Xavier v ROPS Engineering Australia Pty Ltd

[2019] WADC 146

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   XAVIER -v- ROPS ENGINEERING AUSTRALIA PTY LTD [2019] WADC 146

CORAM:   TROY DCJ

HEARD:   26-29 AUGUST 2019

DELIVERED          :   29 OCTOBER 2019

FILE NO/S:   CIV 954 of 2017

BETWEEN:   KEVIN JOHN XAVIER

Plaintiff

AND

ROPS ENGINEERING AUSTRALIA PTY LTD

First Defendant

ROPS ENGINEERING PTY LTD

Second Defendant

Catchwords:

Tort - Personal injury - Negligence - Whether employer in breach of duty of care - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C
Occupiers' Liability Act 1984 (WA), s 2

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Ms V E Long-Droppert
First Defendant	:	Mr A P Hershowitz
Second Defendant	:	Mr A P Hershowitz

Solicitors:

Plaintiff	:	WA Legal Pty Ltd
First Defendant	:	SRB Legal
Second Defendant	:	SRB Legal

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Ellis (by his next friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36

Hirst v Sydney South West Area Health Service [2011] NSWSC 664

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Masquerade Music Ltd v Springsteen (2001) 51 IPR 650

Purkess v Crittenden (1965) 114 CLR 164

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

St George Club Ltd v Hines (1961) 35 ALJR 106

Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182

Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173

Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720

Wade v The Queen (2014) 41 VR 434

Ward v The Queen [2018] VSCA 80

TROY DCJ:

Introduction

1. In August 2015 a labour hire company, Flexi Staff Pty Ltd, hired out the plaintiff, Mr Kevin John Xavier to ROPS Engineering Australia Pty Ltd (the first defendant) as a mechanical fitter.  There is a dispute concerning whether he was also hired to ROPS Engineering Pty Ltd (the second defendant) and/or if they occupied the same premises as the first defendant.  For the moment, I will focus on the suggested liability of the first defendant who I will refer to as 'ROPS'.

2. On Friday 7 August 2015, Mr Xavier was working for ROPS at their premises, 3 Einstein Link in Forrestdale.  There is no doubt that he was an experienced mechanical fitter.  He asserts that he was struck to the head by the tine (fork) of a forklift which then resulted in back and leg injuries.  In essence, Mr Xavier contends that a colleague known only as 'JoJo' was driving a forklift in order to fit a fuel tank to a customer's Isuzu truck.  At the same time Mr Xavier was underneath that truck fitting a new pump and flow meter.  Mr Xavier says that the positioning of the pump, flow meter and fuel tank was such that there was a crossover of work-spaces between JoJo and him.

3. Mr Xavier was in a supine position underneath the truck when JoJo attempted to position the fuel tank to the mounting brackets of the truck.  The forklift tines slid under the truck.  In a split second, Mr Xavier saw it coming, moved out of the way to avoid impact, but the left forklift tine struck his head.  At some point in time after the impact Mr Xavier stopped work, reported the incident and sought medical attention.  The gap in time between the alleged incident and the reporting of it is controversial.

The plaintiff's pleaded case

1. By the further re-amended statement of claim of 5 April 2019, the plaintiff asserts that the first and second defendants carried out its business at 3 Einstein Link, Forrestdale and in managing and controlling those premises was an occupier as defined by s 2 of the Occupiers' Liability Act 1984 (WA).

2. Further, that the first and second defendants were in a contractual agreement with Flexi Staff, whereby Flexi Staff provided the plaintiff to perform work at the premises for the first defendant.  And that each defendant was vicariously liable for any breach by its employees of the duty of care owed by each of them to the plaintiff. 

3. The plaintiff asserts that the defendants owed him a common law duty to ensure the exercise of reasonable care.  By an amended defence dated 18 April 2019, the first defendant admits that it owed a duty of care to persons such as the plaintiff to ensure that the plaintiff was not injured as a consequence of any foreseeable risk of injury.

4. The general principles applicable where a person is said to have breached a duty of care are set out at s 5B of the Civil Liability Act 2002 (WA) (CLA):

   5B.General principles

   (1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -

   (a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

   (b)the risk was not insignificant; and

   (c)in the circumstances, a reasonable person in the person's position would have taken those precautions.

   (2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

   (a)the probability that the harm would occur if care were not taken;

   (b)the likely seriousness of the harm;

   (c)the burden of taking precautions to avoid the risk of harm;

   (d)the social utility of the activity that creates the risk of harm.

5. The alleged accident is particularised at par 6 of the re‑amended statement of claim.  The defendants deny each and every particular and in particular, deny that the plaintiff was struck by the tines of the forklift as alleged, or at all.

6. The plaintiff alleges, by par 7, that the accident was caused by a breach of the common law duty in that the first defendant, or, in the alternative, the second defendant:

   (a)failed (vicariously) to drive the forklift with due care and attention;

   (b)failed to remain alert;

   (c)failed to pay proper attention;

   (d)failed to stop or slow down, or otherwise control or manage the forklift;

   (e)failed to warn or adequately warn the plaintiff of the defendant's intentions to operate the forklift in close vicinity of the plaintiff;

   (f)failed to assess or adequately assess the risks involved in operating forklifts in close vicinity of the plaintiff;

   (g)failed to isolate or properly isolate the truck to ensure the forklift was not operated in close vicinity of the plaintiff;

   (h)failed to train or supervise, or adequately train or supervise, its employees, servants or agents, not to operate forklifts in close vicinity of the plaintiff;

   (i)failed to barricade the area around the truck while the plaintiff was positioned on the floor, in a supine position, underneath the truck; and

   (j)failed to ensure the plaintiff was within a barricaded area at the time of the accident. 

7. The defendants deny par 7 of the statement of claim and state that the plaintiff's accident could not have occurred as alleged in view of the duties being undertaken by the plaintiff at the time of his accident.

8. By par 8 of the statement of claim the plaintiff asserts that as a consequence, the plaintiff received the following  injuries:

   (a)blunt injury to the head;

   (b)soft tissue inflammation of the cervical spine;

   (c)soft tissue inflammation of the lumbar spine or a possible L5 radiculopathy on the left side;

   (d)left leg injury;

   (e)left foot injury; and

   (f)psychological/psychiatric sequelae.

9. The defendants deny par 8 and state further that if the plaintiff was struck on the head by the tines of the forklift (which is denied) that such an incident could not have given rise to the injuries pleaded in par 8(c), par 8(d), par 8(e) and par 8(f).

10. By par 10 of the statement of claim the plaintiff asserts that as a result of the accident and the alleged negligence, the plaintiff has suffered pain and residual disabilities:

    (a)intermittent headaches;

    (b)lower back pain, with radiation down to the top of the toes of the left foot;

    (c)'pins and needles' in the outer aspects of the left thigh;

    (d)weakness in the left leg when walking;

    (e)left foot pain;

    (f)restriction of movement of his neck; and

    (g)neck pain and stiffness.

11. The defendants deny par 10 and deny that the plaintiff is entitled to the relief claimed or any relief at all.

Fundamental issue and burden of proof

1. There is a fundamental issue in this case as to whether Mr Xavier was injured at all.

2. In closing submissions counsel for the plaintiff submitted that the defendants failed to provide discovery of key documents in this case which would easily help to prove what they say are the true events of 7 August 2015.[1]  Counsel also spoke of the concept of (the defendants) proving on the balance of probabilities that the accident as the plaintiff claims happened was impossible by virtue of certain photographs relied upon (exhibits 7.1 – 7.9).[2]  That aspect of the submissions was with respect misconceived.  The first issue to be resolved is whether, as a matter of fact, Mr Xavier has discharged the burden that rests on him, on the balance of probabilities that, he was injured as he says he was.  If he was, then the focus turns to whether the first defendant is in breach of the duty of care it accepts it owed to Mr Xavier and to issues of causation.

   [1] ts 333.

   [2] ts 338.

3. I must make a finding on the evidence and not assume the existence of a fact.[3]  The evidence must go beyond guesses and speculation.[4]  I am required to be actually persuaded as to the probability of a fact being true.[5]  The 'facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which as the tribunal of fact I may reasonably be satisfied'.[6]  I must have the appropriate degree of confidence in a particular fact's existence or correctness based on or judged according to reason.[7]  The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility.[8]  No court should act upon mere suspicion, surmise or guesswork in any case.  In a civil case, fair inference may justify a finding upon the basis of preponderance of probability.[9]

   [3] Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173 [153] (Allanson J) as cited by Gething DCJ in Ellis (by his next friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 [805].

   [4] Hirst v Sydney South West Area Health Service [2011] NSWSC 664 [114] cited in Ellis [805].

   [5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 (Dixon J).

   [6] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 305 (Dixon CJ) cited in Ellis [805].

   [7] Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 227 (Mahoney JA) as cited in Ellis [805].

   [8] St George Club Ltd v Hines (1961) 35 ALJR 106, 107 (Dixon CJ, Kitto, Taylor, Menzies & Windeyer JJ); Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 (Mason J, with whom Barwick CJ & Gibbs J agreed); Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 [80] (Spigelman CJ), [201] (Stein JA) as cited in Ellis [806].

   [9] Briginshaw v Briginshaw (343) (Latham CJ).

4. In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant.  A plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible.  It is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise.[10]  Here, as will be seen, there is countervailing evidence that as a matter of fact Mr Xavier has received significant medical treatment for back injuries arising from two earlier incidents in 2010 and 2011.

   [10] Purkess v Crittenden (1965) 114 CLR 164, 170 (Windeyer J).

5. Put simply, as explained in the 11^th edition of Cross on Evidence at [7055], the allocation of the respective burdens can be deduced from the pleadings.  The proponent of a proposition bears the persuasive burden of proving an issue to the satisfaction of the court, but is not necessarily bound to anticipate every possible defeasing defence.

6. At [7065] of Cross the observations of Walsh JA in Currie v Dempsey[11] are characterised as one of the clearest Australian expositions of the general rule that the party bearing the legal burden on an issue also bears the evidential burden:

   The burden of proof in the sense of establishing a case, lies on a plaintiff if the fact alleged (whether affirmative or negative in form) is an essential element in his course of action, e.g., if its existence is a condition precedent to his right to maintain the action.  The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the course of action, but one which, if established, will constitute a good defence, that is, an avoidance of the claim which prima facie, the plaintiff has.

