Andrew Goodman v Impact Hire Australia Pty Ltd & Ors

The Plaintiff (Mr Goodman) sues his former employer (Impact) and a Second Defendant (Inasmuch) the manufacturer of a road signage trailer in respect of personal injuries allegedly suffered on 29 December 2003 when he was engaged in the course of his employment. At the time Mr Goodman was working on or adjacent to the Warringah Expressway in Sydney. The action against Impact is governed by the Workers Compensation Act and the action against Inasmuch by the Civil Liability Act.

Mr Goodman also joined the Nominal Defendant in the proceedings on the basis that the subject accident may have involved an uninsured motor vehicle within the Motor Accidents Compensation Act (MACA). On the third day of the hearing, it was agreed between the parties that there was no accident within MACA and I made by consent orders in accordance with short minutes of order. I excused from further attendance Mr A Renshaw, who appeared for NRMA Insurance Limited and Mr B Smith, who appeared for the Nominal Defendant.

In the continuing proceedings, Mr A Stone with Ms M L Holz appeared for Mr Goodman; Mr P Morris for Impact; and Mr S Torrington for Inasmuch.

Mr Goodman testified as to his birth on 7 September 1971 and that after leaving school he worked for K. L. Kent, a furniture removal company based at Auburn for about 2 years. At the same time, he completed his School Certificate at Mount Druitt TAFE.

In 1989 while still working for Kent, he was involved in a motorcycle accident in which his right femur was broken. He was unable to work for three months. On recovery, he did not return to Kent but rather became an apprentice butcher and enrolled in an appropriate trade course at North Wollongong TAFE. After about 2 years he again changed his employment and returned to furniture removals, obtaining employment with Grace Removals.

From this employment he gravitated to long distance truck driving in various parts of Australia.

By 1998, he was with his present partner, Jacqueline Pellaers and was living and working on an avocado farm at Gympie in Queensland. At one stage he was managing a fruit and vegetable store during the day and truck driving for IPEC at night.

After a time he and Ms Pellaers returned to Sydney where for a trucking company Boylan, he drove a truck to Tarcutta and return each night. Later he also drove trucks for Panoochies and White Heavy Haulage.

In 2001 while employed during the week as a truck driver, he obtained weekend work for Austereo, the Proprietor of Triple M Radio. His job was to drive a promotional vehicle around Sydney, the vehicle being in effect a caravan made up to look like a giant portable music player. At an agreed site, he would stop the vehicle, wind down stabilizing legs and commence to play music. While the music played, he would give promotional items to passers by. Sometimes young women assisted him in this promotional activity.

While still working at weekends for Austereo, about March 2002, he joined Impact. At that time, he said he was “as fit as a fiddle” with no back or neck disability and nothing which restricted his recreational activities. He was living with Ms Pellaers in her house at Concord.

In relation to the employment with Impact, he answered an advertisement which resulted in contact with a Mr Greg Denton. Even before he was interviewed by Mr Denton, at Mr Denton’s request, he drove to a manufacturer at Newcastle in his Suzuki 4 wheel drive motor vehicle and towed back to Sydney what he described as a “junior variable message board”. As requested by Mr Denton, he towed this to a site in Everley Street, Redfern which, as it happened was known to him as it was where on occasions he parked the Austereo caravan. He reported his arrival to Mr Denton but in fact did not formally meet him for about another week.

This meeting was in a café at Newtown and following it he was engaged as an employee of Impact. He was not provided with any training but sent back to Newcastle to take delivery of another junior board and tow it back to Sydney.

Thereafter he was given some training by Mr Denton as to how to remove a junior message board from the back of a vehicle; how to set it up; and how to program its message. The board, of a type commonly seen about Sydney, was attached to a trailer and displayed an electronic message usually related to traffic control. It was powered by batteries contained within the frame of the trailer.

Mr Goodman said that although he was given a manual of instruction as to how to program the message on the board, it said nothing about the physical aspects of setting it up, as to which he received no written instruction. Mr Denton demonstrated the way he set up a junior board to Mr Goodman at a location in Moore Park.

He found that Impact then owned about 25 junior boards and that its business was to hire them to users, mostly, as I understand it, the RTA. The terms of hire required Impact to tow each board to where it was to be located, set it up and program it to display the required sign or advertising material and at the end of the hiring tow the sign away. Impact had access to a secure concrete yard in Everley Street Redfern but Mr Denton’s office was located elsewhere. According to the business cards provided by Mr Denton, Mr Goodman became the NSW Representative of Impact. He reported to Mr Denton.

Impacts’ stock of junior boards increased when it bought out the company Traffic Control Signals and acquired 11 arrow boards, 4 traffic lights and another 2 junior message boards. Up until December 2003 his work with electronic signs had involved only junior message boards. His hours of work were irregular and often involved him working at night and at weekends. He earned a salary and was also paid bonuses from time to time.

Junior message boards or more precisely the trailer upon which they were mounted had no hand braking system but were fitted with a safety chain. As I understand his evidence, Mr Goodman, when setting up a board at a particular site, at least where the ground was not level, made a practice of leaving the chain attached to the vehicle which had towed it to the site until the board was fully set up and stabilised.

In or about December 2003, Mr Goodman learned from Mr Denton that Impact was to acquire two much larger boards from Inasmuch. They discussed the different computer programs which the new boards would have and problems associated with that. The subject of the physical handling of the larger boards was not however raised by Mr Denton, who, so far as the evidence relates, did not address his mind to it.

The two larger boards were transported by interstate carrier from where they were made in Western Australia to a depot in Sydney about 9 December 2003. From there they were delivered to the concrete yard at Everley Street Redfern. Mr Goodman was present at delivery, as was Mr Philip Young, principal of Inasmuch, and Mr Denton’s nephew, who worked for Impact and who Mr Goodman knew only as “Moose”. There was an issue as to whether Mr Denton was also present. Mr Goodman thought he was, Mr Young that he was not. Neither Mr Denton nor “Moose” was called to the witness box. Not a great deal turns, I think, on this conflict. On the one hand it might be expected that Mr Denton would be present when 2 large and expensive items of equipment were delivered. On the other hand, it is Mr Goodman’s signature which appears on the receipt for a substantial quantity of spare parts and Mr Goodman, as will appear, seems to have been mistaken in his evidence that Mr Denton at the time of delivery gave him a particular direction. The probability, I think, is that Mr Denton was not present.

According to Mr Goodman, the concrete yard was level, being bounded at the rear by a shed which contained an electricity power source and a variety of spare parts, electric cables etc.

The new trailers arrived on a tilt tray truck. They were unloaded one after the other and the truck was driven away. Mr Goodman and “Moose” pushed the two machines into the middle of the yard where Mr Young provided information about them. There is an issue as to exactly what information Mr Young did provide and I will need to return to that subject. However, it is clear that it included information as to the programming of the computers on the trailers so as to make them compatible with Impacts computers.

Each machine consisted of a two-wheel trailer to which the electronic sign board was attached by a metal mast. From the front of the trailer a metal bar protruded, at the extremity of which was a connection for attachment to a tow bar, a length of chain and an electrical cable. Underneath the bar was a small wheel referred to in the evidence as a “jockey wheel” capable of being raised and lowered, in which latter position it would partly take the weight of the machine. At each of the four corners of the trailer were metal bars with feet designed to be let to the ground when the trailer was stationary in order to stabilise it. These bars were capable of being fixed in a horizontal position above the ground when the trailer was in motion.

Apart from providing instruction as to computer programming, according to Mr Goodman, Mr Young provided instruction as to the raising of the boom or mast to which the electronic sign was attached and as to how to pivot it so as to display the sign to maximum advantage. Mr Goodman’s evidence was that in the Everley yard the stabilizing legs were not lowered and the trailers remained freestanding “like a tricycle”, the jockey wheel having been lowered to the ground.

As soon as Mr Goodman was able through his computer to communicate with the computers on the trailers and a trial safety message had been placed on the electronic board, he said that he was told by Mr Denton to proceed to delivery of the first board - “hurry up and get it out there”. As to this, I think Mr Goodman was mistaken, as the evidence established a requirement that the trailers be weighed and registered before being set up on a highway. It may be, as Mr Young suggested, that he was anxious that first afternoon to put the registration procedure in motion.

The two boards delivered to Impact in December 2003, as appears from photographs in evidence, were considerably larger than the junior boards. Unlike the latter, they were fitted with a hand brake. Mr Goodman said that he could not recall Mr Young saying anything about the handbrake but he, Mr Goodman, applied the brake on one of the two delivered. According to Mr Goodman, 2 manuals regarding the operation of the machine were given to Mr Denton. Mr Goodman did not take either of them with him when he left the yard.

In compliance with Mr Denton’s direction, on either the day of delivery of the new trailers or, as I think more probable, a few days later, Mr Goodman proceeded to attach one of the new message board trailers to a vehicle and tow it to a site near the twin Caltex service stations on the Great Western Highway at Blacktown.

When he arrived, he said that he let drop the jockey wheel and applied the hand brake. He then uncoupled the chain and detached the electric wiring from the towing vehicle. He dropped a rear stabilising bar or leg to the ground and wound the jockey wheel up until it cleared the tow ball. He then drove the vehicle forward before dropping the jockey wheel back to the ground. Next he wound all four stabilizing legs down so that the weight of the trailer was shared between its wheels and those legs. He said that Mr Young had said nothing about weight distribution upon erection of the sign but had commented that the stabilizing legs were similar in operation to those on the junior boards.

The sign in accordance with the RTA’s instruction was parked in a specified location on a grassy strip alongside an emergency breakdown lane on the westbound side of the highway.

On 29 December 2003, Mr Goodman in a Holden Rodeo utility returned to where he had left the trailer on the Great Western Highway. He manoeuvred the utility so that its tow ball was under the trailer connection. He then wound the jockey wheel up to take the weight of the front legs, retracted and folded those legs, wound the jockey wheel down to take weight off the back legs, retracted them and then wound the jockey wheel again so that the trailer connection rested on the ball of the utility. He then connected the lights, attached the chain, and checked that the tyres were inflated.

