Watson v Gregory Spencer Ward t/as Ward's Stock Transport - [2019] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WATSON -v- GREGORY SPENCER WARD t/as WARD'S STOCK TRANSPORT [2019] WADC 118
CORAM:   O'NEAL DCJ
HEARD:   29-30 APRIL, 3 MAY 2019
DELIVERED          :   16 AUGUST 2019
FILE NO/S:   CIV 2758 of 2017
BETWEEN:   KERRY ANTHONY WATSON
Plaintiff
AND
GREGORY SPENCER WARD t/as WARD'S STOCK TRANSPORT
Defendant

Catchwords:

Workplace accident - Cattle transport - Employer's duty of care - Breach of duty of care - Contributory negligence - Damages - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
The Occupational Safety and Health Act 1984 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Judgment for plaintiff - liability apportioned and damages assessed

Representation:

Counsel:

Plaintiff	:	Mr G T Stubbs
Defendant	:	Mr A P Herschowitz

Solicitors:

Plaintiff	:	Perth City Legal
Defendant	:	Greenland Legal Pty Ltd

Case(s) referred to in decision(s):

Brocx v Mounsey [2010] WASCA 196
Kember v Thackrah [2000] WASCA 198
Panagoulias (by his next friend Fiona Averit Panagouplias) v East Metropolitan Health Service [No 4] [2017] WADC 118
The Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167

O'NEAL DCJ:

Introduction

In February 2015 the plaintiff was employed by the defendant as a driver of cattle transport trucks. The plaintiff is and was an experienced driver of such vehicles, including the three trailer long road trains seen on Western Australian highways.
Part of the job of a driver of these vehicles involves loading and unloading the stock that is carried.
On 18 February 2015, while waiting for his own rig to be loaded at a feedlot in Cullalla, the plaintiff went to assist another driver employed by the defendant, a Mr Gary Page. The loading of this driver's cattle transport trailer was being delayed by a bull that was stopped at a gate, and not moving as required into one of the trailer pens. When the plaintiff entered the pen to help encourage the bull past the gate, the bull turned on him. The plaintiff was caught and forced up against part of the loading dock, suffering injury. In these reasons I will refer to this incident as the 'Cullalla accident'.
By this action the plaintiff now sues his former employer for damages for personal injury, said to be caused by the defendant's failure to take reasonable care for the safety of employees in the workplace.

The pleaded cases

The plaintiff pleads, and the defendant admits, that 'the defendant on the material date and at all material times had a common law and/or statutory duty of care towards the plaintiff'. This very broad assertion can be taken to refer to a duty to take reasonable care against foreseeable risks of personal injury to employees in the workplace, or a duty to, so far as is practicable, provide and maintain a working environment in which the employees of the employer are not exposed to hazards: s 19 Occupational Safety and Health Act 1984 (WA) (the OSHA).
Paragraph 12 of the statement of claim alleges that the Cullalla accident was caused by a breach of various duties owed by the defendant. With respect to common law duties, the particulars allege that the defendant and it's servants:
(a)failed to put in place systems of work such that the task could be carried out in the manner that did not expose the plaintiff to foreseeable risk of injury;
(b)failed to provide the plaintiff with the necessary information, instructions, training and/or supervision so the plaintiff was not exposed to foreseeable risk of injury when carrying out the task;
(c)failed to assess the risks involved in carrying out the task in the manner that was required;
(d)failed to prevent the plaintiff from carrying out the task in the manner he did, when it knew, or ought to have known, that the plaintiff would thereby be exposed … to foreseeable risk of injury;
(e)failed to warn the plaintiff of the risks involved in carrying out the task in the manner he did;
(f)failed to provide sufficient numbers of staff so the plaintiff could safely carry out the task without foreseeable risk of injury;
(g)failed to provide adequate equipment so as to allow the plaintiff to carry out the task safely and without foreseeable risk of injury;
(h)the fellow employee abandoned the plaintiff without warning after having agreed to a system of work; and
(i)failed to put in place systems that did or avoided doing those things specified in sub (a) to sub (h) above.
The plaintiff also alleges that the defendant breached particular statutory duties owed to the plaintiff pursuant to the OSHA. Those alleged breaches are particularised as follows:
(a)The Plaintiff repeats paragraphs (a) – (i) of the breach of the common law duty;
(b)Failed to provide and maintain a workplace, plant and systems of work that would not expose the Plaintiff to hazards, as required by section 19 (1) (a) of the OSHA;
(c)Failed to provide information, instruction and training to, and supervision of the Plaintiff and its employees, servants or agents as was necessary to enable him to perform his work in such a manner so that he was not exposed to hazards, as required by section 19 (1) (b) of the OSHA;
(d)Failed to identify each hazard to which the Plaintiff was likely to be exposed while undertaking the task, as required by regulation 3.1 (a) of the Occupational Safety and Health Regulations 1996;
(e)Failed to assess the risk of injury or harm to the Plaintiff resulting from each hazard identified, or each risk that ought to have been identified under regulations 11(a), as required by regulation 3.1(b) of the Occupational Safety and Health Regulations 1996; and
(f)Failed to consider the means by which each risk identified under regulations 3.1(b) may be reduced, as required by regulation 3.1(c), of the Occupational Safety and Health Regulations 1996.
In closing submissions, counsel for the plaintiff abandoned the allegation of breach of common law duty set out at (g) above, 'failed to provide adequate equipment'. To the extent that the allegation of breach of statutory duty at (b) referred to a failure to provide appropriate 'plant', that particular was also abandoned.
The defendant denies any breach of common law or statutory duty. The defendant also says that if the plaintiff was injured as a result of any breach of duty by the defendant, the plaintiff was contributorily negligent.
The particulars of contributory negligence are:
The plaintiff:
…
(a)failed to take any or any adequate precautions for his own safety when he, without any instruction, request or direction, entered the trailer where the steer was;
(b)failed to take reasonable precautions for his own safety by placing himself in close proximity to the steer when, as an experienced livestock transport operator he knew, or ought to have known, that he was exposed to a foreseeable risk of injury by placing himself in close proximity to the steer; and
(c)failed to take reasonable precautions for his own safety when he decided, without any planning, instruction or direction, to enter the trailer where the steer was, such trailer not being attached to the truck the plaintiff was in control of, but being controlled by another of the defendant's employees.
13.In the premises, the defendant denies the plaintiff is entitled to the relief claimed or to any relief at all.
Partway through the trial it became common ground between the parties that, in accordance with s 3A of the Civil Liability Act 2002 (WA) (CLA) and the provisions of pt 4 div 2 of the Workers' Compensation and Injury Management Act 1981 (WA), the respective duties of the defendant and plaintiff here and the assessment of matters such as causation, among other things, were not to be determined in accordance with the CLA. Instead, the nature of the respective duties of defendant and plaintiff, the assessment as to whether and if so to what extent those duties have been breached, and whether and if so to what extent such breach had caused loss or injury, are to be determined in accordance with common law principles and the authorities dealing with the statutory duties created by the OSHA.

Background

Unless otherwise apparent from the context, the facts set out below represent the findings I make.
There was in fact little real controversy about the real factual issues in this trial. The case was conducted on both sides at a level of generality that infrequently engaged with the real issues, and the other party's case. False issues occupied a fair amount of time at trial.

The plaintiff

The plaintiff was born in New Zealand in 1963. At the time of the trial he was 55 years old.
The plaintiff grew up in a rural part of New Zealand. He attended school until about the age of 17 but apparently never received a certificate of completion or graduation. It seems that he did not care for school. According to what he said in the course of an interview for a vocational evaluation report, he 'hated school' and did not do well. While he appears to be an intelligent man, his literacy skills are poor, both by his own admission and based on what was revealed by testing for vocational evaluation.
From a very young age, and while going to school, he did farm work; milking dairy cattle, driving tractors, and general farm work.
After he left high school he had a variety of jobs ranging from fishing to fencing, and working in cattle and sheep yards.
In 1985 he moved to Australia. After arriving in Australia he worked as a labourer in various jobs. From 1986 to 1988 he worked as a concrete labourer, and thereafter for a year or so as a brickies' labourer. Since 1989 he has worked variously as a doorman providing security, laying retaining walls, and as a railway labourer.
He also has a fairly lengthy history as a truck driver. That began in 1989 and included a period of time from 1993 to 1994 when he was working as a removalist.
In 1994 he began working for Hampton Livestock Transport, transporting sheep and cattle. Between 1996 and 1998 he worked for Treasures Transport, doing the same kind of job. From 1998 to 1999 he worked for Leeds Transport as a truck driver transporting cattle. Between 2000 and 2007 he continued his work as a truck driver for several different companies, transporting a range of things from livestock, to general freight and dangerous goods.
In 2007 he was involved in a serious motor vehicle accident that I will refer to later in these reasons. The consequence of that accident was that he stopped working as a truck driver for about two years. While engaged in rehabilitation from 2007 to 2009 he acted as an unpaid manager and head coach in a boxing gym.
From 2009 he once again became involved in the transport industry working as a driver trainer and instructor. That lasted until 2012.
In 2012 he again took up work as a truck driver, transporting general freight.
On 31 March 2014 he began working for the defendant, driving road trains, mainly transporting cattle.
The plaintiff has obtained various qualifications over time to allow him to perform his work. He holds a multi combination class driver's licence that allows him to drive articulated vehicles. He has a licence that permits him to drive any type of forklift in Western Australia. He once held a dangerous goods licence but that has now expired.
Outside of work, the plaintiff has involved himself in teaching boxing, kickboxing, mixed martial arts, and self‑defence classes for women. The training of boxers and martial arts has been a successful, unpaid hobby. Prior to the Cullalla accident he was also physically active playing golf, water skiing and playing touch rugby.

