and afterwards with Annabelle Simpson. I was then referred to an independent Clinical Psychologist, Gillian Marcoolyn. I have not found that the counselling has significantly assisted me.
I have very disturbed sleep and I average about 6 hours of sleep per night, waking at least 3-4 times a night as a result of back pain. I have difficulty in falling asleep and sleep lightly.
I always consider that I have a very low mood and have hypersensitivity to noise and light. I become anxious when I leave my home and also when in large groups of people. I am less motivated and I have less enjoyment of life.
I have extreme frustration as a result of my physical limitations and the impact this has had on my capacity for work. I consider that I experience a loss of self-esteem and self-confidence. I have become socially withdrawn and I avoid people.
I also experience short-term memory problems and difficulties with comprehensive problem solving. My concentration levels are poor and I have difficulty with planning an(d) organisation. I become overwhelmed if I’m asked to perform a number of tasks. I am no longer the placid and easy-going person that I was prior to my injury and I now consider myself to be very anxious, irritable, reactive and hypersensitive.”

In August 2020, he told Dr Lotz that he was taking Duloxetine, an anti-depressant. He says that he also takes 6 to 8 Paracetamol daily, allegedly because his doctor refuses to prescribe stronger medication.
In addition, he claims a significant sum on account of future medication.
Yet, he has obtained a licence to drive heavy vehicles on the basis that he takes no medication. He has held such a licence for the whole time since his accident. It is one thing to hold onto an existing licence. It is another to take all necessary steps to renew it, by attending a health check and completing a declaration.
I do not accept his attempts to avoid responsibility for the content of the declaration he made to the Road & Maritime Services (RMS). He comes to this Court saying that he cannot drive a truck in any meaningful way. He said to the RMS he suffers from no restriction which would impact on his driving. Taking anti-depressant medication and suffering from sleeplessness surely would impact on his ability to operate such a vehicle.
On the plaintiff’s case and evidence, the information in the application form was false. On the plaintiff’s case, the certification provided by Dr Hamze was also false.
I do not accept that Dr Hamze made up the answers or did not carry out the assessment. His assessment must have been based on what the plaintiff told him. I would not draw an inference that the doctor failed to perform such an important task as required and directed.
The plaintiff submits that the completion of the health assessment reflects poorly on Dr Hamze. In my view, it reflects poorly on the plaintiff. Absent evidence to the contrary (such as the up-to-date records of Dr Hamze which could have been obtained), I would infer that the health assessment reflects what the plaintiff told Dr Hamze, rather than what Dr Hamze made up without any basis for doing so.

The bank records

Contained within the joint Court Book are 150 pages of bank records being the records of the plaintiff’s bank account held with the Regional Australia Bank. The records produced are for the period 1 January 2018 to 30 April 2020.
The plaintiff was taken to these bank records in cross-examination. When asked whether there were one or two cards or who might be using the account, the following exchange occurred:

“Q. Before I do so, I’ll ask this. Is there a number of cards or is there one card linked to this account?
A. No there’d be two cards I, I think at that stage, probably.
Q. Who uses those cards?
A. It’d be, it’d be both of us.
Q. When you said ‘both of us’, you mean yourself and your wife?
A. Me and my wife, yeah.
Q. Deductions made (from) the account would reflect either you or your wife using the account?
A. Yeah.
Q. But no‑one else to your knowledge?
A. No, I hope not.”

He was taken to various entries, particularly in 2019, with reference to trips to Surfers Paradise and other family holidays. He was directed to an entry at Wyong on 28 May 2019. He said that was in respect to a medical attendance. He was then directed to entries in Lismore and Byron Shire Council and he again suggested that it was for holidays. Finally, it was put to the plaintiff that there were financial records indicating that he was at Angourie Rainforest at Yamba on 20 January 2018 and he suggested that he went to a wedding with his wife there.
He was asked about the driving as follows:

“Q. Did you do the driving for these trips?
A. No.
Q. Did you do part of the driving for these trips?
A. No.”

He was also asked about his driving in another part of cross-examination in the context of speaking to a doctor in October 2020 as follows:

“Q. In relation to driving, you told her you could drive short distances only, due to concentration being impaired after half an hour?
A. Yeah.
Q. Has that changed since then?
A. Not, not really, no.
Q. You can still drive short distances yourself?
A. Yeah.
Q. But you say your concentration is impaired after half an hour?
A. Yeah.”

That was followed up in re-examination and he was taken to various trips. He was again asked about trips to the Gold Coast and Brisbane for medical appointments, again, he said his wife did the driving.
In her evidentiary statement, the plaintiff’s wife, Kristie Dawn Turner, said:

“Jason is home now all of the time and he largely watches television.
I have observed Jason to be very stiff. He has difficulty in rolling over in bed. He is slow and steady when getting in and out of bed. He has improved his walking ability in the last few months, and is now able to walk approximately 2km, taking around 30 minutes.
He does small amounts of driving but only to and from Warialda. He drives probably on two occasions per week over very short distances.
I never see Jason bend or lift any weights.
I have noticed that Jason does not remember where he places things, for example, he leaves his glasses in the car or in the kitchen and cannot find them. He is unable to twist around.
I’ve noticed that Jason cannot stay in the same position for any length of time.
…
Jason continues to experience sleeping difficulties, as he frequently turns over in bed at night and complains about pain. I have noticed that he regularly has night sweats. I did not observe any of these occurrences before the incident.”