After these procedures he towed the trailer to its next location next to the Brook Street ramp entrance to the Warringah Expressway. He was to locate the sign where it would benefit traffic travelling towards the Harbour Bridge and for that purpose was to park the trailer on a triangular island formed where the on ramp from Brook Street met the expressway. In order to position the trailer, he mounted the gutter or kerb on the right side of the entrance ramp and manoeuvred the utility so that it and the trailer were wholly within the island and did not impede the lanes of traffic flow on both sides.

Having alighted from the utility he checked the position of both the utility and the trailer and then applied the trailers hand brake, locking it into a set of teeth. He deployed one of the rear stabilizing bars so that its foot rested on the ground

He then lifted the trailer from the tow ball, wound the jockey wheel down and undid the chains and electrical connection. His testimony was that as he did this the trailer started to roll backwards towards the Warringah Freeway. Instinctively he grabbed at a handle at the top of the coupling which connects to the tow bar. He explained to Mr Stone: “Q. Why did you grab it? A. Two reasons. One, it was rolling away and I didn't want it to go onto the freeway. It was a brand-new piece of equipment worth $60,000. And all I could think of was if it did run on the freeway it was going to cause a big accident. I just - my initial reaction was just to hang onto it, you know. All those other thoughts came into my head later. The first reaction was just to hang onto it. A natural reaction. Q. With you hanging onto it, did it continue moving? A. No. Q. It's there. You're hanging onto it. What happens next? A. The back leg, one back leg was this - nearly on the ground (indicated). It was only about a mil off the ground. The trailer kept rolling back with me hanging onto it, to a point where I got the back leg to dig into what was - what I could see to be a lip in the concrete. That was enough to just hold it. While I was still hanging onto the sign and that back leg was resting up against the lip, I was able to get another stabilising leg down and wind that down. The two stabilising legs then stopped it from going any further. Q. Which was the second stabilising leg that you wound down? A. The one at the front, the left-hand side, driver's side. “

Whilst this was happening, Mr Goodman said that he felt his “lower back go”. Notwithstanding, he put the other stabilizing legs down and turned on the sign, thereby completing his task. The board had moved a few feet but was still within the confines of the island which, according to the photographs in evidence, is partly grassed and partly concrete.

While still at the scene, he telephoned Mr Denton who was in America and told him of his injury and that he would arrange for “Moose” to do the rest of his work that day. He then proceeded to drive to his home at Homebush Bay where he took some Mersyndol tablets, applied a deep heat poultice to his back and went to bed. I will return later to Mr Goodman’s evidence as to what followed, as it is convenient first to conclude a review of the evidence given relevant to the liability of the Defendants.

Mr Goodman said that about 2 weeks after the accident, Mr Young telephoned him: “Q. Doing the best you can to use the words he used, what did he say? A. He asked me was I all right and that he'd heard that I injured myself and wanted to know what I'd done and what happened. And I told him that I had injured my lower back and that when I put the hand brake on the trailer kept going. And he proceeded to tell me that the stabilising legs were there to stop it rolling away and that it shouldn't have rolled away if I had the hand brake on. And I just said to him then that he would be better off talking to Greg Denton about anything else. I was pretty upset at the time, and yeah. I was a bit unhappy with Mr Young as in I just related him to being part of the new message board and really didn't want to tell him anything or talk to him.”

In cross-examination, Mr Goodman told Mr Morris that the new trailers weighed about one and a half tonnes while the junior boards weighed about 780 kilos. He said that the junior boards were easy to manoeuvre manually, although he agreed with Mr Morris that they were nonetheless of a substantial weight.

He agreed that in the 18 months previous to December 2003, he had established a routine for handling junior boards and had never handled the larger board.

Cross-examined by Mr Morris regarding instructions given by Mr Denton in relation to the junior boards, Mr Goodman agreed that Mr Denton had told him when on a slope to use the chain as a brake.

He told Mr Morris that his practice of first putting down only one of the stabilizing legs was that this leg would prevent the trailer from flipping over backwards, its weight being mostly to the rear. In his view, only one stabilizer was required for this purpose. Mr Goodman explained to Mr Morris that the reason he took the chains off when he did, early in the setting up process, was that he had applied the handbrake and, in effect, relied upon it to be effective. The other reason was that, according to his testimony, the chains were in such a position that they prevented disconnection of the trailer from the tow ball on the utility.

The only other lay witness who gave evidence on the issue of the defendants’ liability was Mr Young. Neither Mr Denton nor “Moose” gave evidence and their absence was not explained. I infer that their evidence would not have assisted Impact’s case.

Mr Young was in fact the first witness in the case as he was due to leave for overseas on the second day of the trial. His evidence thus preceded that of Mr Goodman, a circumstance which raised some difficulty as the case progressed.

Mr Young said the signs which his company supplied were manufactured in America by the Addeo Company. He has been dealing with them since 1992, but more recently the trailers to which the electronic signs are attached have been made in Australia. His company sells the combined units.

He described a sign as being an electronic board on a mast attached to a trailer. He said the board can be raised and lowered and that it can be turned through 360 degrees. The sign itself or the message on it is controlled via a computer on board and it can also receive messages by GSM technology. This means that a user can alter the message on the sign with a laptop computer.

He testified as to the order for 2 signs he received from Impact about December 2003. Transport from Western Australia was arranged by Impact. He flew to Sydney so as to be there when the signs arrived at a depot where he checked them for damage. He organised a tilt truck to take them to Impact’s yard and arranged to be there when they arrived.

Asked by Mr Torrington, whether he had a physical problem in relation to the erection of the signs, Mr Young gave evidence of a stroke suffered in 1995, which has limited the use of his right arm and leg. To apply the hand brake on his trailers, he said that he uses an aid in the form of a piece of PVC piping which he places over the brake lever to lengthen it and enable him to use his shoulder and left hand.

According to Mr Young when setting up the sign, you should first rotate and lock all four jacks or legs so that they touch the ground and then adjust them so that the sign is level and high enough for the bar to be lifted from the tow ball. He said that the trailers may also carry wheel chocks for use on sloping terrain.

His evidence was that he arrived at Impact’s yard on the afternoon of Tuesday 8 December where he met Mr Goodman and, as I infer, “Moose”. He said that he had a conversation with Mr Goodman regarding the setting up of the sign. Asked to relate what he said the transcript records: “A. Yeah. Well, the circumstances were that I drove into Mr Goodman's yard with the tilt truck, with one of my trailers on top of the tilt truck and one being towed behind, and obviously I needed to find out where he wanted the trailers put. And Andrew assisted me and the tilt truck operator, actually positioned the signs to exactly where he required them. Because on my signs they have a jockey wheel, which purpose is merely to position the signs when they're in the workshop. And so Andrew fortunately was there and he used his muscle to position the sign trailer into the positions required. And then he was talking about wanting to learn how to input messages into the board, and I said, "Well, the first things first. We need to set up the sign. So I'll take you through the setup," and because these were detached from the vehicle, I just lower the jockey wheel so it was basically where the tow ball would be, and then I'd - with Mr Goodman, I put down the first jack and wound it till it touched the ground. Then I had Mr Goodman do-- Q. Do you recall what you said to him at this stage? A. I said, "Getting the trailer off the tow ball requires these four jacks to be in place." Q. And then you've lowered one of the jacks? A. I lowered the first jack, showed him how to do it, and - well, without inviting him to do it. He was basically on there and was doing the second jack and winding it down. I said, "Just make sure it touches the ground lightly." And then we went over to the other back corner. He did the same there. And the one up the front, he did the same. Q. Now, after all the jacks had been lowered, were they lowered firmly on the ground to your observation or just touching the ground? A. They were just touching the ground at that stage. And I mentioned the point is for the trailer to be deployed, you have to support 60% of the trailer weight because in so doing it's engineered in such a way that with the sign deployed and bearing in mind that's four metres from the top of the sign to the ground, it can withstand wind of speed of 140 kilometres an hour. So it's essential to have these jacks in a structural position. Q. Did then something happen? A. Well, we just proceeded to wind it up so it was supporting 60% of the weight and-- Q. When you say "we", did you wind or did Mr Goodman wind, do you recall? A. I probably would have wound them at that stage. OBJECTION (STONE). Q. What do you recall you did? What do you recall seeing and what did you do and what did he do? A. Okay. I'm not certain as to whether or not Andrew would have wound them up or myself. Q. Now, after they were wound up, what happened then? A. After they were wound up, then I explained how you open the sign cabinet with a key, opened the sign cabinet, turned the master power on and then released the handbrake which is on the sign to the - the handbrake which is on the front of the trailer, and then demonstrated how you could elevate the sign, and then I had Mr Goodman take over from me and elevate the sign. Q. Now, did there come a point when you demonstrated the use of the handbrake which is on the drawbar? A. There did, but the procedure is that I demonstrated how to pack the sign away, so they're doing the same steps in reverse, and having packed it down before I wind the jacks, then I applied the handbrake. Q. Now, what happened then? Can you tell us what you did and what you said and what Mr Goodman said, if anything. A. Well, I took out my prop, put it on, slid it on, pushed it into my chest, locked it in and explained to Andrew, "Simply because I've had a stroke, Andrew, this is the reason I use this," and he said, "Well, I've been a truck driver for 10 years. I've obviously got plenty of strength," and he demonstrated how he could lock the brake without use of any leverage. Q. What did you see him do in this demonstration? A. Just saw him go prop up the brake, push it forward and lock it in with the other hand. Q. When you say "lock it in", what do you mean by "lock it in"? A. Just pointing out that you've got to use sufficient leverage. The handbrake goes forward and there's a little pin that has a number of positions in it. The harder you push, the tighter the handbrake locks. So if you're really strong or if you have the leverage of the pipe, you can lock it in in such a fashion that it won't move. Q. You say he then demonstrated. Is that correct? A. He did demonstrate, and he was a very fit young man, and being around trailers for so long, yeah, I was comfortable that he knew how to lock the handbrake. Q. Was that the end of the demonstration in respect of the physical setting up of it on that day? A. It was, because at that stage we had no opportunity to attach it to a towing vehicle. HIS HONOUR Q. Was this on a concrete floor or on-- A. It was on a concrete floor, yes. TORRINGTON Q. Was that the finish of the demonstration on that day? A. No, we obviously did the computer programming of the sign, and I also supplied quite a few parts to provide a 24-months warranty, which I do on the signs, and I had Mr Goodman sign for those parts, and I demonstrated how you could take a character out and put a character back in, which is one of the parts. “

According to Mr Young, he then left “because Andrew was under incredible time constraint to get their machines registered and had to get his first hire”. However, Mr Young said that he remained in Sydney for a few days meeting other clients. He also later in the week said he met Mr Denton who was not present when the machines were delivered, in “a little office” on the Wednesday, and Mr Goodman on the Friday. He said his discussion with Mr Denton was confined to general business prospects. However, in respect of his conversation with Mr Goodman, he said that he asked him whether he had read the manual and received an affirmative reply. He also asked him whether he had any further questions and received a negative response.