Ward's Transport

The defendant is the sole proprietor of Ward's Stock Transport. He carried on the business of general livestock transport, in that name, between about 2002 and 2015. He is now farming, using the same business name.
The transport business operated out of Muchea, Western Australia. At its peak, the defendant employed four or five drivers and drove a truck himself.
He owned a number of prime-movers and a variety of stock transport trailers of a kind that will be described later in these reasons. His policy, so far as hiring drivers, was to never employ anyone in the cattle carting industry who had less than three years' experience. On the evidence at trial it was plain that the defendant operated his business without much formality, in particular without much formality towards his drivers.
It was not the defendant's practice to provide training to his employed drivers. Nothing was provided by way of induction or formal written policies or work instructions. The defendant relied on his employees' prior experience in the industry.
The only evidence as to what the practise (in regards to instruction in systems of work) might have been in the industry, or at least with other employers, came inadvertently during the plaintiff's cross‑examination. In answer to a broad question suggesting that there was no manual or school that taught 'how to load livestock', the plaintiff said that there was in fact. Another employer had, for about the last five or six years, provided a training facility for his employees to teach them how to load livestock. No evidence was adduced by either side as to what this training included or the extent to which it may have touched on issues relevant to this trial.
The majority of the work done by the defendant's business was 'local', although in the context of this industry, that referred to transporting cattle from three or four feedlots within 500 km of the defendant's depot. While it would occasionally be necessary to make trips to Broome, the defendant said:
We didn't do as much out of the North as some of [the plaintiff's] previous employers would have done. And that kind of appealed to a lot of people that came to work for me, because we did a lot of local work which gave them the opportunity to be home with their families more than being up the north.
The defendant gave evidence that while there were small variations in the way things are set up, the trailers used by all of the operators in the cattle transport industry use pretty much the same configuration. The defendant gave uncontradicted evidence that with respect to the trailers and prime‑movers that he used, '… all my gear was new stuff'. Although plaintiff's counsel offered suggestions to the defendant in cross‑examination as to how cattle transport trailers might be improved upon, there was no suggestion in any of the evidence that the trailers provided by the defendant were not consistent with industry standards or regulations, or that they were other than properly maintained.
The evidence at trial was that, because of the overlapping nature of the livestock transport industry, with several transport companies often being engaged to attend the same job, the plaintiff and the defendant had been acquainted for about 10 years.
From the evidence at trial it was apparent that there was a considerable mutual respect between the plaintiff and the defendant. Despite the litigation between them, the plaintiff regarded the defendant as 'a great bloke'. The defendant described the plaintiff as 'a good employee who followed instructions'. It was apparent that the defendant thought there was little he could tell the plaintiff about how the job of a stock transport driver was to be done.
The evidence of both the plaintiff and the defendant was that the defendant emphasised team work between his drivers. The defendant said:
… it is 100% correct that it was a policy of mine that all drivers stuck together. We were a team. We are a family run business which because of our family orientation we made all our drivers part of our family and it was also, as I said, part of my instructions that we all stuck together. We all worked together. I never asked anybody to do anything that I wouldn't do. And as far as each job goes, it was quite simple. A verbal to wherever they had to go.

The plaintiff's medical history

The plaintiff suffers from diabetes for which he takes medication. It does not appear that it has caused any significant interference with his normal activities.
In 2007 however, the plaintiff was involved in a very serious motor vehicle accident. The plaintiff was driving a truck north on the Great Northern Highway. At the intersection with Brand Highway, a car ran through a stop sign, crossing in front of the plaintiff's truck. The plaintiff's truck hit the car, killing its occupants. The force of the impact was sufficient to break the plaintiff's seat belt clip. He was flung around the cab of the truck. He injured both shoulders, tearing ligaments in both. Surgery was necessary to repair his shoulders.
The surgery to his right shoulder was performed in 2008. Based on the evidence of an orthopaedic surgeon who gave evidence at trial, Mr Michael Ledger, the 2008 operation was an arthroscopic subacromial decompression and mini-open rotator cuff repair.
In his evidence the plaintiff said that after the surgery his shoulders 'weren't 100%, but … they were ok'. He said they were about '80%' of what they had been previously. The shoulders felt 'a little bit weaker' and one shoulder was 'restricted a little bit' in its movement. By way of example he said that whereas before this injury he could bench press 120 kg, after the injury that was reduced to 50 - 60kg.
As a result of these injuries however the plaintiff was off work from 2007 until 2009. In that time he did unpaid work for a business called Competitive Boxing, training boxers. He continued to play golf and to swim after his surgery.
While Mr Ledger was in no doubt that the plaintiff did injure his shoulder in the Cullalla accident, investigation also showed that the repair made in 2008 had effectively failed some time prior to 2015. According to Mr Ledger:
… what is clear is that he has a fairly long-standing re-tear of the superior rotator cuff that extends to 60 millimetres back to the level of the glenoid with quite obvious superior subluxation of the humeral head indicating that this has been a long-term issue with fatty atrophic change in the visualised retraction portions of the supraspinatus and infraspinatus muscle bellies.
The plaintiff started work for the defendant in March 2014. In December 2014 he suffered a back injury at work while removing a tyre from a tractor (the tyre incident).
The plaintiff said in evidence that the next day he began experiencing lower back pain. As a result he went to see his doctor, Fred Faigenbaum. Dr Faigenbaum referred the plaintiff to a physiotherapist and over the next two weeks or so the plaintiff saw the physiotherapist three or four times. The plaintiff said that after two weeks the physio finished and had done 'a brilliant job'.
A CT scan taken on 22 December 2014 showed a left L5/S1 disc extrusion that was causing some impingement of the left S1 and S2 nerve roots. Contrary to the plaintiff's later recollection about this injury, at the time of his first treatment in December 2014 he reported symptoms of numbness in his left leg.
The plaintiff gave evidence that when he was injured in December 2014 the defendant told him '… don't go on compo, take two weeks holidays and fix it, see if you can fix it up'. The plaintiff said that as a result he did not make a claim for compensation but instead took two weeks holiday, with holiday pay. The defendant did not recall any such conversation.
The plaintiff also said however that the defendant took 'a very keen interest in the wellbeing of his employees' and that 'he is one of the best bosses I've ever had'. In cross‑examination the plaintiff agreed that the defendant made sure that drivers did not drive tired, and he made sure that drivers 'took your time off, everything really. He was very good'. The defendant's counsel then asked one further question, 'So he was quite safety conscious about driving not while tired [sic] and matters of your personal safety?' That drew this answer, 'To a certain extent, to a certain degree. When it was busy that sort of went out the window'.

