Cobcroft v Aggcon Pty Ltd & Anor

HER HONOUR : By amended statement of claim dated 6 July 2011 the plaintiff brings proceedings in negligence against his employer, Aggcon Pty Ltd ("Aggcon" - the first defendant), and a subcontractor of his employer, Curtis Barrrier Pty Ltd ("Curtis Barrier" - the second defendant), for injuries to his pelvis and hip sustained on 14 December 2006 when a front end loader he was operating on a worksite tipped onto its side.

The plaintiff contends that both defendants breached their duty of care to provide him with a safe system of work.

Aggcon is a civil construction and earthworks company. In 2006 it was contracted by Eastern Star Gas (Energy Australia) to construct a large evaporation pond in the Pilliga scrub at Bibblewindi near Narrabri. The pond was rectangular in shape and covered an area of approximately 10 hectares. Work commenced on site in November 2006. The process of construction included the creation of a "batter" (a sloping earth work) from the excavated base of the pond to an upper ridge within which a deep trench was to be dug. The batter was on a 1 in 4 gradient (that is, 1 vertical rise for 4 units of travel on the horizontal) so as to produce a slope of 25 per cent or 14 degrees. In a separate and subsequent phase of construction the internal walls of the batter and the base of the pond were to be lined with a plastic membrane to prevent water seepage. The trench on the upper ridge was to allow for the anchoring of the plastic membrane.

Aggcon engaged Curtis Barrier to design and supervise the installation of the plastic membrane which Curtis Barrier was to source and supply to the site. The contract stipulated that Aggcon would ensure that the earthworks produced a smooth and unyielding surface in preparation for deploying the membrane, and provide the machinery and an operator both to unload and uplift the plastic rolls and to unroll/deploy the plastic from the rolls to form the inner membrane or lining of the pond. Curtis Barrier undertook to provide a Job Safety Analysis specific to the method for installing the membrane, a site supervisor and an on site induction for all Aggcon's employees directly involved in that process.

Some days before the accident Aggcon hired a front end loader from a local supplier to unload and uplift the rolls and to deploy the plastic. The front end loader was collected by the plaintiff and driven to the site.

On the day of the accident Curtis Barrier modified the front end loader by removing the bucket (the standard attachment according to the manufacturer's specifications) and fitting a forklift to which a spreader bar and an axle was attached . Lifting chains extended almost the full extension of the tynes of the forklift . The modification was necessary to enable the rolls of plastic to be lifted and carted and for the plastic to be unfurled onto the surface of the pond. The axle was inserted through the core of the roll of plastic allowing the plastic to be deployed in 50-metre lengths which would then be cut and heat-stapled together to create the inner membrane of the pond. Each roll of plastic was 7.5 metres in width and 100 metres in length. The spreader bar, with a full roll of plastic attached, weighed approximately 2 tonnes.

For some weeks prior to the accident the plaintiff was involved in clearing the site of timber and thereafter in the construction of the pond variously using a bulldozer, a grader and a water truck. Aggcon then assigned him the task of operating the front end loader to cart the rolls of plastic and to deploy the plastic membrane under the supervision of Curtis Barrier. He was only one of three Aggcon employees who remained on site for that purpose. The work was scheduled to commence in the evening of 14 December and into the early morning over successive evenings for approximately three weeks. One of Aggcon's employees operated a bobcat while the third, Mr Bromage, was the site foreman. Mr Bromage was not on site when the accident occurred. Curtis Barrier was in control of the worksite during this phase as the contractor responsible for supervising the installation of the plastic membrane.

On the evening of 14 December the plaintiff undertook the first "run" from the base of the pond up the batter travelling at 90 degrees to the horizontal carrying a full roll of plastic suspended on the spreader bar on the front end loader. On the upper ridge of the pond it was necessary for the plaintiff to execute a turn to present the end of the plastic to the bobcat operator at the south-eastern corner. The bobcat operator then anchored it in the trench. The plastic was deployed from the anchor point by reversing the front end loader back down the batter (again on the vertical) for 50 metres at which point the plastic was cut by a Curtis Barrier employee in preparation for being welded into position. This process was repeated by the plaintiff without mishap using the remaining plastic on the first roll. After collecting a second roll of plastic from the base of the pond, the plaintiff negotiated the batter in preparation for the next deployment but at a 45 degree angle. He did this on his own initiative to avoid having to execute a turn on the upper ridge. In the process of raising the spreader bar to clear the pitch of the batter on the traverse, the front end loader tipped onto its side causing the plaintiff to collide heavily with the internal wall of the cabin.

During the course of the hearing the suitability of a front end loader (as modified) for the installation of the plastic membrane according to the method designated by Curtis Barrier seemed to be the subject of contest. However, in final submissions the agreed position was that an excavator was the appropriate vehicle to deploy the plastic according to the method designed by Curtis Barrier. This supported the related finding that had Curtis Barrier elected to use an excavator and not the front end loader the accident would likely have been avoided. I am satisfied that the evidence supports that conclusion. There is a marked difference in the stability characteristics of a front end loader and an excavator. An excavator is a tracked vehicle while a front end loader is a tyred vehicle. The plaintiff submitted that where an excavator has a sound stability capacity when traversing a slope, due in part to the counterweight at the rear of the vehicle, a front end loader with air-filled tyres is inherently unstable, particularly when configured with a 2 tonne load suspended on a spreader bar.

At the hearing it was also ultimately accepted (or not the subject of contest) that there was a risk that the front end loader (modified at Curtis Barrier's direction) might become unstable as it negotiated the batter under the load of a roll of plastic, and a markedly increased risk if the ascent was other than on the horizontal. In these circumstances, what emerged amongst the critical questions in identifying who, if either, of the defendants were liable for the plaintiff's injury (and, if jointly, to what extent), was whether the plaintiff was given any instruction in the use of the front end loader to alert him to the risk of the vehicle becoming unstable (in particular not to ascend or descend the batter other than on the vertical) and who was responsible for providing those instructions.

Other issues of significance included whether the modifications to the front end loader necessitated that the plaintiff be given additional instruction and close supervision by Curtis Barrier to alert him to the increased risk of the load becoming destabilised as he travelled on the batter or to warn him against this manoeuvre should he attempt it. This also gave rise to the related question whether there was any assessment by Curtis Barrier of the risk that an operator might elect to traverse the batter at an angle and, if so, what steps were taken to minimise the foreseeable risk of injury were that to occur.

The plaintiff's primary claim against Aggcon is for damages under the Motor Accidents Compensation Act 1999. That claim is dependent upon a finding that his injuries were caused by a defect in the front end loader during its use or operation and that Aggcon was at fault (see s 3(1) of the Motor Accidents Act 1988) as the owner of the vehicle (as defined in s 4 of the Motor Accidents Compensation Act ). If that claim is made out, s 151E of the Workers Compensation Act 1987 dictates that damages are to be assessed pursuant to Chapter 5 of the Motor Accidents Compensation Act.

In the alternative, the plaintiff claims work injury damages under Part 5 of the Workers Compensation Act by reason of Aggcon's breach of its non-delegable duty to provide him with a safe system of work.

Curtis Barrier submitted that the vehicle toppled over not because of any lack of instruction or supervision for which it might be responsible, but both as the result of operator error in the plaintiff electing to traverse the slope at an angle and what were said to be Aggcon's instructions to the plaintiff to change the method expressly provided for by Curtis Barrier in the Job Safety Analysis when the plastic membrane was to be deployed in a corner of the pond, also resulting in the plaintiff's traverse of the batter.

The plaintiff also claimed damages in negligence under the Civil Liability Act 2002 against Curtis Barrier for breach of its duty to provide him with a safe system of work. He relied upon breach of their duty to provide him with appropriate instruction and supervision in the use of the front end loader, in particular, after it had been modified at their direction so as to materially increase the risk of the vehicle becoming unstable and thereby increasing the risk of injury.

Whether it was Aggcon or Curtis Barrier who insisted that the front end loader be used in preference to an excavator (although this issue also diminished in significance in the course of final submissions); whether the method of utilising the front end loader to line the pond was modified by Aggcon on the day of the accident in any material way; whether the plaintiff received any instruction by Curtis Barrier on the use of the front end loader preliminary to undertaking the task of installing the membrane or any supervision during the process of installing the membrane; and whether it was Aggcon's responsibility to ensure that the plaintiff was a proficient operator in the operation of the front end loader, including traversing the batter under load, remained significant factual issues in dispute.

In the event that I am satisfied that both defendants are liable as joint tortfeasers (and that Aggcon's liability for damages should be assessed under the Workers Compensation Act ) they will be jointly and severally liable for damages to the extent of the applicable statutory scheme. The level of their contribution will be determined by reference to the seriousness of their breach of duty of and its role in causing the injury (see Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529).

Subject to the submission at [28] below, Aggcon submitted that any assessment of damages for which it is liable should proceed under the Workers Compensation Act. Aggcon submitted that it was not the owner of the front end loader as defined in s 4 of the Motor Accidents Compensation Act and, even if it were deemed an owner under s 4(2) (which it denied), the use or operation of the front end loader was neither causative of his injury as required by s 3 or by reason of any fault on its part, but the result of Curtis Barrier designing and implementing an unsafe system of work which specified the use of a front end loader configured in its modified form. Aggcon relied upon JA and BM Bowden Pty Ltd v Doughty [2009] NSWCA 82 as factually indistinguishable from the present case. In that case the Court of Appeal held that the fault of the employer (read as Curtis Barrier for the purposes of these proceedings) in requiring or instructing the driver of a tractor to lower the rollbar to avoid damaging fruit trees, as a result of which the tractor rolled causing injury, was not the employer's fault in its use or operation of the vehicle at the time of the accident (under the Motor Accidents Compensation Act ), but at fault in requiring that the bar of the tractor be lowered as part of what was ultimately found to be an unsafe system of work. For that reason the Court held the Motor Accidents Compensation Act did not apply and that any entitlement to damages should be assessed under the Workers Compensation Act .

In complete answer to the plaintiff's claim for work injury damages under the Workers Compensation Act , Aggcon relied upon the plaintiff's failure to comply with mandatory pre-litigation procedures in s 315 the Workplace Injury Management and Workers Compensation Act 1998 which it claimed entitled it to an order that the proceedings be "struck out". (This was amended in the course of the hearing to an order that judgment issue in its favour.) It relied upon Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 as authority for the proposition that while in these circumstances the proceedings are not a nullity they are vulnerable to a verdict in its favour and that in this case I should make such an order.

In the event that the action for work injury damages under the Workers Compensation Act is maintainable, Aggcon conceded it has a non-delegable duty to the plaintiff as his employer ( Lepore v State of New South Wales [2001] NSWCA 112; 52 NSWLR 420). However, having contracted with Curtis Barrier to design and implement the method of lining the pond, it submitted it had no control over that process and, since it was Curtis Barrier's defective work system which was the dominant cause of the plaintiff's injury, that its liability to the plaintiff was so substantially reduced that its contribution to any award of damages should be quantified at not greater than 10 per cent. This, it was submitted, fairly reflected breach of its duty to the plaintiff to ensure that Curtis Barrier provided him with a safe system of work.

Aggcon also contended that the plaintiff's injuries were in part caused by his own negligence in failing to take care for his own safety in the operation of the front end loader by driving it in a manner which allowed it to become destabilised before tipping over. Although Aggcon's counsel was not critical of the plaintiff's competence as a plant operator, he submitted that the plaintiff exacerbated the risk of the front end loader (configured as it was) tipping under load by deciding to traverse the batter at an angle. Aggcon submitted that the plaintiff's contributory negligence should be assessed at 25 per cent.