Towards the close of Mr Young’s examination in chief, a bundle of documents was tendered to which I should make some reference. The documents seem to indicate that the new trailers were transported from Western Australia on 5 December 2003. There is no document which evidences the date of delivery of the trailers to Impact’s yard but there is a receipt for spare parts signed by Mr Goodman on 10 December. I infer that this is likely to be the date of delivery of the trailers.

There was no direct evidence as to the date of registration of the trailers in NSW, although it was common ground that such registration is required. There is, however, in evidence a registration renewal certificate indicating that registration expired on 14 December 2006. I infer that this probably demonstrates that the original registration was effected on 14 December 2003.

Mr Torrington questioned Mr Young at some length about the handbrake fitted to the trailer. He said that a handbrake was not included in the original design but was later included to meet tender requirements of the RTA in New South Wales. He said that he had never received a complaint about the hand brake or a request that the design of it be altered. He described it as “a standard issue of all trailer parts supplied in Australia “……every trailer you see on the road has a similar parking mechanism”. As to the purpose of the chains attached to the front of the bar of the trailer, Mr Young said: “A. Safety chains are applied to the back of the vehicle to ensure that a trailer stays in place notwithstanding that the tow ball fails and, yeah, the procedure is you - the last thing to detach is the chain, and the reason for that is if you're on an incline, you don't want to be taking the trailer off the pintle and not having the chains there in case you have a runaway situation. “

Asked by Mr Morris about the operation of the handbrake, Mr Young said he thought there were 5 ratchet points and that he always pulled the handle to at least the third ratchet point. He added that the effectiveness of the brake could be affected by wear and tear and that although it was designed to lock at position two, wear and tear may require it to be pulled to a higher point.

However, according to Mr Young, there was no requirement for a parking brake in field operation as the deployment of the four jacks or legs would obviate the need for one. Nonetheless, he maintained that the parking brake properly applied would be effective to prevent the trailer rolling away but said that even with a slope of 5 degrees, the wheels should be chocked “I wouldn’t rely on the parking brake in that situation”.

Mr Young told Mr Stone that he stopped manufacturing trailers in 2005 but up to then, from two pages of notes, he personally provided to clients and prospective clients the demonstration he said he provided to Mr Goodman. which he did from two pages of notes. He estimated that he had carried out such demonstration about 100 times. He agreed that he did not hold formal engineering qualifications but held a bachelor of commerce degree.

Cross-examined by Mr Stone about the handbrake, Mr Young said he assumed responsibility for quality control of all products sold by Inasmuch and that he tested the handbrakes on the trailers sold to Impact by engaging them and applying manual pressure. He agreed that he did not check whether the handbrake held the machines on a slope.

According to Mr Young the approved method for elevating the trailer off the towing vehicle was to use progressively the four corner stabilizing legs. He agreed that another method was to deploy the jockey wheel as is common with domestic trailers, not equipped with stabilizing legs. He then remembered that he had told Mr Goodman not to use the jockey wheel for raising the trailer off the tow vehicle except on a flat surface in a workshop situation. He acknowledged that this caution did not appear in the manual.

Mr Young told Mr Stone that with the 4 stabilizers deployed the wheels of the trailer would normally be off the ground and the trailer could not move. He said that in his view it was necessary to position the trailer precisely before disconnecting it from the towing vehicle.

Asked whether his evidence as to the instructions given to Mr Goodman were based on his memory or a reconstruction, he replied: “A. It is a combination of a lot of factors. I know when I got there I know what my intention was to do, I know my usual notes I conduct the training was about so very confident that what I have told you today is what took place. “ ……………………………….. Q. Let me suggest what you have done with your memory in relation to this visit is fill in whatever gaps there were in your memory by saying that is what I always do so it must be what I did here? A. No, I think that is too much of a simplification but in thinking about any interaction with Mr Goodman, I don't recall what we actually chatted about but in terms of the trailer which is my express job in going to Sydney, I do remember quite well my responsibilities about imparting the training. “

When Mr Stone suggested that at the time of delivery of the trailers he spent one hour rather than 2 hours with Mr Goodman, he replied: “A. I disagree with that but again that is based on what I physically remember, what I have construed. It's about, it would have been 2 hours on the signs were delivered but the amount of time I spent with Andrew on the Friday, Mr Goodman on the Friday, I am not sure about the duration.”

As to actual times his recollection was that he arrived at Impact’s yard about 2pm or 2.15pm and left about 4/30pm.

Mr Young said that he did not hear about Mr Goodman’s injury until it was being investigated by WorkCover or an insurer. He said that he then tried to contact him several times but was unable to do so. He denied any conversation with Mr Goodman as to the cause of his injury. He also said that he has not seen again, as far as he is aware, either of the two trailers delivered to Impact in December 2003 and has not examined the particular trailer which, according to Mr Goodman, was the cause of his injury. He conceded that he continued to operate his business as before for more than 12 months after learning in 2004 that allegations were being made about the effectiveness of the handbrake on the trailers.

I formed the view that both Mr Goodman and Mr Young, in respect of the evidence I have reviewed were honest witnesses doing their best to assist. The court. Nonetheless, there were discrepancies which I should make some attempt to resolve. As I have indicated, it seems to me likely that 10 December 2003, the date on which Mr Goodman signed the receipt for spare parts was the date of delivery of the trailers at Impact’s yard. Mr Goodman’s own evidence was to the effect that the same day he was directed by Mr Denton to tow a trailer to the Great Western Highway. I think he was mistaken as to this because, in my opinion, the trailers were not registered until some time later, probably not until 14 December and it is unlikely that they would have been illegally used before registration. Although Mr Goodman testified that Mr Denton was present at delivery, I prefer Mr Young’s evidence that he was not. It seems improbable to me that Mr Goodman would sign the receipt for spare parts if Mr Denton were present and Mr Young’s evidence of meeting Mr Denton in a small office on the Wednesday seems to have a ring of truth about it. If Mr Denton were not present he would have been unable to give Mr Goodman the illegal and, in my view, unlikely direction that he forthwith take one of the trailers to the Great Western Highway.

I accept Mr Young’s evidence that he arrived around 2pm and that by the end of the afternoon Mr Goodman was anxious to commence the process of registering the trailers which may well, as mentioned in the evidence, have required at least one of them being taken to a weighbridge.

I accept, on the probabilities, that Mr Young gave his usual instructions to Mr Goodman as to the operation of the machinery and that he was at the premises for about 2 hours. It seems probable to me that, although Mr Goodman took in that which he previously did not know, namely the programming of the computer, he did not pay particular attention to Mr Young’s instructions concerning the setting up of the sign. He would have regarded himself as familiar with this part of the operation by virtue of his experience with the junior boards.

I do not accept that Mr Young gave any specific caution to Mr Goodman about the use of, or reliance upon, the handbrake, nor do I accept that Mr Young cautioned against using the jockey wheel to lift the bar off the trailer. These matters seemed to me to be very much an afterthought in his evidence. Using the jockey wheel to lift the bar off the trailer was incidentally the method, according to Mr Goodman’s evidence, which Mr Denton adopted in the demonstration at Moore Park.

The lay evidence on liability given by Mr Goodman and Mr Young was supplemented by expert evidence and an agreed list of questions and answers following a joint conference of the experts.

Mr Colin Simpson, a consulting engineer, was qualified on behalf of the Plaintiff. In December 2006, he inspected a variable message sign mounted on a trailer, which he believed was identical to, if not, the trailer Mr Goodman was operating at the relevant time. That belief was not challenged before me but, in any event in October 2007, he inspected a second trailer, which was identified to him as the trailer upon which Mr Goodman was injured. As I understand his reports, he found no relevant difference between the two trailers. He assumed, as seems to be common ground and as was stated on an identification plate affixed to the trailer, that its weight was 1500 kilograms.

Mr Simpson applied a force of approximately 30 kilograms to the hand brake, which engaged the brake on the second notch. In that position he was able to manoeuvre the trailer backwards and forwards manually by pulling or pushing on the front of the tow bar assembly. He concluded that with the ratchet pawl brake engaged on the second notch “the only notch that could be engaged readily, the brakes were ineffective”.

Subsequently, Mr Simpson applied the maximum force of which he was capable and managed to engage the third notch on the ratchet. In this position he found the brake effective. He expressed this opinion: ”In the opinion of the writer, it is very clear that there is very little adjustment available in the application of the hand brake assembly, with the maximum that would be expected to be applied by a person such as the Plaintiff, up to about 50 kilograms force on the handle, being ineffective in applying the brakes. It was not until a force well in excess of 100 kilograms was applied that the brake could be applied, at which time the third notch in the ratchet pawl assembly was engaged.”

After stating that he attended the Warringah Expressway seeking to identify the location of the trailer at the relevant time, he observed: “That the slope of the (concreted) road shoulders appeared to vary between about 3% to 5%.”

Following this observation, Mr Simpson said: “At a weight of 1500 kilograms, and with the trailer on a slope of 3% (a normal road camber slope) then the force required in order to restrain the trailer is calculated to be 78 kilograms. If the slope is increased from 3% to 5% then a force of approximately 130 kilograms is required in order to restrain the trailer against rolling down the slope. Both of these forces are well in excess of that which is regarded as being reasonable as a lifting, pushing or pulling force and the writer is of the view that it would be highly unlikely that the Plaintiff would be physically capable of applying the required force in the event that the actual slope existing at the time was of the order of 5%. It is also noted, through measurement by the writer, that the height of the handle for the brake above ground level is approximately 650 millimetres. As this is the highest point on the front of the trailer it is this area that is the highest point available in order that the Plaintiff may attempt to restrain its movement. This means that, in order to attempt to restrain the movement of the trailer, the Plaintiff would be required to bend or crouch over to, at most, a height of just 650 millimetres above ground. The force applied by the Plaintiff in his attempt to restrain the trailer is therefore at least 78 kilograms, possibly as high as 130 kilograms (if successful) but with the back bent significantly so as to have a hand grip at just 650millimetres above ground level.”