As she says in her evidentiary statement, Mrs Turner did not work outside the home other than assisting the plaintiff in his truck driving business. She has now obtained some intermittent casual work at a primary school as a support worker.
Bank records provide objective evidence of the movement and habits of the cardholders. Whilst the plaintiff seems somewhat vague about the number of cards, he said there would be two cards “I think at that stage probably”. All of the entries are in respect of the one card. Further, whoever was using that card is plainly a big consumer of takeaway food, including McDonalds, KFC, Red Rooster and various other food shops, as well as a person who likes to shop at hardware stores such as Bunnings, Tradelink and Super Cheap Auto.
I raised this issue with both parties during submissions. Mr Glascott’s approach was to suggest that, although he raised a number of items, it was up to the plaintiff to explain the entries. I understood his submission to be that it was not necessary for him to put every entry to the plaintiff.
On the other hand, Mr Campbell sought to explain the bank entries in general terms with reference to both the holidays and the plaintiff’s regular attendances on doctors such as Dr Hopcroft, in places like Taree and Port Macquarie and Dr Lotz on the Gold Coast. He said that the plaintiff’s wife said that she did almost all of the driving and she was not challenged on that.
I do not think that it is necessary for a cross-examiner to challenge the plaintiff on every entry in the bank statements. The cross-examiner raised a number of different entries. The impression from the questions and answers was that the plaintiff seemed to have gone on a number of holidays with his family. There should be no problem about that in terms of it affecting his case except, of course, it was not mentioned in evidence-in-chief and the impression was created of a person with a very severe disability able to do very little.
Having said that, the problem is that on a review of the bank statements, the entries defy any explanation, having regard to the evidence of the plaintiff and Mrs Turner. The evidence of the plaintiff and Mrs Turner, both orally and in the evidentiary statements, is that:

the plaintiff does and can do very little;

he is so disabled that he not only cannot work but he is unable to do any domestic chores or do anything on the property in which they live; and

he does not drive except to Warialda from time to time.

Yet, an examination of the bank statements suggests that someone has been using the card on a regular basis in places outside Warialda. For example, even just examining January 2018, it is apparent that someone was travelling extensively. Having regard to the expenditure in various takeaway food stores and service stations and hotels, it looks like someone has been using the card on an almost daily basis and very often at places well away from Warialda. Annexed to this judgment is a schedule demonstrating the plaintiff’s travel in January 2018.
I do not know what the explanation for all this travel might be. I do not know why the plaintiff or Mrs Turner needed to go on 10 trips away (that is, further than Warialda or Moree or Inverell in January 2018). It looks a bit like someone might be driving places and stopping at takeaway food shops, service stations and truck stops on the way.
I do not know whether the plaintiff or Mrs Turner needed to travel to Brisbane in early January 2018 or needed to travel to the Central Coast, Scone, Port Macquarie, Ballina or any of those places.
Although the plaintiff’s pre-accident business apparently included hiring his truck with driver (ie him) for three months of the year and seemingly involved doing shorter trips allowing him to be at home more often, it was not suggested to the plaintiff that he was working and that this travel was part of him earning an income.
In those circumstances, I would not infer that he was. However, I would not accept that the travel was undertaken by Mrs Turner because on her evidence, she looked after all of her children full-time on the property.
I understand that the plaintiff and Mrs Turner would regularly go into Warialda. No doubt that was necessary for their shopping. What is completely unexplained is why either Mrs Turner or the plaintiff would need to be travelling to all of those other places.
Contrary to the plaintiff’s submissions, he was not seeing Dr Hopcroft and he did not see Dr Hopcroft at all in the early part of January 2018. There is no evidence that he was having any treatment or seeing any doctor for the purposes of this case in the first few months of 2018. There is no evidence that he was seeing any doctor or health professional outside the local area in early 2018. There is no hospital or medical records suggesting that he was seeking treatment in Brisbane or the Gold Coast or those other places in January 2018. The entries are not explicable on the basis of medical visits or treatment. Even the chronology does not offer any hint as to why such travel might have been necessary.
Absent further exploration and explanation, I would not draw any inference as to what the entries in the bank statements represent other than that they record where the plaintiff was on any particular date.
However, I do find that the entries are quite inconsistent with the portrayal by the plaintiff of his lifestyle and level of activity. All of the entries are for the one card. It must be the plaintiff’s card. The bank statements suggest that the plaintiff is considerably more active than he has maintained. Indeed, it must be that in various periods in 2018 the user of the card was travelling long distances, often returning the next day after staying in a hotel. Bearing in mind the age of the children and the evidence that Mrs Turner does all of the caring for the children, it must follow that the plaintiff was using the card.