In the event that Curtis Barrier's liability is established, Aggcon also claims a statutory indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act in respect of compensation payments it has advanced to the plaintiff as a partial defence to his claim for work injury damages.

Curtis Barrier denied liability in negligence. It claimed that the plaintiff's injury was caused by Aggcon's negligence in failing to ensure that he was adequately trained and equipped to perform within the safe work system which it had designed for the installation of the plastic membrane, including Aggcon's failure to ensure that the plaintiff was competent to drive the front end loader safely when they knew that it was to be modified to facilitate the cartage and deployment of the plastic.

Should it be found liable in negligence Curtis Barrier also relied upon the plaintiff's contributory negligence to reduce its liability in damages.

Curtis Barrier cross claimed against Aggcon for contribution and/or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of any verdict entered in the plaintiff's favour.

Further, and in the alternative, Curtis Barrier also relied upon breaches of the contract with Aggcon which governed the installation of the plastic membrane and under which it was engaged. It contended that any liability it might incur for the plaintiff's injuries was the result of those contractual breaches and that it is entitled to recover damages from Aggcon equal to its exposure to an order for damages in the plaintiff's favour. The contractual terms said to be breached included supplying the plaintiff as an operator when he was neither licensed nor appropriately qualified to operate the front end loader (in particular where the vehicle was configured with the spreader bar and other attachments which Aggcon knew were necessary to effectively deploy the plastic), and instructing the plaintiff to deploy the plastic contrary to the method it specified in the Job Safety Analysis. The source of these instructions was said to be Mr Bromage. He died in 2011. His statement to WorkCover dated 16 March 2007 was tendered in the proceedings.

Aggcon admitted the contract with Curtis Barrier but denied breach of its terms. It submitted that the contract merely required it to provide an operator and that the plaintiff was suitably experienced and competent. Aggcon submitted that it was entitled to expect the plaintiff would be instructed and supervised by Curtis Barrier in the use of the front end loader, specific to the method for the installation of the membrane it had designed and consistent with Curtis Barrier's express contractual obligations. In further answer to the cross claim, Aggcon denied instructing the plaintiff (through Mr Bromage or otherwise) to undertake the task of unrolling the plastic membrane contrary to Curtis Barrier's specifications.

In the alternative, Aggcon contended that if Curtis Barrier were entitled to contribution under the Law Reform (Miscellaneous Provisions) Act , it should be heavily discounted because of Curtis Barrier's contributing negligence, particulars of which included: (a) permitting the plaintiff to use a front end loader when it was inappropriate to do so; (b) permitting the plaintiff to drive the front end loader at an angle to the batter or slope of the pond rather than requiring him to drive the front end loader perpendicular to the batter and, if this could not be achieved, prohibiting him from driving at an angle to the batter; (c) failing to use an excavator in preference to the front end loader; (d) permitting or failing to prevent the plaintiff from overloading the front end loader; (e) permitting or failing to prevent the plaintiff from elevating the load on the front end loader to such a height that it became unstable; (f) failing to design and implement a Job Safety Analysis to ensure that the work could be performed safely by the plaintiff; (g) failing to implement a proper risk assessment in relation to the use of the front end loader; and (h) failing to properly instruct and supervise the plaintiff.

The uncontradicted evidence of the plaintiff's expert was that a front end loader fitted with large rubber tyres is less stable when compared with an excavator which is a tracked vehicle. The excavator's lower centre of gravity is also an additional feature leading to its greater stability.

Despite the fact that the angle of the batter negotiated by the plaintiff when the front end loader tipped over was effectively slightly less than the first run undertaken at 90 degrees to the batter, the expert was of the opinion that the front end loader's traverse across the batter was potentially dangerous and contrary to any formal or informal instructions as to the safe operation of the machine. This was a conclusion drawn from and supported by the manufacturer's operator's manual which was considered by the expert for the purpose of preparing his report. He also considered a document entitled "A Guide for Front End Loader and Excavator Drivers" which is published by the WorkCover Authority to provide information to operators of earth moving equipment and, in particular, to alert operators to the risk of equipment becoming unstable in certain conditions given the associated risk of injury to the operator or others on a worksite.

In the published manual the expert noted that an operator of a front end loader is to: Carry implements close to the ground, approximately 40 centimetres (15 inches) above ground level "and be careful to avoid the condition which could lead to tipping when working on hills, banks or slopes, and when crossing ditches, ridges and other obstructions".

In his report he said: By operating the machinery across the slope and diagonally up and across the slope the machine is being operated in a condition that reduces its stability and significantly increased the likelihood of an overturn event , particularly when the slope involved is that of a batter at an angle of 25 percent. This is a far greater slope than would normally be expected during operation of the machine under conditions such as road building or the like, ie, the building of dam walls and the like requires specialised operation and the requirement to use either tracked vehicles and/or operate the machine in forward or reverse (as the case dictates) up and down the batter, never across it . In the circumstances of the plaintiff's accident, however, there is an additional factor that the writer views as being very significant with regard to causation of the accident. The writer is instructed that the bucket of the machine had been removed and replaced by a forklift style attachment. The details of this forklift style attachment are not provided but it is noted that (for the Model 924-Model 926 Specification not being available) the overall height to which the bucket can be raised is approximately 17 feet (approximately 5 metres) whereas the maximum reach for dumping purposes (load at maximum disadvantage) is just 3.25 feet (approximately 1 metre) ie, the machine is designed and intended to carry heavy loads but at a very close distance to the actual footprint of the machine. In this instance, from the black and white photocopies of the WorkCover of New South Wales photographs it would appear that the spreader-bar to which the roll of plastic was attached, attached by chains draped the tynes of the forklift attachment, held the load at an indeterminate distance from the machine, but clearly well in excess of 1 metre from the machine. This, combined with the machine being held at the maximum lift height so as to clear the 8 metre wide roll of plastic against the bank, places the maximum overturning moment on the machine from the load itself hanging vertically from its elevated attachment point to the machine and thus attempting to overturn the machine in a static manner as well as applying dynamic loads during load swing. In the opinion of the writer, this is a very dangerous condition in which to operate such a machine and a condition that the plaintiff should never have been allowed, let alone instructed, to operate under. (emphasis added)

Mr Curtis gave evidence that after the accident the worksite was shut down by WorkCover for a period of at least two weeks after which an excavator was used to complete the lining of the pond. I note this was contrary to his statement where he claimed that he submitted a Project Method Statement to WorkCover and completed the project "pursuant to the method that was originally put forward". That document was tendered. It provided for the continued use of a front end loader and an excavator. This apparent contradiction in work methods remained unexplained.

The terms of the agreement between Aggcon and Curtis Barrier for the design and installation of the membrane were negotiated in a series of emails passing between Mr Curtis, on behalf of Curtis Barrier, and Mr Dwyer, on behalf of Aggcon. It was the common position of the parties that these emails, together with a fax of 29 August 2006, comprised the terms of the agreement. Mr Curtis was the managing director of Curtis Barrier. He gave evidence in the proceedings. Mr Dwyer did not give evidence.

In emails dated 21 July 2006 and 2 August 2006 Mr Curtis enumerated the services he proposed that Aggcon provide at no charge to Curtis Barrier, including: [5] Cranage/lifting on a daily basis for the duration of the liner installation for unrolling/deploying the liner into the ponds and bed. Curtis Barrier will provide the spreader bar, pipe axle and chains. We approximate the excavator is to be required for 26 days subject to weather, ie, winds, rain, water seepage, cold temperatures, hot temperatures. We must have clear access to all sides of the ponds and bed. (emphasis added)

In emails dated 24 and 28 August 2006, this paragraph was amended to include a front end loader as an alternative to an excavator in the following terms: [5] Cranage/lifting on a daily basis for the duration of the liner installation for unrolling/deploying the liner into the ponds. Curtis Barrier will provide the spreader bar, pipe axle and chains. We approximate the Front end loader/ excavator and operator (lifting) is to be required for 30 days subject to inclement weather, ie winds, rain, water seepage, cold temperatures, hot temperatures that will delay or halt the liner installation. If day time temperatures are too hot to thermally weld and install liner, Aggcon to provide lighting towers, fuel and maintenance to sufficiently and safely light the work area for the duration of the liner installation. We must have clear access to all sides of the pond. (emphasis added)

"C ranage" supplied in the form of a front end loader or an excavator (and an operator) was incorporated into the final agreement which was accepted by Aggcon on 29 August 2006. In the fax confirming Aggcon's acceptance of the contractual terms Mr Dwyer said: As discussed, Aggcon will confirm which transport option will be used closer to the transport date.

Counsel for Curtis Barrier submitted that I should draw an inference adverse to Aggcon by their failure to call Mr Dwyer, particularly where the question of when the reconfigured front end loader was ultimately settled upon as the equipment to be used was the subject of dispute. However, as I see it, of greater significance to the question of the liability of either or both defendants is when (if at all) the particular risks associated with using a front end loader to transport the rolls of plastic up and down the batter were identified and by whom, and the adequacy of the instructions the plaintiff was given as the operator of the front end loader to alert him to these risks. That said, as the evidence makes clear, the timing of the decision to use the front end loader, which according to Mr Curtis was in October 2006, was coincident with some discussion about these matters at an on site meeting in the days leading up to the accident. Mr Curtis does not nominate Mr Dwyer as being present at that meeting although he was apparently made aware of it. In these circumstances, I am unable to see why the adverse inference by the failure to call Mr Dwyer that counsel contends for should be drawn.

The final terms of the agreement between Aggcon and Curtis Barrier provided that: [10] Curtis Barrier Pty Ltd will provide a Risk Assessment Analysis , will attend any Project Safety Inductions and Tool Box meetings and will conduct our own Project Safety Induction . We have allowed for a site inspection/meeting to discuss the liner installation and review any specific works that may have a timing issue as to our input. (emphasis added)

By email dated 8 December Mr Curtis advised Mr Dwyer that a site induction was scheduled for 12 December at which he and Mr Dakin (as Curtis Barrier's site supervisor/project manager) "will finalise our installation approach and discuss with Ray" (Bromage - Aggcon's foreman). In his statement Mr Curtis said: A recorded job safety assessment meeting was conducted on Monday 12 December 2006 by the Second Defendant's supervisor, Mr Scott Dakin. That meeting canvassed issues such as work approach to familiarise the First and Second Defendants' employees with the scope of works and the site's inherent difficulties and hazards. Each employee of the Second Defendant signed and acknowledgement of their attendance at the meeting. The meeting was also attended by Mr Ray Bromage and the operators of the bobcat and front end loader, employees of the First Defendant.

The "Risk Assessment Analysis" referred to in the agreement materialised as a document referred to in the evidence as a "Job Safety and Environmental Analysis" ("JSEA"). There was some contention and considerable confusion at the hearing as to which of a number of versions of this document was operative at the time of the accident. Mr Curtis said that he prepared a JSEA on 26 October 2006 (or thereabouts). He said that this was the second JSEA that was prepared by him and it was the operative JSEA at the time of the accident. This document became Exhibit B(2D). The precursor to the document was not produced. In contrast to the agreement signed off in August 2006, Exhibit B(2D) made no mention of an excavator as an alternative to the use of a front end loader. Mr Curtis said this was because by October he had resolved that a front end loader would be used.