   [11] Currie v Dempsey (1967) 69 SR (NSW) 116, 125 (FC).

7. In Strong v Woolworths Limited[12] Heydon J (in dissent as to the result) spoke of the three senses in which the term evidential burden is ordinarily used.  In the first sense, it refers to the duty of one party (usually the party bearing the legal or persuasive burden, who in most instances will be the plaintiff) to call sufficient evidence to raise an issue as to the existence or non-existence of a fact in controversy.[13]  Here, Mr Xavier has obviously adduced evidence that he was injured in the way that he alleges.

   [12] Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [43] (Heydon J).

   [13] Strong v Woolworths Ltd t/as Big W [52].

8. In the second sense, 'evidential burden' refers to circumstances in which a plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiff's favour.  There is then said to be an 'evidential burden' in the sense of a 'provisional' or 'tactical' burden on the defendant: if the defendant fails to call any or any weighty evidence, it will run a risk of losing on the issue - that is, a risk that at the end of the trial the trier of fact will draw inferences sufficiently strong to enable the plaintiff to satisfy the legal (ie persuasive) standard of proof.[14]  Here the defendants called evidence on matters of fact in order to combat certain assertions made by Mr Xavier.  But they did not assume a burden of proof.

   [14] Strong v Woolworths Ltd t/as Big W [53].

9. The third sense arises where a plaintiff, in discharging the evidential burden in the first sense, calls evidence so strong that a reasonable trier of fact would be bound to decide the issue in the plaintiff's favour if the defendant calls no evidence.[15]

   [15] Strong v Woolworths Ltd t/as Big W [54].

10. Mr Xavier's first task, therefore, is to satisfy me that whilst he was underneath a truck on 7 August 2015, an employee of the defendants struck him to the head with the tines of the forklift, resulting in the injuries complained of.  The only witness to this alleged event was Mr Xavier.  The existence of that factual assertion is a condition precedent to Mr Xavier's right to maintain his action.  The pleaded case on behalf of the defendants is a denial of an essential ingredient in the course of action, as opposed to an avoidance of a claim which prima facie Mr Xavier has.

Issues for determination

1. In considering that issue it is necessary for me to resolve, if I can, the following aspects of the case:

   •What truck was Mr Xavier working on at the time and what was the extent of his workspace?

   •What work was Mr Xavier required to carry out on that truck?

   •Was there any urgency in the work that Mr Xavier and others were carrying out on that truck?

   •Was Mr Dickinson, the main Director of ROPS there at the time?

   •Did Mr Xavier make an error in the task he was carrying out on the truck?

   •Is there any significance in the absence of evidence from the driver of the forklift?

   •Could Mr Xavier have been injured in the way he said he was?

   •Did Mr Xavier immediately stop working?

   •What is the significance of the absence of any visible injury?

What truck was Mr Xavier working on at the time and what was the extent of his workspace?

The respective contentions of the parties: was the truck a medium or short wheel-base truck (Mr Xavier) or a long wheel-base (ROPS)?

1. Trucks such as the one that Mr Xavier was working on are characterised as being long, medium or short wheel-base depending on the distance between axles.  Mr Xavier testified that the truck he was working on when he was injured was a medium or short wheel-base.[16]  He also said that the crane was mounted at the rear.[17]

   [16] ts 63.

   [17] ts 88.

2. Mr Dickinson is the co-owner and co-director of ROPS.  He disagreed with the suggestion that Mr Xavier was working on a medium or short wheel‑base truck with a crane at the rear.  He stated that Mr Xavier was actually working on the crane as he was a crane service technician.[18]  He accepted that there were other trucks in the workshop on the floor on 7 August 2015 of a configuration different to a FSD long auto truck.[19]

The sale by Major Motors Pty Limited of an Isuzu truck to Ellenby Tree Farm Pty Ltd in 2015

[18] ts 265.

[19] ts 303.

1. Prior to Mr Dickinson giving evidence, the defendants called as a witness a Mr Frank Johnston, a clearly experienced sales manager for Major Motors Pty Limited, the franchisee that sell Isuzu trucks in Perth.  He recalled that they sold an Isuzu truck to an entity called Ellenby Tree Farm Pty Ltd in approximately July or August 2015.  The customer purchased just the base vehicle, described as a cab chassis and then elected to transfer equipment from an existing vehicle to the new vehicle themselves.  They contracted that out to another company.

2. The contract for the truck said to have been sold to Ellenby is in fact dated somewhat earlier, namely 16 February 2015.[20]  It shows that Major Motors sold a FSD 700-S Long Premium Auto stock number A89964 to Ellenby Tree Farm.

Work done to this truck by ROPS in July 2015

[20] Exhibit 27.

1. Mr Johnston explained that an addendum to the contract, dated 14 July 2015, particularised the customer's assigned value to the additional equipment that was to be mounted to the new Isuzu truck.[21]  The purpose of that was to arrive at a dutiful value for the State Treasury prior to licencing of the vehicle.[22]  This is a standard form that Major Motors send to the customer and ask them to complete.  A Mr David Woodroffe, for Ellenby Tree Farm, did so in his own handwriting.[23]  The vehicle was licensed on 21 July 2015.[24]

   [21] Exhibit 28.

   [22] ts 255.

   [23] ts 257.

   [24] Exhibit 27.

2. Mr Johnston agreed in cross-examination that as of 14 July 2015 Ellenby knew that they were fitting the truck with a HIAB crane and a tray body.  They estimated the value of those items, which were subject to stamp duty, to be $38,000.  At some time between receiving this document and licensing the truck, Major Motors received the truck back.[25]

   [25] ts 257.

3. Major Motors sent the truck to ROPS on Ellenby's instructions.  After ROPS had mounted the crane and tray, Mr Johnston viewed the vehicle before it was given back to Ellenby.[26]  That brought Major Motors' involvement with this truck to an end.

   [26] ts 243.

4. It is clear from Mr Johnston's evidence that the substantial work ROPS carried out on this truck was in July 2015, seemingly in the period 14 ‑ 21 July 2015.  As will be seen it was then returned to ROPS at some point in early August for the additional work referred to in exhibit 32 to be carried out.  Nothing Mr Johnston said contradicts that chronology save that his belief[27] was that the truck was sold somewhere in the period of July to August in 2015 whereas the contract refers to February 2015.

   [27] ts 240.

1. Mr Dickinson also testified that Ellenby instructed ROPS to remove a tray body and the crane from an Iveco truck and transfer that onto an Isuzu truck.  The original vehicle was inspected at the end of February 2015, ROPS provided a quote and then Ellenby booked it in with ROPS for the work.  The tray top was put on the truck in about July 2015.[28]

Similarities between the 7 August 2015 truck and photographs taken by ROPS shortly before trial

[28] ts 261 - ts 262.

1. The defendants had photographs taken of a truck just before the trial.  These were tendered as exhibits 7.1 to 7.9.  Mr Dickinson testified that the truck photographed in exhibit 7.6 bears a resemblance to the configuration of the Ellenby truck, given the similar position between the fuel tank and the axle configuration and the cab.[29]  ROPS installed a tray body section such as the one shown in exhibit 7.6 as well as a tray at the rear and a black HIAB crane.[30]

   [29] ts 262.

   [30] ts 263.

2. Mr Dickinson testified that the parts taken off an existing Iveco truck owned by Ellenby, as photographed in exhibits 30.1 and 30.2, were transferred to the Ellenby truck.  Mr Dickinson stated that these photographs were taken by his brother Joe at the Ellenby Tree facility and show the original Iveco truck from which the tray and the black crane came.[31]  The defendants did not call Joe Dickinson as a witness nor are the photographs dated.  They are of limited assistance.

Mr Johnston's evidence of the nature of the truck sold to Ellenby in 2015

[31] ts 263 - ts 264.

1. Shortly before the trial, Mr Dickinson emailed Mr Johnston asking him to call him regarding a vehicle described as an FSD 850 long auto, stock A89964.[32]  The stock number in that email was the principal means by which Mr Johnston searched his records.  Mr Johnston identified the vehicle as a FSD 700/850-S Long Premium, registration 1ETF 837.[33]

   [32] Exhibit 25.

   [33] ts 254 and exhibit 26.

2. If Mr Johnston's evidence on this point is correct, if Mr Xavier was working on a truck owned by Ellenby Tree Farm, he is wrong when he says that it was a short or medium wheel-base truck.

3. Mr Johnston stated that he also had regard to internal sales records which showed amongst other details the VIN number, a unique 17 digit number that identifies every vehicle that is sold internationally.[34]

   [34] ts 242.

4. So, according to Mr Johnston the truck sold to Ellenby was an Isuzu FSD 700 premium long.  Having been shown some Isuzu specifications (exhibit 22), he identified those as the specifications of the kind of vehicle that was sold to Ellenby Tree Farm.[35]  Exhibit 22 shows the specifications for Isuzu truck models FSD 700-S/850-S, all of which are long wheel-base models.  The position of the fuel tank on a FSO 700‑S/850-S is depicted on the final page.

Request by Ellenby to ROPS on 4 August 2015 for further work on their truck

[35] ts 240.

1. On Tuesday 4 August 2015 a Ms Julie Drayton from Ellenby Tree Farm sent a high importance email[36] to Mr Dickinson which read as follows:

   Ben, our driver has called past Heavy Automatics today as requested and has been advised that it is about a four‑hour job and rewiring, etc, needs to be done.

   He has booked the truck in for Thursday afternoon as they are busy today.

   We are hoping that from Heavy Automatics he will be able to get a taxi to yourselves and pick up the vehicle that you said we can borrow. 

   We will then be able to pick up the truck from Heavy Automatics on Friday to do the modifications that you need to do.

   Please find attached copy of the invoice received from Drive-In Electrics for the faulty wiring.  Please disregard the make of truck mentioned on the invoice - as our previous Iveco had the same registration number and this is what is on Drive-In Electrics' system.

   [36] Exhibit 31.

2. Mr Dickinson testified that the reference to 'Friday' would be Friday 7 August 2015.[37]  It is clear from the email that Ellenby's intention was to book what was described as 'the truck,' as opposed to 'a truck', into the premises of Heavy Automatics in order for four hours' worth of work, which included rewiring, to be done to the truck.

   [37] ts 266.