Livestock transport

The vastness of this State and the nature of the pastoral industry have made both long and short haul livestock transport familiar to most West Australians. While several kinds of livestock need to be transported around this State, this case is concerned only with the transport of cattle.
The cattle that are transported in this State fall into three general categories: dairy cattle, southern cattle and north-western cattle.
Based on the evidence at trial, dairy cattle are regarded as the most docile or 'calm and quiet' of the three categories, at least in the eyes of cattle transport drivers. No doubt that is a reflection of the fact that they are raised with a fair amount of handling and socialisation.
Cattle raised on the farms of the south-west, called 'domestic cattle', have the advantage of relatively good pasture. Greater numbers can be kept in close proximity. While not as frequently handled as dairy cattle, they still have a reasonable degree of exposure, not only to other cattle but humans. Despite that, these cattle are regarded as untrustworthy.
Cattle from the stations of the north‑west are in quite another category. Sparse natural feed means that these cattle are left to roam with low stocking numbers over considerable areas. They have so little and such infrequent contact with humans that they are only notionally domesticated. Describing them as just 'half wild' would seem to be giving them too much credit, according to the evidence at trial. All the witnesses before me who gave evidence about their experience in transporting cattle agreed that cattle from the north‑west are particularly dangerous to handle and should never be trusted.
Even within these categories it appears there are subcategories. The plaintiff, for example, regarded 'brindled' cattle from the north‑west, like the one that injured him, as being 'a bit flightier than most'.
Despite the varying scale of difficulty assigned by drivers to different types of cattle, there appeared to be universal agreement that all livestock (but cattle in particular) are unpredictable and potentially dangerous to work around, and that even steers, cows, and heifers can be aggressive.
While the methods of transporting cattle have obviously benefited from the industrial revolution and the development of the internal combustion engine, cattle transport could not even now be described as technologically sophisticated.
The reality of the job of a cattle transport driver is that like much of the work in the pastoral industry, it is old‑fashioned compared to many occupations and workplaces in developed economies. The job requires a reasonable degree of individual physical and mental strength, stamina, and intuitive learning. Apart from the actual skill of driving a heavy motor vehicle, based on the evidence at trial there is no industry accepted manual, and no organised system of 'competencies' or programmes leading to certification that demonstrate that a person is fit or qualified to perform this job. Apart from the plaintiff's evidence in cross-examination about the practice of one employer, drivers learn on the job.
I will describe the various truck and trailer combinations used for moving cattle and the way that they are typically set up. Terminology may vary from operator to operator, or place to place, but the descriptions I use below were used by the industry witnesses who appeared before me.
The rigs used for transporting cattle consist of diesel powered prime‑movers and a variety of combinations of trailers or cattle crates. All of the trailers that I will refer to have an upper and lower deck.
An 'A trailer' (A Trailer) appears to be about the same length and width as a standard 20 foot sea container. I suspect that that is not mere coincidence but the result of the application of Department of Transport regulations for road users, or something of that kind. There was however no evidence as to why cattle trailers are the dimension that they are.
A 'B trailer' (B Trailer) is double the length of an A Trailer but otherwise similar in its dimensions. The combination of a B Trailer in tandem with an A Trailer is referred to as a 'B train' (B Train). Two B Trailers in tandem are described as a 'road train' (Road Train). Three B Trailers in line are a 'triple road train' or 'B triple (B Triple).
The A Trailers consist of just one pen on the upper deck and one on the lower deck. B Trailers have two 20 foot long pens, divided by a gate, on their lower deck. They are typically divided by gates into three pens of varying sizes on the upper deck. The reason for that is that the upper deck has to be accessed by a ramp that drops down from the upper deck to the lower deck. The ramp is placed at the end of the B Trailer on the right hand side. The consequence of this is that the area taken up by the ramp is not available for use as a pen. That leaves the longitudinal area beside the ramp for use as a pen. Operators call this the 'silly pen' or 'boot pen'.
The trailers are constructed of steel. A photograph of one such trailer became an exhibit at trial. Rectangular steel posts with diagonal bracing frame the sides of the trailer. The sides are partially enclosed with longitudinal panels of what appear to be pressed steel, each panel about a metre high. Horizontally there are two bands of panels, with a wide gap at the very top and smaller gaps in the middle and at the bottom. The resulting loose basket-like appearance justifies the common name of 'crates'.
Cattle are loaded from yards equipped with holding or forcing pens, and ramps rising to the height of the lower deck of the cattle crates. At an established feedlot these are substantial, permanent structures. At a farm or station the structures may be temporary or portable.
The cattle are drafted off in agreed numbers and sent into a narrow fenced chute or race. The race directs the cattle up a ramp, called the racing ramp. The racing ramp ends on the same level as the lower deck of the trailer. At the end of the racing ramp a gate can be opened or closed to control the passage of cattle into the trailer, and wing gates swing out from the end of the race, perpendicular to the rear door of the cattle crate, to prevent any escape.
The rear door of the trailer can be opened and locked in place to correspond with the opening width of the wing gates. Like the drivers who gave evidence at trial, I will use the term 'door', to describe the rear entrance to a cattle crate, to avoid confusing this barrier with the internal gates that divided cattle pens within a crate.
A picture of a cattle crate tendered into evidence shows that a square mesh of reinforcing bar, consisting of squares with sides about 250 mm or 300 mm, is laid on the deck of the crate. There was no evidence about the dimensions of the mesh or its purpose, but I infer that it is to prevent the cattle from slipping on the mess of the deck when the truck is in motion.
The top decks of the trailers are loaded first. All the internal gates are opened, the ramp in the rear cattle crate is dropped, and a 'run‑through' is extended between each trailers, almost like a drawbridge with side gates. The run-throughs allow the cattle that run up the ramp to the top deck to run the full length of the trailers to the foremost pen.
As each pen is filled, the gate for that pen is closed, trapping the animals in the pen. The gates commonly used are called 'slam gates'. These are large gates, hinged at one end, with a latch mechanism at the other. They can be swung closed, and if there is no obstacle, the gate will latch itself. The top of the swing gate is slightly higher than the top side panel, rising about 200 mm above it. A handle projecting from the top of the gate at the latch end allows an operator to reach into the crate from outside, through the top gap in the side of the crate, to open the gate for unloading.
The swinging part of the gate is slightly more than half the width of the crate so that, when it is fully open, the end of the gate rests against the outside of the crate at an obtuse angle. The small right angle triangle created between the open gate, the crate wall, and the fixed barrier across the crate leaves an area behind which, in some circumstances, an operator might take refuge. If sufficient personnel are available, one person may wait in the safety of the triangle of the gate, and push it closed behind the cattle.
In some instances a roller gate may be used, although these are less and less common. It appears that the application for these is limited, perhaps being restricted to the boot or silly pens on the upper deck, where space for a swinging gate is not available.
For loading the upper deck there is a catwalk that runs the length of each trailer across the top. The catwalk is 3 to 4 feet wide and it allows the operator to access the slam gates without actually standing in the pens of the upper deck.
As the pens of the upper deck are filled, the gates are closed and the run‑throughs between the upper decks are retracted. When the last upper deck pen is loaded the ramp is raised by a winch, either manually or powered by an electric motor.
A matter that might be thought relevant was whether there was time pressure on a driver to complete his load, and the nature of that pressure. The existence or absence of such pressure was not a matter pressed by counsel. It was apparent from the evidence that the work is done briskly. The plaintiff, it seemed to me, was conscious of a need to load quickly. While the plaintiff's evidence suggested a kind of peer pressure, it was never clear in fact whether the pressure was self‑imposed by drivers, or the result of something external. There was no evidence about any consequences of delay, either for the process of loading or the driver.
The plaintiff described the process of loading on the day of the accident as 'a high pace environment. People want to get loaded. It's just – everyone narks on everyone else to hurry up and get loaded. That's the environment we're in'. He suggested that this pace was connected to the fact that the trucks were loading at a feedlot, 'If it wasn't a feedlot and it was at Muchea, it would have been a totally different story. There's no rush'.
On the other hand, he denied being annoyed or frustrated by the wait that day. He said, 'It's part of the process … if you're in a line - in a queue, you've just got to wait your turn. And if you haven't got patience, you shouldn't be in the job'. Elsewhere in his evidence he said of the loading on this day, 'I didn't care how long I waited. Let's get that straight. I didn't care how long I had to wait'.
Gary Page was asked in cross‑examination whether he had grown frustrated with loading on the day of the accident. He said, '… you do have different things that hold your loading up. But that was just one of them'. He denied that loading was a 'high speed operation'. He said that the process of loading and unloading was 'definitely not a race'.
What evidence there was about how long it took to load a cattle transport was vague. It was first raised in the plaintiff's cross‑examination. The plaintiff was asked how long it took to '... load up the entire trailer?' To this he answered 'good operators can do it in 15/20 minutes … a bit shorter. A bit longer … depends how well they run'.
Given that some transports can consist of up to three trailers, this answer might suggest that it could take as long as an hour to load a B Triple, if 'trailer' referred to just one of the crates.
From other evidence it seemed that drivers may refer to all of the trailers as one whole trailer. In describing the set-up he was driving on the day of the accident (a 'B Train'), Gary Page said:
All the pens on that trailer I had were even pens. There seven even pens.
Plainly he was referring to more than one cattle crate.
The plaintiff's evidence was that on the day of the accident there was a wait to load of about an hour and a half. He said that there were 6 - 12 trucks 'in front of us'. The Cullalla feedlot had two loading ramps in use. If there were 12 trucks in front, the average loading time was 15 minutes per truck; if six, then 30 minutes per truck. Without knowing how many cattle or cattle crates were loaded, it seems nonetheless that the plaintiff's estimate of the time to load 'a trailer', was a reference to the whole vehicle, that is, both or all the trailers.
Department of Transport regulations limit the axle weight of heavy vehicles using public highways. For that reason, prior to loading, the transport driver settles a 'load plan' with representatives of those delivering the cattle. Based on the average weight of the cattle to be loaded that may require, for example, that 15 cattle be drafted off for each pen. Based on that load plan, when the transport driver is ready to commence loading he will give a signal and the agreed number of cattle will be sent up the loading ramp.
The evidence at trial included photographs of the loading ramps at the Cullalla feedlot. They are apparently typical of such ramps in this State.
The photographs tendered at trial show that there is a pedestrian ramp running parallel to the racing ramp. Gary Page gave evidence that as the cattle were being sent up the racing ramp he would follow them up, walking on the parallel ramp, and encourage the cattle to keep moving. He would follow them into the cattle crate and close the pen gate behind them.
The plaintiff gave evidence that he liked 'to get in the race and run up behind them, and put pressure on them, because then they just keep going forward and forward, and then grab the gate and close the gate …'.
The defendant's evidence was that a driver needed only to wait at the top of the ramp, because the cattle were already running 'full noise'. The cattle would move very quickly he said, and it 'was natural for them to run as far as they could, until they hit the front of the trailer where they would just stop. And you would run in and slam the gate shut'.
According to the defendant, whether a driver waited for the cattle at the top of the ramp or followed them up the ramp 'was at the discretion of the driver'. The defendant was not asked to comment on the plaintiff's practice of actually getting into the race behind the cattle to hurry them along. This was just one example of the extent to which individual drivers were left to decide how the job should be done.
While the pens on the top deck could be closed from the catwalk, a driver did need to follow the draft of cattle into the crate to close the slam gate for pens on the lower deck. It was physically possible to close these lower deck gates by reaching in from outside and swinging or pushing them, but it was awkward and interference might prevent the gate from closing and latching. Of course, with sufficient personnel, someone could wait in the protective triangle created by the open gate, but I was told that that was 'unusual'.
The evidence before me was that, '99 or 99.9 times out of a hundred, once the cattle begin to run, they will continue to move forward into the designated pen'. It is fairly rare that they will balk, that is, stop short of the pen.
Each driver is responsible for the loading of his own trailer. According to the defendant, if a driver needed assistance '… it's not hard to get assistance. And it wasn't uncommon even to get assistance from other companies'. The defendant's evidence in this regard was not challenged. I accept it.
In his evidence‑in‑chief, the plaintiff said of the defendant's 'instructions in relation to other drivers from Ward's', that it was a 'Team environment. You'd help one another out. If there's anyone -someone's in trouble - you help them out. If you all go away on a trip together you all stick together, that was the philosophy'.
A central issue in this case was the question as to what was the proper, or safest, or least dangerous means of dealing with cattle that balk after entering a crate but before they have entered the pen being filled.
Although the drivers are equipped with electric cattle prods, all driver witnesses told me that these were used only as a matter of last resort. The plaintiff said that he did not like using prods because, 'it stirs cattle up too much. And if you stir the cattle up you're going to have trouble down the road with them'.
In cross‑examination the plaintiff said there were different ways to approach the problem when an animal balked, 'It could be done in a number of different ways, if we had the personnel there'. He agreed that there were different ways the problem could be dealt with that were less risky than actually getting in the pen with the beast, 'If we had the personnel there'.
No particular 'less risky' method was ever described by the plaintiff, at least in his evidence‑in‑chief, but he gave evidence‑in‑chief that 'to correct that situation where it was safe, you would have needed four. Four or five blokes to make it safe'. Immediately prior to the accident he said, 'there's only two of us; Mr Page and myself'.
Other evidence in cross‑examination suggested that the plaintiff was aware that, consistent with some evidence later given by the defendant, there was another, safer method for dealing with this situation. He did not use that method he said:
… because there was a lack of personnel around help us. If it was a perfect world I would have had someone on the other side standing on the side of the trailer and pushed the gate closed, someone on the other side to grab the gate and me at the back running to close it, in a perfect world, but that wasn't a perfect world … after the bull hit me everyone seemed to appear.
The defendant gave evidence that, 'confronted with a bull that won't go into a pen', it was best to, '… actually call someone for assistance and have them go up on the side of the crate and move the cattle forward, which then would have allowed the bull to go in. Because the numbers that they call still have plenty of room inside the - each pen … if they have just moved the cattle forward from the outside … which is easy to do …'.
The defendant's reference to 'plenty of room' was a reference to the fact that the numbers called for by the load plans meant that the individual pens were not crowded, and allowed for room for the other cattle to be shifted forward in the pen, leaving open space behind them in the pen. When that occurred the animal remaining outside was likely to follow the others into the pen.
The defendant said that one person on each side of the outside of the crate would be sufficient, with each climbing up on a wheel or a mudguard adjacent to the pen to encourage the other cattle to move forward in the pen, with a third person to close the gate. In these reasons I will describe this as the 'three man method'.
With respect to circumstances prior to the plaintiff's accident, the defendant said, 'If Pagey had decided to call for help either side of the crate that would have worked for sure'.
In cross‑examination the defendant agreed that he had never advised the plaintiff that this three man method was the appropriate way to deal with the kind of situation faced by the plaintiff. The defendant's evidence on the effectiveness and practicability of the method was not otherwise challenged.
A feature of this case is that there was no independent expert evidence with respect to safe methods or systems of work, or even a reference to any industry or regulatory standard for safe systems of work for people engaged in this industry. There was no expert evidence about animal behaviour. To the extent that there was any evidence of these kinds, it came only from the plaintiff, the defendant, and the third driver, Gary Page.
I find however that, at least on the evidence before me, what I have called the three man method is the safest available method of dealing with a balking animal.