There were three different approaches or methods of deploying the plastic provided for in Exhibit B(2D). The first involved the front end loader travelling to the stockpile of plastic rolls where ground personnel would attach the roll to the spreader bar. The front end loader was then to "hoist the liner roll and travel to the dam wall" where a restraining rope, tethered to the spreader, would be controlled by a member of Curtis Barrier's ground personnel. The following method is then specified: The front end loader travels up the 1V:4H slope and stops when the spreader bar and roll is raised over the back of the trench. Several wraps of liner is unravelled from the roll and laid down into the perimeter anchor trench and weighted with ballast bags and pegged with a star picket. At the direction of the deployment supervisor, the front end loader reverses in a controlled manner down the slope thus unwinding liner material onto the wall. During the unrolling of liner the ground personnel are positioned adjacent to the unrolled liner and up slope of the front end loader and are placing ballast bags along the edge of the liner. No personnel will be in the path of the front end loader liner section and process is repeated. (emphasis added)

A second approach to deploying the plastic membrane is specified where the plastic is to be deployed into the corners of the pond as follows: For this approach the liner panels are pulled from the end wall and towards the length of the dam wall. In effect the seams run down the wall but lay across the long wall in the corner only. The liner roll is hoisted by the front end loader and travels to the dam's berm and presents the liner roll. A rope tethered to the spreader bar is controlled by a worker to minimise swing. The liner roll is positioned approx 100mm above the ground and back/away from the trench. This is done so that in an unlikely event the roll is dropped it won't roll down the wall slope. Several wraps of liner is unravelled from the roll and laid down the slope. A bobcat , which has a low centre of gravity, is used to grab the liner material with its closed bucket then at the direction of the deployment supervisor, reverses down the slope thus pulling the liner down and across the slope in a controlled manner. No personnel will be in front of the reversing bobcat. Bobcat to operate with a flashing amber light. Process is repeated. (emphasis added)

The third approach provided for a particular method of unrolling or deploying the plastic membrane in windy conditions. It has no relevance for present purposes.

Notably in each of the first and second approaches a front end loader in conjunction with the bobcat was to be used to deploy the plastic although in the second approach the bobcat was to deploy the plastic into the corner. The potential hazards which were identified in each case included the load colliding with the vehicle. The risk of collision was assessed as a medium risk. The JSEA made no reference at all to the risk of the front end loader tipping or rolling onto its side on the batter, or to the critical importance of the front end loader's approach to and reverse from the ridge of the pond being strictly on the vertical, that is, at 90 degrees to the batter, to minimise this risk.

Mr Curtis agreed that the purpose of a JSEA is to identify the foreseeable risks associated with any given job. He accepted that one of the risks in deploying/unrolling the plastic at the site was that an operator might drive the front end loader at an angle whilst negotiating the slope, thus causing the load to shift and rendering the front end loader unstable. He agreed that the front end loader toppling over under load was a foreseeable risk known to him at the time he prepared the JSEA. When cross-examined as to why in these circumstances he did not identify it as a specific risk on the JSEA he said: A. Our approach to the JSA was to not have that vehicle in that capacity to operate horizontally or diagonally. Q. Where does it say in the JSEA that you shouldn't operate it horizontally or diagonally? A. The JSA doesn't need to state that. The JSA is an approach of methodology to manage the risk and to give an outcome which is an acceptable low rating of risk, and therefore our JSA wanted that front end loader in a static position at the berm and a low centre of gravity bobcat on the slope to pull that liner out. [I note this is only specified in relation to approach 2.] Q. Are you suggesting that this document, B(2D), didn't require as one of the risks to be assessed the prospect that the front end loader might become unstable and topple over because it was going to be used statically? Is that what you are saying? A. What I am saying is that the intended use of that front end loader was to have it static located at the berm to hoist the roll, and for another equipment, the bobcat, to pull the liner out in that corner of the dam. We didn't entertain the idea of having that front end loader moving diagonally or horizontally along the wall of the pond. Q. Did you entertain it moving at all? A. Yes. It would be moving up and reversing down the slope and it would be moving about the floor area. Q. And if you contemplated that it was going to move on the slope why would you not say either don't drive it at an angle on the slope or, alternatively, in no circumstance should you drive otherwise than directly up and down the slope? A. We specifically said that the front end loader would drive up the slope and reverse carefully down the slope in a controlled way. We didn't want or mention it in our task that it had to drive diagonally or horizontally. Q. Who was this document intended to inform? A. Aggcon. Q. And in particular at Aggcon who did you think it was going to inform? A. Ray Bromage, Trevor Dwyer and their operator. Q. And what level of education do you think these men had, just in a general way? A. They had a lot of experience in earthmoving. They knew the capacity and operating procedures of their equipment. Skilled operators, they said, and we both had a written form and we verbally read through our approach, which we did on site. Q. Are you seriously suggesting, sir, that the expression "the front end loader travels up the 1V:4H slope and stops when the spreader bar and roll is raised over the back of the trench" indicated to an operator of plant and equipment that he should only drive at 90 degrees to the batter? A. Absolutely. All of that information is well-known to any operator. 1V:4H is 1 vertical, 4 horizontal, which is a very gentle slope in dam construction, and we would go verbally through our site visit as to how we would operate this on site with all key people. Q. You did not do that, did you? A. Yes, we did, with Ray Bromage. Q. With respect, you did not do it yourself? A. Yes, I did, because I came to site with Scott [Mr Dakin] on the site visit around 26 or 27 October. We discussed how we would do it and that was discussed specifically.

He went on to say that at that meeting: A. I told [Mr Bromage] our approach, what we were going to do was to use the front end loader, how it would operate up the slope, how we would unroll the liner off the roll and into the trench, how it would then be ballasted, how the front end loader would then reverse down the slope. We looked at how we would operate our equipment on the floor and also how we would operate in the corner, and specifically the corner because you have two converging sides into a corner which made it a little bit more difficult.

He said that the use of a front end loader was confirmed as the vehicle to be used at the time of that meeting and that the preparations for the execution of the project continued according to that arrangement until 14 December 2006 when the method for deploying the plastic into the corners (the second approach specified in Exhibit B(2D) at [43]) was unilaterally changed by Mr Bromage so that the front end loader was used to unfurl the plastic in the corner and not the bobcat which would necessarily involve it traversing the batter in that process. He said that he was told by Mr Dakin that Mr Bromage had insisted that it be done that way. Mr Dakin gave entirely contradictory evidence.

Mr Dakin said that Curtis Barrier asked for an excavator to be provided by Aggcon to deploy the plastic and, further, that at all times prior to the morning of 14 December 2006 he had every intention of using that piece of equipment until he was told by Mr Dwyer that a front end loader was to be used. He identified Ex B(2D) (the JSEA that Mr Curtis nominated as the operative document as and from October 2006) as an amended JSEA that only came into operation after Mr Dwyer insisted that a front end loader be used. He said he brought the version of the JSEA that nominated an excavator (Exhibit 6 in the proceedings, the document Mr Curtis said had been displaced in October 2006) to the site having collected it from Curtis Barrier's office for that purpose a couple of days earlier.

Mr Dakin said Mr Dwyer raised the use of the front end loader with him. He gave this evidence in chief: Q. And did anybody raise the question of using a front end loader? A. Yes, Trevor did. Q. Do you recall what he said? A. He told me that since there was a front end loader on site and not an excavator instead of floating in an excavator we'll use the front end loader. Q. So were you happy with that idea? A. No, but I had to be. Our, our crew doesn't have any licence or tickets to drive machinery. We, we're there to line the dam and we just don't have the skills to use the equipment. So we rely on the earthworks people to supply that for us.

He later gave the following evidence: Q. How were you planning to perform this work on the night before you spoke to representatives of Aggcon? A. I wasn't, I wasn't sure quite what they had planned. In a meeting beforehand I stressed that I wanted an excavator on site and then, as I explained earlier, when we turned up I was told this is the machine we've got and that's all you're getting. I guess I was just stuck between a rock and a hard place and I had to put my faith into the operators that it would be deployed safely.

He said that he did not want to use the front end loader because he believed it was not stable enough. When cross-examined as to how he proposed to deal with the machine's inherent instability he said he: ...put [his] faith into the operator who knew how to operate the machine ... [he] warned him ... "This is not going to work, it's dangerous. I hope you're a good operator because the apex you are going to be on on the dam is dangerous.

He said that he also told his crew to stay away from the front end loader when the plaintiff was traversing the batter because of the likelihood that it would tilt and potentially roll over.

Mr Dakin gave evidence that on the evening of the accident he delivered an on site induction. After being given Exhibit B(2D) by counsel to read and consider in the witness box he confirmed that it was the version of the JSEA he used as a prompt for the purposes of warning the crew, including the plaintiff, of potential hazards they might encounter during the course of installing the liner. He said that he gave both Mr Hawkins and the plaintiff a copy of the document. He said that although he was Curtis Barrier's appointed supervisor he did not consider he was responsible for instructing the plaintiff as to the use of the front end loader in laying the membrane. Mr Dakin said that because he "didn't have a ticket to operate the machines [he] left the operating and how to position the machines and use them to [the plaintiff]". Mr Dakin said that he simply instructed the plaintiff as to where to place the liner and told him to take the rolls up and down the batter.

Under cross-examination by Aggcon's counsel Mr Dakin was taken to Exhibit B(2D) (the document he said was the version taken to the site on 14 December and used by him during the site induction) where, against the field marked "Mobile plant and equipment", "Front end loader" was specified. He gave the following evidence: Q. If you were intending to use this document to induct people you would expect it to have on the top right-hand corner where the equipment is specified "excavator", wouldn't you? A. Yes, that's correct. ... Q. The document doesn't seem to coincide with your expectation that there would be an excavator used. Do you agree with that? A. Yes. Q. I take it you actually read this document to the people on site at the time you were inducting them? A. Yes. Q. You didn't notice that? A. No. Q. How did this induction proceed, by the way? Did you read from the document? A. Yes, I did. Q. Each stage, so you gained access to the site? A. Yes. Q. Then would you go to "Exposure to elements" and say look out for personal injury and dust, that's the way it proceeded? A. Yes, that's correct. Q. Could you take the document out of the sleeve and you will see that this document which you had two days before you got to the site at 5(a) talks about deploying and unrolling the liner. Do you see that on the second page? A. Yes. Q. "Deploying/unrolling the liner". If you go across the line, the third column, it says "Approach 1"? A. Yes, I see. Q. And do you see the first bullet point? A. Yes. Q. That talks about a front end loader, too, doesn't it? A. Front end loader. Q. Doesn't it? A. That does. Q. And if you go over the page again under "Approach 2" there doesn't seem to be an excavator mentioned there, does there? A. No, it's front end loader again. The only thing that makes sense to me is-- Q. Please, Mr Parker will ask you some questions if he thinks it necessary. Could you then go over the page to "Approach 3". You see that, "Deploying it in windy conditions". That refers to a front end loader too, doesn't it? A. Yes, it does. Q. You see, this document so far as one can see makes no reference at all to an excavator. Is that correct? A. Yes, you're correct. Q. And this document you told us was in your hands from your office two days before; correct? A. That's correct. Q. Before you got to site? A. Yes. Q. And it must have been the case, do you agree, that it was always Curtis Barrier's intention to use a front end loader? A. No. Q. Well, why would you prepare this document specifying a front end loader if you weren't intending to use a front end loader? A. I feel as though that's been adjusted after we started to use the front end loader, the JSEA has been adjusted to use the front end loader. Q. You didn't give any evidence to that effect when you agreed with my learned friend and me that you had this document two days before 14 December and that you used the document on 14 December for the purpose of inducting your staff and the Aggcon operator, did you? You didn't say that, did you? A. No. Q. And when you had this conversation with the Aggcon people on the morning of 14 December did you give them this document? A. I gave them this document but with the excavator. Q. You gave them another document? A. Yes. After we were told we had to use the front end loader, because we were working with it, we had to adjust our JSEAs to compensate for the loader. Q. So on 14 December a document you had previously said was adjusted so as to produce what is now called B(2D). Is that what you are saying? A. Yes. Q. Where is the earlier document? A. I don't know. Q. And when did you adjust it? A. I can't remember. Q. How did you adjust it? A. By going back through it and removing all the pieces with the excavator and replacing them with the techniques with the front end loader. Q. And how did you do that, with a pen or a computer or what did you do? A. Yeah, I rung through to the office and gave them the adjustments over the phone. Q. This is on 14 December? A. Yes. Q. After you have had this meeting? A. Yes.