Mr Neil Gillies, a Consultant Mechanical Engineer, provided a report to the Nominal Defendant which was tendered in the case for Inasmuch. In his report, he gave little attention to the handbrake, which he seemed to regard as irrelevant as not required for a trailer of this kind. He accepted that the hand brake may not have been sufficient for the mass of the trailer and slope on which it was situated at the relevant time.

In his report dated 21 April 2008 to the Nominal Defendant’s solicitors, Mr Gillies pointed out reasonably enough that the accident would not have occurred if all four stabilizing legs had been put to the ground before the chains were removed.

Mr Simpson and Mr Gillies participated in a joint conference on 22 May 2008 during which they addressed 13 questions posed to them. They both agreed that there was no legal requirement for the relevant trailer to have a hand brake. As to whether it was desirable for there to be such a brake they provided these answers: “Simpson: Yes to control the trailer when being disconnected from the towing vehicle or when not supported by the four jacks. Gillies: In my opinion not relevant to this case because the trailer should have been on the four jacks prior to disconnection from the towing vehicle. As a general proposition it would be desirable to have a park brake on a trailer to ensure the trailer is held in position when parked.

The remaining questions and answers were as follows: Question 3: If a park brake was to be incorporated into a trailer of the subject size and dimensions should that park brake have been functional? If so, why? Answer: Simpson: Yes, so as to prevent unintended movement of the trailer. Gillies: Yes, so that it can be parked. Question 4: Was the park brake on the subject trailer functional? If not why not? Answer: Simpson and Gillies: No, because it could not be engaged with normal effort. Question 5: Was the park brake on the subject trailer effective if engaged to the second notch? Answer: Simpson and Gillies: No. Question 6: Was the park brake on the subject trailer capable of being engaged to the third notch? (with normal human effort). Answer: Simpson and Gillies: No. Question 7: Was the braking system on the subject trailer effective if the handbrake was engaged to the third notch? Answer: Simpson and Gillies: Yes provided the trailer was not on a slope of more than 2 or 3 degrees. Question 8: Was the park brake system on the subject trailer adequate to restrain the trailer when parked on a modest slope say 2 degrees or more? Answer: Simpson and Gillies: See reply to question7, provided the park brake was engaged to the third notch, otherwise no. Question 9: For this particular trailer (having regard to its dimensions and weight) would a spring brake have been preferable to a manual (hand applied) braking system? Explain the difference between a spring braking system and a manual braking system and why one may have been preferable to the other. Answer; Simpson and Gillies:: Preferable but not practical nor commercially available. A spring brake is automatic and does not require human involvement. Question 10: Would a model system of work for the placement of the trailer see the trailer placed in position (by use of the towing vehicle) and elevated on its jacks prior to disconnection from towing the vehicle? Answer: Simpson and Gillies: Yes Question 11: Would a model system of work incorporate the use of wheel chocks or chains to prevent the trailer moving once in its final resting position? Answer: Simpson and Gillies: No – the wheels should be elevated above ground by the use of the four jacks. Question 12: In the circumstances of this matter, what safe system of work (if any) should be deployed when it is not possible (due to local circumstances) to use the towing vehicle to place the trailer into its final position (assuming the trailer had to be manually manoeuvred into position)? Answer: Simpson and Gillies: There is none. Question 13: Is there agreement between the experts on the issues of the weight of the subject trailer? If so, what is the agreed weight? If not, what is the opinion of each expert on this issue. Answer: Simpson and Gillies: Approximately 1,500 kilograms and not more than 2,000 kilograms.

As it seems to me, there is no significant divergence relevant to this case in the opinions of Mr Simpson and Mr Gillies. I accept their evidence as reflected in the answers to the questions posed at the joint conference and to that extent reject the evidence of Mr Young as to the efficacy of the handbrake.

Of the 2 experts only Mr Simpson was required for cross-examination. He said that he had personally owned a boat trailer weighing between 1200 kilos and 2300 kilos. It was fitted with a handbrake and he was accustomed to restraining it with the brake when disconnecting it from the towing vehicle.

He said the use of stabilizing legs on trailers was common and that the deployment of such legs was a simple operation. He agreed with Mr Torrington that the chains attached to the bar of the trailer he inspected would restrain the trailer if the tow connection broke during towing. He also agreed that chains can be used as the last method of disengagement from the trailer.

In Mr Simpson’s opinion, there would have been no difference in the operation of the handbrake between the date of manufacture and the date of his inspection about 3 years later.

In re-examination, Mr Simpson reiterated to Mr Stone that he estimated a force of 100 kilos would have been required to engage the handbrake on notch 3 and that it was not functional at notch 2: “I tested it on the occasion applying it to the second notch, moving the trailer, feeling what it was doing while I was moving it and listening for any rubbing of the linings against the brake pads and there was nothing.”

Particulars of negligence alleged against Impact were: “(a) Failing to endure that the trailer was safe and without defect before allowing the Plaintiff to use the same. (b) Failing to inspect and test the said trailer to ensure that the brakes were in safe working order when in use upon sloping ground. (c) Failing to provide means of restraining the trailer when placed upon sloping ground. (d) Failing to carry out necessary repairs and/or maintenance upon the trailer so as to ensure that the same was without defect and safe to be operated. (e) Failing to properly instruct the Plaintiff in the proper use and operation of the trailer. (f) Failing to warn the Plaintiff of the dangers to which he was exposed in using a trailer with a defective braking system when used upon uneven ground.”

I accept the evidence of Mr Goodman as to the circumstances of the accident itself and as to the instructions, or lack of instructions, given to him by Mr Denton. That being so it is I think unnecessary to go beyond Mason J’s well know statement of principle in Kondis v State Transit Authority (1984) 154 CLR 672 at 687: “The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work.”

Mr Morris submitted that no inference should be drawn from Mr Denton’s absence from the witness box as Mr Goodman was already well trained in dealing with road signs mounted on trailers, save for the use of a hand brake. So far as the brake was concerned, the trailer being brand new, there was no obligation upon Mr Denton to satisfy himself about it or give any particular instruction to Mr Goodman. He referred to Pearce v Round Oak Steel Works Pty Ltd [1969] All ER 680 and to the passage quoted with approval from Lord Reid’s speech in Davie v New Merton Board Mills Ltd [1959] 1 All ER 346 at 367: “…… that he [a contractor] is not liable for the negligence of the manufacturer of an article which he has bought, provided that he has been careful to deal with a seller of repute and has made any inspection which a reasonable employer would make”.

In my opinion, the task which Mr Goodman was directed to undertake was inherently extremely hazardous. He was required to manoeuvre and set in place a sign attached to a trailer weighing at least 1,500 kilograms. Significantly, the sign was to be established on a narrow island between an on ramp and a very busy expressway. There was an obvious danger that the trailer might roll into the traffic lanes of the expressway or the on ramp.

In my opinion a reasonable employer in the position of Impact considering the matter in terms of Wyong Shire Council v Shirt 29 ALR 217 would have identified the danger and would have taken steps to provide and enforce a system of work which would enable the task to be done as safely as was reasonably possible. There was no evidence that this was done nor indeed that Mr Denton or anyone else in Impact even directed his or her mind to the problem. The duty, in my opinion, was certainly not discharged by reliance on Mr Goodman’s previous experience with junior signs which, on the evidence were very much smaller and weighed about half as much as the machinery under consideration in this case. Mr Denton was not entitled to rely simply on the instructions given by Mr Young to Mr Goodman, even if contrary to my conclusion he was present. It was for Mr Denton to stipulate a safe system of work and there is no evidence that he did so. Such a system would have at least required that all four stabilizing legs be deployed before the trailer was disconnected from the towing vehicle and that no reliance be placed on the handbrake. The only relevant evidence was that of Mr Denton demonstrating how he set up junior boards by using the jockey wheel to lift the trailer away from the towing vehicle.

There was, in my opinion, a direct correlation between Impact’s breach of duty to devise and implement a safe system of work and Mr Goodman’s accident and injury. It was foreseeable that if he relied on the handbrake or failed to deploy the stabilizing legs before disconnecting the trailer it was likely to roll away, creating a situation of extreme danger, given that it was likely to roll towards a busy expressway. It was, on the evidence, quite inappropriate for him to use the jockey wheel to remove the trailer from the towing vehicle as he did in this case, before deploying the stabilizing legs. It was also quite inappropriate for him, as I find he did, to rely on the handbrake. Having created a very dangerous situation, he acted impulsively on the spur of the moment to prevent a catastrophe. This act, which in my view was causative of the injury which is the subject of these proceedings, was directly related to Impact’s breach of duty as an employer. In my opinion, Mr Goodman has established breach of duty of care on the part of Impact.

Different considerations apply to Mr Goodman’s case against Inasmuch. The Further Amended Statement of Claim particularised negligence as : “(a) Failing to undertake any timely inspection of the trailer to ensure that the same was safe before providing the same to the First Defendant. (b) Allowing a trailer to be sold with a defective handbrake system. (c) Failing to warn that the braking system would not hold the trailer upon sloping ground. (d) Failing to undertake any or adequate quality control so as to ensure the trailer would not be sold with inadequate or inoperable braking systems. (e) Providing a trailer with a handbrake system inadequate for the size and weight of the trailer.”

As I have already indicated, while I am of the view that Mr Young’s dissertation upon the trailers and signs at delivery was not confined to computer programming, I am not satisfied that he discussed the limitations of the hand brake because in his mind there would have been no need to do so. I accept that he regarded the hand brake as useful only in parking the trailer on level ground and that he would not have set up the sign without first deploying the stabilizing legs. Mr Young did not, however, assert that he gave any specific warnings as to the limited way in which the parking brake should be relied upon.

Mr Stone submitted that to categorise the brake as useless “would understate the hazard”. In his submission users of the trailer would be mislead by the presence of the handbrake into believing that it’s application would prevent the trailer rolling, as he submitted happened in this case. That proposition seems to put the case against Inasmuch at its highest. On the evidence of the experts, the hand brake would not prevent the trailer rolling, even if it was engaged to the third notch, if it was on a slope of more than 2 or 3 degrees. Moreover, according to the experts, the park brake was not capable of being engaged to the third notch with reasonable human effort.