The Cullalla accident

In mid-February 2015 the defendant was one of five or six contractors engaged to help transport some 4,000 head of cattle from a feedlot in Gingin to Fremantle wharf. Four of the defendant's drivers attended at the defendant's depot at Muchea about mid‑morning. The plaintiff was directed to 'grab three decks [that is, a B Train] and head to Cullalla to load for a boat'. The job was supposed to begin early on the morning of 18 February 2015, but there was a delay of some hours.
Cullalla is a feedlot in Gingin.
The drivers for this job were Gary Page, the plaintiff, 'Lewis' and 'Kylie'.
The plaintiff and his co-workers arrived at Cullalla together about lunch time and lined up behind trucks from other operators. The witnesses' estimates varied, but there were from 6 to 12 to as many as 20 other trucks in front of them, and the defendant's drivers waited for about an hour and a half. The plaintiff said that he set his trailers up ready to load and then waited his turn.
Eventually the truck operated by Gary Page reached the front of the line. Mr Page said that he set his truck up to load and organised his load plan with a representative of the feedlot.
The cattle to be transported, like most feedlot cattle apparently, were from the north‑west. They included a number of bulls.
After Mr Page agreed his load plan with the feedlot staff he returned to his truck and called out 'ready' to the feedlot employees, to signal them to send up the first draft of cattle.
Mr Page's truck consisted of an A and B Trailer. For the purposes of loading the top deck, the run‑through was extended from the B to the A Trailer, and the ramp to the upper deck was lowered in the B Trailer. Mr Page loaded the top deck of the A Trailer first. As each draft was received he closed the gate of that pen. When the top deck of the A Trailer was loaded, the run‑through was retracted.
Mr Page then completed the loading of the top deck of the B Trailer. When that was done the ramp for the lower deck was raised.
When the loading of the A Trailer lower deck was completed, and the run‑through retracted, Mr Page signalled the feedlot staff to send a draft of cattle up the ramp to fill the foremost of the two pens of the lower deck of the B Trailer. As with each previous draft, Mr Page followed behind the cattle on the pedestrian ramp to the left of the racing ramp leading to his truck.
One of the last animals up the ramp was a bull. When all the cattle had run between the wing gates and through the rear door of the B Trailer, Mr Page slipped between the left wing gate and the back of the truck with the intention of entering the rear pen to slam the gate to the front pen. As he went through the rear door, he saw that the bull had not in fact entered the front pen. The bull, Mr Page observed, was pressed up against the angled slam gate. His head was down towards the hinge of the open gate, pointing towards the front pen, and his rump was resting on the end of the gate.
Mr Page said that, as he entered the rear pen, the bull turned. Mr Page thought that the bull was going to come at him, and so Mr Page turned to get out of the trailer. He did so and closed the door. Mr Page said that he opened the rear door a couple of times, in the hope that the bull had by that time gone into the front pen. Each time, however, the result was the same, and the bull would turn as if he was going to come at Mr Page.
Up to this point in the account there is no material difference between the evidence of the plaintiff and Mr Page.
The plaintiff gave evidence that while Mr Page's truck was loading, he was standing at the back of the bottom of the ramps. He said that he was talking to 'one of the girls' that issue out weigh bills, and he heard swearing and cursing and a door opening and slamming. He said that he knew that it was Greg Page and the plaintiff looked up and saw that Mr Page was having trouble. It was not the first time in the plaintiff's experience that Mr Page had had difficulties when loading.
The plaintiff walked from where he was standing up to where Mr Page was standing at the top of the ramp and asked 'what's going on?' The plaintiff said that Mr Page said, 'I can't get this fucking bull in the pen'.
The plaintiff said that he said to Mr Page 'I'll have a look' and so he walked through one of the wing gates (the right hand one as the gates face the rear of the truck) and he opened the rear door of the truck a couple of inches to have a look to see where the bull was. The plaintiff said that he could see that the bull was 'trying to get into the pen'. The bull, he said, 'was on an angle across the gate. His butt was sitting on the gate and he was trying to get into the pen on that angle'. The bull's head was facing into the forward pen.
The plaintiff said that, having seen this, he said to Mr Page 'if we go in here, side by side and put pressure on him, he's going to get in there, because he's trying to get in now. He's going to force himself in there. We'll be able to close the gate … we need to put pressure on'. The plaintiff said then that he:
slid in [through the rear door] and Pagey slid in beside me. And I said, 'If we stay shoulder to shoulder, we can get this bull in, by putting pressure on him.' So he's seen us coming, the bull, and he's trying to force his way in there, Page has just dropped back off my left shoulder a little bit, so I said – I was hitting the [electric cattle] prodder on the top of the room to scare him and he was trying to work his way in there. And he slipped off the reo bars, they're the bars that are on the ground … He was slipping off – that's what I presumed, he slipped off one of those and made a stomping noise. And Page, he said, 'Wooh', so we stopped. And then I said, 'no, he's trying to get in, let's … keep the pressure on him because he's going to end up closing the gate for us'.
The plaintiff said that he made that observation because he saw the bull as he was moving in pulling the gate around at the same time with the 'friction from his butt … pushing the gate around'.
The plaintiff said that the bull then 'slipped and stomped again, which I thought was a stomping noise. The next thing, I hear the back door open. And I looked around and it was wide open, and the bull thought, "well, I'm out of here now". And I was in between that, and the bull and he just collected me on the way past'.
The plaintiff's uncontradicted evidence was that cattle may run for a gap such as an open door to escape the confinement of a pen. The plaintiff said that Mr Page, without saying anything, had left the plaintiff alone in the crate, with the back door open.
The plaintiff then said:
… as I turned back, the bull, he was on me, hit me, so I just grabbed him by the horns and tried to twist his head, just to try and slow him down, but it was too late. And that's where I got rammed into the slam gate which is on the ramp.
Mr Page's version is quite different. Mr Page said that after seeing how this bull was behaving, he was unwilling to go into the pen with the bull. He was standing there with the rear door closed when:
Kerry came over and asked me what was going on. I said that the animal was turning every time I go to come in … then Kerry went into the rear of the trailer – pretty sure he opened the gate to go in. The door stayed open, Kerry went in a matter of seconds he was back out of the trailer and pushed out the back of the trailer onto the ramp.
The bull, Mr Page said, pushed the plaintiff out of the trailer.
Mr Page denied that there was ever any discussion, or agreement, or plan, about the two of them entering the crate together to encourage the bull into the forward pen. He expressed the view that he would never do such a thing as it is more dangerous with two people in the crate than one. In cross‑examination he explained that that was because of the risk of getting in each other's way, slipping and falling.
The defendant gave evidence to similar effect that '… it's an unwritten law that one person in the back of a trailer at a time, it is totally against all principles to have two people inside a trailer for the simple reason that you've given the bull the opportunity to bowl two people', and 'to agitate a bull by putting two people in a crate is a recipe for disaster'.
Despite the fact that a cornerstone of the plaintiff's pleaded case was that it was a breach of duty for the defendant's employee Gary Page to fail to remain in the back of the crate with the plaintiff, this evidence was not challenged. The defendant agreed that he had not instructed the plaintiff about this 'unwritten law'. That of course was not the case particularised against the defendant. However, it was or should have been an obvious issue, and the defendant plainly understood that.
I have referred to the evidence of the plaintiff and the defendant as to safer alternative methods of dealing with an animal that was balking in this way.
No challenge was taken to the defendant's description of the three man method of moving the other cattle forward, and the defendant's view that that would have worked. Even the plaintiff's evidence, as vague as it was left on this subject, suggested something similar, while sometimes disagreeing with the number of people needed to carry it out.
The plaintiff offered several reasons for proceeding as he did, rather than any safer alternative method. First, he said, if you could show cattle that you were dominant, '… if you let them know you were not scared of them … you can get it over them. Cattle … are mainly scared of us to start with so we've got that in our favour'.
Next, he said, it did not appear to him that the bull was agitated. Cattle, he said, 'will give you signs of what they're going to do' such as shaking or twisting their heads if they were agitated. The plaintiff said that he would not have gone into the pen if he thought that had been the case. Rather, he said, the bull appeared to be trying to work his way into the front pen but was being prevented from doing so because, '… it had been so long and … getting that pen done, cattle were walking around in circles and trying to force their way back out because they've had enough of being in there'.
The plaintiff also accepted however that 'stomping' by a bull was a 'warning to stay away'. On this occasion however, the plaintiff said, he thought the bull was 'bluffing'.
Finally, the plaintiff suggested in his evidence that no one else was available or readily available to carry out the safer method. The other Ward's drivers 'were not in the same vicinity as I was' the plaintiff said. He did not use the three man method because, the plaintiff said, '… there was a lack of personnel around to help us'. It was only, 'After the bull hit me everyone seemed to appear'.