3. I am inferentially satisfied that the reference to 'the truck' is a reference to the truck that was modified by ROPS between 14 and 21 July 2015, two to three weeks earlier.  I am further inferentially satisfied that it was Ellenby's intention to take that trunk, once the rewiring and other work had been completed, to ROPS' premises on Friday 7 August 2015 for further modifications.

4. A job card number 02635[38] relates to job title A 89964, body modifications FSD 850 Long Auto, client name Ellenby Tree Farm.  It sets out seven tasks commencing with 'cut down gate' and finishing with 'drop fuel tank set of holes.'  It concludes:

   … they will drop off Thursday night and take a car back with them.

   [38] Exhibit 32.

5. I am satisfied that this document was created on Tuesday 4 or Wednesday 5 August 2015 and reflected a slight change to the 4 August email, in that the truck was to be dropped off on the Thursday night as opposed to the Friday.  I see no basis to dispute the authenticity of this document despite its late discovery.

Similarities between the 7 August 2015 truck and photographs taken by Mr Xavier shortly before trial

1. On 23 August 2019 Mr Xavier attended the Major Motors premises.  He photographed a truck that he believed was the same truck that he was working on when he was injured.  The photographs were tendered as exhibit 5.1 to 5.10.  The similarities included the fact that it was a medium wheel-base, the chassis length, the placement of the fuel tank to the gearbox and the existing brackets.[39]

   [39] ts 78.

2. Mr Xavier accepted that the truck he photographed on 23 August 2019 did not have a crane on it, whereas the truck he was working upon on 7 August 2015, according to him, did.

3. Mr Johnston explained that the position of the crane does not change the underlying configuration of a chassis.  The crane is most commonly, although not always, mounted immediately behind the cabin, as was the case with the truck sold to Ellenby.  The position of the crane mounting does not change the position of the gearbox or the fuel tank, unless the need to mount the crane in a certain location necessitates relocating a component.[40]

   [40] ts 258.

4. Mr Johnston stated that the truck shown in exhibit 5.6 on 23 August 2019 is not the vehicle sold to Ellenby, given the equipment mounted to the rear.[41]  His recollection was that the customer owned a vehicle that had a flat top tray that was to be transferred from the existing vehicle to the new.  This vehicle is not a flat top tray.[42]

   [41] ts 240.

   [42] ts 241.

5. Mr Dickinson testified that the photographs constituting exhibits 5.6 and 5.7 do not show the type of truck that ROPS worked on.  There was no crane on the front of the vehicle that ROPS worked on.  The Ellenby truck did not have a box body of any form.  It had an open tray for carrying trees.[43]

   [43] ts 263.

6. I accept the evidence of Mr Johnston and Mr Dickinson in that regard.  In particular although Mr Dickinson and Mr Johnston are on first name terms and have a business relationship, I regard Mr Johnston as an independent witness.

The photograph (exhibit 7.6) relied upon by ROPS as a 'reconstruction' of the 7 August 2015 truck

1. Mr Dickinson testified that photograph 7.6 shows a vehicle that shows a similar position between the fuel tank and the axle configuration.  ROPS did a reconstruction to show a tray, crane and the forklift in the position it would have been.  It is not the actual truck of Ellenby Tree Farms truck.  It is a reconstruction.[44]

   [44] ts 262.

2. Mr Johnston was asked in cross-examination about the truck photographed in exhibit 7.  The numbers '110 260' as seen in photograph 7.9 indicates it is a vehicle of 11 tonne gross vehicle mass, slightly smaller than the one sold to Ellenby Tree Farms.  The nomenclature '110 260' was only instituted in about 2017.[45]  I accept that the truck photographed in exhibit 7 could not have been manufactured before 2017 and so could not be the same as the truck on the day of the accident.  The defendants have not suggested that it was.  The question for me is how similar it is to the 7 August 2015 truck. 

   [45] ts 245.

3. Mr Johnston stated in re-examination that the truck photographed in exhibit 7.9 resembles the completed truck that was sold to Ellenby.  The crane is immediately behind the cabin and it has a flat deck tray.[46]

   [46] ts 247.

4. Mr Johnston testified that the truck which Major Motors sold to Ellenby Tree Farm would have been able to accommodate a crane, such as depicted in exhibit 7.6, in the front.  Customers do elect to have cranes mounted beyond the tray at the rear.  That was not the case with Ellenby though.  From his own knowledge the crane on the truck he sold to Ellenby was mounted behind the cabin (therefore at the front), similar to the image of 7.6.[47]

   [47] ts 241.

5. I accept Mr Johnston's evidence that the truck in exhibit 7, although a later model, is similar in its configuration to the truck that was sold to Ellenby in 2015.  I accept that this truck had the crane mounted at the front.

Truck specifications relied upon by Mr Xavier

1. Mr Johnson was shown in cross-examination the specifications of a FSR700/850 extra-long vehicle, said to be dated 4 May 2018.[48]  He agreed that this was not a FSD long chassis.[49]  I was not assisted by these specifications.  They appear to be of a vehicle that neither party say was the truck in question.

   [48] Exhibit 24.1 and exhibit 24.2.

   [49] ts 246.

2. Mr Johnston accepted in cross-examination that the FSD 700 model has a larger gross vehicle mass than another model, the FRR 500,[50] and therefore has larger tyres, a heavier suspension and larger axles. The configuration of the gearbox and the fuel tank can be different between the FRR 500 and the FSD 700. Where the space in between the axles is greater, the fuel tank may be in a different location.[51]

   [50] Exhibit 23 is the specifications for the FRR/FRD 500 model.

   [51] ts 245.

3. The specifications tendered through Mr Johnston as exhibit 22 reveal that for each of the three models, FSD 700-S/850-S Long, FSD 700‑S/850-S Long Premium AMT and FSD 700-S/850-S Long Premium Auto, the WB, that is the wheel-base, is 5560 mm.

4. The specifications tendered as exhibit 23 shows the dimensions of six different models varying from a FRR 500 PTO with a wheel-base of 3,790 mm to a FRD 500 X Long with a wheel-base of 5,320 mm.  They do not assist me in my efforts to inferentially determine the particular truck that Mr Xavier was working on upon 7 August 2015.

5. Mr Johnston testified that the model photographed in exhibit 7 has been around for approximately 12 years but that the nomenclature 110‑260, which he described as a matter of just titling, was only introduced in 2017.[52]  He also indicated that the truck in the photograph is slightly smaller than the one sold to Ellenby in 2015.  The plaintiff has not satisfied me that there is any significant demonstrable difference between the specifications tendered as exhibit 22 and the truck photographed in exhibit 7.

   [52] ts 245.

6. The plaintiff's argument, as best as I can understand it, is that the photographs exhibits 7.1 to 7.9 were taken by the defendants on or before 21 August 2019.  Exhibit 26 reveals that on 26 August 2019 Mr Johnston responded to an email from Mr Dickinson and provided details of the truck that he remembered that Major Motors had sold to Ellenby four years earlier.  He set out within the email the vehicle details, FSD 700/850-S Long Premium Auto, with a wheel-base of 5,560 mm and attached the relevant specifications to the email.

7. It may be accepted that when the defendants took photographs of the truck that can be seen in exhibits 7.1 to 7.9 they had not been provided with those specifications.  It is difficult, however, to see what point is made of this.  The defendants have not suggested that it was the same truck, rather that it is a similar truck.  Mr Johnston in his evidence agreed with Mr Dickinson in that regard.

8. In closing argument[53] counsel for the plaintiff referred to a passage in re-examination[54] where it is said that counsel for the defendants showed Mr Dickinson exhibit 24 and that Mr Dickinson said, 'It looks similar to the document that I based the reconstruction on'.  I do not accept that was the effect of Mr Dickinson's evidence.

   [53] ts 337.

   [54] ts 307 - ts 308.

9. In cross-examination Mr Dickinson said:[55]

   … the distance between the area of the truck transmission has the pump and the distance between the forklift, I believe, on the drawing is about 2.5 metres on that particular vehicle.

   [55] ts 290.

10. Mr Dickinson was asked to explain what drawing he was referring to and he responded that he believed it was the drawing submitted by Mr Xavier with the layout of the vehicle on the FSR (exhibit  4.1 ‑ 24.2).  He then referred, in the context of a question referring to 'that goes two and a half meters between the pump and the fuel tank', to 'the fuel tank position where you would lift it.  I believe it was emailed through from Frank Johnson, this morning on one of his emails that he forwarded'.[56]  That was seemingly a reference to exhibit 22.

    [56] ts 290.

11. Accordingly, in re-examination counsel for the defendants sought clarification of what drawing Mr Dickinson was referring to when he spoke of the 2.5 m gap.  Mr Dickinson stated that it was a document that was very similar to exhibits 24.1 to 24.2.[57]  He did not categorically state that he based the reconstruction, exhibits 7.1 to 7.9, on such a drawing.

    [57] ts 308.

12. There is no basis to infer that the reconstruction depicted in exhibit 7 was based on the diagram contained in exhibit 24 rather than exhibit 22.  In fact there is no basis to infer that any specifications were used to select a truck that was, on the defendants' case, similar to the 7 August 2015 truck.  The submission that there has been a severance of a forensic link between the reconstructive photos and what the defendants now say is the truck in question is unsustainable.  That is not to say that the truck in exhibit 7 is the same truck.  As noted, the defendants have never claimed it was the exact same truck.

Date of arrival of the 7 August 2015 truck at the ROPS premises

1. Mr Xavier testified that on 6 August 2015 he installed a hydraulic pump on the gear box for the truck that he was working on when he was injured.  On the morning of 7 August 2015 he was advised that apparently that he had fitted the wrong pump so he removed that one and put another pump on.[58]  The truck was in the workshop for quite some time, 'at least a week, give or take' because it was getting custom trays fitted as well as the crane.[59]

   [58] ts 62.

   [59] ts 109.

2. Mr Dickinson testified that the truck arrived at ROPS' premises on Friday.  He did not know if ROPS collected it or if Heavy Automatics (based in Welshpool) dropped it off, or if another driver did the logistics, but it came in on the Friday.  He qualified his evidence somewhat by stating that he did not believe it was there on the Thursday, but could not recall accurately enough.  He stated that as suggested in the documentation, Ellenby did borrow a vehicle from ROPS.  They did a swap‑over and borrowed the workshop utility as they were up in Landsdale or Wangara and it saved someone from ROPS dropping them back.  They would have exchanged the vehicles the following week.[60]

   [60] ts 266 - ts 267.