The bank statements provide objective evidence that the plaintiff has not been truthful about his level of disability and activity.

Photographs of his property

The plaintiff was shown aerial photographs of his property during cross-examination. He was questioned about a rectangular block which was completely green. He was asked whether he grew a crop on his property. He denied it. He denied that the photographs showed a crop that he had planted. He explained that his son might have taken the tractor to the overgrowth and after that, there is regrowth like he was shown in the photograph. He said it was just weeds that were out of control.
However, when asked about the dark patch around the edge of the weeds, he said it could be saffron thistles, or that it could have been one of several crops or vegetation, suggesting that his son-in-law and son just wanted to get out there and farm it only there.
His evidence on the topic was inconsistent. His explanation that it was his son-in-law and son who wanted to get out there and farm only that particular area is difficult to accept, firstly because his original explanation was that it was just weeds and, secondly, because according to the evidentiary statements, his son was only 15 in 2019.
He gave oral evidence that his eldest daughter and son-in-law had moved out (as an explanation for why she would not be giving evidence in the case).
I must be careful not to interpret photographs that look like a crop in a defined area, when I have no expertise in doing so. All I can really find is that the aerial photos show a defined and contained area of green which must be something growing in the area.
Having said that, again, for reasons which are not explicable other than avoiding answering the question directly, it is apparent that the plaintiff gave inconsistent evidence about what the photographs show.

The evidence of the treating doctors

On 5 July 2016, Dr Paul Licina, the plaintiff’s specialist, opined that the plaintiff had a stable crush fracture of T3 and a minor buckle of the superior end plate of T4. He said that the fracture would not change in position and could be considered safe. He opined that the plaintiff could resume activities as his level of pain allows. He felt that most of the pain was associated with soft tissue injuries and not the fracture itself.
On 15 December 2016, Dr Licina opined that the plaintiff was making good progress at work, upgrading his activities. Most of his pain was due to disuse and soft tissue repair. Going to the gym and doing stretching and strengthening would help him. He was hoping for a full recovery.
On 8 August 2017, Dr Licina wrote to the plaintiff’s general practitioner, Dr Coote, suggesting that the plaintiff’s condition had stabilised. He continued to have discomfort but he had been diligent with rehabilitation. A recent scan showed that the fracture had healed and was in a good position. There was nothing objective or structural to stop him getting back to work but his reported levels of pain were the problem.
On 16 May 2019, his general practitioner, Dr Hamze, wrote to Dr Brew, a neurologist, noting that the plaintiff had been on worker’s compensation and had been diagnosed with chronic pain, vertigo and PTSD. He had been under the care of Dr Hopcroft and his case manager. The plaintiff was not under the care of Dr Hopcroft. Dr Hopcroft first examined the plaintiff on 4 July 2017 on behalf of his solicitors. He next saw him on 18 April 2019, again, on behalf of his solicitors.
The plaintiff was examined by Dr Bruce Brew, a neurologist, at the request of his general practitioner on 27 May 2019. Dr Brew suggested that the plaintiff had a chronic pain syndrome and post-traumatic stress disorder. His examination was remarkable for a degree of mental slowness and rambling history. All movements were cautious because of pain but there were no definite neurological abnormalities. He noted that the plaintiff was being reviewed by the pain clinic at Tamworth and thought that this was the appropriate course for the plaintiff to follow.
On 11 June 2019, Dr Hamze certified that the plaintiff was only able to drive for 2 to 3 hours at a time and needed to have frequent rest breaks.
On 24 June 2019, Dr Brew provided a report to the plaintiff’s solicitors. He noted that, according to the plaintiff, his symptoms had remained stable since the accident. Any reference to the 2016 material suggests that this is not so. He referred to chronic neck and thoracic pain acting on cervical degenerative spine disease. He also diagnosed post-traumatic stress disorder.
On 15 October 2019, Dr Hamze wrote to the solicitors for the plaintiff, referring to the plaintiff’s persistent pain, restriction of movement and a degree of mental slowness, but found there were no neurological deficits. He referred to the plaintiff currently receiving treatment at a pain clinic in Tamworth and physiotherapy in Moree.
The notes and records of his original treating general practitioner, Dr Coote, are also in evidence. Dr Coote’s last consultation was for the purposes of a certificate, albeit, there was obviously some conflict between the plaintiff and Dr Coote. Dr Coote suggested she would have been disinclined to see him after his last rude episode.
Most of Dr Coote’s consultations merely recite the plaintiff’s complaints and provides certificates. On 28 March 2017 she said: “Jason can now do 8 hours a day 3 days a week”.

The medico-legal reports

As I have identified, there is a disconnect between the generally supportive medico-legal opinions and the treating material and the objective evidence.