Mr Dakin conceded that amongst the potential hazards identified by him in what he described as the amended JSEA, there was no mention that the front end loader might topple over if incorrectly positioned on the batter. Mr Dakin disagreed with the proposition put by Aggcon's counsel that the amended JSEA (on his evidence) failed to take account of the inherent instability in using a front end loader in the manner in which it was designed to be used to lay the membrane on the batter of the pond. He was, however, unable to indicate where he accounted for that risk. He subsequently conceded that he did not take into account the risk that the front end loader might topple over in circumstances where he knew it to be a risk factor.

He gave the following evidence: Q. Why weren't you happy about the front end loader being used? A. Mainly because they've got the suspension in their tyres so that when they start to bounce they're really hard to stop. Q. So there's the issue with the tyres as distinct from tracks, which is conventional equipment on an excavator. There is also, is there not, as a result of the differing stability across the two pieces of equipment a, risk of the front end loader toppling if either overloaded or wrongly loaded or loaded without sufficient balance across the beam? A. Yes, that's correct. Q. Did you see that as a hazard? A. Yes. Q. It's a pretty obvious hazard, isn't it? A. Yes, that's right. Q. But when you amended the document, as you say you did or the people in the office did at your direction, you made no reference to it. Why is that, given that it seems to me, at least, the most obvious risk and one that you say you were acutely aware of on the day plaintiff? A B PARKER: I don't know that he has used the word acutely. HER HONOUR: Well, I put the word in his mouth and I am sorry for doing that. Q. Were you acutely aware of the risk of this piece of machinery falling over left or right if the load was imbalanced, given that the spreader bar was not a conventional attachment to that piece of machinery? A. Yes, that's right, your Honour. Q. Acutely has now been adopted. Why doesn't the acute danger or risk appear in the job safety and environmental analysis that you say you were personally responsible for amending consistent with, you say, the changed site specifications insisted upon by Mr Dwyer and/or the operator on behalf of Aggcon? Why don't I see it? If you have no explanation for it you may simply say that. A. There's no explanation for it.

Mr Dakin's statement to the WorkCover investigator dated 27 December 2007 was tendered. He was asked by the investigator how he thought the incident might have been prevented. Despite giving evidence in the proceedings that in his view the incident could have been avoided by using an excavator he did not mention an excavator in the WorkCover interview. He said: It would have been prevented if we had done it to our original JSEA and had the loader at the top and the bobcat roll out the plastic. (I note that this is consistent with Mr Curtis' evidence.)

Mr Dakin also gave evidence that the only Aggcon employees that he spoke to either on 13 or 14 December were Mr Dwyer and the plaintiff. He denied ever speaking to Mr Bromage . However when asked to explain the system of work in place for laying the plastic membrane to the WorkCover investigator, Mr Dakin responded: What I suggested, which was in a JSEA, was we had the loader on the top of the dam wall and the bobcat pull out the sheets, but Ray [Bromage] said it would be easier for the loader to pull out the sheets and have the bobcat at the top of the wall. (Again, this is consistent with Mr Curtis' evidence.)

When cross-examined about the WorkCover interview Mr Dakin conceded that he did not tell the investigator that he was aware that the front end loader was unstable and that he thought it would topple over. Furthermore, he did not tell the investigator that he warned the plaintiff to be careful when using the front end loader on the batter. Despite conceding that these were of great relevance to the investigator's inquiry he said that he did not mention these things. He said: He [the investigator] didn't ask the questions and I'm not a machine operator. [The plaintiff] should have been able to use the machine a lot better than what he did.

Despite Mr Dakin's evidence that Mr Dwyer was a person he discussed the suitability of equipment with on 13-14 December 2006, he made no mention of speaking with Mr Dwyer to the WorkCover investigator.

Mr Hawkins' evidence was different from Mr Curtis' and Mr Dakin's evidence in material respects. He said that although it was his preference to use an excavator, a front end loader was used at Curtis Barrier's insistence. He said this decision was made on the afternoon of the day of the accident at an on site meeting with Mr Curtis and Mr Dakin which was attended by Mr Bromage. Mr Hawkins said that it was at this meeting (and not earlier) that Mr Curtis insisted that a front end loader be used to deploy the plastic. He said that he reminded Mr Curtis that an excavator had been nominated in the agreement, and that there was one on site, but that Mr Curtis insisted that a front end loader be used. It was common ground that Aggcon's excavator was on site on 14 December and available for use by Curtis Barrier. Mr Hawkins said that having ascertained what was involved in the process of lining the pond, he was of the view that an excavator was the most suitable piece of equipment for the task. He did not regard a front end loader as a suitable vehicle to traverse a batter with a 1 in 4 gradient and with what appeared to him to have been almost 2 tonnes of weight at the end of fully extended tynes. He was of the opinion that an excavator had greater stability, being a tracked vehicle, and that it had adequate flexibility and reach with its orientation to the slope being able to be altered without having to move the machine. In the result, however, Mr Hawkins said that he relied on Mr Curtis' advice that the use of the front end loader was the easiest and quickest method for lining the pond.

It was, however, also common ground that the front end loader was the subject of an oral hire agreement on a day by day basis for a period of approximately 30 days and that it was on site some days prior to the day of the accident. This, of itself, casts doubts as to the reliability of Mr Hawkins' evidence that the front end loader was settled upon as the vehicle to be used on 14 December and not earlier. When considered with Mr Curtis' flight itinerary, which puts it beyond doubt that he could not have been on site until late on the evening of 14 December, the conversation Mr Hawkins deposed to with such certainty could not have taken place that day.

Mr Hawkins gave evidence that Curtis Barrier did not supply him with a written risk assessment analysis or job safety analysis until after the accident. Given my concerns about Mr Dakin's reliability generally and the confusion generally as to the version of the JSEA that was operative at the time of the accident both in his evidence and Mr Curtis' evidence, I accept Mr Hawkins' evidence on this issue. That said, Mr Hawkins did give evidence that at a site meeting on 14 December he agreed with Mr Dakin and Mr Bromage (and Mr Curtis) that the safest method to install the membrane (given that an excavator was not to be used) was that provided for in Approach 1, namely to have the front end loader carry the roll of plastic vertically up the batter to the top of the bank, anchor it in the trench which had been cut into the ridge of the pond and then, as it reversed down the batter, unfurl the plastic in lengths in preparation for it being welded into position onto the base of the pond. He gave no evidence however that there was any discussion or decision to vary the method in Approach 2 when the plastic was to be installed in a corner of the pond.

While Mr Hawkins' evidence that Mr Curtis was present at the on site meeting on 14 December cannot be accepted, I have no reason to doubt that he was on site that day and that he did speak with Mr Dakin, and Mr Bromage (although Mr Dakin gave no evidence of the meeting or apparently any recall of it). What is significant is that Mr Hawkins does not suggest that the plaintiff was present when the method for using the front end loader was discussed.

The plaintiff gave evidence that there was no on site induction by Mr Dakin or anyone else from Curtis Barrier, that he was not warned of the risks involved in traversing the batter under load and not supervised in either of the two runs undertaken by him before the accident. He gave evidence that Mr Bromage was not on site after the evening dinner break (which was before he embarked upon the first run) and that he was told by Mr Bromage that he should take instruction from Mr Dakin and do what he asked. He said that Mr Dakin was present when he hoisted the first roll of plastic from the stockpile in the base of the pond but he was given no instruction by him other than a direction, in the most basic terms, to drive up the batter and commence the deployment of the plastic in the south eastern corner of the pond where the bobcat would take hold of the end of the plastic, after which he was to travel across the eastern wall of the batter while the bobcat held the edge of the plastic onto the southern wall. He said the operation of the vehicle was left entirely to him, in the sense that it was at his election as to how he ascended and descended the batter. The plaintiff said it was necessary for him to raise the arms of the front end loader as he approached the batter, and again when he turned at the upper ridge of the pond, to avoid the end of the roll coming into contact with the batter. He said on the first run there was a person walking alongside the front end loader holding a tagline to the end of the spreader bar. The plaintiff said: Q. Was somebody walking along holding that tag line as you went up the batter? A. Yes. He was on my top side so it would have been on his left and he was walking along. He wasn't even watching me, he was just walking along with it just dangling there in his hand.

He said after completing the first run of 50 metres across the batter, as he had been instructed, he repeated the process to utilise the remaining plastic on the 100-metre roll. He said that he then reversed back to the floor of the pond and waited until the two 50-metre sheets of plastic he had deployed had been welded together by Mr Dakin.

He said that during the first run he experienced some instability associated with the need to use the lifting mechanism at the upper ridge of the pond to enable him to execute a turn and meet with the bobcat without the roll colliding with the bank and potentially causing the front end loader to tip, and some instability as he laid the plastic horizontally across the batter on each of the two 50-metre runs. He said the manoeuvres made him feel nervous but he did not raise his concerns with anyone.

However, on the next approach, in order to avoid the need to execute a turn on the ridge of the batter, he elected to ascend the batter at a 45 degree angle and in that way align himself with the run of plastic he had deployed and to meet with the bobcat in readiness for the next run. He said when he got about halfway up the batter with the engine at an idled speed the vehicle tipped onto its side without warning. He said there was no one holding a tagline on that approach. (It was not suggested that this would have avoided the accident.)

When cross-examined by counsel for Aggcon he agreed that, despite being neither licensed nor certified, by his own assessment he was an experienced operator of front end loaders and had no reason to doubt his technical ability to operate the machine on a batter given his experience in earthmoving and construction works. However, he had no previous experience in laying a plastic membrane whether using a front end loader or any other equipment. He confirmed that it was his decision to ascend the batter at an angle from the floor of the pond. Neither cross-examining counsel suggested that this was an approach which he knew would put the vehicle at risk of tipping over (whether configured as it was and under load or not) or that it was a risk he ought to have been aware of in the circumstances. Counsel for Curtis Barrier did not put to the plaintiff that he was given instruction or direction of any kind by Mr Dakin as to the risks involved in traversing the batter as he did.

Mr Curtis gave evidence that he arrived at the worksite between 8 and 8.30pm on 14 December and that he had a conversation with Mr Dakin to the following effect: Dakin: Ray's [Bromage] said that he's not happy with the way we had planned to deploy the liner. Curtis: Well how does he want to do it? Dakin: He's insisting that vehicles be reversed so that the bobcat anchors the plastic while the front end loader is deployed and reverses backwards and unfurls the rolls. Curtis: Well if that's the way he wants it done.

Mr Curtis said that neither Mr Dwyer, Mr Hawkins nor Mr Bromage were present when he arrived and that he did not have any conversations with any of them at any time on the day of the accident.