3. It is not necessary to determine whether the vehicle arrived on the Thursday or on the Friday morning.  In my view it is clear from exhibits 31 and 32 that contrary to Mr Xavier's evidence the truck had not been there for any longer than that.

4. I reject Mr Xavier's evidence that the truck been there for at least a week.  I reject his evidence that he was working on the same truck on Thursday 6 August.

Conclusions on identity of truck Mr Xavier was working upon on 7 August 2015

1. I am satisfied that the truck that Mr Xavier was working upon on 7 August 2015 was an Isuzu FSD 700/850 Long Premium Auto truck.  Major Motors Pty Ltd sold that truck to Ellenby Trees Pty Ltd on 16 February 2015.  I am satisfied that after Major Motors sold the truck to Ellenby, ROPS installed on it a tray and crane.  It follows that I am satisfied that the truck was a long wheel‑base, as described by Mr Johnston, not short or medium, as described by Mr Xavier.

2. The configuration of the truck has a bearing on the nature of the work space occupied by Mr Xavier when he says he was injured.  Mr Xavier testified that he was working between the fuel tank and the gearbox.  That space as shown in the photographs was some 500 - 600 mm.[61]

   [61] ts 79.

3. Mr Xavier estimated the distance from the end of the gearbox where he was positioned, to the closest part of the fuel tank, and therefore the tines of an in-coming forklift, was about a foot.[62]  He testified that with the length of the particular hydraulic hose being used, it was necessary to move further down to view the gauge (flow meter) while the pump was stroking.[63]  Mr Xavier accepted that the positioning of the fuel tank differs significantly between a medium and a long wheel‑base truck.  There is a lot more space between the front cab on the medium wheel‑base than the long wheel-base.[64]

   [62] ts 63.

   [63] ts 174.

   [64] ts 109.

4. In cross-examination Mr Xavier accepted that if he was installing a flow meter on a truck such as the one photographed in exhibit 7.6, so that he was lying with his head facing to the rear, his head would be approximately four to five foot away from the fuel tank.  As opposed to the one foot or so that he had described in his evidence.[65]

   [65] ts 157.

5. When Mr Xavier saw a Dr Robinson on 2 November 2015, Dr Robinson's subsequent report[66] suggests that Mr Xavier told him that another worker was attempting to fit a new fuel tank approximately five feet away, which was halfway down the chassis of the truck.  Mr Xavier could not recall providing this estimate.[67]  That estimate is consistent with the configuration of a long wheel-base truck.

   [66] Exhibit 15.

   [67] ts 158 - ts 159.

6. Given my findings as to the type of truck Mr Xavier was working on, I am satisfied that at the relevant time Mr Xavier's head was positioned about five feet from the fuel tank.  I have had regard to the reconstructive photograph, exhibit 7.6, whilst allowing for its limitations given that it is not the actual vehicle.  The driver, JoJo, would have been aiming his forklift at the fuel tank.  It is improbable, albeit not completely impossible, that JoJo missed the fuel tank by five feet and accidentally struck Mr Xavier's head.

7. Mr Xavier completed an apprenticeship as a mechanical fitter in 2004[68].  As he stated in re-examination in his work as a mechanical fitter he has encountered many configurations of Isuzu trucks.  There are models within models.  I have concluded that the truck that Mr Xavier was working on was a long wheel-base and that the crane was at the front.

   [68] ts 59.

8. It would have been understandable if Mr Xavier was unable to recall the particular truck he was working on four years earlier or be unable to describe it with any precision.  Mr Xavier has, however, positively asserted that the truck he was working on was significantly different to the truck shown in exhibit 7.6.  Mr Xavier sought to illustrate that point by obtaining and tendering photographs of a medium wheel-based truck.  He also gave evidence, which I am satisfied was incorrect, that he had been working on the same truck the previous day and that the truck had been at the premises for at least a week.

What work was Mr Xavier required to carry out?

1. Mr Xavier testified that he had to fit a pump and flow meter on this particular truck.   On the previous day he had fitted a pump onto that truck but it was the wrong model and wrong flow rate, so he had to remove that pump and put another one on.[69]  He disputed in cross‑examination that he was trying to fit a flow meter to the crane system to test the oil pressure in the hydraulic crane, stating that it is tested on the truck gearbox, because that is where the source of energy goes to the crane.[70]

   [69] ts 60.

   [70] ts 89.

1. Mr Xavier testified that the fuel tank was on the ground in front of the forklift.  The task of fitting the fuel tank would usually take approximately an hour or an hour and a half.[71]  JoJo would have picked the fuel tank up from the store and brought it around to the truck.  JoJo must have picked the tank up and put it down.[72]  JoJo presumably would then have picked it up again.

   [71] ts 63.

   [72] ts 102.

2. Given the documentation I have referred to and the careful evidence on this point of Mr Dickinson, which I accept, I am quite satisfied that Mr Xavier was, along with others, allocated the task of completing the work set out in job number 02635[73] on the morning of 7 August 2015.  There is also the evidence of an explosion that took place on 7 August that I will come to a little later.

   [73] Exhibit 32.

3. Mr Dickinson testified that a flow meter is a diagnostic tool which measures hydraulic flow and pressure in a hydraulic circuit.  Too much pressure off the pump could cause an oil leak.  The use of a flow meter is the first step to ascertain if there is the right flow and pressure before one can look at other parts of the system to make sure they are functioning.[74] 

   [74] ts 269.

4. Mr Dickinson testified that job cards such as exhibit 32 are initially undated.  They are dated and signed electronically when completed but not saved manually.  He identified two crane-related tasks on the job card, namely the oil leak on driver's leg and oil leak on the valve bank loose hose.  It was a used crane.  The stabiliser support leg possibly had a leak, so ROPS would investigate that as well as the source of the oil leak on the valve bank loose hose on the crane.  The fuel tank was to be lowered.[75]

   [75] ts 268.

5. The tasks as set out on the job card are inconsistent with Mr Xavier's evidence in cross-examination that the fuel tank was being installed as opposed to simply being lowered.[76]  Mr Dickinson's evidence was that Mr Xavier was on a labour hire agreement from Flexi Staff as a crane technician.[77]  He reported to David Murray who was a crane service manager at the time.[78]

   [76] ts 92.

   [77] ts 260.

   [78] ts 261.

6. In cross-examination on this point at ts 288 Mr Dickinson's answers, on two occasions, were interrupted by the next question.  With the caveat of those uncompleted answers, Mr Dickinson agreed that in order to run the diagnostics to work out the source of an oil leak, it is possible that the flow meter would be connected to a pump, which is underneath the truck on the side of the transmission.[79]

   [79] ts 288.

7. In order to drop a fuel tank on the Isuzu truck, Mr Dickinson explained that the chassis has a matrix pattern where there are just regular holes drilled all the way down.  He suggested that an operator would take the forklift to support the weight, undo the bolts from the inside and then allow the bracket and assembly and fuel tank to drop as one.  The operator would then put the bolts back in in that position, and then remove the forklift.  Mr Dickinson said that taking the fuel tank away from the truck would be the longer way to do it.  It would be easier to just support the fuel tank, drop it down and reinstall the bolts, the fasteners, in the lower position.[80]

   [80] ts 277.

8. I find, consistent with the job card 02635, that one of the tasks to be performed upon this truck on 7 August 2015 was the lowering of the fuel tank.  In those circumstances there is no discernible reason for the fuel tank to have been taken off and laid next to the truck, as opposed to simply being on the forklift so as to be lowered.  It is completely inconsistent with the urgency that Mr Xavier contends was being conveyed to all workers that morning.

Was there any urgency in the work that Mr Xavier and others were carrying out on that truck?

1. I now turn to that suggested urgency.  Mr Xavier's evidence was that after he got underneath the truck he overheard someone, seemingly Mr Dickinson, yelling, 'hurry up.  Get the job done'.[81]  Mr Dickinson also said, 'get the fuel tank mounted'.[82]  The boilermakers were still grinding on the truck and Mr Dickinson was saying, 'that should have been done yesterday.  Quick, get a move on, get some paint on it'.  Mr Xavier contends that the rush and the urgency was making everyone nervous.  He could tell that from his co-workers' body language, they were nervous instead of just getting into the job and doing it right.  Everyone was rushing around, moving stuff and trying to get in the way.[83]

   [81] ts 60.

   [82] ts 95.

   [83] ts 98.

2. Mr Xavier contended that the stress level from everyone was quite high.  Before the various workers started on the job, Mr Dickinson told them that these jobs had to be done because the owner was on his way to collect the truck.  There was word that the owner of the truck had been informed that the truck was ready when it was not, so that everyone that was working on that truck was rushing to get their jobs done and completed before the owner came and picked the truck up.[84]

   [84] ts 61.

3. The suggestion that Mr Dickinson was making his employees nervous by the somewhat frantic way that he was barking instructions is inconsistent with the impression I formed of Mr Dickinson.  He seemed to me to be a careful, precise and phlegmatic individual who was not readily flustered.  He made concessions where appropriate for example as to the precise time that the truck arrived at the premises.  Or the possibility that the flow meter would be connected to a pump.

4. Mr Dickinson had no recollection of any sense of urgency.  There is nothing in any email documentation involving Ellenby that suggested any deadline that had to be adhered to.  Mr Dickinson did not believe that he had promised the vehicle back to the client that Friday.  His recollection was that ROPS had been given a few days to do the work.  Ellenby had a courtesy vehicle in the meantime and ROPS had the Saturday as well to work on the truck if the need arose.[85]  Mr Dickinson was clear that it was not a case of, 'all hands on deck'.[86]

   [85] ts 267.

   [86] ts 270.

5. Mr Dickinson was asked, 'it wasn't the case that there was some kind of, there wasn't a lot of time to do this job.  You needed to have it finished?' He responded that he was not sure there was an urgency.[87]  There is no evidence of any deadline for the work to be carried out on this truck.  It was not suggested to Mr Dickinson that he told anyone to 'hurry up'.

   [87] ts 285.

6. It is clear from the job card that the list of tasks on the truck was relatively modest.  I am satisfied that Mr Xavier has exaggerated his description of the activities at the workplace that morning, in order to create an impression of carelessness flowing from a sense of significant urgency engendered by Mr Dickinson.  There was no demonstrable urgency, and I am quite satisfied that when he was at the workplace Mr Dickinson did not convey any such sense.