It was agreed that an expert report obtained by Inasmuch was not served and I infer that it did not assist its case.

As mentioned earlier, I accept the evidence of the experts that the hand brake could not be effectively applied by the exercise of normal human effort. The only evidence to the contrary was that of Mr Young but he conceded that he needed to extend the lever with a piece of PVC pipe albeit explaining that this need arose from a particular physical incapacity.

Nor, in my view, is there any reason to conclude, on the evidence, that the performance and characteristics of the hand brake deteriorated between its use by Mr Goodman and the date of inspection by Mr Simpson and Mr Gillies. Such a suggestion was specifically rejected by Mr Simpson.

Mr Torrington, in his submissions, focussed on the conflict between the evidence of Mr Goodman and Mr Young as to what was said at the time of delivery. For the most part, as I have indicated, I would resolve that issue in favour of Mr Young. However, in my view, that is not the end of the matter. The real issue, as it seems to me, is not whether Mr Young provided adequate information as to the setting up of the trailer but whether the trailer itself was reasonably safe when operated by relatively unskilled or temporarily distracted or careless workmen. In other words was it sufficient that the trailer could safely be set up if as a first step the 4 stabilizing legs were deployed; if adjustment of those legs was the method by which the trailer was lifted clear of the towing vehicle rather than the jockey wheel; and if reliance was not placed upon the handbrake except on a level surface. The issue has to be considered in the context plainly foreseeable to the manufacturer of the trailer that it would be employed in such hazardous circumstances as existed in this case, namely, that it would be set up in the vicinity of a busy expressway.

In my opinion, as delivered the trailer was dangerous, as Mr Young knew or ought to have known. I accept Mr Stone’s submission that the presence of the handbrake was misleading to potential users in that it encouraged a belief that it could be relied upon to restrain the trailer. This was an obvious risk of considerable significance, given that the sign was likely to be positioned close to an expressway. A reasonable man faced with this foreseeable danger, in my opinion, would have sought to avoid it by attaching a prominent sign which warned against using the handbrake to restrain the trailer on a sloping surface, and against disconnecting the trailer from the towing vehicle until all four stabilizing legs had been employed. The expense of so doing would, I infer, have been insignificant. The risks against which such warnings would be directed were not, in my opinion, obvious risks within s 5F of the Civil Liability Act. According to the evidence of Mr Young, the handbrake was designed to restrain the trailer on level surfaces such as in a workshop and the stabilizing legs were, as it seems, designed to stabilize the trailer and sign in high winds.

In my opinion there was causation between Inasmuch’s failure to warn and the injuries sustained by Mr Goodman and it is appropriate for the scope of Inasmuch’s liability to extend to such harm within s 5D of the Civil Liability Act.

Having found negligence against both Impact and Inasmuch, it is necessary for me to apportion responsibility for the purposes of s 151 Z of the Workers Compensation Act. Both Mr Torrington and Mr Stone suggested that apportionment should be 80% and 20%. However, so Mr Torrington submitted the 20% should be attributed to his client and 80% to Impact. Mr Stone submitted that the reverse should apply.

Having regard to all the evidence, I think a just and equitable apportionment would require Impact and Inasmuch to be held equally responsible for Mr Goodman’s injury. Therefore I would apportion liability of 50% to each of them.

By its defence Impact pleaded contributory negligence, particularised as : “(a) Failing to restrain the trailer by applying the hand brake correctly. (b) Failing to ensure that the trailer was properly restrained before uncoupling it from the towing vehicle.

On the basis that Mr Goodman reasonably believed, as I accept, that the handbrake would hold the trailer when he disconnected it from the towing vehicle, I am not persuaded that Impact established that he failed to take reasonable care for his own safety. If he failed to apply the handbrake correctly that was because of its defective design or manufacture as identified by Mr Simpson and Mr Gillies. In any event, however, in accordance with their joint opinions, even if applied correctly, the brake was not likely to hold the trailer if the slope of the land on which it rested was more than 2 or 3 degrees. There was nothing to warn Mr Goodman of this circumstance. To the extent that the use of the jockey wheel contributed to what occurred, Mr Goodman was doing no more than Mr Denton demonstrated with the junior boards.

Inasmuch also pleaded contributory negligence, particularised somewhat generically and unhelpfully as : “(a) Failing to maintain a proper lookout; (b) Failing to take any, or any sufficient, care for his own safety; (c) Failing to move with care in the circumstances; (d) Failing to heed, or to heed adequately, the physical characteristics of the area; (e) Exposing himself to risk of injury in the circumstances.”

Contributory negligence as against Inasmuch is to be considered in light of S5R of the Civil Liability Act: “5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm . (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. “

Again, in my opinion, contributory negligence was not established as Mr Goodman was entitled to rely on the handbrake. No other relevant knowledge in my view is to be imputed to him.

Although Inasmuch specifically pleaded sections 5F, 5G and 5H of the Civil Liability Act , in my opinion, for reason already given the risk which eventuated and caused Mr Goodman’s injuries was not an “obvious risk” within those sections. Even if it were, I would find affirmatively that Mr Goodman was not aware of it within s 5G.

I turn to assess damages. When he awoke at about 1am on the morning after the incident on the freeway, he started to ready himself for work. However, while sitting on the toilet he experienced extreme pain in his lower back. With the assistance of his partner, Ms Pellaers, he crawled to his bed and a doctor was called. The doctor summoned an ambulance which conveyed him to Concord Hospital. He was discharged home the following day 31 December.

Thereafter, it seems that for some weeks he remained at home during which period he consulted general practitioners. During this period, he suffered back pain and extensive pain down his right leg. At one stage in January he tried over 2 days to return to light work but after this period Mr Denton told him that he had no other suitable work available.

He was referred by his general practitioner, Dr S Goodman (no relation) to Dr McGee-Collett, a neurosurgeon, who subsequently arranged an MRI. Six reports of Dr McGee-Collett were tendered as exhibit G, the first dated 23 February 2004 and the last 27 October 2005. At the initial consultation on 23 February 2004, the doctor noted an incapacitating complaint of right leg pain. A CT scan had revealed “A significant central and right-sided L5/S1 disc herniation as the likely cause of the problem.”

The MRI having demonstrated a “large disc herniation at L5 – S1 compressing the right S1 nerve root”. Dr McGee-Collett performed surgery on 23 March 2004.

Following review on 3 May, he reported: “I am pleased to report that his previous incapacitating leg pain has been largely relieved by surgery. He still had some incisional back pain and some relatively minor symptoms in the leg. I understand that he will engage in an exercise regimen and hopefully the further passage of time will see further improvement. I will see him in review after 2 months. He is keen to return to work and I think he should be fit for clerical or relatively sedentary duties within the next month or so. I do not expect that he will ever be fit for physically demanding aspects of his former occupation (which lead to his spinal injury). He might need to retrain.”

Mr Goodman himself said in evidence that he did feel some relief from right leg pain following the surgery “but I was still bent over like an old man and couldn’t straighten up properly as such”.

However, after a time, the right leg pain returned and by June 2004, he said he was not able to straighten properly and was suffering constant pain across his lower back. He was unable to return to work and on 30 August his employment with Impact was terminated.

He returned to Dr McGee-Collett towards the end of 2004 who on 19 November, reported to Dr Goodman: “Thank you for sending Mr Goodman back for review today 11 November 2004 further to previous telephone conservations. Mr Goodman said that his right lower limb pain was worse than ever. On physical examination he was unable to walk properly or comply with my requests in the physical examination owing to pain. Although the right leg gave way there were no obvious motor deficits, no wasting of the calf and the reflexes and in particular both ankle jerks were present and symmetrical. Mr Goodman clearly has excessive somatisation. I think it would be extremely unlikely that there is any ongoing neural compression, nonetheless I will arrange for him to have a repeat MRI scan to be certain.”

Further MRI revealed “a recurrent L5/S1 disc herniation compressing the S1 nerve root”. There was further surgery and on 16 March 2005, Dr McGee-Collett reported: “I was pleased to see Mr Goodman in review today 14 March 2005, some 5 weeks after he underwent revision L5/S1 discectomy. I am pleased to report that the lower limb pain has largely resolved. He had ongoing back pain, as expected. I have cleared Mr Goodman to reengage in a reconditioning exercise regimen and there should be no need for further neurosurgery review.”

On 29 October 2005, he wrote to Dr Goodman: “Mr Goodman’s recent MRI scan shows only a small residual disc herniation which does not cause any significant neural compression. Of course there is moderate scar formation as would be expected after 2 operations. If Mr Goodman has intolerable persisting symptoms the only course of action would be for him to pursue pain management. I would recommend Dr John Ditton at RPAH for this purpose. He should of course persist with an aerobic exercise regimen to remain fit and supple. Whilst I would be prepared to see him there would seem little point since there is no further treatment I can offer him at this stage.”

According to Mr Goodman after the 2005 surgery, he was able to straighten and the pain in his right leg settled. However, he was left with lower back pain which, in evidence, he said, “was worse today than it was when I initially hurt myself”. He said that the right leg had also again become a problem.

He continued to consult Dr Goodman and to receive treatment from a physiotherapist, Mr Harry Teuma.

In mid 2005 at the instigation of Impact’s insurer, he enrolled in a TAFE course, “Diploma of Events Management” in an effort to retrain. It was a twelve months course and the TAFE College was only 20 minutes drive from his home but his evidence was that after about 2 weeks he found it too much for him: “A. My pain levels kept overriding my ability to want to concentrate or sit down and try and complete any task, whether it be reading, trying to read a paragraph or whether it be trying to partake in a program. “

Towards the end of 2005, he sought pain management treatment at Concord Hospital and was subsequently referred to a psychologist, Mr Pete Mangioni.

He continued at the pain management clinic during 2006 and in July received a steroid injection into the L5/S1 disc space. Throughout 2006, he described his back pain as “constant and debilitating”. He was not sleeping well at night and said that his sexual relationship with Ms Pellaers had become non-existent “due to my levels of pain”. By the end of 2006, he described his emotional state as “terrible”, although he tried to perform light domestic duties, such as removing clothes from the clothesline.

In January 2007, he attempted to take his own life at home, as a result of which he was taken to the emergency department of Concord Hospital. From there he was later admitted to the psychiatric hospital at Rozelle, although discharged the same day.