The evidence of Dr Hopcroft and Dr McPhee

Dr Hopcroft first saw the plaintiff on behalf of his solicitors on 4 July 2017. He provided a report that day and a supplementary report dated 24 July 2017. He reviewed the plaintiff on 18 April 2019 and provided a further report on that day. He then reviewed the plaintiff on 25 August 2020 and provided a further report on that day.
He participated in a conclave with Dr Bruce McPhee who was retained on behalf of the defendant. They prepared a joint report dated 27 October 2020. Dr Hopcroft then provided a further report dated 2 November 2020 which is somewhat unusual as it appears to be a commentary on things said in the joint report.
Dr McPhee saw the plaintiff on behalf of the solicitors for the defendant on one occasion being on 11 July 2019 and prepared a report dated 15 July 2019.
As is apparent from the joint report, Dr Hopcroft and Dr McPhee agree on many issues, albeit there may be some misunderstanding between them as to the nature and effect of their opinions. Importantly, they agreed that the plaintiff sustained:

fractures to the T3 and T4; and

soft tissue injuries of the cervical spine with aggravation of pre-existing cervical spondylosis, as well as a soft tissue injury to the lumbar spine with aggravation of pre-existing lumbar spondylitis changes.

The doctors agreed that as a result of the accident the plaintiff sustained a compression fracture of the T3 vertebrae which has ultimately led to a 60% loss of vertebral body height.
Further, when the fracture was first diagnosed, the loss of vertebral height is said to have only been 20%.
Having said that, both doctors agreed that the plaintiff’s fracture is now stable. There would be no further deterioration at the fracture site.
Dr Hopcroft considered that the real problem for the plaintiff in terms of his ongoing pain were related problems with facet joints and the surrounding nerves. On the other hand, Dr McPhee said such an opinion was really just speculative. As Dr McPhee said, there was really no way to know the true source of the plaintiff’s pain.
Dr Hopcroft and Dr McPhee agreed that there was evidence of inconsistency and it may be that his level of pain and restriction is, at times, inconsistent or might be viewed as exaggerated. However, they both offered explanations for his presentation.
Dr Hopcroft expressed the view that the plaintiff is not an intelligent person and that he has been unable to cope and deal with the consequences of his injuries. He believes that he was forced back to work prematurely and that he was unable to cope with the work.
When he lost his job, he was unable to develop coping mechanisms and the means of recovering his equilibrium. According to Dr Hopcroft, this is very much a function of his isolation, lack of appropriate treatment and his own inability to deal properly with his condition.
Dr McPhee essentially shared that opinion. It is only necessary to set out the final questions to both doctors as follows:

“CAMPBELL: Just one on this illness behaviour issue. I take it therefore, doctors, you’d each agree with the statement that what is in place is a dimensional framework that identifies specific pathological processes in this man’s cognition, perception and social behaviour that contribute to bodily distress, impaired coping, inappropriate use of health services, chronicity and disability. Would you agree with that, Dr McPhee?
WITNESS MCPHEE: I don’t know where you got that from but, please, send me a copy because that exactly crystallises where his circumstances lie.
CAMPBELL: With your permission, I will send it to you in the mail.
WITNESS MCPHEE: Thank you very much.
CAMPBELL: What about you, Dr Hopcroft, do you agree with that proposition that I’ve just put?
WITNESS HOPCROFT: Hear, hear.
CAMPBELL: Is that a summary of Mr Turner?
WITNESS HOPCROFT: That is a precise summary of this poor individual who, nine days after moving into his brand new shed where he has five children, had his capacity to support his family stopped to a standstill.”

Further, Dr McPhee explained that, in his view, the length of time since the accident meant that his current condition is chronic. Both doctors considered that the plaintiff was a person who had gone from a hardworking country man into a person who has a chronic incapacity arising out of his perceived level of pain. It did not matter to Dr McPhee whether the pain was based on some deterioration in a physical condition or whether it was a reflection of abnormal illness behaviour.
According to the doctors, the pain was genuinely experienced and provided an explanation for much of his behaviour.
It is again a curious feature of this case that this seemingly supportive medical opinion, despite observed inconsistencies, is in reality based on a belief that the plaintiff is a genuine claimant. It does not matter whether his complaints are organically based or part of an abnormal illness behaviour.