Was Mr Dickinson there at the time?

1. There is also an issue of whether Mr Dickinson was there at all.  Mr Xavier initially said that he assumed that the person yelling, 'hurry up, get the job done' was Mr Dickinson.[88]  He then said that he knew it was Ben (Mr Dickinson) just from the way he was talking.[89]  There was only one person in that workshop that would speak to his workers like that.[90]

   [88] ts 60.

   [89] ts 64.

   [90] ts 96.

2. Mr Xavier described a prestart toolbox meeting in the morning.  He stated that the workshop supervisor would delegate jobs according to experience and staff.  The workshop supervisor that day was a Paul De Klerk.  On 7 August 2015 Mr Xavier and his colleagues had their toolbox meeting and everyone was delegated their jobs.[91]  Mr Xavier insisted in cross-examination that Mr Dickinson was at the toolbox meeting.[92]

   [91] ts 60.

   [92] ts 94.

3. According to Mr Dickinson's evidence, his primary function there was to look after accounts and finance and sales.  He was only involved in the workshop in a minor fashion.  ROPS had workshop supervisors for each department or division.[93]

   [93] ts 261.

4. Mr Dickinson did not recall whether he was at a toolbox meeting early on 7 August 2015, but stated that when toolbox meetings are held it would be at 10.15 am.  Such meetings are held at that time because by then all the staff are in.  At 7.00 am not all of the admin staff, purchasing staff or logistics staff would be in.[94]  He testified that normally minutes are taken.  There are no records of such a meeting on 7 August 2015.  He had no recall of instructing Mr Xavier to fit the new pump on this truck.[95]

   [94] ts 269.

   [95] ts 270.

5. Mr Dickinson was not particularly challenged about the time of toolbox meetings.  He stated that the workers who arrive at the premises at 6.00 am would be senior workers who would know what they would be doing that day.  They would know the day's tasks from the previous day.  ROPS did not really start all the jobs at 7.00 am so a worker would just continue his job from the previous day.  It would not be a case of a 7.00 am start upon a new task.[96]

   [96] ts 280 - ts 281.

6. I prefer Mr Dickinson's largely unchallenged evidence that there was no meeting at or about 7.00 am that morning, at which tasks were allocated.

7. Mr. Dickinson testified that at 9.30 am he was in either Bassendean or Bayswater, meeting representatives from a company called OAQ All States in order to look at a vehicle.[97]  It would have taken him anywhere from 30 to 45 minutes to drive there and so he would have left the premises before 9.00 am.  His estimate in cross‑examination was 8.45 am.[98]

   [97] ts 270.

   [98] ts 280.

8. Counsel for the plaintiff submits that Mr Dickinson's repeated use of the word 'returned', in combination with Mr Xavier's evidence that Mr Dickinson was there all morning, leads to the inference that Mr Dickinson was at the premises at the time of the accident.  Obviously, if Mr Dickinson left the premises at 8.45 am and then later came back he would talk in terms of returning to the premises.  It plainly does not follow that he was implicitly acknowledging presence at the material time.

9. Mr Dickinson confirmed from phone records, which were not adduced at the trial, as to when and where he made various calls that morning.  He testified that he made a call at Orange Grove at around 9.00 am and then while at Bassendean, the latest one, was at 10.30 am or 10.45 am.  Accordingly, he denied being at the premises at around 9.30 am.  He returned to the premises no earlier than about 11.30 am.[99]

   [99] ts 271.

10. I treat Mr Dickinson's evidence about the information gleaned from the mobile phone records with some caution.  Firstly because the phone records from which Mr Dickinson refreshed his memory were not produced.  Secondly this is often an area where expert evidence is called about the statistical probability of a mobile phone being in a particular geographic area at a particular time.[100]

    [100] eg Ward v The Queen [2018] VSCA 80.

11. Mr Dickinson was not, however, directly challenged in cross‑examination on his evidence that he left the workshop at around 8.45 am and did not return some time later that morning.  If that was the case he could not have been yelling out instructions when Mr Xavier was underneath the truck working on the flow meter.  I reject Mr Xavier's evidence in that regard.  I accept that Mr Dickinson was elsewhere in the period 9.15 am to 10.00 am.

Did Mr Xavier make an error in the task he was carrying out on the truck?

The respective contentions of the parties

1. The defendants suggest that Mr Xavier has falsely stated he was injured in an accident to deflect attention from an expensive error he had made that morning.  Mr Xavier denied that he installed the flow meter on the truck incorrectly so that it blew up, causing fluid to spray everywhere.[101]  The defendants contend that the fluid shot up on the side of the wall and the roller door as shown in the photograph, exhibit 7.1.

   [101] ts 99.

2. Mr Xavier testified that nothing that he did caused anything to explode or shoot oil.[102]  He denied the suggestion in cross-examination that he reported a bump to his head after 11 am on 7 August 2015 in order to deflect from a costly mistake in causing the flow meter to blow up.  He testified that he is the type of person that if he makes a mistake he will acknowledge it rather than try to make excuses or deflect it.[103]

   [102] ts 100.

   [103] ts 168.

3. In his evidence, Mr Dickinson stated that having finished looking at a truck at OAQ All States, he received a phone call from David Murray, the crane service manager whom Mr Xavier reported to.  Mr Murray asked Mr Dickinson whether he could call at a company called Hydratrans in Kelmscott or Armadale on his way back to the premises and borrow their flow meter.  Mr Murray explained that the flow meter had been connected backwards by Mr Xavier and it had exploded.  Mr Dickinson did not have time to collect that flow meter but he understood that someone else went for it.[104]  The defendants did not, however, call Mr Murray as a witness and so I disregard that aspect of Mr Dickinson's evidence.

   [104] ts 272.

4. According to the evidence of Mr Clinton Poultney, a co-owner of ROPS, Mr Xavier informed him that there had been an explosion concerning the flow meter,[105] albeit he did not tell Mr Poultney that he was responsible.[106]

Mr Twiss' evidence on this point

[105] ts 317.

[106] ts 318.

1. The most important witness on this topic, it seems to me, was Mr Mark Twiss the safety manager for Flexi Staff.  The plaintiff called him as a witness.  Mr Twiss could not be said to be sympathetic to the defendants, and indeed described being 'stonewalled' by them.[107]

   [107] ts 215.

2. Mr Twiss testified that when he returned to the premises on the afternoon of 7 August 2015, no one from ROPS said anything about an alternative incident (the flow meter exploding).[108]  That day, he was just led to believe that at 11.00 am Mr Xavier had a bump to the head with a forklift tine.  That was the only thing that he was told about on the day.  He subsequently learnt of another incident.  Mr Xavier told him about an argument earlier that day with one of the workshop supervisors.  Mr Xavier advised that he had to install a fuel flow meter, but he put it back to front the wrong way around.  When they fired it up, the flow meter 'busted under pressure' and would have to be replaced.  This angered one of his superiors.[109]

   [108] ts 212.

   [109] ts 217 - ts 218.

3. Mr Xavier told Mr Twiss about that argument about a week later.[110]  Mr Twiss thought that it might have helped him if he had been told about this on the day.  Mr Twiss understood that an unnamed supervisor used really strong insulting language to Mr Xavier.  When Mr Twiss returned to the workshop no one at ROPS told him about this particular argument.[111]

   [110] ts 218 and ts 223 - ts 224.

   [111] ts 218.

4. Mr Twiss understood from Mr Xavier that ROPS had to fit a new fuel meter and his superiors at ROPS were 'pissed off' in the sense of workshop angst.  It would have cost time and money.  They had to source another part, clean up the job and do it again.[112]

   [112] ts 223 - ts 224.

5. Mr Twiss stated in re-examination that Mr Xavier acknowledged that he was guilty of the incident with the flow meter.  He was tasked with installing it.  He put it around the wrong way.  Mr Xavier admitted to Mr Twiss that, 'he'd mucked up'.[113]

Mr Dickinson's observations of oil staining and the CCTV footage

[113] ts 224.

1. Mr Dickinson testified that when he returned back to the workshop later on the morning of 7 August 2015, there was an oil spill up the side of the building that was about four to five metres high.  Mr Dickinson identified dark staining on the photographs in exhibits 7.7, 7.8 and 33.[114]

   [114] ts 273 - ts 275.

2. Having learned something about the problem with the flow meter, and because he understood that Mr Xavier had just been hit with a forklift, Mr Dickinson testified that he viewed footage from the CCTV in the server room.  On viewing the CCTV footage, Mr Dickinson said that he saw Mr Xavier turn on the control for an ignition switch in the cabin.  And then he saw the oil squirt out the side on the driver's side of the vehicle going backwards.  He did not see on the footage the forklift driver in the same shot as Mr Xavier or working near him.  But Mr Dickinson was focusing more on the oil at the time.[115]

   [115] ts 275.

3. Counsel for the plaintiff submits that Mr Dickinson did not give evidence as to how he was able to positively identify Mr Xavier on the CCTV footage.  Reference was made to the angle of the CCTV footage giving him 'a bird's eye view', which does not assist in a positive identification of a worker underneath it.

4. In cross-examination, Mr Dickinson said that from the vantage point of the CCTV footage, he could see the driver's cab side.  He was not challenged in this regard.  He also stated that (the camera) looks over or down over the roller door.  It was positioned above the roller door looking down.  He just saw the oil.  It was like a mist.  It just vaporised, went on the wall, shot in the air and then it disappeared.  Mr Xavier was in the cabin turning the ignition on, or he was pressing the PTA switch, which was in a similar area, and that turns on the hydraulics.  It was at that point that the flow meter exploded.[116]  It was never suggested to Mr Dickinson that he might have been mistaken as to the person who was in the cabin area at the relevant time.

   [116] ts 296.

5. Mr Dickinson explained that the CCTV was on a four to five week cycle loop.  Having received certain information ROPS removed the hard drives immediately.  At that stage they had been overwritten by about two weeks.  ROPS sent them away for recovery to their IT specialist.  ROPS also provided the hard drives to Flexi Staff who attempted to recover the data as well.  ROPS also liaised with the manufacturer and the installer to see if it could be recovered with their software.[117]  Because it had been overwritten, not deleted, it was not possible to recover that with current technology.[118]

   [117] ts 275.

   [118] ts 276.