He continued to see Dr Goodman for up to an hour each week as Dr Goodman was providing “emotional support”. In particular by 2007 he realized that he was drinking alcohol to excess, “I was drinking more to try and ease my pain levels”. This was one of the matters he discussed with Dr Goodman.

Since 2007 he has worn a “Patch” on his thigh to help ease pain but he has not returned to the pain clinic since that year. He did, however, for 6 or 8 months consult a Dr Daniel Murray, psychiatrist, and more recently has regularly seen a counsellor, Mr Noel Powell. As Dr Goodman has retired, he sees a Dr Peries in his place. She and Mr Powell are his present treating medical professionals.

When he gave evidence, Mr Goodman was wearing a back brace over his clothing. He said that he wears the brace most of the time usually under his clothing.

At the time of the accident he said that he weighed between 75 and 80kg. He now weighs about 115kg. His exercise is confined to walking three dogs (singly) on a lead around a short block. He also throws a ball to the dogs in his back yard.

The house in which he lives is owned by his partner. Occasionally he is able to mow the lawns with a self propelled lawn mower assisted by Ms Pellaers. At other times friends or relatives do it.

For financial reasons, Ms Pellaers, who previously worked part time, has returned to full time work. Mr Goodman tries to assist her domestically by cooking some meals, doing light cleaning and vacuuming, shopping and helping with clothes washing. He said that he does what he can, Ms Pellaers does the balance. He would like to have paid assistance in respect of heavier work.

He regularly takes medication, namely Lyrica, Oxycontin, Tramadol ( an alternative to wearing patches) and Deptron (for depression and to assist his sleep). He was asked about his condition day to day and there was this exchange with Mr Stone: Q. If I can work through now: How is your back day-to-day, now leaving aside the experience of this unusual weekday to day; how is it? A. Not real good. The colder weather has started creeping upon us, has affected me more than last winter. It feels colder this year for some reason. I was a little bit more limper in the warmer months. The colder months I'm, I have a lot more back spasm, and I'm a lot more susceptible to the colder weather. I basically hate the cold now, where I never used to be one to worry about the weather. Q. In terms of your leg; how is your leg? Only the right leg a problem? A. No it's both, both legs now. Q. Is one worse than the other? A. Yes. One is worse than the other. The left leg at the moment. Q. What experience do you have with your left leg now? A. Just goes to sleep and it's full of pins and needles, like a wet sock type feeling. Q. Is that all the time or some of the time? A. Most of the time. Q. What about your right leg; how does it feel? A. It's pins and needles. And I also get a sharp pain down the outside of the leg. Q. Again, is that affected by the -- the pain you experience in your back and legs affected by the amount of medication that you take? A. Yes. The symptoms tend to ease off, if I can describe my pain levels, as being spikes. The medication takes the spikes off my pain levels. It doesn't make my pain go away but it makes it bearable. Q. In terms of your head, how do you feel about life and your future at the moment? A. Pretty daunting, actually; not real good at all. Q. Have you had any more suicidal thoughts? A. Yes. Q. Have you done anything about those? A. No. Q. Do you find the continued counselling helps? A. Yeah.”

Before the accident, Mr Goodman said that he used to water ski. He has been unable to engage in that activity and sold his boat. However, it was replaced with a 30 foot sailing yacht, provided by Ms Pellaers, which he occasionally takes fishing in Sydney Harbour. He said that he rarely goes east of the Harbour Bridge. He does not sail the boat alone and always takes medication before he goes out on it “it’s a little ray of sunshine in what is normally a very dark situation”

As to his relationship with Ms Pellaers, Mr Goodman said that they had a close and loving relationship for about 12 years and at the time of his accident were four months into an IVF program. He aimed to have a family but no longer feels he would be able to engage in the normal activities of fatherhood.

He was asked about a report obtained by an insurer from Dr Selwyn Smith, psychiatrist. He said that his consultation with Dr Smith was very short and that prior to the accident he had no issues with alcohol or any sexual difficulties with Ms Pellaers. He denied that Dr Smith’s reference to a “modicum” of depression accurately reflected the degree of his depression, especially as he had told Dr Smith of his suicide attempt. There was then this exchange with Mr Stone: “Q. Finally, one comment made by Dr Smith is this, and I'll read it out to you and then ask you a question about it: "Possibility of avoiding work situations needs further exploration." I'd ask you to assume that what he means by that is that you're not trying hard to find a job. If you could work, would you be working? A. Most definitely, and I've tried everything I possibly can to achieve that aim. Q. Have you been able to find any part-time work? A. No. “

Asked by Mr Stone about employment prospects, Mr Goodman said that he could not go back to butchering as it involved standing, lifting and dexterity with knives. He said that for related reasons he would not be able to return to furniture removal or truck driving which involved sitting for lengthy periods in the one place. He would also because of its physical demands not be able to return to his employment with Impact, He added: “I've gotten from being an asset to a liability, and there's no way any employer would touch me once they know I've hurt my back. “

Mr Goodman told Mr Torrington in cross-examination that apart from 2 days on light duties at Impact, he has earned nothing from personal exertion since the accident but he conceded that he still owns, parked at his home, the caravan made up to look like a giant music player referred to earlier. For convenience, I will hereafter refer to this as “the music caravan”. He said it was used by his partner and himself in connection with a fund raising event in aid of the Tsunami appeal for which they received $12,750 paid into Ms Pellaers’ account. However, further cross-examination on the subject of the music caravan did not reveal that the equipment had been used in any gainful way since, a period of some 3 years.

When Mr Torrington suggested that Mr Goodman would be able to organise similar events, he replied: “A. No, I find that my concentration levels aren't there, nor can I follow through with anything. I've become unreliable and I can't sit for any length of time or operate the computer for any length of time. “

As to whether he would be able to engage in sales activities, he replied: “A. Once again I find that I'm unreliable and my pain levels far exceed me to be able to travel for any length of time or to be able to commit myself to making an appointment or to doing anything. “

Ms Pellaers also gave evidence in Mr Goodman’s case on the damages issue. She said they had been living together for nearly 11 years and as at December 2003 were subject to an IVF program and were seeking to have children. She had previously experienced miscarriages.

Before the accident, she described Mr Goodman as “happy, confident, outgoing, all round nice guy”. Since the accident he is “depressed, unsure of himself, angry, just changed a fair bit”.

Her evidence was that since the accident he has not engaged in any employment. Prior to the accident she had provided the funds to purchase the music caravan which they intended to use as a money making venture. Since the accident it has, she said, been employed once only at the Tsunami charity event. Her evidence was that the only role Mr Goodman played on the day was to walk about and talk to people. He was not on his feet for the whole event and at times, she said, he was asleep in the caravan. The net profit they received for the day she said was $800, which she donated to the tsunami appeal. She has since tried to sell the music caravan without success and it remains in her front yard.

Mrs Pellaers said that Mr Goodman’s powers of concentration vary depending on how he is feeling but he is not capable of concentrating for a whole day. Having experience in employing clerical staff herself, she said that she would not employ him.

Asked about their sexual life, she replied “there is none, he doesn’t believe he is a man”. She described him as being “like a dynamo” about the house before the accident who contributed to household chores. “Nowadays 90% of everything is left to me. She said that she can tell when he has tried to perform household chores because “he can’t get out of bed for two days”.

As to the provision of personal services, she said that she looks after Mr Goodman’s feet, washes his back, sometimes puts his shoes and socks on, “I just look after him”.

Their social life has changed. They have some close friends, fewer that before but rarely socialise. When she is not working she feels her place is with Mr Goodman and as a result her own friendships have suffered.

She assessed six to eight hours per week as the time she now spends in providing services for Mr Goodman which she did not previously have to provide.

According to Ms Pellaers, Mr Goodman is “devastated” by his inability to become rehabilitated and find work.

As I have already indicated I accept Mr Goodman as a witness of truth and I also reach that conclusion about his partner Ms Pellaers.. Although much was made about it in cross-examination, I am satisfied that there is no potential in the music caravan for either Mr Goodman or Ms Pellaers to supplement their incomes in any significant way.

Finally in reviewing the evidence, it will be necessary to refer to a number of medical reports, some tendered on behalf of Mr Goodman and some on behalf of Inasmuch. It was conceded that Mr Goodman was examined on behalf of Impact by an orthopaedic surgeon and a vocational assessor, neither of whose reports were served.

He was referred to Dr John Stephen, orthopaedic surgeon, who in February 2006, took this history: “Mr Goodman tells me that his major complaint now is the low back. He has constant low back pain which is at times quite severe. Sometime he has shooting pains in the right leg but in general his right leg pain has been improved a lot since he began to take an anti-epileptic drug, Lyrica, about two months ago. His activities of daily living are however considerably restricted by his low back pain. He is still able to drive a car. He drives a self–propelled mower. He has given up water skiing, fishing, horse-riding, squash and swimming. His sex life is compromised. Mr Goodman smokes 5-10 cigarettes a day and drinks moderately.”

Dr Stephen provided this diagnosis: “Mr Goodman sustained, as a result of the incident on 29 December, a right sided lumbosacral disc prolapse with right S1 nerve root compression. Despite two surgical endeavours, he has been left with mechanical low lumbar back pain and a right S1 radiculopathy, the latter fortunately being less troublesome than his back pain and considerably improved by his current therapy, particularly use of the Lyrica.”

Dr Stephen opined that Mr Goodman is fit for light work only and that his prognosis generally is for continuing symptoms into the indefinite future.

Another orthopaedic surgeon, Dr Philip Marnie in April 2006, expressed similar views. He thought the prognosis for return to work was “poor” and that pain relief should be his major avenue of treatment. Dr Marnie found no material change when he examined Mr Goodman again in July 2006.

In December 2007, Mr Goodman was examined by Dr G McGroder, consultant occupational health physician. After recording current complaints of constant pain in the lower back radiating to both legs, Dr McGroder said: “Prognosis is for ongoing symptoms but the degree of these cannot be calculated. He now has had surgery on two occasions and failed lumbar surgery is the cause of his problem. It is unlikely that this will be undertaken once again. It would appear that all treatment options have been exhausted. He had an epidural injection at one pain clinic with temporary relief and this may be worth trying once more. It was recommended recently that he have a dorsal stimulatory implant but the result of this is unpredictable. He has decided against this. Basically at this stage it is a matter of keeping as active as possible, doing some water based exercise and avoiding aggravation.