Mr Curtis said that he was in the base of the pond at the time of the accident with a map spread over the bonnet of his car. Although in his statement he offered a view as to how the accident occurred, namely by the plaintiff turning the vehicle under speed causing the front end loader to sway and topple over on its left-hand side, and that the accident could have been avoided were the plaintiff to have stopped the vehicle and allowed the spreader and the roll to settle before turning, it would appear that he did not see the vehicle until it was teetering and even then his attention was as a result of an "over revving" of the vehicle and not any shifting of the load. Mr Dakin associated the revving sound with the wheel spinning off the ground and not the vehicle travelling under speed. It was not suggested by counsel for Curtis Barrier that the plaintiff was operating the vehicle under speed.

In his evidence Mr Curtis was of the opinion that the front end loader tipped over because the plaintiff elected to traverse the batter at an angle. He was also of the opinion that the risk of the vehicle becoming unstable in this manoeuvre, to the extent of it tipping over, was a result of Mr Bromage's unilateral decision to invert the use of the front end loader and the bobcat for the deployment of the plastic into the corner contrary to the approach nominated as "Approach 2" in the JSEA (Exhibit B(2D)). He gave the following evidence: Q. What use of the equipment had Mr Bromage changed in your understanding? A. The intended use of the front end loader was to be placed - to be driven to the external, to the crest of the outside of the dam. Around the dam is a service road and it would travel around with our roll of liner. It would hoist the liner and position the liner over the trench and the bobcat would travel up the slope across to the roll and then pull that liner off the roll travelling horizontally for 50 metres. G J PARKER Q. But the loader was always going to at least travel up and down the batter at some stage; correct? A. Yes, up and down, correct. Q. You say provided it went directly 90 degrees to the horizontal, that would be no problem? A. That's right. Q. And the problem was that it went on one occasion at least 90 degrees to the vertical and on the occasion of the accident it went 45 degrees to the vertical; correct? A. I think so, yes. Q. Operator error, that's your position, isn't it? A. Well, I think there's several errors. There's the change in the JSEA in the use of the equipment and there's operator error as well.

After the accident, Mr Curtis said that he spoke with Mr Bromage in words to the effect that he (Mr Curtis): ... was unhappy with what had happened and if we [Curtis Barrier] had continued with our approach none of this would have - this accident wouldn't have happened, and he [Mr Bromage] apologised and it was his error and we should have gone with the JSEA.

Mr Curtis gave evidence that Mr Dakin was the project supervisor and it was his responsibility to implement the JSEA. Mr Curtis said, in effect, that it was his understanding the JSEA was orally varied before the first run to accommodate the use of a front end loader to unroll the plastic into the corner in preference to the bobcat and that this was at Mr Bromage's insistence. He said that Mr Dakin did not amend the JSEA to accommodate this change and he (Mr Curtis) did not approve the amendment. Rather, he understood from what Mr Dakin told him that Mr Bromage had insisted that the front end loader be used in that way and, despite Mr Dakin's disapproval, he felt obliged to defer to Aggcon's wishes since Aggcon had control over the use of its equipment.

Mr Curtis said that although Mr Dakin exercised the authority of Curtis Barrier on site, in this instance his authority was overridden by Mr Bromage as Aggcon's representative. He rejected the suggestion that Mr Bromage did not have authority to amend the JSEA. He said: [Mr Bromage] was our client's representative. He was the project supervisor and he instructed his equipment and men to work in that way. And it, you know, his expertise in operating equipment, that's what he wanted and that is what he instructed us to do.

As noted above Mr Bromage is deceased. In his interview with the WorkCover investigator in February 2007 he said that Aggcon did not provide the plaintiff with any particular training in the operation of the front end loader and that the system of work simply involved the front end loader travelling up the batter with the roll of plastic and reversing back down and rolling the plastic as it went. In so far as the system of work for installing the plastic in the corners was concerned he said "I was of the belief that they were just going to come to the corner and north along the bank and lay a sheet down along the corner section". He did not refer to any induction on site by anyone from Curtis Barrier or receiving any instruction by Mr Dakin. He did not claim to have seen or to have been given a JSEA at any time. He did not claim to have had any input into the system of work or to have insisted or instructed that it be carried out in any particular way. It must be said however that he was not asked by the investigator whether that was the case (despite Mr Dakin informing the investigator that this was so) other than to say that Curtis Barrier were contracted to deploy the plastic because Aggcon's employees were not experienced in that work.

Although Mr Curtis said that the operative JSEA at the time of the accident was Exhibit B(2D), his evidence was that the day after the accident he provided the WorkCover Authority with a copy of the operative JSEA (Exhibit 6), the JSEA which provided for the use of an excavator and which was date-stamped 15 December 2006 with a WorkCover stamp. Mr Curtis said in his evidence that he must have given the wrong document to WorkCover and that Mr Dakin's evidence that another JSEA which referred to using an excavator as the one he had on site for the purposes of the induction was incorrect. He offered the following explanation: When we developed the four quotations we developed certain approaches and then upon selecting the approach we wanted we generated a new JSEA and potentially [Mr Dakin] might have had a draft of the JSEA and he, perhaps, passed the wrong one.

Counsel for Curtis Barrier submitted that Exhibit B(2D), the document Mr Curtis identified as the version specific to the method of installing the plastic membrane as at 14 December 2006 (relevant portions of which I have extracted at [42]-[43]) was the governing JSEA at the time of the accident but submitted that it was varied at Mr Bromage's insistence. The plaintiff's counsel submitted that I would find that Exhibit 6 was the relevant version and that Exhibit B(2D) came into existence at some later stage.

I am satisfied the probabilities favour a finding that a front end loader was the equipment Curtis Barrier had determined would be used well prior to 13 or 14 December and that Mr Hawkins' evidence to the contrary must be rejected. I am also satisfied that Mr Dakin's evidence that it was Aggcon that insisted that a front end loader should be used on the day of the accident must also be wrong. I also have grave doubts about Mr Dakin's reliability more generally. I should make clear that is not because of any doubts about his honesty but because it became apparent during the course of his evidence that he had a reading disability. Once this became evident all counsel submitted that Mr Dakin's evidence as to the JSEA he used to conduct the on site induction as set out in [54]-[55] above must be rejected as unreliable. This, together with what I regard as his flawed memory of events in other respects leads me to doubt whether he conducted a site induction at all (whether referable to a JSEA or not) and for that reason I have persisting doubts as to whether he had any real appreciation at the time of the accident of the risk inherent in using a front end loader in the way the plaintiff was directed by him to use it. I note that no signed attendance sheet acknowledging participation in a "job safety assessment meeting" conducted by Mr Dakin was produced. Mr Curtis' statement at [40] to that effect must also be rejected.

Despite my concerns about Mr Dakin's reliability, I am prepared to give some weight to the account he gave to the WorkCover investigator within months of the accident which supports Mr Curtis' evidence that the front end loader was nominated as the vehicle to be used well prior to 14 December and generally in accordance with the three alternate approaches in Exhibit B(2D). That said, I am left in no doubt that even were Exhibit B(2D) in existence on 14 December in the form in which it was tendered (about which I continue to have doubts), it was not provided to Mr Hawkins and was not used by Mr Dakin for the purposes of the on site induction Mr Dakin claimed he delivered. I accept the plaintiff's evidence that he was not "inducted" into the method to be adopted in deploying the plastic, whether on the batter of the pond or in the corners, such as to alert him to the foreseeable risks inherent in using the front end loader for that purpose and, in particular, the foreseeable risks of the vehicle becoming unstable and tipping over if it traversed the batter.

In final submissions it was Curtis Barrier's case that supplying the plaintiff as an un licensed or uncertified operator was not only in breach of an implied term of the contract with Aggcon (a matter which was pleaded but not addressed in final submissions) but that the plaintiff's incompetence (or operator error) was the operating cause of the accident. This, it was submitted, relieved it of liability since it was Aggcon's obligation to the plaintiff as his employer to ensure that he could operate the front end loader (configured as it was) competently and safely before assigning him to that task, inclusive of providing him with necessary instruction and direction.

Curtis Barrier also submitted Aggcon's failure to ensure the plaintiff was certified and trained breached Aggcon's own work methods statement. In dealing with that submission, I note that the Safe Work Method Statement, which Mr Hawkins agreed was developed to ensure Aggcon provided a safe system of work for its employees, assigned a risk factor of 16 where a "rubber tyred loader" was operated in abnormal or unusual circumstances. On any view of the evidence that was the use to which the front end loader was committed here. While "training courses and manufacturer's operating guidebooks etc" are specified as a means of reducing the risk of workplace accidents, the Safe Work Method Statement also provides that the safe working procedure to avoid the risk of accidents caused by underestimating differences from normal operating conditions is to: Avoid abnormal/unusual working circumstances where possible (eg another machine better for the task). If not, exercise extreme caution, think each move out in advance and have person on ground watch for unexpected hazards, obstructions or developing danger. Return to normal operations asap.

Here, of course, the evidence puts it beyond doubt that the modified front end loader was not the machine "best suited for the task", and that a suitable machine in the form of an excavator was available, but that Curtis Barrier insisted the front end loader be used and that there was no one "on the ground" supervising the plaintiff or watching for hazards. While no attempt was made in the evidence to explain in any detail why an excavator was not used, the inference is that a tyred vehicle was (or was likely to be) less likely to disturb the integrity of the earthworks upon which the plastic membrane was to be fixed.

The plaintiff gave evidence that apart from his truck driver's licence he was not ticketed or certified to operate any of the plant equipment he commonly used in the course of his employment with Aggcon which included bulldozers, tractors, trackscavators and laser buckets. He gave evidence that he had been operating heavy machinery of various kinds for many years and when first employed in the industry there were no ticketing requirements. He said there are currently no requirements for a bulldozer operator to be ticketed. He said, in effect, as his competence and experience as an operator of a range of heavy equipment was never doubted, that he had never had the need or occasion to acquire certification of any kind. It was submitted, on his behalf, that this is reflected in his uninterrupted work history since the early 1980s. I have already noted that although the plaintiff had driven front end loaders in the past, and had driven the particular front end loader that tipped over to unload the plastic rolls in the base of the pond, he had not previously driven a front end loader according to the method designed by Curtis Barrier.

Mr Hawkins gave evidence that he was unaware that the plaintiff was not certified to drive the front end loader. He understood Aggcon's contractual obligations were to provide a "suitable" driver and he believed that the plaintiff was certified or ticketed and therefore suitable. He only discovered that the plaintiff was not certified when he examined his personnel file after the accident.

In the interview with WorkCover, Mr Bromage said that he did not carry out any checks to determine whether the plaintiff had appropriate qualifications to operate the front end loader because the plaintiff was, in his view, an experienced and competent plant operator having worked for Aggcon on a range of machines over four or five years. He also agreed that although he was aware from Aggcon's Safe Work Method Statement that an operator of a rubber tyred front end loader required the appropriate certificate of competency before he was able to use the machine he was unaware that the plaintiff was not certified.

The contractual documents do not stipulate that the operator be certified or ticketed. They refer to the operator in the following terms: Aggcon Pty Ltd is to provide the following services at no charge to Curtis Barrier Pty Ltd: ... [5] Cranage/lifting on a daily basis for the duration of the liner installation for unrolling/deploying the liner into the ponds. Curtis Barrier will provide the spreader bar, pipe axle and chains. We approximate the Front end loader/ excavator and operator (lifting) is to be required for 30 days subject to inclement weather, ie winds, rain, water seepage, cold temperatures, hot temperatures that will delay or halt the liner installation. If day time temperatures are too hot to thermally weld and install liner, Aggcon to provide lighting towers, fuel and maintenance to sufficiently and safely light the work area for the duration of the liner installation. We must have clear access to all sides of the pond. (emphasis added)

In the absence of an express contractual term, if Curtis Barrier's cross claim in contract was to have any force it depended upon the imputation of an implied term that the operator to be provided by Aggcon must be certified or ticketed. No basis for the implication of such an implied term was identified and no attempt was made by counsel as to why such a term should be implied as a matter of law.