6. There was no suggestion in the cross-examination of Mr Dickinson that anyone had either deliberately deleted the footage, or that the footage had been deliberately overwritten so as to prevent Mr Xavier or his representatives from obtaining it.  I am quite satisfied that as soon as it became apparent that the CCTV might be relevant to future litigation Mr Dickinson used his best endeavours to recover the footage.  But by then it was simply too late.

7. Obviously, the weight to be given to this evidence suffers from the fact that it cannot be empirically evaluated.  Rather than viewing the footage for myself, I am confined to Mr Dickinson's recollection of what he viewed on the footage some four years earlier.  I am quite satisfied that a person who watches an event, not directly but on closed circuit television, can give admissible evidence of it.[119]

   [119] By way of analogy see Wade v The Queen (2014) 41 VR 434 [27] - [31] (Nettle JA).

8. Mr Dickinson's evidence of what he saw on that CCTV footage is secondary evidence but in these circumstances is admissible for the reasons given by Jonathan Parker LJ in Masquerade Music Ltd v Springsteen at [77].[120]

   [120] Masquerade Music Ltd v Springsteen (2001) 51 IPR 650, cited at footnote 2 to [39005] of Cross on Evidence, 11^th edition.

9. I found Mr Dickinson's account of what he observed on the CCTV footage truthful and reliable and I accept it.

Conclusions on Mr Xavier damaging a fuel pump

1. Mr Dickinson's evidence is consistent with the oil staining as depicted in various photographs but most notably with the evidence of Mr Twiss.  I have no hesitation in accepting Mr Twiss' evidence that about a week after the incident, Mr Xavier informed him that there had been this incident on the day itself, 7 August 2015.

2. There is further support for the conclusion that there was a difficulty with the flow meter on the day itself from an email[121] sent from an Adam Wilson, seemingly from the purchasing department of ROPS at 10.57 am.  Mr Wilson sought information about the price and availability on a flow meter gauge.  Mr Wilson stated that:

   … ours has been plumbed up backwards and, well you get the idea …

   [121] Exhibit 34.

1. The email is expressed in a somewhat rueful manner which gives it, to my mind, an area of authenticity.  It could not be sensibly suggested that it had been deliberately contrived immediately after the reported injury, so as to deflect responsibility for Mr Xavier's injury.  It has sufficient spontaneity to render it admissible under the res gestae principle.

2. I reject Mr Xavier's evidence about the fuel pump not exploding on the day itself.  In my view he could not be mistaken as to that nor could he have forgotten that event.  I regard his evidence that there was no episode that day where the fuel meter exploded as untruthful.  It is not necessary for me to determine whether or not Mr Xavier was motivated to invent a suggested work injury as suggested, to distract attention from the financial implications of his error.  It is necessary for me to determine whether or not Mr Xavier has established that an accident occurred in the way that he says it did, given the various findings that I have made about his credibility.

Is there any significance in the absence of evidence from the driver of the forklift?

1. Mr Xavier testified that he alerted the operator of the forklift that he had to carry out work fitting a pump.  Mr Xavier asked this person if he could give him 15 to 20 minutes to fit this pump, whereupon he could get out of the driver's workspace.  His colleague agreed.[122]

   [122] ts 63.

2. Following the alleged incident, Mr Xavier testified that he told the driver that he just hit him with the forklift.  The driver just looked at him.  Mr Xavier then said to the driver, 'I told you to wait.  I was in that work area and you just hit me with the forklift'.  One of his supervisors, Paul de Klerk then came down.[123]

   [123] ts 113.

3. Mr Xavier stated that he advised Mr Poultney who was driving the forklift.[124]  It is true that the ROPS system improvement form[125] does not identify the driver of the forklift.  However it does encapsulate Mr Xavier's factual assertion, with the exception of the apparent delay between the incident and the reporting of it.  There is no obvious advantage to Mr Xavier at that point in deliberately withholding the name of the driver.  Mr Xavier stated that he had no way of contacting JoJo and that he had not taken any steps to try and locate him.[126]

   [124] ts 167.

   [125] Exhibit 9.

   [126] ts 123.

4. In the Flexi Staff incident and injury report form[127] Mr Xavier describes that when he was fitting a flow meter under a truck, another worker 'clipped him' with the forklift.  Later in the form he identified 'JoJo' as a witness without stating that he was the driver.  Mr Xavier also designated JoJo as being a witness (but not the driver) in a WorkCover first and final certificate of capacity on 7 August 2015.[128]

   [127] Exhibit 8.

   [128] Exhibit 11.

5. I accept that Mr Xavier provided to Mr Mark Twiss the name 'Jojo' as the forklift driver.  Mr Twiss stated he wished to speak to JoJo but that was denied by a supervisor whose name he cannot recall.[129]

   [129] ts 210 - ts 211.

6. On Mr Xavier's account, JoJo was both the driver at fault and also (partially at least) a witness.  In resolving the issues that arise in this case it is not necessary for me to make any findings as to whether Mr Xavier was instrumental in a strategy, employed by his legal representatives, to withhold the identity of the driver from those acting for the defendants.  I am not satisfied that it is open to me to conclude that either the plaintiff or the defendants should have called JoJo to give evidence concerning the events of 7 August 2015.  It follows that no question of a Jones v Dunkel[130] inference arises.

   [130] Jones v Dunkel.

7. It is not so clear whether or not David Murray or Anne Towers, whom the defendants did not call to give evidence, would have been available.  I accept there were was no explanation given as to why neither witness was called.

8. Mr Xavier accepted that Mr Murray was his line manager at the time, as well as looking after the crane section, but he thought he was on break at that particular time.[131]  It was put to him in cross‑examination that, following the alleged explosion on 7 August, he reported to his line manager Mr Murray about the need to get a new flow meter.  Mr Xavier denied that suggestion.[132]  It is trite to say that counsel's questions are not evidence and given Mr Xavier's refusal to accept that proposition and in the absence of Mr Murray, there is of course no evidence that Mr Xavier alerted Mr Murray to the need to get a new flow meter.

   [131] ts 94.

   [132] ts 167.

9. In respect of the job card, exhibit 32, Mr Dickinson stated that the data would have been inputted by Dave Murray possibly, or someone in administration could have opened the job.[133]  Notwithstanding the cross-examination of Mr Dickinson on this point[134] I am not inferentially satisfied that Mr Murray was absent from the premises on 7 August 2015.  There is no basis for such a conclusion.  Even Mr Xavier simply talks of him being on a break.  Mr Dickinson believed Mr Murray to have been at work that day.[135]  Further, even if he was absent I am not satisfied that would inevitably have meant that Mr Dickinson would have assumed his role, as opposed to for example Paul Welch or Paul De Klerk, and therefore would not have left the premises as he says he did.

   [133] ts 268.

   [134] ts 279.

   [135] ts 281.

10. So far as Ms Anne Towers is concerned, Mr Twiss testified that on his arrival at ROPS on 7 August he met Ms Towers who then summoned Mr Xavier.[136]  Mr Twiss provided an inventory of Mr Xavier's tools to Ms Towers later the same day.[137] Mr Twiss did testify that he got the sense that something was weird because Ms Towers was acting a little odd.  She had a body language or demeanour that she really wanted to tell him something but she could not say it.[138]  I find Mr Twiss' observations in that too regard too nebulous to accord any weight or significance.

    [136] ts 207.

    [137] ts 217.

    [138] ts 218.

11. Mr Twiss subsequently received an email from Ms Towers on 20 November 2015.[139]  He never had any direct conversations with Mr Dickinson.  It was always through Ms Towers as an intermediary.[140]  He later sent an email to Ms Towers on 24 February 2016.[141]

    [139] ts 222.

    [140] ts 222.

    [141] ts 215.

12. Ms Towers told Mr Poultney that she had just had a feel of Mr Xavier's head.  It is not clear to me how any evidence of Ms Towers' brief 'examination' could have assisted, given the fact that Mr Xavier was examined by a doctor some two hours or so later.  And that even on his own case he does not suggest that there would have been any significant observable injury to his head at that time.[142]

    [142] ts 314.

13. In respect of both Mr Murray and Ms Towers, I am not prepared to draw an inference that the absent evidence would not have helped the defendants.  The rule does not permit an inference that the absent evidence would have been in fact damaging to the defendants.  The rule does not create any admission nor can it be employed to fill gaps in the evidence or convert conjecture and suspicion into inference.  Nor can the absence of a witness permit me to resolve a doubt or ambiguity adversely to the defendants.[143]

    [143] See [1215] at page 40 of 11^th edition of Cross on Evidence and the cases therein discussed.

Could Mr Xavier have been injured in the way he said he was?

1. I have already referred to the conflicting evidence on the dimensions of the workspace Mr Xavier was occupying.  Mr Xavier testified that he saw out of his peripheral vision the forklift coming in.  He tried to move to get out the way but the forklift tine, coming from his left hand side, struck him at the back left hand side of his head, more towards the rear.  He flinched his whole torso, twisting to exit the truck in a rolling motion.  He was lying with his feet towards the front of the truck and his head towards the back.[144]

   [144] ts 110 - ts 111.

2. Mr Xavier accepted that he signed the Flexi Staff incident and injury report form[145] which referred to 'slow impact'.[146]  I am quite satisfied that was based upon information provided by Mr Xavier that morning.  That is a similar description to the one that he provided to a Dr Shetty at his general practitioners at 1.41 pm that day, namely that it was a low impact injury with no breach of skin.[147]

   [145] Exhibit 8.

   [146] ts 117.

   [147] ts 121 and exhibit 10.

3. Mr Xavier's attention would have been on the component above him.  For the accident to have occurred in the way described by Mr Xavier, he would have had to have been positioned sufficiently far under the truck so that he was not visible to JoJo.  He would have had to have seen the incoming tine out of the corner of his eye.  The impact of the tine must have been either modest and/or cushioned by the beanie that he was wearing, so that his skin was not broken.

4. He was pressed in cross-examination as to how violently he moved away from the tine and he talked in terms of flinching and rolling over.[148]

   [148] ts 111.

5. As I have already stated, I consider it unlikely that the driver of the forklift would have positioned the left hand side tine four to five feet away from the object he was working on, the fuel tank, so as to be able to strike Mr Xavier.  I also consider it unlikely that Mr Xavier would have seen the tine before it struck him so as to be able to forcefully move away from it.