Breach of employer's duty

The particulars of negligence against the defendant include allegations that the defendant failed to identify workplace hazards, or assess the risk of injury or harm posed by any hazards identified. It is the case that no such formalities were observed by the defendant. It is also the case that the particular risk of harm that arose in this case was patently obvious to drivers, including the plaintiff. It is a sterile and unhelpful exercise to advance shopping lists of alleged breaches of duty without first considering the extent to which it can be shown that the alleged breach was causative of relevant harm.
In this case it did not come as a revelation to any of the drivers who gave evidence that it was dangerous to work around cattle of any kind, and that it was particularly dangerous to work in close proximity to bulls from the north-west. All of them were aware of the potential risk of serious personal injury posed by (at least) half wild, ill-tempered 450 kg animals. No one, including the plaintiff, needed to be told of what was blindingly obvious.
The real issue of breach revolves around the question of what reasonable care requires an employer in the cattle transport industry to tell employee drivers, if anything, about how to deal with an animal that balks on entering a pen. As counsel for the defendant said in the course of opening:
This appears to be the primary breaches [sic], that you failed to instruct this employee not to get into the back of an A-trailer [sic] with a bull who is stubborn and doesn't want to move, and that's what you should have told him before. And because you didn't, he's done that and that's the consequences.
The submissions filed for the defendant, although not the pleaded defence, sought to advance the proposition that the risk of harm from getting into a pen with a balking animal was so great and so obvious that, pursuant to s 5F and s 5O of the CLA, the defendant did not owe the plaintiff a duty to warn of that risk. The glaring problem of the failure to plead that defence fell away when, as set out above, the defendant conceded the provisions of the CLA did not apply to matters of this kind. The defendant however relies on the obviousness of the risk in support of its plea of contributory negligence.
It follows that there is no controversy as to whether entering a pen with a bull in these circumstances posed a foreseeable risk of harm. Amidst all of the significant risks of personal injury arising in the work of cattle transport drivers, this risk stood out as particularly significant. The question then becomes one of breach. What did reasonable care on the part of the employer require, if anything, to mitigate this risk?
The only matter of fact that was the subject of much controversy was how it was that the plaintiff came to be in the pen with the bull. Given the conflict in the evidence of the plaintiff and Mr Page, I was told that I had to reject the evidence of one or the other. There was little in the way of developed argument as to why I should do so in the case of either, or what consequences followed from the credibility finding I was being asked to make.
In my view it is difficult to accept that either Mr Page or the plaintiff are entirely right or wrong in their description of the events from the time that the plaintiff went to assist Mr Page. The evidence does not permit me to conclude that one or the other was deliberately untruthful. The reality in my view is that one or both are mistaken to some degree in their recollection.
This was an event that happened quickly. It was fast moving and ultimately traumatic. It is entirely possible that Mr Page misunderstood what the plaintiff was proposing and the plaintiff misunderstood what Mr Page had agreed to. It is quite possible that in the aftermath of these events each has persuaded himself to a particular view as to how and why this event unfolded as it did.
I am unable to determine who opened the door of the crate prior to the plaintiff entering, and who left it open to some extent. Nor is it possible to say whether the plaintiff entered the crate alone or with Mr Page.
The state of the evidence does not allow a positive finding as to the plaintiff's version of these specific events. This is not a case however where anything follows from that, despite the amount of time this issue occupied at trial.
Whether Mr Page agreed to provide some sort of support is not much to the point.
I accept the unchallenged evidence of the defendant and Mr Page that it was especially dangerous for two people to enter a pen with an animal.
The presence of two people in the pen would double the number of potential targets for an ill-tempered animal, and double the chances of someone being injured. The presence of each person would limit the range of movement of the other, and create the chance that one could get in the way of the other in the event of the need to move quickly. It would have been worse, that is, more dangerous in my view, if both had entered the pen. Even if Mr Page had agreed to enter the pen with the plaintiff and then changed his mind as alleged, it is difficult to see how that could be the basis of any principled finding of breach of duty on the part of the employer.
That the plaintiff went to assist Mr Page and entered the pen to try to shift the bull is not in dispute. The injury that he received was a consequence of that action. As the defendant's counsel accepted in opening, the real issue is whether the plaintiff should have been instructed by the defendant not to, or perhaps better, never to enter a pen in these circumstances. Having identified the issue in that way, the only answer ever offered on behalf of the defendant was that the risk was 'obvious'.
In my view, employees should have been so instructed.
According to the defendant it was a relatively infrequent occurrence that loading did not proceed smoothly. On the rare occasions that an animal balked there was a reasonably safe method available to deal with the problem, or at least, I find, a method that was safer than what the plaintiff tried to do. According to the defendant it was always practicable to have a person on either side of the crate urging the cattle forward, because there was always someone available to assist, including drivers from other companies. Even the plaintiff accepted that this method or something like it, was an alternative to entering the pen as he did, if others were available to assist.
On all of the evidence the defendant conducted his business, at least so far as his direction of his employee drivers, in what might be described as quite an old-fashioned way. I suspect that the defendant is not unique in this industry.
The defendant made it a point to only hire drivers with lengthy experience in the industry. He did so on the assumption that, with that experience, a driver would know how to do the job. The actual conduct of the prime‑mover and trailer was of course the subject of a licence requirement in any event. It was the knowledge about handling livestock, and loading and unloading livestock, that the defendant believed came with experience.
It is not the case that the defendant thought that every driver would have exactly the same view about how particular work-related situations should be dealt with. On the evidence he recognised that there were different views and it appears that he was content to leave some aspects of the work to the discretion of each driver. I have referred to the variation between drivers in encouraging cattle up the race.
It is not the case that the defendant never gave his drivers direction. There were some circumstances apparently where the defendant would give direction to his employees, or some of them. The defendant was asked whether he gave any instruction with respect to the use of cattle prods. He answered:
I would have said - not necessarily to Kerry, but to drivers, from time to time, and perhaps Kerry may well have been at the end of a conversation I had, but often used to say to the guys, 'do not use prodders unless it's absolutely necessary'.
The deference towards 'Kerry', the plaintiff, is revealing. In some earlier evidence, the defendant explained his satisfaction with the fact that he was able to hire the plaintiff:
When Mr Watson came to work for me, as an employee, I was elated to have him come on board because of his experience. He was held very high. His credibility is very high in the industry. He's a very, very experienced man. And a very good operator. And so therefore, as I said, without repeating myself, that with our protocol, we never employed anybody with any less than three years' experience in the industry. So to answer your question, there was no manual. If someone after 3 or 10 years needed a manual to do this job, then there's a problem.
There was no apparent cost, no downside, to a simple instruction to drivers to never enter a pen to deal with a balking animal. It appears that a method other than entering the pen was known to drivers, including the plaintiff. There was no apparent cost to the employer however to reinforce that knowledge with a plain instruction that that was the method to be used in these circumstances.