Although in the JSEA that Curtis Barrier claimed governed the project (and the document that ought to have been the subject of an induction by its site supervisor Mr Dakin but was not), a plant operator and heavy machinery licence was to be provided by Aggcon and sighted by Curtis Barrier before work commenced, the concerns about Mr Dakin's literacy, to which I have already referred, leave me in doubt as to whether he was aware of the requirement in the JSEA that the plaintiff be licensed to drive the front end loader. In any event, Mr Dakin was not asked any questions by counsel for Curtis Barrier as to whether he asked to see the plaintiff's licence or even whether the issue was discussed with Mr Bromage as Aggcon's site foreman. The plaintiff gave no evidence (and was not asked in cross-examination) as to whether the issue was raised with him.

It was put to Mr Hawkins in cross-examination that he knew the plaintiff was not qualified to drive the front end loader, to which he responded: Well, we worked out the task, the safety task to do that job as I've spoken earlier using the front end loader up and down. Because he was working under direct supervision of Curtis Barrier they had men there with him, one on the end of the roll with the rope and everything to help him and guide him. They were aware that he was new at it and they were laying out the plastic because we had not done it, that is why we engaged Curtis Barrier in the first place. Obviously they didn't have anybody to lay it out so we supplied our man and equipment and he worked under their direct instructions. What more can I say?

I am not satisfied that Curtis Barrier's cross claim against Aggcon for breach of contract is made out. Given my findings concerning the provision of the JSEA to Aggcon and/or its availability for use for an on site induction, the alternate basis upon which the cross claim in contract was pressed is also not made out.

Given the way the plaintiff's case was put in final submissions the answer to this question is relatively straightforward.

Leaving to one for the moment whether Aggcon as the hirer of the front end loader was the owner of the vehicle as defined by s 4 of the Motor Accidents Compensation Act , Mr Cranitch conceded in his written submissions that where an injury sustained in a motor vehicle accident is properly categorised as resulting from (or caused by) an unsafe system of work and not otherwise then damages are to be assessed under the Workers Compensation Act as work injury damages (see Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529). He also conceded that it was crucial to the success of the plaintiff's claim under the Motor Accidents Compensation Act that he establish not only that fault is able to be attributed to Aggcon as the owner of the vehicle in the use of operation of the vehicle, but that the probable cause of his injury during its use or operation, in this case as a result of a defect in the vehicle (as to which see s 3(1) of the Motor Accidents Act and s 3A of the Motor Accidents Compensation Act which operates as a general restriction on the application of the Act to similar effect).

While it is clear enough that because the front end loader was being driven at the time of the accident the injury to the plaintiff was in the "use or operation" of the vehicle, in Mr Cranitch's written and oral submission he identified the material defect causative of injury as the modifications to the vehicle undertaken by Curtis Barrier which created a heightened risk of the vehicle rolling over even if the vehicle was otherwise used in the manner in which it was intended to be used. He submitted "it is difficult to see that there could exist a clearer example of a defect in the vehicle".

There was, however, no evidence that Aggcon played any part in determining whether to reconfigure the front end loader, actually affecting the modifications or instructing the plaintiff as to how to load, lift and carry the plastic rolls on the machine when reconfigured. The evidence was that this was entirely in the hands of Curtis Barrier as contractor. In these circumstances I am satisfied that the causative fault, even on the plaintiff's case, was exclusively that of Curtis Barrier. Counsel for Aggcon went further and submitted: 15. If the plaintiff's case is that the front end loader was defective by reason of the fact that it was unsuitable for the purpose for which it was used, then again the causative negligence and fault is that of Curtis Barrier. It permitted the plaintiff to use the front end loader to undertake the distribution of the liner. 16. In either case, the causative act of negligence was the system of work not the use or operation of the front end loader: Nominal Defendant v CLG Australia 228 CLR 529 at 540 [27] and 541 [32] and [33]... The accident is not within MACA because the fault was not in the driving etc but in the system of work adopted by Curtis Barrier.

I am satisfied that at least for the purposes of the Motor Accidents Compensation Act the causative fault is not that of Aggcon (as owner) or the plaintiff (as driver) in the use or operation of a defective vehicle. The fault was in Curtis Barrier's design and implementation of a system of work that involved driving the front end loader on a batter, whether vertically or horizontally, where the front end loader had been configured in such a way as to be productive of the risk of injury, rather than in devising a system of work that would not expose the driver to the risk that the vehicle would tip and roll onto its side under load.

For this reason, I am satisfied that the Motor Accidents Compensation Act does not apply (see JA and BM Bowden Pty Ltd v Doughty and the approach by the High Court in Nominal Defendant v GLG Australia Pty Ltd ) and that the damages the plaintiff can recover from Aggcon fall to be calculated in accordance with Part 5, Division 3 of the Workers Compensation Act .

In addition, I am not persuaded that Aggcon was the owner of the front end loader for statutory purposes, it being hired on an hourly basis for the limited purpose of installing the plastic membrane, a process which was to be completed within 30 days of 14 December 2006.

For the purposes of the Motor Accidents Compensation Act , "owner" of a registered vehicle (the evidence supports the inference that the front end loader was registered given that it was driven from the hirer's premises to the worksite a few days before the accident) is defined in s 4(1) as follows: (a) in the case of a motor vehicle that is registered, the owner is: (i) each registered operator of the vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997, unless the operator has sold or ceased to have possession of the vehicle, and (ii) each person who, although not a registered operator of the vehicle, is a sole or joint owner of the vehicle, unless that person has sold or ceased to have possession of the vehicle, and (iii) if any such registered operator or owner has sold or ceased to have possession of the vehicle - any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (b) in the case of a motor vehicle that is unregistered, the owner is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (c) in the case of a motor vehicle to which a trader's plate is fixed, the owner is the trader to whom the trader's plate is issued.

Although s 4(1)(a)(iii) would allow for Aggcon to be an "owner" as a party entitled to immediate possession of the front end loader under the oral agreement for hire, s 4(2) expressly provides that any hiring or lending of a motor vehicle for less than three months does not constitute a relevant passing of possession such as to render the "hirer" (in this case Aggcon) the "owner" under the Act (see Havas v Standard Knitting Mills Pty Ltd [2001] NSWCA 295; 52 NSWLR 293). Even if completion of the installation phase was delayed by weeks, I am satisfied that it would not, on the probabilities, have exceeded three months. This is an additional basis for holding that the plaintiff cannot pursue a claim for damages against Aggcon under the Motor Accidents Compensation Act .

Curtis Barrier's liability in negligence as the company with contractual responsibility for the installation of the plastic membrane where the use of Aggcon's employees was integral to that process falls to be determined in accordance with the Civil Liability Act .

In final submissions, Curtis Barrier resisted liability for the plaintiff's injuries on a number of interrelated bases although (unhelpfully) not referable to the governing sections of the Act.

Counsel's primary submission was that Curtis Barrier's duty of care to provide a safe system of work did not extend to instructing the plaintiff in the safe operation of the front end loader as they were entitled to rely on Aggcon to supply an operator who was appropriately skilled and competent to deploy the plastic in accordance with the method it had designed, including the modifications it was necessary to effect to the front end loader. Curtis Barrier's duty, so it was submitted, was limited to effecting the modifications safely and designing a safe work method using the vehicle configured in that way. It was implicit in this submission that Curtis Barrier claimed to have discharged its duty without relevant breach.

The matters to be considered in determining whether duty has been breached are set out in ss 5B and 5C of the Civil Liability Act : 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Counsel for Curtis Barrier did not direct submissions to these as the governing sections perhaps, not surprisingly, since Mr Curtis and Mr Dakin acknowledged the foreseeable risk that the front end loader might become unstable on the batter, particularly under load. Counsel's submissions did not attempt to deal with the expert evidence that the front end loader, modified to conform with Curtis Barrier's methodology, positively increased the risk of it becoming unstable, and further, that configured in this way, if the vehicle traversed the batter (for whatever reason) there was a grave risk of it tipping over, or with the fact that the JSEA failed to contemplate the risk that an operator of the front end loader may (in error) seek to traverse the batter even if the two alternate approaches expressly provided for were not altered. Counsel described these approaches as a supplying a "self limiting aspect" to the process. Be that as it may that does not address the issue of breach as a matter of law.

Further, counsel's submission also ignored the necessary interdependence between Curtis Barrier's staff and Aggcon's staff engaged in the process of installing the membrane, and that it was Curtis Barrier's contractual responsibility to coordinate that process. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Mason J at 31 described a similar process as calling for: ... the prescription and provision of a safe system by Brodribb [Curtis Barrier]. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.

I am satisfied that in this case the provision of a safe system for lining the pond necessitated that Aggcon's staff (in this case the plaintiff) were instructed by Curtis Barrier (in this case Mr Dakin) not only as to what was to be done to deploy the plastic but that in that process the front end loader was only to ascend (and descend) the batter strictly on the vertical. Even accepting that Mr Bromage proposed that the plastic be installed in the corner of the pond using the front end loader contrary to the method Curtis Barrier had designed (a finding which I regard as borne out by the evidence), that did not alter the fact that Curtis Barrier had the obligation of making an assessment of the risk of using the front end loader in that way inclusive of an assessment of the possibility that an operator might deliver the plastic to the bobcat by approaching at an angle to the corner. Because the evidence reveals that were a risk assessment undertaken it would necessarily have identified an unacceptable risk of the vehicle tipping under load, the approach to lining the corner proposed by Curtis Barrier as "Approach 2" should have been adhered to and Mr Bromage's views disregarded. Curtis Barrier was obliged, both under contract and under the general law, to undertake the task of lining the pond safely. Where there was a foreseeable risk of injury they were not entitled to rely on the demands of an Aggcon employee that it be done differently, or to subjugate their own expertise to accommodate the views of Mr Bromage.

Strictly of course, it was not the inversion of the use of the front end loader and the bobcat that prompted the plaintiff to approach the corner of the pond at an angle (thereby traversing the batter), but the instability he experienced on the upper ridge of the pond. Curtis Barrier required the front end loader to travel from the base of the pond to the ridge carrying a roll of plastic irrespective of whether the plastic was to be fixed in the corners or on the batter and, as I have found, no instruction was given that this be strictly on the vertical. For this reason Mr Bromage's intervention does not extinguish Curtis Barrier's liability although it will have a bearing on the issue of apportionment.

In final submissions counsel for Curtis Barrier appeared to rely upon the plaintiff's expert evidence in support of the proposition that it had no duty to warn the plaintiff against the risk of the front end loader tipping over because it was an "obvious risk" and, for that reason, that it was not liable in negligence in accordance with s 5G of the Civil Liability Act . Not only was this contradicted by the case Curtis Barrier advanced at trial (to the extent, at least, that both Mr Dakin and Mr Curtis gave evidence that there was a foreseeable risk of the front end loader tipping over requiring warning) but the submission was not developed further, either by reference to the evidence or Division 4 of the Civil Liability Act or authority. It was not pleaded in Curtis Barrier's filed defence. It was not addressed by the plaintiff's counsel at all in submissions and no evidence was led from the plaintiff to address the operation of the section.