6. In assessing the likelihood of events unfolding as described by Mr Xavier I note that he testified that immediately before the impact, he was trying to read the increments on the gauge of the flow meter and trying to read how much flow was in the pump.[149]

   [149] ts 60.

7. Mr Xavier's evidence of events is incompatible with the flow meter blowing up that morning.  There would obviously have been no opportunity after the flow meter exploded to examine the increments on its gauge.  Given my findings that Mr Xavier was responsible for the blowing out of the original flow meter, and the evidence, which I accept, that no replacement flow meter could have been installed that morning, events could not have occurred in the manner described by Mr Xavier.  The closest permissible scenario to the one described by Mr Xavier, is that he was working on the original flow meter when there was an incident when he was struck.  He then continued to work on that flow meter which then exploded.  On that scenario, there would have been a delay between the alleged incident and the time when it was reported.  I now turn to that issue.

Did Mr Xavier immediately stop working?

1. Mr Xavier testified that the accident occurred between about 9.30 and 10.00 am.  Having crawled out from underneath the truck he told JoJo to turn the forklift off.  He also alerted the workshop supervisor, Mr De Klerk, who was walking down the driveway at that time.  He was then taken into the office to do an incident report with Mr Poultney.  He reported the incident almost instantly.[150]

   [150] ts 64.

2. I have referred to the Flexi Staff incident report form.[151]  There is a section in that report that requires detail of the 'immediate response'.  Based, I am satisfied, on information provided by Mr Xavier to Mr Twiss,[152] the answer provided was:[153]

   keep on working and then reported to supervisor.

   [151] Exhibit 8.

   [152] ts 220.

   [153] ts 117 - ts 118.

3. Mr Xavier was asked about this inconsistency and his response was, 'I don't know.  I was obviously still dazed'.[154]  He said that he just signed it, without reading all the contents.[155]  It is a very short document.

   [154] ts 118.

   [155] ts 163.

4. Mr Twiss testified that based upon the information that Mr Xavier provided, the actual incident was around 9.30am.  And then an hour later Mr Xavier felt unwell.[156]  I accept Mr Twiss' evidence in this regard.  No clarification of it was sought in re-examination.  The account Mr Xavier provided very shortly after the incident, to someone who I am satisfied was supportive of him, differs significantly from the evidence Mr Xavier gave at trial.

   [156] ts 220 - ts 221.

5. Mr Xavier denied that he did not report this incident to Mr Poultney until sometime after 11.00 am.[157]  He stated that it took about 45 minutes to complete the ROPS system improvement form with Mr Poultney.[158]  In that document, under 'description of situation' it reads:

   … Forklift tines made contact with Kevin's head causing a slight blackout, Kevin informed management approximately 1.5 hours after incident occurred.

   [157] ts 118.

   [158] Exhibit 9 and ts 119.

6. Mr Xavier testified that this section was incorrect[159] without providing any particular explanation as to why it was so recorded.

   [159] ts 119.

7. Mr Xavier was also shown a workers' compensation claim form that he completed and signed on 11 August 2015.[160]  By this stage he could not still have been dazed.  He made a solemn and sincere declaration that each and every answer and the particulars contained were true both in substance and in fact to the best of his knowledge and belief.  He put the time of occurrence as being 9.30 am.  He also stated that he had to stop working at 11.00 am.  Mr Xavier was not too sure why he wrote that.[161]

   [160] Exhibit 1.

   [161] ts 162.

8. Mr Xavier's explained in re-examination that when he designated 11.00 am as the time he stopped work, he was referring to when he was just sitting in the reception area.[162]  I cannot accept that explanation.  If a person stops work at 9.30 am and is still waiting to be taken to a doctor at 11.00 am there is no sensible reason why he/she would say that they stopped work at 11.00 as opposed to 9.30 am.

   [162] ts 177.

9. The workers compensation form sets out on page 1 that the time of occurrence was 9.30 am although, oddly, at page 2 it is said that Mr Xavier first reported the occurrence at 9.00 am.  In any event, there is a distinction between when a person first reports the occurrence and when they first seek medical attention.  It seems to me that those two concepts are distinct and would not be readily mixed up.

10. On the form Mr Xavier suggests that he first sought medical attention at about 11.00 am, whereas it is clear from exhibit 10 that he was not examined by his GP until 1.41 pm.  Mr Xavier's explanation that he assumed that was when Mr Twiss picked him up[163] is unconvincing.  Mr Twiss would not have arrived before 11.30 am.[164]  Indeed, according to Mr Xavier, Mr Twiss picked him up at around 12.00 pm.[165] The question relates to when Mr Xavier first sought medical attention, not when he was picked up to travel to a doctor.

    [163] ts 164.

    [164] ts 206.

    [165] ts 65.

11. Apart from Mr Xavier's testimony at trial, all the evidence is to the effect that he carried on working and did not immediately get out from under the truck when he says he got struck on the head.  Mr Xavier's account is irreconcilable both with the body of evidence about when he reported matters and with the incident about the flow meter blowing up.

What is the significance of the absence of any visible injury?

1. Mr Xavier testified that the blow was, 'a fairly decent hit'.  He saw stars straight after it but did not lose consciousness.  He accepted that it did not break the skin or cause a contusion and there was no bump on his head.[166]  In the ROPS system improvement form he referred to a 'slight blackout', although in evidence he said he did not black out.[167]  That report also records 'no broken skin or visible damage reported'.

   [166] ts 112.

   [167] ts 119.

2. I accept Mr Twiss' evidence that at all times when he was with Mr Xavier, apart from the time when the doctor removed it, Mr Xavier was wearing a beanie.[168]  I do not believe that Mr Twiss exaggerated his evidence in that regard.

   [168] ts 212.

3. Weather records for Perth[169] suggest that 7 August 2015 was a comparatively mild winter's day with a maximum temperature of 18.3° and a minimum of 12.1°.  Nonetheless, I am inferentially satisfied that at the time that Mr Xavier was working on the truck he was wearing the beanie referred to by Mr Twiss.  That would to some extent have acted as a barrier.  There was no expert evidence before me as to the force of a blow that would be required to produce a breaking of the skin, if the blow occurred over a beanie as opposed to the bare skin.

   [169] Australian Government Bureau of Meteorology climate summary for Perth August 2015.

4. Accordingly I find that the absence of a break of the skin or contusion does not in itself mean that the accident as described could not have happened.

Overall conclusions on evidence that accident occurred as Mr Xavier describes

1. Leaving aside the medical evidence my various conclusions leave me in this position.  Contrary to Mr Xavier's evidence, the truck he was working upon on 7 August 2015 was an Isuzu FSD 700/850 Long Premium Auto truck.  Major Motors Pty Ltd sold that truck to Ellenby Trees Pty Ltd on 16 February 2015.  That was a long wheel-base truck, not short or medium, as described by Mr Xavier.  Contrary to Mr Xavier's evidence that truck had not been there for at least a week, nor was Mr Xavier was working on that same truck the previous day.

2. I do not accept Mr Xavier's evidence that JoJo was installing a fuel tank as opposed to lowering it.  I am satisfied that Mr Xavier has exaggerated his description of the activities at the workplace that morning, in order to create an impression of carelessness.  There was no demonstrable urgency, and I am quite satisfied that when he was at the workplace Mr Dickinson did not convey any such sense.

3. Moreover, despite Mr Xavier's evidence to the contrary, at the time of the alleged accident, Mr Dickinson was not at the premises.

4. I reject Mr Xavier's evidence that the fuel pump did not explode when he was working on the truck on the day itself.  I regard his evidence that there was no episode that day where the fuel meter exploded as untruthful.

5. I consider it unlikely that JoJo would have positioned the left hand side tine four to five feet away from the object he was working on, the fuel tank, so as to be able to strike Mr Xavier.  I also consider it unlikely that Mr Xavier would have seen the tine before it struck him so as to be able to forcefully move away from it.

6. Mr Xavier's evidence that immediately before the impact, he was trying to read the increments on the gauge of the flow meter and trying to read how much flow was in the pump of events is incompatible with the flow meter blowing up that morning.

7. All the evidence is to the effect that Mr Xavier carried on working and did not immediately get out from under the truck when he says he got struck on the head.  Mr Xavier's account is irreconcilable both with the body of evidence about when he reported matters and with the incident about the flow meter blowing up.

Does the medical evidence in combination with other evidence support Mr Xavier's claim that the accident in the manner in which he describes

The contentions on behalf of Mr Xavier

1. I then turn to the medical evidence.  Counsel for the plaintiff submits that the objective and consistent medical evidence over a period of four years demonstrates that Mr Xavier had suffered injuries consistent with the mechanism he describes.  That evidence, it is submitted, demonstrates that Mr Xavier suffered a neck and head injury attributable to being hit to the head with a forklift tine and that he now suffers from a back injury and a leg injury.  Counsel submits that this evidence reveals that if Mr Xavier jerked away, twisted or moved suddenly from the forklift tine that could result in a back injury.

2. The difficulty for the plaintiff is that the conclusions in the medical reports relied upon depend to a large extent upon Mr Xavier being regarded as an accurate historian.  For the reasons I have explained I cannot share that confidence.

First references to pain to back and legs

1. None of the documents generated on 7 August 2015 refer to pain to Mr Xavier's back or legs.  There is a reference in Dr Shelley's consultation notes[170] to minor neck pain on the left side and a mild headache.  Mr Twiss agreed that at the time there was nothing to suggest that Mr Xavier was serious injured.[171]  It is obviously the case, however, that pain could have radiated to his back and legs some days later.

   [170] Exhibit 10.

   [171] ts 221.

1. Mr Xavier said in his evidence that he developed significant back pain and leg numbness on the weekend after the incident.  He accepted, as set out in the medical notes[172], that there was no record of pain to his back or legs when he saw Dr Burkett at his general practitioners on Monday 10 August 2015.  At that stage his complaint was confined to headache/neck ache persisting.[173]

   [172] Exhibit 2.

   [173] ts 125 and page 67 defendants' bundle as set out at ts 69.

2. I find that inconsistent with his evidence that on the second or third day after the accident, the level of his back pain was excruciating, 9/10.[174]  The first reference to pain to the back and leg was at 8.22 am on 12 August 2015 in his consultation with Dr Hande.  Whilst there is a reference to worsening of pre-existing back pain which radiated down the left leg, if Mr Xavier was complaining of excruciating pain at that time I would expect that this would have been recorded, whereas it is not.  There is a reference to the back not being tender, but a restricted range of movements.