The evidence of Dr Eikens

Dr Luba Eikens, a rehabilitation physician, prepared a report dated 10 March 2020. She participated in a joint conclave with Dr Kym Boon and Dr Marc Walden. As it turned out, the plaintiff did not wish to ask any further questions of any of those three doctors. However, I granted leave to the defendant to adduce further evidence from Dr Eikens explaining the basis of her opinion, particularly as it related to a reference to the plaintiff suffering from abnormal illness disorder.
In her report, Dr Eikens referred to inconsistencies in the plaintiff’s presentation but on my reading of her report, attributed much of the plaintiff’s presentation to the effects of his abnormal illness disorder and depression. Dr Eikens did not suggest that the plaintiff was not a genuine claimant.
In the joint report, she offered a similar opinion. Further, she agreed with Dr Boon and Dr Walden that the plaintiff remained unfit for work as a truck driver.
However, during her further oral evidence, she explained that, in her view, the plaintiff was consciously misleading and attempting to deceive in terms of his complaints of disability. His exaggerated complaints and inconsistencies on presentation suggested to her that the true position was that the plaintiff was deliberately exaggerating his level of disability for the purposes of the case.
She explained that it is very difficult to determine whether abnormal illness behaviour is a reflection of a genuine but exaggerated response to injury and disability or is really a manifestation of a conscious attempt to deceive. She considered it was the latter.
However, in cross-examination she accepted that she had not referred to that view in her report or in the joint report. She suggested that there was no opportunity for her to explain the basis of her opinion in the joint report and hence she made no reference to these views.
She accepted that the plaintiff’s rather exaggerated response to the accident and apparent deterioration in his condition could be a genuine reflection of a psychiatric condition superimposed upon physical injuries, but she preferred the view that it was not.
She also accepted that ordinarily she would expect in circumstances in which she formed a view that the abnormal illness disorder was a reflection of a conscious attempt to deceive, she would be in receipt of objective material tending to suggest that the injured person was behaving quite differently away from the doctor’s rooms and the prying eye of the defendant than as he presented when being examined or giving evidence.
She acknowledged that she had not been provided with any such objective material in this case. Whilst I accept that Dr Eikens’ view was a considered opinion and I accept that it was something that she considered in further detail only shortly before giving evidence, I have difficulty understanding why this opinion had not emerged previously.
The doctor might have changed her view based on some new material but she did not say this was the case. I am left with the view that subsequent to the conclave, the doctor has either changed her view or wishes to add to her earlier view in such a way as to give the impression of changing her view without being in receipt of any new information as a basis for such a change in position.

The evidence of Dr Reddan, Dr Boon and Dr Lotz

The doctors prepared a joint report on the plaintiff’s psychological state. Dr Reddan provided a diagnosis of adjustment disorder whilst Dr Boon and Dr Lotz provided a diagnosis of PTSD.
The experts agreed that the plaintiff manifested symptoms of paranoid thinking, anxiety and depression. Dr Reddan and Dr Boon noted that trauma and pain influence how people experience anxiety and depression. They noted that anxiety and depression can influence how people experience pain. Dr Boon felt that the plaintiff could be experiencing centralised sensitisation, neuropathic and mechanical pain.
Dr Reddan noted paranoia. Dr Boon and Dr Lotz agreed that the plaintiff’s prognosis is poor, whilst Dr Reddan disagreed with this view as the plaintiff has not undergone any treatment. They all agreed that the plaintiff did not require assistance with domestic, personal and household maintenance from a psychiatric perspective.
They were cross-examined. Dr Boon was asked about inconsistencies in movement during examination and elsewhere. Dr Boon suggested this could be because of anxiety interfering with his ability to concente. Dr Boon emphasised that the plaintiff has PTSD, without any earlier history of abnormal illness behaviour or psychiatric illness.
Dr Lotz felt that the plaintiff was trying very hard to minimise the psychiatric distress he was feeling and put on a brave face for his family. The evidence of Mrs Turner does not suggest that he was putting on a brave face for his family. Her evidence was that he consistently did very little.

Findings on medical evidence

As a result of the accident, the plaintiff suffered potentially significant injuries involving fractures of the thoracic spine. The type of injury sustained certainly had the potential to cause the plaintiff significant pain and disability.
However, the fractures were stable within a relatively short period after the accident. His own treating specialist, Dr Licina, suggested that ongoing pain was more likely related to soft tissue repair. He was certified fit to return to some form of truck driving in late 2016 and he did so.
I accept that the views of those doctors and rehabilitation consultants who supported his return to work were genuinely held rather than, as the plaintiff says, a reflection of them bullying him back to work and disregarding his interests.
Whilst he saw Dr Hopcroft in July 2017 at the request of his solicitors, there is limited evidence of his condition during the period 2017 to 2018. He did receive certificates from his general practitioner, originally Dr Coote and then Dr Hamze. He continued to be certified as fit for only part-time truck driving work. He saw a pain specialist over five weeks in 2019.
He has not had the limited treatment that those who have seen him for the purposes of this case suggest he should have. That is said to be a factor in his level of complaint. The plaintiff puts that down to financial impecuniosity and his isolation. This is difficult to accept, bearing in mind his apparent ability to travel when necessary (for reasons unexplained) and the fact that he is on worker’s compensation.
Almost all of the medical practitioners who have seen him for the purposes of this case tend to suggest that, on the basis that he is a genuine complainant and having regard to the lack of treatment, he is likely to remain unfit for work as a truck driver.
There are varying reasons for this including Dr Hopcroft’s analysis which includes issues such as facet joint problems; Dr Boon’s suggestion of a pain condition and PTSD; and abnormal illness behaviour, being suggested as a reason for what appears to be his quite extreme level of disability and inconsistencies in complaints.
Indeed, the doctors’ reports are replete with references to the level of inconsistencies. It is suggested they are said to be explicable.
Having said that, it is clear that his treating specialist thought he would and should recover and be able to go back to work. He appears not to have seen Dr Licina since 2017.
The phenomenon of a treating specialist being optimistic about a patient’s capacities is well-known to the Court. It is also well-known that persons react to trauma and pain in different ways. Pain is subjective.
There is medical support for the plaintiff’s complaints of pain and ongoing disability, albeit, the only explanation for his grossly exaggerated level of disability, that is, essentially doing nothing at all at home is abnormal illness behaviour. His evidence about being bullied by doctors and doctors only being interested in the insurer may be a reflection of abnormal illness behaviour.
The preponderance of recent medical evidence, that is, the medico-legal orthopaedic and psychiatric evidence, provides support for the plaintiff’s ongoing absence from work. The earlier treating reports do not. There is only limited support for his extensive claim for care. The plaintiff relies on his own evidence and that of his wife as well as the evidence of his occupational therapist, Erika Skibby, for that.
If I accept all the medical evidence, the plaintiff would be entitled to significant damages.
Having said that, none of his frank injuries, diagnosis of PTSD and anxiety, abnormal illness behaviour or pain syndrome could explain:

inconsistencies between his oral evidence and evidentiary statement;

the fact that contrary to his own evidentiary statement, the oral evidence he gave about his day-to-day activities [see para 123(6)] and the evidence of Mrs Turner, his bank statements suggest a level of activity which is quite inconsistent with his complaints to the doctors; and

the completion of a false declaration to the RMS in 2020.

I do not accept that the plaintiff suffers from the level of disability he maintains. I do not accept that all of those doctors and health professionals who saw him in the period 2016 to 2017 “got it wrong”.

I have considerable doubts about the credibility of the plaintiff. I accept that he suffered a traumatic injury and that the consequences of that injury have impacted on his capacity to earn an income, particularly through daily, extensive, long-distance truck driving. However, the issues that arise as to his credit are, in my opinion, so significant, that I am unable to accept significant parts of his evidence on damages.
During submissions, Mr Campbell tended to accept that the issues in this case are such that it presents a type of all or nothing case. That is, acceptance of the plaintiff must lead to complete success and the awarding of significant damages. Rejection of the plaintiff as a witness of truth must raise a doubt about liability and have a significant impact on his entitlement to damages.
Unfortunately, for the plaintiff, as I have indicated, I do not accept parts of his evidence. As the opinions of those medico-legal practitioners who examined the plaintiff in the period 2019 and 2020 are to a large extent based on acceptance that the plaintiff does genuinely perceive that he suffers from the quite severe symptoms that he maintains and cannot do the things that he says he cannot do, I am unable to accept the opinions that the plaintiff will remain entirely unfit for work on a long-term basis and will need ongoing extensive care and treatment.
Having said that, the nature of his injuries were such that the prospect of the plaintiff working long hours every day as a truck driver without any pain and disability would be remote. He may have had trouble working full-time when he ceased work in 2017, but he would have at least remained fit for part-time truck driving work. Indeed, as I understand the nature of the work he performed prior to the accident, it was that there were periods when he would essentially work for himself using his own truck and periods when he worked more consistently for other persons.
Perhaps the most beneficial approach that I can take to the evidence is that he has demonstrated a capacity to drive at least on a part-time basis and that he hopes to resume more regular truck driving in the future. Of course, he has not said that because he has maintained that he can do nothing, but for the purposes of assessing damages, that is the approach I would take.
I should say that in terms of Mrs Turner’s evidence, I do not accept her description of his level of inactivity. It is apparent from some of the medical records that she regularly attends medical examinations with him and emphasises a high level of disability. I do not accept her evidence on the renewal of the licence and this fact alone raises a doubt about her evidence. If she was the one travelling to all those places referred to in the bank statements, she could have said so. That is not the effect of her evidence and she must have known that the plaintiff was driving more than she suggests.
The plaintiff emphasises that she was not challenged on much of her evidence but that does not mean that I am bound to accept it. They must have both attempted to keep his level of activity hidden.
I thus assess damages on the basis that:

the plaintiff suffered from frank and potentially significant injuries as a result of the accident but that by the end of 2016 his fractures were stable and his pain levels were at a low level;

he was able to return to truck driving;

his complaints of ongoing pain and disability are exaggerated;

he is able to care for himself and could perform ordinary domestic duties around the house but may need some assistance with the very heavy tasks associated with his property; and

his need for ongoing treatment is limited. The diagnosis of the psychiatrists and the recommendations for treatment are impacted by my findings. He could have had any treatment recommended over the past two years if he wished to. It could have been paid for by the worker’s compensation insurer and he is not so disabled that he is somehow prevented from leaving the Warialda district.