The defendant expected his experienced employees to know what to do. He particularly expected the plaintiff to know what to do. It may be that the defendant thought that it was presumptuous for him to tell the plaintiff how the job should be done or how it should not be done. It was however his duty as employer to give his employees, including the plaintiff, appropriate directions to carry out their work safely. His failure to do so here, by forbidding employees to enter pens in the circumstances described above was, I find, a breach of that duty of care.
I find that the failure to give this instruction to drivers, and to instruct them that the three man method was the only acceptable way to deal with a balking animal, was a breach of the defendant's duty at common law, and pursuant to the provisions of the OSHA to 'so far as practicable, provide and maintain a working environment in which the plaintiff was not exposed to hazards'.

Causation

The failure to give directions of this kind was not based on some view that employees in general or the plaintiff in particular would not adhere to that direction. To the contrary, the plaintiff was regarded by the defendant as a good employee who followed instructions. There is no reason for me to reach a different conclusion.
I conclude that had the plaintiff been instructed to never enter a cattle crate with a balking animal, had he been instructed that in dealing with a balking animal he was never to enter the crate but was to use the three man method, he would probably have obeyed those directions. That is particularly the case on the occasion that he was injured. The problem with loading was that of Mr Page, not the plaintiff. It was properly a problem for Mr Page to resolve. I understand of course that from the plaintiff's perspective he was acting as part of the defendant's 'team' and trying to help a fellow driver.
Had the three man method been used on 18 February 2015, I conclude that the plaintiff would not have been injured.
And, while this is not part of any pleaded case, had such a direction been given there is a fair chance that Mr Page would not have behaved as indecisively as he did on this occasion, prompting the plaintiff's intervention.
I find that the defendant's breach of duty caused the accident here. In closing submissions the defendant accepted that 'the plaintiff sustained injuries in [the Cullalla accident] during the course of his employment'.

Contributory negligence

The plaintiff was completely alive to the risk that arose from entering the cattle crate in the circumstances here. He was completely aware of the unpredictability of all cattle, and the magnitude of the risk represented by a brindled north-west bull. That knowledge somehow co-existed with his beliefs that it was nonetheless possible, at least in some circumstances, to predict an animal's behaviour, to detect whether the animal was bluffing or in earnest, and to dominate an animal like this by force of will.
The plaintiff was aware that there were alternative methods for dealing with the situation and that one of them was the three man method described by the defendant in his evidence. With just one more person, that safer method could have been used, substantially reducing the chance of the kind of injury that happened here. Had it been used here I conclude that the plaintiff would not have been injured as he was.
The plaintiff's reason for not taking the time to find a third person or even a fourth person to assist is not persuasive. It must be observed that it should have been the role of Gary Page to organise that, but on all of the evidence, he was not dealing with the situation in a particularly sensible way. The plaintiff observed his inability to deal with the situation and, as part of the team, took responsibility to resolve it. It seems unlikely to me that he would not have asked for Mr Page's permission first, or at least told Mr Page what was planned, but that does not much matter. Given what was apparently a moment of indecision on Mr Page's part, it was open to the plaintiff to call for another driver, or two more if thought necessary, to deal with the situation in the safer way described by the defendant.
I have set out above the plaintiff's reasons for choosing one method rather than the other. There was obviously a degree of tension or perhaps inconsistency between the recognition on the one hand that a dangerous animal of this size is unpredictable, and the notion that it could still be dominated by force of will. The plaintiff's explanation that no one else was available to help him and Mr Page does not withstand close scrutiny. I accept however that with a strong sense of the need to get the job done, there may have been a natural human inclination to try to save time.
However, after the plaintiff was injured by the bull, Lewis and Kylie helped Gary Page finish loading. They were there because the defendant's four drivers had effectively arrived at Cullalla in a convoy. There was no evidence at trial as to how they finally managed to get the bull in the forward pen, after the accident.
The plaintiff acknowledged in his evidence that other employees of Ward's were at Cullalla. His evidence that 'they weren't in the same vicinity as I was' is called into question by his evidence that they appeared right after he was injured.
Kylie and Lewis helped the plaintiff load his trailers after he was injured. The plaintiff then drove to Fremantle Wharf and Kylie was behind him. Kylie helped the plaintiff unload at the Fremantle Wharf, 'plus the boys that are down in the wharf, they helped unload as well'. When the plaintiff returned to Cullalla for another load:
I backed up on the ramp and there was a bloke up there called Drew. Excellent bloke with cattle. He loaded it for me. And then I went and got my weigh bill and went back down and done my last load. When I got down there, Kylie helped me again cause he was behind me. That was the routine we were in.
In cross-examination it was put to the plaintiff that it was open to him to ask for help in this situation and that with, 'a few minutes you could have rounded up the other people to help, couldn't you?' To this he answered, 'I could have, yes … that's - that was one - one way of doing it. But I assessed the situation and the situation didn't require that'.
I find that, if the plaintiff had taken a few minutes more, it would have been possible to organise a third or fourth person to assist Mr Page. I find that the failure to do so, and the method that the plaintiff chose to deal with the problem, fell below the standard of a driver acting reasonably for his own safety in the circumstances.
I find that the plaintiff's own negligence did contribute to the accident and the injury that he received.
Having determined that the plaintiff was contributorily negligent it is necessary to apportion the liability, reducing the damages that would otherwise be recoverable by the plaintiff, 'to such extent the court thinks just in accordance with the degree of negligence attributable to the plaintiff': Law Reform (Contributory Negligence and Joint Tortfeasors' Contribution) Act 1947 (WA) s 4(1).
That requires a weighing and a comparison of the conduct of both plaintiff and defendant. In making that comparison I am conscious of the fact that the plaintiff's exposure to this risk of harm arose out of the employment relationship and, '… the circumstances that the employment demanded, and obtained, the respondent's concentration upon it, and involved a risk of danger to which the respondent had become habituated …': The Commissioner of Railways v Ruprecht (1979) 142 CLR 563.
The plaintiff's conduct was, I am satisfied, motivated by a well‑meaning but ill-advised desire to facilitate both his employer's work and the perceived demands of loading at the feedlot. By comparison, the defendant's breach of duty arose despite a seemingly clear and objective understanding of the risk and the means of alleviating it, and an apparently conscious decision to leave every employee to act at their own discretion to deal with these situations.
In my view an appropriate division of responsibility here is a finding of 80% liability to the defendant and 20% to the plaintiff.