   [174] ts 70.

3. This inconsistency, as I find it to be, has some minor bearing upon Mr Xavier's credibility but is not in itself determinative.

4. In a letter dated 15 August 2015[175] an exercise physiologist Ms Sarah Lawrence reported that Mr Xavier reported extreme lower back pain and referred to left leg pain to his left foot.  He reported general neck stiffness of about 7 out of 10.  Upon objective examination he was restricted in his lumbar range of movement, flexion and extension.  He was tender on palpitation over the lumbar erector spinae.

Dr Robinson's report and evidence

[175] Exhibit 4.1.

1. In his report of 16 November 2015[176] Dr Robinson relates a history that on the Monday Mr Xavier's headaches increased and developed in both retro orbital areas.  Furthermore, the left sided neck pain increased in severity.  Dr Robinson reports that Mr Xavier noted back pain and numbness of the left leg on the Sunday, although as I have noted he seemingly did not convey that his general practitioner on the Monday.

   [176] Exhibit 15.

2. Dr Robinson notes a history of low back pain dating from approximately 2010 and that the pain went down his left leg but that the low back pain and leg pain had settled after a period of two years.  Counsel for Mr Xavier submits that is consistent with Mr Xavier's evidence that he had not taken any time off work for his back injury in the two years prior to 7 August 2015.  That is also consistent with a letter from Mr Xavier's general practitioner Dr Hande on 7 October 2015 when she notes that since 9 November 2011 the only date when Mr Xavier requested time off from work was on 17 February 2012.[177]

   [177] Exhibit 20.2.

3. Dr Hande also notes that Mr Xavier has consulted other doctors at the practice for neck and low back pain on 9 and 11 November 2011, 17 February 2012 and 16 March 2012.  He also consulted one of Dr Hande's colleagues on 16 June and 15 July 2015 for back pain for which he was treated with analgesics.

4. Dr Robinson's diagnosis is that as a result of the accident, Mr Xavier had soft tissue inflammation of the cervical spine, soft tissue inflammation of the lumbar spine, probably in the region of the facet joints in the left side at L5 and S1.  And that the differential diagnosis is a possible L5 radiculopathy on the left side.  Dr Robinson concludes that it is more likely than not that the low back pain and left leg pain was related to the 7 August 2015 incident.

5. Dr Robinson explained in cross-examination that if Mr Xavier had moved his head and neck to avoid the incoming tine he would most likely move his lower back at the same time.[178]

History of past back injuries

[178] ts 145.

1. Mr Xavier's medical records as of 11 February 2016[179] reveal that having been born on 30 April 1984, he consulted his doctor on 9 November 2011 having sustained injuries in a motor vehicle accident that day.  There is a reference to 'recent back injury on workers compensation back at work 2/12'.  Mr Xavier saw his general practitioner for that matter again on 11 November 2011 and then on 17 February and 16 March 2012.

   [179] Exhibit 2.

2. Details of a motor vehicle accident are set out in a report from consultant orthopaedic surgeon Mr David Wright dated 21 June 2012.[180]  That report also suggests that Mr Xavier consulted with Mr Wright in May 2011 and at that time had not worked since 31 May  2010.  He hurt his back at work in 2010 and at the time of the road traffic accident his back symptoms were gradually improving so that he was slowly increasing his activities around the house.

   [180] Exhibit 3.

3. Mr Wright reports previously L5/S1 disc degeneration with a midline annular tear and some mild disc bulging.  There appeared to be an aggravation of symptoms since the motor vehicle crash although Mr Xavier's physical signs on 20 June 2012 did not appear to be a lot different to 16 May 2011.[181]

   [181] Page 4/7 of exhibit 3.

4. An earlier report from a neurosurgeon Mr Soni Narula dated 25 August 2010[182] refers to an accident at work on 31 May 2010.  An MRI scan of about November 2010 showed an annular fissure at L5/S1.[183]  As of 24 August 2011 Mr Narula reports[184] that Mr Xavier's symptoms had apparently returned with the pain mainly being into the lower limb.  The pain was across the lower back and was worse with straining and turning so that he was tender at L5/S1 and to the left side.  A CT scan[185] suggested findings to be slightly more prominent to the right.  Mr Narula advised Mr Xavier that he was too young to undergo surgery.

   [182] Exhibit 12.1.

   [183] Exhibit 12.2.

   [184] Exhibit 12.3.

   [185] Page 17 of exhibit 13.

5. On 1 August 2013 Mr Xavier was examined by a consultant occupational physician, Dr Alan Home.[186]  Dr Home notes that Mr Xavier seemingly sustained an aggravation of his pre-existing complaint in the motor vehicle crash with the development of more prominent symptoms.  Repeat MRI scans in June 2012 excluded additional spinal pathology.  Mr Xavier reported intermittent non‑verifiable radicular complaints in the left leg.  He was likely to require persisting use of analgesia given the aggravating effects of the crash.  Degenerative changes were not anticipated.

   [186] Exhibit 16.

6. Moving forward again, Mr Xavier saw Dr Hande on 16 April 2015.  There is a reference to Mr Xavier experiencing back pain the previous week but being better now.  On 16 June 2015 he saw a Dr Akinyemi complaining of back pain since the previous week with numbness in the left leg.  There is a reference to a slipped disc three to four years earlier from which he recovered on conservative treatment and injections.  There was a restricted range of movement on examination and he was prescribed medication.

7. Mr Xavier saw another doctor on 15 July 2015 with a flare up of lumbar symptoms for which he was prescribed Tramadol.  I am quite satisfied that when Mr Xavier sought medical advice in June and July 2015 it was because he was experiencing at that time lower back pain, as opposed to a purely precautionary consultation as Mr Xavier suggested in evidence.

Conclusions on medical evidence adduced

1. With respect to Dr Robinson's evidence, I certainly accept that it is possible that a violent twisting movement in order to evade an incoming forklift tine might give rise to the back and leg symptoms he describes.  But this is not a case where I am considering a completely symptom-free plaintiff who immediately after an incident develops significant injuries.  In those circumstances, without more, an inference could readily be drawn, in the absence of any alternative explanation, that it must be attributable to the event itself.  That is not the case here.  It is not possible for me to reason from the evidence of Dr Robinson and Dr Ozanne that the symptoms they describe establish that Mr Xavier was injured in the way he describes.  Particularly in light of my findings as summarised at [164] - [170].

2. Prior to the trial itself, on 13 August 2019, a Mr Sneddon, consultant orthopaedic surgeon gave evidence before Examiner Howard at a de bene esse hearing.  Dr Sneddon provided three reports in this matter dated respectively 7 October 2015, 20 January 2016 and 9 March 2016.[187]

   [187] Exhibits 35, 36 and 37.

3. Mr Sneddon considered it possible that Mr Xavier sustained a muscular sprain to his neck if his head was struck a glancing blow with insufficient force to abrade or lacerate the skin.  In Mr Sneddon's opinion his back injury was not caused by an incident at work on 7 August 2015.  Mr Sneddon could not discern any reason for the suggested symptoms in the left leg.[188]

   [188] Page 4 and page 6/7 of exhibit 36.

4. In his evidence Mr Sneddon considered that there was no diagnosis that he could make in relation to Mr Xavier's back that could explain the suggested symptoms in his left leg.[189]  Symptoms of numbness or weakness globally involving the whole of the left leg could only, in the absence of a leg injury, be related to a back injury.[190]  Conversely a lumbar spinal back injury would not necessarily result in numbness to the left leg.[191]  Mr Sneddon accepted that if Mr Xavier suddenly twisted, jerked or moved in an unusual way that could cause a soft tissue injury to the back.  There had to be a twisting movement.  Mr Sneddon stated that there was no left leg injury.[192]  He reiterated that it was not possible for a muscular strain or soft tissue inflammation of the spine to cause numbness or pain in the left leg.[193]

   [189] 13/8/19 ts 9.

   [190] ts 10 and ts 17.

   [191] ts 10.

   [192] ts 11.

   [193] ts 12.

5. Mr Sneddon reiterated that the suggested left leg symptoms were either coming from his back or they do not exist.  There is no other possibility.  The left leg symptoms do not tie in or could not possibly happen with a soft tissue injury or musculoskeletal injury to the lumbar spine and for that reason Mr Sneddon declined to make a diagnosis in respect of the left leg.[194]

   [194] ts 18.

6. The medical evidence relied upon by the plaintiff does not overcome the substantial doubts I have concerning Mr Xavier's evidence that he was injured as he alleges.

The duty of care owed by the second defendant 

1. I deal with this aspect briefly for sake of completion.  Mr Xavier was on a labour hire agreement from Flexi Staff as a crane technician under a contract between the first defendant and Flexi Staff for labour hire dated 12 May 2015 (exhibit 29).[195]  There was no contractual arrangement between the second defendant, ROPS Engineering Pty Ltd, and Flexi Staff.  Mr Dickinson is a director of the second defendant.[196]  Mr Xavier was unable to give any evidence about a contract between Flexi Staff and the second defendant.[197]

   [195] ts 260.

   [196] ts 261.

   [197] ts 87.

2. In the amended statement of claim at par 3 the plaintiff pleads that the second defendant carried on business at 3 Einstein Link, managed and controlled the premises and was an occupier under the Occupiers' Liability Act.  No evidence of that was adduced.  The second defendant is an incorporated company and is a separate legal entity from the first defendant.

3. Whilst it might notionally appear that the two businesses amalgamated, separate legal entities cannot amalgamate.  The second defendant remains a separate legal entity.  Mr Dickinson gave evidence of its separate treatment for accounting purposes.

4. Separately from the considerations that arise out of the plaintiff's case against the first defendant, the allegations at par 3 of the statement of claim have not been made out.  There is no duty of care owed at law by the second defendant to Mr Xavier.

Conclusion

1. Mr Xavier has not established on a balance of probabilities that the accident complained of, as particularised at par 6(e) of the amended statement of claim actually occurred.  The only supportive objective evidence of him being injured in such an accident is that he reported this incident at about 11.00 am and sought medical attention.  In the context of the numerous defects in Mr Xavier's evidence that does not suffice.

Orders

1. The plaintiff's claim is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

MW
Associate to Judge Troy

29 OCTOBER 2019