As to work capacity, he commented: “At this stage his physical restrictions are that he can lift up to 5 kilograms and this only at waist height. He should avoid the maintenance of fixed or awkward positions of the back and be able to vary his position between sitting and standing at will. He should avoid any bending to lift and unsupported bending. With regard to the hours he would only be able to work up to 4 hours a day. The only type of work that would be suitable for him would be limited to clerical and administrative type work. This would be along the lines of event management or event promotion. He could do some form of retail sales. He could perform some form of telemarketing. Realistically however when looking overall at this man’s physical restrictions, the hour restrictions, travel restrictions and the significant pain behaviour that he demonstrates he would on the open market be virtually unemployable.”

Associate Professor C G McMahony, of the Australian Centre for Sexual Health, assessed the impact of the accident upon the sexual capacity of Mr Goodman. Inter alia he noted: “Coincident with these injuries he has developed a number of sexual difficulties. In as much as I am a genitourary physician, and have been asked to specifically comment on the sexual problems experienced by this person, the remainder of this report will be restricted to those problems. Mr Goodman has been in a 10 year relationship with Jacqui. Since injuring his back he has developed a number of sexual difficulties related to exacerbation of low back pain during foreplay and is currently unable to achieve sufficient erection for penetration. Prior to this injury they enjoyed intercourse together several times each week. He would always initiate sexual contact. He achieved a fully rigid erection sufficient for penetration and completion of intercourse after an average period of thrusting of approximately 5 minutes. He regarded his sex life at that stage as totally fulfilling. He has not attempted intercourse for the past 2-2½ years. Both he and his partner have developed a definite pattern of sexual avoidance due to the frustration of repeated attempt and failure and in an attempt to reduce the overall level of pain he experiences. The relationship is in some respects characterized by a reduced degree of intimacy both regarding any show of affection as likely to be misinterpreted as a signal for sexual contact which both wish to avoid. He achieves a partial erection which is insufficient for penetration. He no longer experiences early morning erections or erection in response to sexual fantasy but does achieve a partial erection during solitary pleasuring. He has no prior history of any previous sexual difficulties and currently takes no medication likely to cause sexual dysfunction as an independent adverse event. He has been prescribed Viagra by his general practitioner and has used this medication on one occasion. On that one occasion he had failed to achieve sufficient erection for penetration.”

After discussing the relationship between chronic pain in any part of the body with loss of sexual function, Professor McMahon said: His sexual dysfunctions are compounded by the presence of both chronic depression and a high degree of negativity and, at times, absolute futility as to the prospect of being truly sexually active ever again. His depression has several causes. It is related to the chronic pain he experiences, the limitations that pain imposes on his life style, his inability to participate in a normal sex life and his concerns about his potential for future employment and a normal family life. The negativity about the potential of ever being sexually successful again is caused by the frustration of repeated attempt and subsequent failure and is called performance anxiety.”

Mr Goodman has been a patient of Mr Daniel Murray, psychiatrist since October 2007. He recorded: “A the time of my initial review Mr Goodman’s functional capacity was grossly impaired. He had a reduced exercise tolerance due to pain, and described forcing himself to do things despite knowing that he was going to be destabilised in terms of his pain experience in the aftermath. He was struggling to participate in hydrotherapy, and had gained minimal benefit from physiotherapy despite concerted efforts at this previously. There had been major problems with his intimate relationship due to his irritability and impaired sexual intimacy following his depression and his chronic pain. He is uncertain as to his future in regards to work that he might be able to undertake, and described feeling overwhelmed and hopeless when contemplating his futures as a relatively young man with chronic pain despite surgical interventions. His mental status examination revealed an alert, obese Caucasian gentleman of stated age with appropriate rapport and behaviour, in obvious distress during the interview from pain (necessitating his standing and walking whilst talking to me in my rooms). There was no evidence of psychosis or cognitive impairment. His mood was obviously depressed. My diagnosis on initial review was Chronic Pain Disorder which had seen the onset of a severe Major Depressive Disorder which had persisted despite antidepressant medication, in addition to features of Generalised Anxiety Disorder.”

Dr Murray said in September 2008 that he has seen Mr Goodman about 8 times subsequently. He reported: “As recently as mid 2006(sic 2008) (review date 02.06.08) Mr Goodman was literally in tears in session due to pain. He was struggling to attend to the basics of his life such as striving to take exercise on a daily basis, and maintaining an adequate nutritional input. There has been ongoing significant stressors undermining his mood state due to legal proceedings that are currently underway. At this point in time it would be unlikely that Mr Goodman could sustain active employment even in a part time setting in an emotionally neutral job for a significant period due to his pain condition and the physical limitations that this poses to him. His mood is marginally more stable from the time of my initial review, but he continues to struggle against a significant and serious depressive illness that is a direct result of his pain experience and the limitations that his pain imposes on his day to day life and potential in work and in relationships. Given that there is a strong absence of previous psychiatric illness prior to December 2003, it seems highly likely that his Major Depressive Disorder and anxiety have been causally related to his spinal column injury and the resultant chronic pain it has caused him.”

Dr John Bentivoglio, orthopaedic surgeon, examined Mr Goodman for medico legal purposes at the end of November 2008. He too noted continuing complaints of disabling low back pain which was not improving but if anything worsening. He expressed this diagnosis and opinion: “This gentleman sustained significant disc prolapse at the L5/S1 level of his lumbar spine region on two separate occasions, requiring surgical treatment. His most recent investigation shows that he no longer has a significant disc prolapse at the L5/S1 level but he does have some degree of scar tissue which is accounting for the majority of his symptoms. This has been caused by the surgical treatment. He has reached his maximum medical improvement. It is likely that he would benefit by having a dorsal column stimulator. He is not anxious to try this modality of treatment, however. No other treatment will improve his symptoms..”

Later in the report, Dr Bentivoglio expressed an opinion as to Mr Goodman’s fitness for work: “This gentleman will never return to his full pre-injury duties. At best he will only be capable of performing the lightest of sedentary duties. With the amount of medications he is taking he will find difficulty concentrating in the work place which probably means that he is unemployable at his point in time.”

In a subsequent report Dr Bentivoglio assessed Mr Goodman’s need for domestic assistance as of the order of 3 hours per week.

Dr John Cummine, orthopaedic surgeon qualified by Inasmuch, saw Mr Goodman on 22 May 2008 in the company of Ms Pellaers. He took a history which included reference to the two surgical procedures and significant weight gain from between 85kgs to 90kgs pre accident to a present 116 to 118 kg, attributed to inactivity. He also recorded the following symptoms: He continues to suffer from constant back pain, which he locates in the lumbar spine, extending to either side of the midline and radiating into both buttocks, more on the right side than the left. In regard to right leg pain, he described its distribution as affecting the thigh, but concentrating into the popliteal fossa posteriorly, and then extending down the right lateral calf, like a shooting pain or razorblade. He said the symptoms extend on to the top of his foot, which feels numb and paraesthetic. He said there are similar symptoms in the left leg, but not as intense. He rated the right leg pain as 8 or 9 out of 10 and the left leg pain as around 6 out of 10. He also complained of discolouration in both limbs, which he said had never been present prior to the accident.”

Dr Cummine also noted that Mr Goodman’s hands and feet were heavily calloused with engrained dirt and that there was dirt between the fingernails of both hands. He detected no obvious wasting in the lower limb musculature.

The reports of Dr Stephen, Dr Marnie and Dr McGee-Collett were reviewed by Dr Cummine who pointed out some discrepancies but these to my mind were not of great significance. He then continued: Although the repeat MRI scan was said to show a recurrent disc prolapse, I am in agreement with both Dr Stephen and Marnie that I felt the changes were largely post-operative, and I was not impressed that there was a major significant recurrent disc prolapse. Following the second procedure, further imaging studies, including the MRI examination of 5.10.05, show in my view the post-operative changes of epidural scarring, and I was not convinced that there was a small disc herniation associated with this. I did accept that there has been progressive narrowing of the L5/S1 disc space. I thought, as best one can tell given the definition between disc tissue and scar tissue, even with gadolinium, is at best somewhat indistinct, that any disc tissue that was present in the lateral recess was the acceptable residue following two partial disc fragment excisions at that level. Dr McGee-Collett is quite clear in his operation report following the first surgery that the nerve root was adequately decompressed, and no additional fragments were identified passing a nerve hook around the nerve and distally into the intervertebral foramen. Summary As a result of an accident as described, it appears this man injured his back and within a short space of time developed a prolapsed intervertebral disc at L5/S1. He subsequently underwent partial disc fragment excision and on the majority of the evidence, a satisfactory decompression of the S1 nerve root was achieved. I think it likely that this man developed a chronic pain syndrome, with abnormal illness behaviour,. He subsequently went on to further surgery and on the basis of the operation report and imaging studies an adequate decompression of the S1 nerve root on the right side has been achieved. Notwithstanding this second surgery and noting there is some difference in the history given by the patient to different doctors, he has not improved, certainly in regard to right leg pain, and has also developed left leg pain, for which there is no clear explanation. The most recent imaging studies based on my assessment show evidence of significant in-situ degenerate disc disease, which might be responsible for some of his back pain. There is no clinical evidence of radiculopathy and the radiological evidence in my opinion does not support this diagnosis. Regularly, continuing leg symptoms, particularly in a sciatic distribution following surgery, are attributed to epidural fibrosis following the surgery. Regularly, epidural fibrosis following laminectomy, with or without partial disc fragment excision, is an incidental finding and it is not commonly invoked as an explanation for symptoms in non-compensable patients. At today’s consultation, noting the history given by the patient, and the significant disability of which he complained, the findings in relation to the skin of both hands, the nails of his hands and the skin of both feet, are not consistent with that history. The skin changes on the hands in particular are consistent with a person carrying out regular and continuing physical work.”

Later Dr Cummine concluded that Mr Goodman appears to have “a chronic pain syndrome with evidence of abnormal illness behaviour”.