Damages

The aftermath of the Cullalla accident

With the assistance of other drivers and staff at the Port of Fremantle and Cullalla, the plaintiff finished his work on 18 February 2015. He returned his truck to the depot at Muchea, and his partner Gayner Andrews came and picked him up and took him to Swan District Hospital Emergency Department. He was seen by the medical officer just after midnight. He presented with pain to his right shoulder and lower back.
On 20 February 2015 the plaintiff was reviewed by his GP and sent for further radiological investigations. At this stage the plaintiff was certified as totally unfit for work for a week. The plaintiff had an X-ray of his lumbar spine and of his right shoulder on 24 February 2015. On the same occasion there was an ultrasound of the right shoulder.
The investigations of the shoulder revealed no evidence of fractures but a disrupted supraspinatus in the right shoulder (suggesting a re-tear through the previous repair) and subacromial bursitis and impingement.
An MRI of the lumbar spine on 4 March 2015 showed posterolateral disc protrusion at left L5/S1 with a sequestered fragment migrating into the left S1 lateral recess compressing the left S1 root. What was seen here corresponded to the CT taken in December 2014.
Following these examinations the plaintiff was certified as totally unfit for work for a further period and referred to a neurosurgeon, Dr Stephen Lewis.
Dr Lewis recommended lumbar decompression surgery to treat the plaintiff's low back and left leg symptoms.
There was little evidence from the plaintiff himself as to his condition in the month and a half following the Cullalla accident. Dr Lewis' recommendation of decompression surgery was based on his observation, as reported, that the plaintiff's '… pain is not settling with conservative management and he is unable to undertake any rehabilitation or return to work because of the pain'.
The lumbar decompression surgery was performed on 1 April 2015. The plaintiff underwent a left L5/S1 microdiscectomy.
The plaintiff then commenced physiotherapy later in April 2015, which included swimming every day. His attitude was described as 'positive' and he reported that he hoped to return to light duties after his next review with his GP.
On review at 5 May 2015, Dr Lewis found that the plaintiff was progressing well.
By 11 May 2015, his GP certified him as having some capacity for work. The defendant offered him light restricted driving duties, with assistance to load and unload cattle as required. The plaintiff returned to work on 14 May 2015. On all the evidence the plaintiff was doing reasonably well at this stage, despite some residual symptoms.
After a review on 21 July 2015 Dr Lewis reported that:
Post‑operatively he did well with resolution of his pain. At about eight weeks post-surgery he described a relatively sudden onset of right lower lumbar back pain. He also describes pain in the left buttock but without radiation down his leg … Mr Watson presents with delayed onset back pain following a micro-discectomy. There is no evidence of recurrent disc. I am concerned that this recurrent pain may represent discitis.
Dr Stevens' concern about discitis was well-founded. He subsequently reported on 25 August 2015:
Mr Watson was readmitted under my care several weeks ago at Hollywood Private Hospital with suspected discitis … He underwent investigation for a presumed recurrent disc. No recurrent disc prolapse was found however he had radiographic changes of the disc level suggestive of discitis. He was admitted to HPH and underwent further evaluation … He was started on high dose broad spectrum antibiotics.
He was monitored with serial inflammatory markers. In the first week of August these markers were noticed to rise and his back pain worsen. It was then elected to repeat the micro-discectomy to obtain further material for examination and decompress the neural structures. He underwent a repeat L5/S1 micro-discectomy on August 10, 2015. These specimens finally grew out a pathogen … This was sensitive to the antibiotics he had been receiving.
Over the past few weeks the infection has improved as guided by the CRP values … his main problem now is debilitating back pain. The infection has destroyed the disc space.
The defendant accepts that the infection resulting from the microdiscectomy arises from the Cullalla accident.
The radiological investigations of the plaintiff's right shoulder revealed that the surgical repair to his shoulder from 2007 had in fact failed over the course of the years. Despite that, it remained asymptomatic until the Cullalla accident.
The shoulder pain seemed to largely resolve within a few months of the Cullalla accident, with seemingly minor limitations of strength and movement.
On 23 March 2015, Mr Michael Ledger, the orthopaedic surgeon who had been treating the plaintiff's shoulder, reported to the plaintiff's GP. Mr Ledger observed that the MRI of the right shoulder revealed that there was, '… a fairly long-standing re-tear of the plaintiff's superior rotator cuff … indicating that this has been a long‑term issue.' Mr Ledger continued:
Clinically again today, Kerry has good function with the shoulder that is not irritable and a fairly good range of movement.
There is no question that Kerry did injure his shoulder in the workplace injury on 18 February and it may be that at least a small part of the re‑tearing may be attributable to this injury.
It appeared for a time that the plaintiff had made a good recovery from the re‑injury of the right shoulder in the Cullalla accident. In March 2018 however, after a further review of the plaintiff, Mr Ledger reported:
In regard to the right shoulder, over the last year or so he has developed more pain and has difficulty lifting his arms.
The shoulder is slightly irritable today. He can achieve 160 degrees of combined active elevation with some discomfort in the overhead position. There is no drop arm sign but he remains weak on testing supraspinatus and infraspinatus … In internal rotation he is able to place his hand almost at the base of the lumbar spine and he is able to perform the lift off test but there is some discomfort.
Kerry is complaining of a feeling of grinding in the shoulder when he moves his arm into the overhead position. I think this is the humeral head rubbing off against the under surface of the acromion, due to the large superior rotator cuff long-standing deficiency.
I think that it is probable that Kerry has developed some more arthritic changes in the glenohumeral joint, consistent with a rotator cuff arthropathy and I have arranged for a repeat MRI scan …
Mr Ledger gave evidence before me. He was cross‑examined as to the significance of the plaintiff's prior shoulder injury, the failure of that repair prior to the Cullalla accident, and the fact that the plaintiff's shoulder symptoms improved over time after the Cullalla accident, before again deteriorating.
Mr Ledger maintained his view that while there was a significant tear that existed prior to 2015, the Cullalla accident further injured the plaintiff's shoulder. The consequence of the shoulder injury from the Cullalla accident was that it 'hastened the development of rotator cuff arthropathy' and the symptoms now experienced by the plaintiff.
In his report of 11 June 2018 Mr Ledger said that the likely course of treatment would initially involve an arthroscopic debridement and subacromial decompression to relieve pain and increase the shoulder function. Whether the plaintiff did in fact require surgery would depend on the extent to which his pain levels became intolerable or the range of motion deteriorated. Mr Ledger said however that at some point subsequent to the debridement and decompression:
I think it is likely inevitable that he will require reverse total shoulder replacement at some stage in the future and the decision to undergo this treatment will be purely based on his pain levels.
Mr Ledger's evidence was that, given the nature of the job the plaintiff was doing, it was possible that in later life his pre-existing shoulder injury could have become sufficiently symptomatic as to require further corrective surgery. He said however that whether the plaintiff ultimately required surgery would depend entirely on the extent of any symptoms that developed:
so if Mr Watson didn't have the incident with the bull but was functioning well, then it - it's possible that he could have gone the rest of his life without the need for further surgery.

The plaintiff's current condition

From the time of the Cullalla accident, up to and for a time after the microdiscectomy of 1 April 2015, the plaintiff was significantly disabled and in pain. Although he tried to take the analgesics recommended, Tramadol and Lyrica, he found that they made him ill. Following rehabilitation after the microdiscectomy the plaintiff said that he felt 'good as gold. After that, everything was working. I went back to work …'. After a trip to Broome with what seemed to be light or lighter duties, he then returned to normal or general duties.
Eight weeks after the microdiscectomy however, as reported by Dr Lewis, that the pain in the plaintiff's back became disabling:
Eight weeks after the first op I was struggling to move, couldn't get out of bed. It was in 26 July I was helping Greg and Karen load cattle in the yard across the road and I was crawling … because it was just painful … and that's when I got called in by Dr Lewis to go into hospital on the 27^th, 28^th … July.
Following that, the plaintiff was laid up in hospital for five weeks on an antibiotic drip. After five weeks in hospital, Dr Lewis performed the operation that the plaintiff understood to be a 'scrape of the bones'. For many weeks before and after this hospitalisation the plaintiff was seriously disabled and required assistance from his partner.
After the operation at Hollywood Hospital he was then discharged to the Mount Hospital. After 10 days in the Mount Hospital he was returned home. Again, he was significantly disabled for about four weeks after this, and unable to attend to many activities of daily living.
Since that time, while he has made two or three attempts, he has been unable to return to work.
He describes the condition of his right shoulder in this way:
I have trouble lifting it … I can't do that. I can if I put my hand underneath and help lift it, take the weight of it, I can but just lifting it up like that, if you put a weight in my hand, that'll just drop because it's just very weak.
He describes the pain in the shoulder as like 'picking up dry ice' in the sense that it aches and burns.
He has a fairly constant pain in his back despite occasional analgesics. He continues to avoid the Lyrica and Tramadol prescribed because, as he said, 'it makes me pretty crook, so I just put up with the pain'. He described a typical day in these terms:
First thing in the morning, I get up and take the dogs for a walk. Then I come back, have breakfast and then do all the exercises that the physio set out for me from St John of God in Midland, do those exercises and then I'll just relax, watch TV. And then - it's between 1.30 and 2 o'clock every day I'll go and lie down because I can't sit up or can't stand up or can't walk anymore so I just take my weight off and go and lie down in the bed for the rest of the day.
He is limited in what he is able to contribute to running the household. In particular, yard work or vacuuming. He no longer plays golf or takes part in any martial arts. He has given up swimming. Sexual intimacy with his partner is now extremely limited. All of these I find are the consequence of the Cullalla accident.

On 22 March 2018 the plaintiff underwent an independent medical examination by Mr Peter Watson, a consultant neurosurgeon. Mr Watson reported with respect to his finding in a letter dated 23 March 2018 that became an exhibit at trial. Mr Watson was of course aware of the consequences of the accident on 22 December 2014 and the left L5/S1 disc herniation. Mr Watson said however that the injury received in the course of the Cullalla accident, 'would be rightly described as an aggravation of the pre-existing injury at L5/S1 having occurred on 22 December 2014'. Mr Watson concluded:
Mr Watson's symptoms are now likely to be permanent. I believe that his restrictions are also likely to be permanent, particularly with regard to his restrictions when sitting, standing and walking. He is also unlikely to re-achieve mobility sufficient for him to drive stock transport because of the interaction that would be necessary with any of the stock, including sheep.
Apart from a faint effort to suggest that the plaintiff was perhaps exaggerating the extent of his recreational activities prior to the Cullalla accident, and a similar suggestion that he might in fact be capable of undertaking some sort of employment, this evidence was not challenged. The plaintiff's evidence as to his current condition was in fact corroborated by the unchallenged testimony of the plaintiff's partner, Gayner Andrews. I have no reason to doubt this evidence and I accept it.

Whole person impairment

The plaintiff was reviewed by Dr Steven Overmeire, a consultant occupational physician, with a purpose of an independent medical assessment.
Dr Overmeire is an approved medical specialist under WorkCover Western Australia that entitles him to make assessments of levels of permanent impairment pursuant to WorkCover Guides and AMA Guides. The extent to which the plaintiff had suffered a 'whole person impairment' was the main purpose for which the plaintiff was referred to Dr Overmeire.
After describing his reasoning process, Dr Overmeire told me that the injuries to the plaintiff's lumbar spine and right shoulder have resulted in a whole person impairment measured as 28%. That evidence was uncontradicted, and I accept it.

Retained earning capacity

I referred above to the conclusions of the consultant neurosurgeon, Mr Peter Watson that the plaintiff's symptoms are now likely to be permanent, and the degree of incapacity that has been caused.
Mr Michael Perry is a registered psychologist. He has worked in the workers' compensation system since 1987 and is an injury management consultant since June 1996. He is the director of a company called Fresh Start Injury Management, an accredited vocational rehabilitation provider agency.
For the purposes of assessing the plaintiff's job options, Mr Perry reviewed the available medical evidence and interviewed the plaintiff. As part of this process, Mr Perry administered a number of tests as part of the vocational evaluation. These included, among other things, the Acer short clerical test, a computer skills assessment, the Congruence personality scale, and the Acer applied reading test.
Mr Perry gave evidence before me and his report went into evidence. His opinion can be briefly summarised. The plaintiff is a 56‑year‑old man with a working history that has involved a variety of heavy labouring roles. He has little in the way of educational qualifications. He did not pass high school. He has not undertaken any post-secondary roles. His past employment of largely unskilled manual labouring jobs has required physical fitness and competence. He has limited transferable skills and little or no educational achievements. If the plaintiff is medically unable to return to any occupation for which he is reasonable suited by his past training and education he will require significant retraining and vocational rehabilitation services to improve job competitiveness and competence.
As Mr Perry rightly observed:
[I]t is difficult to perceive that manual employment would be an appropriate endurable vocational rehabilitation goal given the plaintiff's significant dominant upper limb and lower back symptoms and restrictions. The plaintiff faces a significant and negative cluster of barriers to independently obtain employment in a competitive job market. Vocational rehabilitation may mitigate this to a degree but the plaintiff's age and physical restrictions are a significant barrier in the current job market.
No evidence was offered of any real job available to someone with the plaintiff's limitations. Mr Perry's evidence was uncontradicted. Based on his evidence I conclude that the plaintiff has no real retained earning capacity.