Division 4 of the Civil Liability Act deals with the question of assumption of risk. Section 5H(1) provides that the defendant (in this case Curtis Barrier) does not owe a duty of care to another person (in this case the plaintiff) to warn of an obvious risk to the plaintiff. Subsection (2) provides: This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (The exclusions have no application in this case.)

Section 5F defines "obvious risk": (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable

Section 5G provides that: (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

In Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [75]-[76], Beazley JA (with McColl and Basten JJA agreeing) summarised the relevant law as providing, inter alia, that the question of obvious risk is determined objectively requiring a determination as to whether the injured plaintiff's conduct involved a risk of harm which would have been obvious to a reasonable person in the plaintiff's position. This requires an identification of the particular circumstances in which the risk materialised and the extent to which the position of the plaintiff (including his knowledge and experience of the relevant area and condition) are to be ascribed to a reasonable person. While s 5F requires a focused consideration of the precise risk of harm (which in this case can be readily identified), the individual circumstances of the plaintiff, in the position of a reasonable person operating the front end loader, also need to be considered. Since neither counsel advanced submissions directed to this issue I do not propose to undertake an analysis as to whether a reasonable operator (which may or may not include a certified operator) would have discerned that the approach to the batter taken by the plaintiff carried an obvious risk of harm. I do note, however, that Mr McClymont, an experienced plant operator, was cross-examined by counsel for Curtis Barrier, apparently with a view to establishing the plaintiff's lack of competence or his contributory negligence or both. He gave the following evidence: Q. Tell me, you worked as a trainer/selector of drivers, is that correct? A. Trainer/assessor, yes. Q. If you were assessing somebody and you saw them driving a front end loader up a wall, a bank, a 1:4 angle? A. Batter. Q. Yes. And doing it at a 45 degree angle and under a load, about 2 tonne, would you assess them as being a competent driver doing that? A. I would have to see how it happened, seeing where the load was sitting in consideration of the ground. A number of different aspects you could look at there. ... Q. The load is raised because it has to be to get up the angle, it is a one in four slope? A. How high-- Q. Almost the full extension? A. Full extension, four in one batter, 45 degree, not that bad. I've done it, seen it done a lot. Q. With a two tonne load? A. With a two tonne load. I pick up 60 tonne a bucket in the loader I drove in a two in one batter, 45 degrees. Q. If the load is extended some distance either side of the body of the loader, that is not in a bucket but extended along a lateral load and the driver was taking the slope at a 45 degree angle does that assist you to offer a view as to whether that is a wise or an unwise thing to do or whether it reveals anything about the driver's or the operator's level of competence? A. No, it doesn't say anything about the operator's level of competence. Q. Would you say it would be wise or-- A. I'd say it wouldn't be wise as an operator. Q. Why is that? A. There is always a chance of roll over. You can be going straight up a batter and something happened, with a load shift. Q. But going straight up-- A. There is always chance of load shift, your Honour, like different ground levels. Q. Yes. But assume the load is reasonably balanced and confined within the mass of the equipment and the operator is taking the slope on the vertical? A. Yep. Q. That is the optimum approach, isn't it? A. Yes, exactly.

Whatever else this evidence might go to it does nothing to advance counsel's contention that there was an obvious risk in traversing the batter such as to relieve Curtis Barrier of liability under s 5F.

I am satisfied that in applying ss 5B(1) and (2) of the Civil Liability Act the risk of the front end loader tipping over and causing injury was foreseeable and productive of a risk that was not insignificant. I am also satisfied that a reasonable person in Curtis Barrier's position would have warned against that risk given the probability that serious harm would occur if the operator were not alerted to the risk. I am satisfied that, viewed objectively, a contractor in Curtis Barrier's position could have provided for the risk in an entirely cost neutral form by preparing and supplying a detailed risk analysis which included the risk of the vehicle tipping under load and an induction session for the operator by an experienced site supervisor prior to commencing the deployment of the plastic.

Curtis Barrier also submitted that it was not the modifications to the front end loader or the failure to warn of the risk of traversing the batter which caused the accident but the unilateral and erroneous decision of the plaintiff to approach the corner of the pond at an angle - in effect, an error of an incompetent and untrained operator for which Aggcon was primarily responsible as employer. Despite Aggcon's failure to satisfy itself that the plaintiff was certified or licensed to operate the front end loader before assigning him to the task, I am not satisfied that his lack of formal qualifications was causative of the harm the plaintiff suffered such as to relieve Curtis Barrier of liability. Irrespective of whether an operator had previous training and/or certification, Curtis Barrier's own case dictates that any operator engaged in the installation process required instruction and a safety induction in order to apply himself safely to the particular task involved in lining the pond. I am satisfied the front end loader rolled over and injured the plaintiff because of the intersection of Curtis Barrier's inappropriate choice of vehicle and its failure to provide any instruction in its use on the batter or any supervision in that task. I am satisfied in accordance with s 5D(1)(a) of the Civil Liability Act that factual causation has been established by the plaintiff in that Curtis Barrier's negligence was a necessary condition of the occurrence of the harm and that it is appropriate for its liability to extend to its proportion of the harm the plaintiff suffered within the terms of s 5D(1)(b) (see also Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420 at [44]-[45]). I am satisfied, however, that it is proper to regard the plaintiff's lack of certification as contributing to the accident (in the sense that a certified operator may not have taken what Mr McClymont regarded as an "unwise" approach to the batter) which will be factored into Aggcon's apportioned liability in damages. While the plaintiff's status as an unlicensed operator is not irrelevant to the issue of contributory negligence, to which I will turn presently, it is not determinative of it.

In addition, and to the extent that it is material (see Lym International Pty Ltd v Marcolongo [2011] NSWCA 303), I have no doubt that were the plaintiff warned against the risk of traversing the batter he would not have attempted that ascent. Ironically, it was because the plaintiff was concerned about the vehicle's instability that he sought to address that very risk. Unfortunately, he was not sufficiently alert to the fact that his decision to approach the corner at an angle actually increased the risk of the front end loader tipping over.

Aggcon (as the plaintiff's employer) acknowledged owing the plaintiff a non-delegable duty of care to provide a safe system of work. On the assumption that liability was established it did not dispute his entitlement to an assessment of damages in accordance with s 151H of the Workers Compensation Act . Section 151G limits those damages to economic loss.

In considering Aggcon's duty of care and its scope, it is instructive to restate the meaning of the duty as analysed by Mason P in Lepore v State of New South Wales where at [28]-[32] his Honour said: [28] The concept of a non-delegable duty of care has been discussed in a number of High Court decisions (see Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and Scott v Davis [2000] 175 ALR 217, [2000] HCA 52 at [245]-[249], [307]-[308], [353]). Employers, hospitals and school authorities are the clearest categories of relationships giving rise to such a duty. [29] The expression "non-delegable duty" is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate. A non-delegable duty is said to be personal or direct, rather than vicarious, but even this difference is more semantic than substantial. (These two points are made by Professor J P Swanton, "Non-delegable Duties: Liability for the Negligence of Independent Contractors" (1991) 4 JCL 183, (1992) 5 JCL 26. I have been much assisted by this learned article. See also Jane Swanton, "Master's Liability for the Wilful Tortious Conduct of His Servant" (1985) 17 UWA Law Rev 1.) [30] To similar effect are the remarks of Giles JA (Handley JA and Stein JA agreeing) in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236-238. His Honour said (at 238): Where the person owing the duty of care must ensure that the third party exercise reasonable care, and is liable if the third party does not do so, it can be seen why the non-delegable duty of care has been described as a disguised form of vicarious liability (J G Fleming, The Law of Torts, 9th ed (1998) Sydney, LBC at 434) and even as a logical fraud (G Williams, "Liability for Independent Contractors" (1956) Cam LJ 180 at 193). The person who owes the non-delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person's duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else's failure to take care. The concept of non-delegable duty of care has nonetheless been recognised for over a century (see Pickard v Smith (1861) 10 CB (NS) 470; 142 ER 535; Dalton v Henry Angus & Co (1881) 6 App Cas 740), and is thoroughly established in the law including in the decisions of the High Court. Indeed, it extends to liability for the failure to take care of third parties who are not independent contractors, in the traditional sense: eg Commonwealth v Introvigne (1982) 150 CLR 258. [31] The history and rationale of the concept of a non-delegable duty are considered by Professor Swanton and in the High Court decisions to which reference has already been made. It is not easy to know when to apply the concept to a new legal relationship. Fortunately, it is clearly established that a school authority owes such a duty at least to a pupil involved in a school activity on school premises, at least in relation to the negligent infliction of injury ( Introvigne ). [32] Where the non-delegable duty is one of care (and most reported cases deal with this situation) the duty is expressed as requiring the defendant to ensure that reasonable care is taken ( Kondis at 686, Burnie Port Authority at 550). The result is, as Gummow J expressed it in Scott (at [248]) that: ... the characterisation of a duty as non-delegable involves, in effect, the imposition of strict liability upon the defendant who owes that duty.

In TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 at [47] Mason P said: The authorities cited in para [32] of this extract [where his Honour referred to Lepore ] demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care.

I am satisfied that in this case Aggcon's non-delegable duty to the plaintiff was breached by their acceptance of Curtis Barrier's choice of an inappropriate vehicle to deploy the plastic, compounded by Curtis Barrier's failure to induct the plaintiff into a safe system for the lining of the plastic using that equipment, including its failure to provide warnings against the foreseeable risk of the front end loader tipping under load. I am also satisfied that Aggcon was aware that the front end loader would be modified for the task of deploying the plastic and that it breached its duty of care to the plaintiff by failing to satisfy itself, by reasonable inquiry, before assigning him to that task, that he was alert to the additional risks involved in operating the vehicle as modified, particularly in circumstances where reasonable inquiry would have revealed that he was not a certified operator and where Aggcon had not given him any training in the use of the vehicle or encouraged him to read the safety manuals.

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

The onus is on the defendant to prove the plaintiff's contributory negligence which is to be determined objectively from the facts and circumstances which include, relevantly in this case, what the plaintiff knew, or ought to have known, at the time of the accident of the risks inherent in the front end loader tipping over if, and ultimately when, he elected to traverse the batter. In Council of the City of Greater Taree v Wells Basten JA explained the difference between the exercise involved in the assessment of a defendant's conduct and that of the plaintiff: [107] The assessment of the plaintiff's conduct involves a quite different exercise. A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff "to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage": Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1). That is a different exercise from the determination of whether or not the defendant has been negligent. [108] A further important difference in approach in assessing the negligence of the defendant, as against the contributory negligence of the respondent, involves the degree of precision by which the activity, including relevant states of knowledge and understanding, is to be identified. Thus, the state of the park at the time of the accident was a matter of objective fact. Although some attention was paid in the evidence to identifying what was known by officers of the Council with respect to the use of the pathway by cyclists, the answer to that question was not critical on the issue of liability. It would have been sufficient for the plaintiff to demonstrate that the Council ought to have known that the path was used, or likely to be used, by cyclists. With respect to the plaintiff, the focus of the evidence is often quite different. Although the ultimate question is what a reasonable person in the cyclist's position would have known and done, it is inevitable that the evidence will focus upon the knowledge, understanding and actions of the plaintiff himself, shortly prior to the accident, in part to determine whether he exercised reasonable care, but also to assess what would be reasonable care in the specific circumstances. That evidence has been described and assessed by Beazley JA at [7]-[11] and [20] above.