As to prognosis and Mr Goodman’s capacity to return to the workforce, Dr Cummine said: “Notwithstanding the history given, and the findings on physical examination at today’s consultation, I consider it is likely that this man could resume a near normal life, and certainly could return to active forms of work. There is evidence on examining his hands and feet that he is actively involved in ongoing physical labour on a regular basis. Based on the observation in (i) above, I think it is likely that he could return to his previous occupation, and certainly would be fit, noting that he has undergone two spinal operations, for office, clerical and sedentary work, including light and selected duties, almost certainly on a full-time basis but certainly on a part-time basis.

Dr J M Matheson, consultant neurosurgeon, assessed Mr Goodman in May 2008, he expressed this opinion: “He is very emotional about this illness but it appears he has had a recurrent disc and is now left with some scarring on the nerve root. Just how badly disabled he is, is a bit hard to make out but he certainly does carry some disability. He is using a TENS machine at the moment and taking opiate analgesics which is not a good thing and this needs to be sorted out. He needs to be off opiate analgesics and he needs to stop smoking but neither of these have been established. He ought to be able or resume work but his attitude towards his illness at this stage would not allow it. His work would have to be clerical.”

Later in the report Dr Matheson said that the prognosis regarding Mr Goodman resuming a normal life is guarded and that “there may be some difficulty”. He attributed all of Mr Goodman’s complaints to the subject accident.

Finally, I will make reference to the report of consultant psychiatrist, Dr Selwyn Smith, dated 12 November 2008. The history taken by Dr Smith included: “From an emotional point of view, Mr Goodman stated that the pain has been significant and has caused him a marked degree of depression. He described himself as being “not a man”. He has not engaged in sexual activity for a period of three and a half years. He stated that he obtains approximately four hours sleep per night and then wakes. He then sleeps in an interrupted fashion. Mr Goodman reported that his appetite has varied. He previously weighed between 75kg and 80kg and his weight has incremented to a current weight of 115kg. He stated that his energy levels have been low and his concentration has been poor. Mr Goodman reported that he does care for himself and he is conscious of maintaining his hygiene. He stated that he does not go out socially to the extent that he previously did. He finds it difficult to travel because of his pain. He has lost friends. He stated that he is able to drive short distances. He is restricted in driving because of his pain. He stated that he experiences irritability on account of his pain. Mr Goodman stated that he was currently enrolled in a TAFE course. He reported that he had not been cleared to reengage in work.”

As to Mr Goodman’s presentation, Dr Smith said: “Mr Goodman presented as a pleasant but overtly anxious man who at times was agitated. He also stood throughout the examination. His speech was pressured. I found Mr Goodman to be cooperative, attentive and interested and the level of rapport established was good. Mr Goodman described being persistently depressed, despairing, irritable and anxious. At the time of my examination he revealed an anxious affect. His emotional expression was appropriate to his thought content. Mr Goodman did not report perceptual disturbances such as hallucinations. He did not reveal distractibility nor language impairments. He did not describe obsessions, compulsions or phobias. There was no evidence of suicidal ideation. He was alert and oriented. His concentration and memory were relatively good.

Dr Smith expressed his psychiatric opinion as follows: “From the history that I have obtained, documentation reviewed and my own clinical examination it is my opinion that Mr Goodman in response to the accident sustained on 29 December 2003 has developed physical symptomatologies, the significance of which should be directed to an orthopaedic surgeon. I have noted the various orthopaedic and other opinions in regard to his L5/S1 disc lesion and back surgery. The significance of his orthopaedic lesions should be directed to an orthopaedic surgeon or neurosurgeon. From a psychiatric point of view Mr Goodman demonstrates diagnostic criteria for a Chronic Pain Disorder associated with both psychological factors and a general medical condition. The predominant clinical presentation pertains to pain located predominantly in his back and radiating into his lower right limb. His pain has been the predominant focus of his clinical presentation and has required two neurosurgical procedures that have not been successful. By his own account Mr Goodman described the pain as causing him clinically significant distress with marked impairment in his social, occupational and other important areas of functioning. It is my opinion that psychological factors are playing an important role in the severity, exacerbation and maintenance of his pain. I have also noted the opinion of his treating neurosurgeon, Dr McGee-Collett, of marked somatisation. Other examiners have drawn similar conclusions. In response to his pain Mr Goodman has developed a modicum of depression and anxiety. He had been under the care of Dr Daniel Murray who has described the symptomatology he has experienced. Despite a variety of modalities of psychiatric treatment Mr Goodman has not improved. He has not been able to reintegrate at work. Mr Goodman’s presentation does certainly indicate considerable emotional overlay to his presentation. In all probability there is significant underlying psychopathology in regard to his pain disorder. His reluctance to disclose his background history may indicate poor premorbid adjustment. His reliance on alcohol and frequent switching of jobs and ongoing sexual difficulties may also in part be related to underlying psychopathology. The possibility of avoiding work situations need further exploration.”

Towards the end of his report, Dr Smith concluded: “Mr Goodman is not disabled from a psychiatric perspective. His symptomatologies of a psychological kind are secondary to his underlying pain disorder. Mr Goodman is unlikely to improve with further psychiatric treatment. His psychological condition will only improve in my opinion with amelioration of his underlying pain. His medication provides him with only partial relief. His current medication regime from a psychiatric perspective is appropriate. It is doubtful whether further rehabilitation from a psychiatric perspective will assist Mr Goodman in moving forward. …………………………… Mr Goodman’s current impairments do appear to be linked to the accident. The possibility of embellishment in regard to his symptomatologies cannot be categorically excluded.

There is, in my opinion, little discord in the medical opinion. Whatever may be the explanation for calluses (with ingrained dirt) which Dr Cummine noted on Mr Goodman’s hands and feet and dirt in his fingernails, I am satisfied that since the accident he has not engaged in paid employment. I accept his evidence that he has constant disabling low back and leg pain; that he is depressed to a significant degree; that his capacity to lead a normal life is severely affected; and that he has lost his ability to engage in sexual relations with his partner. All these matter relate directly to the subject accident.

I am satisfied that as a matter of practical reality, Mr Goodman is unemployable. However, in my view, he has not lost all capacity to earn income, especially if he can identify something capable of being carried on from his own home and at his own pace. Although I am satisfied that he is genuinely motivated to re-enter the work force and that up to the present has been sincere in his efforts to do so, his failure in that regard must lead to a pessimistic prognosis. I would assess at 25% of his pre accident capacity his residual earning capacity.

In relation to the action against Impact, damages are to be assessed under the Workers Compensation Act. In particular, no damages may be awarded unless the injury resulted in a degree of permanent impairment, that is at least 15%, the only damages that may be awarded are for past economic loss due to loss of earnings and damages for future economic loss due to impairment of earning capacity. In relation to the last mentioned, earning capacity after age 65 is to be disregarded. The degree of permanent impairment of Mr Goodman has been assessed pursuant to Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) at 17%. Accordingly, the threshold established by s 151H of the Workers Compensation Act is met.

As to past economic loss due to loss of earnings, as indicated above, I am satisfied that despite reasonable and well motivated efforts, Mr Goodman as a consequence of the accident has been incapable of earning and in fact has not earned income from personal exertion since 29 December 2003. It is appropriate, in my view, to quantify his loss up to date as submitted by his counsel, namely $244,528 loss of earnings; $13,607 “Fox v Wood” component; and $26,898 past loss of superannuation. These amount to $285,033.

In relation to future economic loss, counsel submitted that it should be predicated on notional earnings at the rate of $930 per week to age 67. In my view, as earlier stated, Mr Goodman has some residual earning capacity, which I assess as 25% of his pre accident capacity. Moreover, s151 1A of the Workers Compensation Act presently requires me to disregard any earning capacity after 65.

Accordingly, I would quantify lost earning capacity on the basis of a loss of $698 until age 65, the multiplier being 783 and I would discount the product by 15% for general vicissitudes. The calculation comes to $465,534. I would also allow lost future superannuation benefits of $51,099. In the result, damages are assessed against Impact in the sum of $800,667.

As against Inasmuch, Mr Goodman is entitled to be awarded damages for non economic loss based on the severity of his loss as a proportion of a most extreme case, applied to the present maximum award of $450,000. Counsel for Mr Goodman submitted the percentage appropriate is 65%. Counsel for the defendants submitted that the figure is closer to 30%. In making an assessment I take into account Mr Goodman’s evidence generally; and his comparative youth (See Rees v Rees (1994) MVR 103 ). In many ways his life has been catastrophically altered by the accident. The impact is partly demonstrated by comparing his pre accident appearance in the photographs tendered into evidence with his presentation in the witness box. I also give particular significance to his loss of sexual function (see Knight v Government Insurance Office of NSW {1995] NSWCA 246 )

In the result, I assess Mr Goodman’s non economic loss at 50% of a most extreme case, namely $225,000. I would make the same awards for past economic loss; “Fox v Wood” component; past loss of superannuation; future economic loss and future loss of superannuation as the claim against impact. Those respective sums are - $244,528; $13,607; $26,898; $464,534 and $51,099 and total $800,666.

In respect of past medical treatment I allow the agreed sum of $119,992. The sum of $319 per week is claimed for medication and treatment in respect of the balance of Mr Goodman’s life expectancy. This claim totals $285,505 and includes weekly counselling $80 per visit and weekly visits to a general practitioner. The evidence, in my opinion, does not warrant an allowance of this magnitude. There is no medical need for him to visit a general practitioner each week and, in my opinion, it is unreasonable to allow against Inasmuch a sum of weekly counselling for the balance of Mr Goodman’s life. Doing the best I can, I allow $200,000 under this head.

A claim is made for past gratuitous domestic services provided by Ms Pellaers, that claim being quantified at 8 hours per week. In the light of Ms Pellaers’ evidence, I think the sum claimed is reasonable and I allow $77,960 calculated on the basis of 8 hours per week at $22.50 per hour for 282 weeks totalling $77,960.

In respect of the future, in light of the evidence of Dr Bentivoglio and Mr Goodman’s own evidence, I do not think he requires more than 3 hours paid domestic help per week. On that basis at $30 per hour and using a multiplier of 895, I award $80,550.

In total therefore, I would assess damages against Inasmuch in the sum of $1,384,176.

Adjustments will need to be made to reflect the provisions of s 151 Z of the Workers Compensation Act. Accordingly, I stand the matter over until Monday 7 September at 9.30am and invite the parties to bring in Short Minutes of Order to reflect these reasons. The short minutes should also provide for costs orders.