General damages

The plaintiff is currently 51 and it has been 5 years since his accident. The calculation of general damages under ss 61 and 62 of CLA (QLD) is a complicated exercise. It is based on injury scale values (ISV) calculated in accordance with clause 7 of the Civil Liability Regulation2014 (QLD).
I accept that the plaintiff suffered a serious thoracic injury. The injury is the compression fracture at T3 and T4. I allow the sum of $97,500. The reasons will be apparent from this judgment. He also aggravated his cervical spine but he has not established that that injury has resulted in any significant ongoing disability and, in any event, I accept the ordinary course of his degenerative condition would have led to stiffness of the neck in due course.
I do not accept the additional entitlement to uplifts leading to a higher ISV.

Past economic loss

I accept that the plaintiff remained unfit for work until he returned to work on a graduated return to work program with T&FS Woods in November 2016. He then ceased work in March 2017. Evidence of the plaintiff’s earning capacity has been adduced through letters from his accountant, Fraser Brown, dated 13 June 2019 and 18 November 2020 as well as tax returns for the years commencing 30 June 2013.
I accept that Mrs Turner’s income was essentially reflective of the plaintiff’s labour. However, again there is some inconsistency in his financial records. For example, despite an apparently unblemished employment record, in the year ending 30 June 2013, the plaintiff did not disclose any income at all, nor did he disclose that Mrs Turner earned any income.
In letters from his accountant, there is reference to the plaintiff subcontracting under Kristie Turner’s ABN with net income before depreciation of $47,529. I am not sure what this is. According to the accountants their partnership was only set up on 1 October 2015. Mrs Turner’s tax return for the period ending 30 June 2013 shows gross earnings of $35,755 in the freight transport business. That is gross before tax but net after expenses.
In the 2014 year, Mr Turner earned a taxable income of $15,210. Mrs Turner’s tax return shows a taxable income of $34,753. For the 2015 year, the plaintiff’s amended individual tax return shows taxable income of $32,712. Mrs Turner’s tax return shows a taxable income of $4,162. Again, this all rather belies the claim that his income was significantly higher than the worker’s compensation payments he received.
For the 2016 year, Mr Turner’s tax return shows a taxable income of $44,010 all earned through T&FS Woods. Mrs Turner’s tax return shows a taxable income of $12,576 in the truck, leasing, hire and renting business.
In the year ending 30 June 2017, Mr Turner’s income was $54,201 comprised of payments from his employer and from the worker’s compensation insurer. Mrs Turner’s tax return shows payment of $479 from the Department of Education.
There are business activity statements and partnership tax returns for the year ending 2016. The partnership tax return shows an income of $37,728. The partnership was engaged in the business of truck hire service with driver. The business was the hiring of a vehicle with driver. That could only mean the hiring of the truck that they owned with the driver being the plaintiff. Even on the plaintiff’s case it was his intention prior to the accident to reduce the hours spent in long distance truck driving and focus on local or shorter trips. As I have said, I make no finding that the activity as recorded by his bank statements reflects him earning an income, but it does reflect a capacity or ability. There is no other explanation for the many trips that he took contrary to his evidence that he just stayed at home.
It is apparent from the tax returns that prior to the accident the plaintiff was earning his income in part from this business, that is, driving his own truck and in part from employment with T&FS Woods.
I accept that all of the income flows from the plaintiff’s exertion. Economic loss must be assessed on a net rather than gross basis. I accept that having established the business in 2015, the most accurate assessment of his earning capacity includes moneys received from that business. But for the accident, the plaintiff would have been earning $950 net per week. He is entitled to that full loss for the period until he returned to work being near enough to 6 months: ($24,700).
I accept that as at November 2016 he was fit for at least part-time truck driving, particularly shorter trips.
Doing the best I can, I would assess his loss of earning capacity at 40%. Assuming some increase in his income I assess his loss at $400 per week. There is an absence of information as to what he actually did during that 5 months back at work and whether he was paid or merely received worker’s compensation.
I assume he was paid because his 2017 tax return discloses significant income directly from T&FS Woods, being much higher than merely for the first 6 months.
I allow a figure of $400 per week for the period from 13 March 2017 until 1 May 2021, being a period of 216 weeks: ($86,400).
I assess his future loss of earning capacity on the basis of that same figure until aged 67 with a 15% reduction on account of vicissitudes. This amounts to $197,000.
Medical expenses as paid by the worker’s compensation insurer have been agreed. In addition, the plaintiff is entitled to the sum of $905.25 in Medicare payments. I thus allow the sum of $60,772.25. The plaintiff claims an additional sum of over $62,000 seemingly for travel expenses. No verification or indication as to why the plaintiff is entitled to this amount for travel and expenses has been provided and thus this additional loss has not been made out.
I do not consider that the plaintiff needs or is likely to have much in the way of future treatment. He has not had much at all since 2017. Having regard to my findings I do not allow any amount on account of psychiatric treatment. I allow the sum of $10,000 to cover future treatment.
As will be apparent, I did not accept that he has established his claim for care. The opinions of the occupational therapist are only as good as the assumptions that they make having regard to the information provided by the plaintiff. The reports are not of any assistance, having regard to my findings.
However, I accept that he would have required care for at least 6 hours per week for 6 months in 2016 (he returned to work after 6 months) (26 weeks x $30 x 6 hrs = $4,680).
Further, he would have remained unfit to undertake the very heavy tasks around his property. I allow a figure of 2 hours per week for the past: ($60 per week x 4.5 years =$14,040).
For the future, I allow 2 hours per week: (2 x $30). Based on the plaintiff’s life expectancy and applying the 5% tables this amounts to $50,700.
Damages are assessed as follows:

Schedule

Damages

Amount

General Damages

$97,500

Past Economic Loss

$111,000

Past Superannuation

$12,220

Future Economic Loss

$197,000

Future Superannuation

$21,670

Past Medical Expenses

$60,772.25

Future Medical Expenses

$10,000

Past Care

$18,720

Future Care

$50,700

Fox v Wood

$38,000

Total

$617,582.25

Having regard to my findings on contributory negligence, the verdict must be reduced by 35%.
I thus enter a verdict for the plaintiff in the sum of $401,428.46.
I order the defendant to pay the plaintiff’s costs.
Should the parties seek a variation on that costs order, I grant liberty to apply on 3 days’ notice.

Schedule of Plaintiff’s Travel in January 2018

Date of Purchase	Location of Purchase
01/01/18	Brisbane (QLD), Warialda (NSW)
02/01/18	Inverell (NSW)
03/01/18	Warwick (QLD), Inverell (NSW)
04/01/18	Brisbane (QLD), Moree (NSW)
05/01/18	Warialda (NSW)
06/01/18	Inverell (NSW)
07/01/18 – 08/01/18	Warialda (NSW), Inverell (NSW)
09/01/18	Tamworth (NSW), Singleton (NSW), Central Coast (NSW)
10/01/18	Gorokan (NSW), Tuggerah (NSW)
11/01/18	Scone (NSW)
12/01/18	Tuggerah (NSW), Warialda (NSW), Inverell (NSW)
13/01/18	Warialda (NSW)
14/01/18	Singleton (NSW), Warialda (NSW)
15/01/18	Warialda (NSW)
16/01/18	Warialda (NSW), Inverell (NSW)
17/01/18	Warialda (NSW), Inverell (NSW)
18/01/18	Warialda NSW, Inverell (NSW), Uralla (NSW)
19/01/18	Uralla (NSW), Inverell (NSW)
20/01/18	Warialda (NSW)
21/01/18	Warialda (NSW), Port Macquarie (NSW)
22/01/18	Warialda (NSW), Port Macquarie (NSW)
23/01/18	Warialda (NSW)
24/01/18	Warialda (NSW), Inverell (NSW)
25/01/18	Inverell (NSW), Warialda (NSW)
26/01/18	Inverell (NSW, Moree (NSW)
27/01/18	Inverell (NSW), Warialda (NSW)
28/01/18	Inverell (NSW), Tabulam (NSW), Lismore (NSW), Wollongbar (NSW), Ballina (NSW)
30/01/18	Gold Coast (QLD)
31/01/18	Surfers Paradise (QLD)

Endnotes

Decision last updated: 30 April 2021

Medium Neutral Citation:	Turner v Carrington Ginning Pty Limited [2021] NSWSC 445
Hearing dates:	30 November, 1, 2, 3, 4 and 17 December 2020
Date of orders:	30 April 2021
Decision date:	30 April 2021
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) Judgment for the plaintiff for the sum of $401,428.46. (2) The defendant is to pay the plaintiff’s costs. (3) Should the parties seek a variation on that costs order, I grant liberty to apply on 3 days’ notice.
Catchwords:	NEGLIGENCE – Application of Civil Liability Act 2003 (QLD) – Truck driver off-site accident – Disputed version – Credibility Issues – Causation – Whether contributory negligence – Whether any reduction for employer’s liability pursuant to Workers Compensation Act 1987 (NSW) s 151Z DAMAGES – Competing medical evidence – Credibility of plaintiff – Contrary objective evidence
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Liability Act2003 (QLD) Civil Liability Regulation2014 (QLD) Workers Compensation Act 1987 (NSW)
Cases Cited:	ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 Mason v Demasi [2009] NSWCA 227 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Woolworths Limited v Warfe [2013] VSCA 22
Category:	Principal judgment
Parties:	Jason James Turner (Plaintiff) Carrington Ginning Pty Limited (Defendant)
Representation:	Counsel: D Campbell SC with J Ryan (Plaintiff) S Glascott (Defendant) Solicitors: Neville Hourn + Borg Legal (Plaintiff) Holman Webb (Defendant)
File Number(s):	2018/200769
Publication restriction:	None

Damages	Amount
General Damages	$97,500
Past Economic Loss	$111,000
Past Superannuation	$12,220
Future Economic Loss	$197,000
Future Superannuation	$21,670
Past Medical Expenses	$60,772.25
Future Medical Expenses	$10,000
Past Care	$18,720
Future Care	$50,700
Fox v Wood	$38,000
Total	$617,582.25