General damages

The medical evidence and the evidence of the plaintiff and his partner lead to the conclusion that the plaintiff's back injury has left him with permanent disabling injuries. Prior to the Cullalla accident the plaintiff was a man with a fair range of recreational activities and a healthy sex life. Little of that is now left to him and he is obliged to contend with chronic disabling pain from the lower back injury and significant physical limitations. Analgesic medications that would normally be prescribed are a problem in their own right.
The plaintiff's submission is that general damages in the amount of $135,000 are warranted in the plaintiff's case. The defendant's submission is that an appropriate range is between $100,000 and $125,000.
In my view, in all of the plaintiff's circumstances, an appropriate award for general damages is $130,000. Having regard to apportionment for contributory negligence, the result is $104,000 (130,000 x .80).

Past loss of income

The parties agreed on several important factual matters relevant to damages issues. For the purpose of calculating loss, the parties agreed as follows:
1.At the time of trial the plaintiff was 55.8 years old.
2.The plaintiff sustained injuries in an accident on 18 February 2015 during the course of his employment.
3.Life expectancy for males aged 56 is a further 26.83 years to age 82.
4.The plaintiff's past loss of income is to be calculated from 18 February 2015 to 28 April 2019 as 1,530 days, or 218.6 weeks or 4.2 years.
5.Interest on past loss is to be calculated from 5 September 2017 to 28 April 2019, being 600 days, or 85.7 weeks, or 1.6 years.
At the time of the Cullalla accident the plaintiff was employed on a full‑time basis by the defendant. According to the plaintiff's calculations his average weekly gross income was $2,044. Except for a brief period between his microdiscectomy in April 2015 and his hospitalisation in August 2015, and a further two weeks work as a trial for which he earned about $2,000, the plaintiff has been unfit and unable to work.
The parties have agreed that, net of tax, $1,537.76 is the figure that can be used for calculation of past loss. Accordingly the total loss of past income, net of income tax, was $335,232.
Based on those earnings, the amount of superannuation for the period from the date of the accident to trial is $34,728.
The plaintiff seeks payment for interest on past losses of income net of workers' compensation payments received and lost superannuation of $34,728. The defendant accepts the plaintiff's calculation of an amount of $10,650 for interest.
The total amount of this past loss, having regard to some $2,000 that the plaintiff earned in work trials, is accordingly $378,610 (335,232 + 34,728 + 10,650 – 2,000 = 378,610). Having regard to contributory negligence, the figure is $302,888 (378,610 x .80 = 302,888).
The plaintiff received workers' compensation for a number of weeks following the Cullalla accident. The total amount received between 2015 and September 2017 was $224,921. The defendant is entitled to repayment of compensation paid pursuant to s 92 of the Workers' Compensation Act. The calculation of the past loss of earnings in [224] above however is net of tax. The plaintiff accordingly seeks reimbursement for tax paid on the workers' compensation payments that were received. The amount sought by the plaintiff and accepted by the defendant is $57,156.00. After apportionment for contributory negligence, the figure is $45,725 (57,156 x .80 = 45,725).

Contingencies

Prior to the Cullalla accident the plaintiff had two reasonably significant medical issues.
The first was the torn rotator cuff in his right shoulder. It was the consequence of the failure of the 2008 rotator cuff repair. At the time of the Cullalla accident, despite the existence of that tear, the plaintiff was functioning well so far as his right shoulder was concerned. Nonetheless given the nature of the work that he was engaged in, as Mr Ledger observed, there was a possibility that the right shoulder might become symptomatic even without the intervention of a serious accident of the kind that occurred in February 2015. I observe however that in the context of the plaintiff's current disabilities, the shoulder issue is a lower magnitude of problem than the plaintiff's back injury. It was less likely to be significantly disabling.
There was also the residual injury from the tyre incident. That caused the disc extrusion observed in the CT scan of 22 December 2014 with some impingement of the left S1 and S2 nerve roots. While the plaintiff had managed to return to work with physiotherapy, there is in fact no evidence as to the degree of risk that the pre‑existing back problem would become symptomatic, or symptomatic and disabling, and the degree of risk that the plaintiff would have required back surgery in the future in any event. I accept however that the existence of the pre‑existing back problem created some degree of risk and should be factored into the decision about contingencies.
In oral submissions, plaintiff's counsel suggested that the ordinary contingency that should be applied for the purpose of calculating future loss is that, '… in this State it's accepted that 5% is generally about as far as one takes that'. In stark contrast, the defendant's submission was that a discount for contingencies of between 30 and 60% should be made.
As I observed in Panagoulias (by his next friend Fiona Averit Panagouplias) v East Metropolitan Health Service [No 4] [2017] WADC 118 [553] ‑ [554], while contingency discounts of 15% seemed to be almost standard in jurisdictions such as New South Wales, that has not been the case in this State. In Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [38], Anderson J (Malcolm CJ and Groves AJ concurring) said that the discount for ordinary contingencies is rarely more than 15%, and usually between 5% ‑ 10%.
A contingency rate of 15% has been described as 'a very heavy discount': Kember v Thackrah [2000] WASCA 198. While statements of that kind provide some guidance, each case must have been upon its own particular facts: Brocx v Mounsey [2010] WASCA 196 [63] ‑ [64].
In all of the circumstances here I conclude that an appropriate discount for contingencies is a rate of 10%.

Future loss of earning capacity

Given the plaintiff's age at trial, and the parties' agreement that future loss can be calculated to age 70, the appropriate multiplier is 499.40.
The parties have agreed that, for the calculation of future economic loss, $2,044 is the gross weekly loss figure and $1,486 is the amount that should be used for the calculation of net weekly loss. The total loss accordingly is $742,108.40 (1486 x 499.40). Taking contingencies into account, the result is $667,897.56 (742,108.40 x .90 = 667,897.56). After apportionment, the figure is $534,318.05 (667,897.56 x .8 = 534,318.05).

Future loss of superannuation benefits

The parties agree that the plaintiff's lost future superannuation benefits may be calculated as follows: 2044 x .095 = 194.15; $194.15 x 449.40 = $96,973. When administration costs of 15% are deducted, the net figure is $82,427. Taking contingencies into account, the result is $74,184 (82,427 x .90 = 74,184). After apportionment the figure is $59,347 (74,184 x .8 = 59,347).

Special damages

The parties have agreed that special damages should be allowed in respect of workers' compensation medical expenses and rehabilitation expenses, and payments to Western Diagnostic and Meltham Medical Group. The total amount that has been agreed is $176,938.28. I have not been told whether this agreed amount is subject to reduction for contributory negligence. I will hear from the parties as to how this award may be affected by apportionment.

Past gratuitous services & future services

The parties have agreed an amount of $25,000 for past and future gratuitous services. Again, I will hear from the parties as to how this award may be affected by apportionment.

Future treatment expenses

The plaintiff has claimed the costs of three GP visits per year, the future costs of an arthroscopic debridement and subacromial decompression as well as a reverse total shoulder replacement, the costs of pain medication and gym membership for an exercise and swimming programme. The calculations provided assume that the debridement and decompression operation would occur in five years' time and the reverse total shoulder replacement in 10 years' time. Based on net present values, the total costs claimed under this head amount to $48,352.
The defendant's submissions with respect to this particular head of damages emphasise some of the difficulties in establishing appropriate allowance for costs of this kind. For example, the plaintiff's evidence was that he is not using the current painkillers that are prescribed because they make him ill. Nor does it appear that the plaintiff has had much engagement with his medical practitioner. With respect to exercise, the plaintiff does most of this on his own. So far as the costs of future operations, there is a real question as to whether they are really inevitable and the question as to whether they might have been necessary even without the Cullalla accident. The defendant's submission is that a global amount of $15,000 for future treatment expenses is appropriate.
I acknowledge the difficulty in determining an appropriate award for this head of damages. While the plaintiff is not currently using his prescribed analgesics, it is of course possible that his doctor may yet find an analgesic that the plaintiff can tolerate. Based on the plaintiff's evidence at trial, his financial difficulties suggest that any exercise programme that he has been able to undertake has been limited to what he can do personally. Finally, the evidence is not entirely clear as to whether the plaintiff will ultimately require further surgical treatment for his shoulder, and if so, when. Mr Ledger's assessment of what is 'inevitable' was hedged with the qualification of the plaintiff's own assessment of his future pain levels. Because timing of any operation remains uncertain, the net present values put forward by the plaintiff are arbitrary, and a guess at best.
Doing the best that I can, I will allow the sum of $30,000 as a global award for this head of damages. Allowing for apportionment, the figure is $24,000 (30,000 x .8 = 24,000).

Travel expenses

The parties have agreed an amount of $750 for future travel expenses. I will hear further from the parties as to whether this amount should subject to apportionment.

Conclusion

I will hear from the parties with respect to the final orders to be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
Associate to Judge O'Neal
16 AUGUST 2019