In deciding what a reasonable person would have done in the plaintiff's position, it is necessary to make some assessment of what that person would have known, or ought to have known, of the risk of the front end loader becoming unstable, to the extent of tipping over, such that the approach across the batter should not have been attempted at all. It is to be recalled that together with the fact that the plaintiff was not certified to drive the front end loader, he had never been given access by Aggcon to either the manual or the guide available as a WorkCover publication nor given any training by Aggcon in the use of the equipment. It was not put to the plaintiff that he should have taken the precaution of informing himself or seeking out training. Counsel did not submit that it was unreasonable of him not to have done so. Neither was it submitted that the risk was so notorious that even in the absence of training a reasonable person in the plaintiff's position would not have done as he did. What was submitted was that even though the plaintiff's competence as an experienced but untrained operator was based solely on his practical experience, a reasonable person in his position would have known or ought to have known of the risks of the reconfigured machine tipping under load, and that the risk was measurably greater on sloping ground, such that the plaintiff should have only ascended the batter on the vertical. Although Mr McClymont said that the approach on an angle may have been unwise, he did not give evidence, and was not pressed to concede, that it should never have been attempted and that no reasonable operator would have done so.

Another difficulty the defendants face in discharging the onus of proving the plaintiff's contributory negligence is that aside from confirming in cross-examination that it was the plaintiff's decision to approach the corner of the pond at an angle (and one that he now accepts, not surprisingly, was an error of judgment on his part) it was not suggested to him that this decision was through nonchalance or a lack of concentration or focus much less in the knowledge of the risks involved. What is to my mind critical is that he gave unchallenged evidence that he took the approach he did to actually minimise the risk of the front end loader becoming unstable but, in the circumstances, elected to take a wrong approach to addressing a legitimate concern on his part.

In all the circumstances I am not persuaded that the plaintiff's damages should be reduced for any contributory negligence on his part.

In calculating damages and in applying Part 5 of the Workers Compensation Act it is necessary that liability for the plaintiff's injuries be apportioned between Curtis Barrier and Aggcon. It is also necessary to deal with Aggcon's claim for repayment of workers compensation payments made to, or on behalf of, the plaintiff pursuant to s 151Z(1)(d) of that Act.

Consistent with my various findings I am of the view that the greater part of the liability should be borne by Curtis Barrier. Although Aggcon was the plaintiff's employer and assigned him the task of operating the front end loader without satisfying itself that he was certified to operate it (or that he was sufficiently familiar with its operation after it had been significantly modified), it did not have control over the worksite during the installation of the lining and was not responsible for identifying or addressing the risks and hazards inherent in that process. I am satisfied however that the plaintiff's unlicensed status, a matter which Mr Bromage did not inquire into, and his presence as Aggcon's site foreman when the process of installation was discussed and settled upon with Mr Dakin, together with what I accept was his inappropriate advice or decision to use the front end loader in preference to the bobcat for lining the plastic in the corners of the pond on the afternoon of the accident, does operate to increase the apportionment of liability to Aggcon above the 10 per cent Aggcon's counsel submitted was a fair reflection of their liability. Counsel for Curtis Barrier did not propose any particular percentile apportionment reflecting its liability maintaining the submission that it was not liable at all for the plaintiff's injuries.

Podrebersek v Australian Iron & Steel Pty Ltd provides that the question of apportionment is one of proportion and of balance rather than a question of principle or a positive finding of fact or law. In my view Curtis Barrier should be regarded as 75 per cent responsible for the plaintiff's injury. I consider that to be a fair reflection of my findings as to the seriousness of their breach of duty and its role in causing the injuries the plaintiff suffered leaving Aggcon 25 per cent responsible for breach of its non-delegable duty of care.

Aggcon seeks to recover from Curtis Barrier the compensation paid under the Workers Compensation Act to or on behalf of the plaintiff. Section 151Z(1)(d) relevantly provides: If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: ... (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)...

Although I have found that both Curtis Barrier and Aggcon are liable to the plaintiff, this does not prevent Aggcon from maintaining its claim for repayment of compensation paid by it. However, as Hoeben J recognised in Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098, it does limit the amount of that compensation ( Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270; I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486). It follows that Aggcon is entitled to judgment against Curtis Barrier on its cross claim, adjusted to take account of its own liability in negligence of 25 per cent. It is also entitled to interest. The precise amount will need to be calculated by the parties.

The plaintiff was born in Bingara (a small town in western New South Wales) on 3 January 1960. He was aged 46 at the time of the accident. He was educated in Bingara and left school after completing Year 10 in 1976.

He worked at Moree Abattoirs for 12 months before commencing work as a harvesting contractor in 1977. He worked in that capacity until 1981 when he commenced work as a general hand/truck driver for local cotton farmers. In 1985 he commenced work for Riordan Farms as transport manager and machinery driver until 1994 when the drought forced him to seek other work. Riordan Farms was a mixed cotton and wheat farming operation. In 1994 he worked for Mills Transport in Murwillumbah as a semi trailer driver. In 1997 he returned to work for Riordan Farms as a plant, machinery and truck operator where he remained until 2002. In December 2003 he commenced work with Aggcon as a bulldozer driver with most of his work involved in forest clearing. The plaintiff gave evidence that his ultimate aim was to further his experience with Aggcon and then seek work as a plant operator/bulldozer driver in the mining industry.

The plaintiff presently resides in Tamworth with his elderly parents who are both in poor health. His father has been diagnosed with bowel cancer and his mother with coronary artery disease. At the time of the accident the plaintiff resided with his parents but work commitments often required him to live extended periods of time interstate or on site. He gave evidence that during the 12 months prior to the accident he was very rarely at home for any extended periods of time.

Mr Cobcroft was admitted to Narrabri Hospital on 14 December 2006 having sustained multiple compression fractures to his thoracolumbar spine and lumbar spine and a fractured pelvis which also involved the left hip joint (although undisplaced) after landing primarily on his left side and leg when the front end loader tipped over and he fell heavily onto the internal wall of the cabin.

Prior to the accident the plaintiff suffered from gout in his right knee and asthma, each of which he treated with regular medication. He has also been diagnosed as a carrier of hemachromatosis which was asymptomatic. It was not suggested that these conditions impinged on his capacity to work. Mr Cranitch submitted that despite the plaintiff's obesity (the significance of which I will consider in some detail presently) he had no difficulty operating various plant and equipment or driving long haul road trains. There is nothing in the evidence to suggest to the contrary.

On 18 December 2006 the plaintiff was transferred to Tamworth Base Hospital where he was admitted under the care of Dr Doig, orthopaedic surgeon. His treatment consisted of complete non-weight bearing bed rest for 12 weeks to avoid the risk of the fractures displacing. He was discharged from hospital on 8 January 2007 after which he was transferred to the Rotary Respite House. In late February 2007 he returned to his parents' home. His mother provided him with significant levels of care for the next nine months as he attempted to regain his mobility. The plaintiff has not regained full mobility and has not returned to work since the accident.

The plaintiff developed a haematoma in the left buttock and thigh as a consequence of his injuries. It was surgically drained in early April 2007. He has residual swelling and scarring. He gave evidence that the surgical scar (what I assume to be subcutaneous scar tissue) is aggravated when he wears a seat belt.

In July 2008 the plaintiff was referred to Dr Wade King at Pendlebury Pain Management Clinic. In the course of administering a nerve block to assess the origin of the plaintiff's pain in his lower back (the site the plaintiff identified as the most painful) he was given a course of transforaminal cortisone injections which, although providing some pain relief, produced an allergic reaction. In consultation with his general practitioner OxyContin was prescribed as a substitute. He also sees Dr Robert Parkhurst, psychiatrist, and a podiatrist who advised the wearing of orthotics and the need for regular review.

The plaintiff currently takes OxyContin, Endone, Panadol and Osteoeze daily for pain relief. He also takes Aurorix daily to treat what has been diagnosed as reactive depression. He attends for hydrotherapy at Tamworth Base Hospital daily and sees his General Practitioner, Dr Robilliard.

The plaintiff tendered evidence from Dr Doig, his treating orthopaedic surgeon, (the most recent report being April 2007) and Dr Ostinga, an orthopaedic surgeon who prepared a series of reports between March and December 2009 for medico-legal purposes. The plaintiff also relied upon the report of Dr Matalani, a consultant occupational physician, dated February 2010 and reports from two psychiatrists. The defendants, in their respective cases, relied upon the reports of Dr Bentivoglio of May 2008 and March 2010. All specialists save for Dr Bentivoglio agreed that the plaintiff is unable to resume his pre-accident employment. They were of the shared view that his injuries effectively preclude him from driving heavy equipment or undertaking any physically demanding manual work.

In January 2007, Dr Doig advised that it would be three months before the plaintiff would be able to undertake any light duties and after 12 months he may be able to resume work as a plant operator. No updated report from Dr Doig was tendered.

Dr Bentivoglio, orthopaedic surgeon, examined the plaintiff in May 2008 and again in March 2010. Essentially he was of the opinion that the plaintiff's orthopaedic injuries did not disable him from returning to his full pre-injury duties and, further, that he would have been capable of returning to work within a period of three months following the accident.

In the May 2008 report he noted the following: Back There was no paravertebral muscle spasm present. He had approximately 3/4 normal range of movement present in his lumbar spine region. He had straight leg raising to at least 60 in both lower limbs. There was no muscle wasting present in his calf region. There was no localising motor sensory or reflex abnormality that I could detect in his lower limbs. He was capable of walking on his heels and on his toes with no difficulty. Left Hip He had a full range of movement present in his left hip. There is no leg length inequality present in his lower limbs. He had a well-healed scar present over the posterior aspect of his left thigh measuring 5cm in length. It was not attached to the underlying tissues. Pelvis There was no pain on compression of his pelvis in AP or lateral direction. All movements were conducted in an active manner by the client. Where passive movement has been induced it has been recorded in the examination findings. No passive movements were performed beyond the limits of comfort.

He went on to report signs of a pre-existing abnormality in the plaintiff's thoracolumbar region but that any aggravation of that condition had settled. Despite what was said to be an "ongoing disability" in the plaintiff's back and pelvis as a result of the accident, Dr Bentivoglio was of the view that he should be capable of performing his pre-injury duties (being of the understanding that they were, for the most part, light in nature) but that he should avoid bending or twisting.

In the March 2010 report (after noting the plaintiff's lack of response to pain therapy and that he had not returned to work in the intervening two years) Dr Bentivoglio reported as follows: Back This is the area that troubles him most of all. He is always aware of some degree of low back pain. His back symptoms fluctuate in severity. Certain activities make his symptoms worse. He also has pain radiating down both lower limbs, extending to the knee region. He states that his back symptoms trouble him more than his lower limb symptoms. He finds that standing is more uncomfortable for him than sitting. He finds if he remains in one position for any length of time, his symptoms worsen. He is only able to walk for about 500 metres before his symptoms worsen. He tends to wake at night when rolling over in bed. He is aware of bladder sensation. He also has pain radiating to his left groin region. He also experiences pain present in both hips, particularly when walking. He does not feel as though his symptoms are improving. Pelvis He still experiences some pain present in his right iliac region. He also has some symptoms in his left iliac crest. The pain tends to radiate towards his back region. He finds it uncomfortable to sleep on his hips at night. Thoracolumbar spine He still experiences pain present in his thoracolumbar spine region. He is always ware of some degree of discomfort in that area. His symptoms are made worse with activity. There is no radiation of his symptoms.

On clinical examination Dr Bentivoglio observed that all movements were conducted in an active manner and that the plaintiff was able to move on and off the examining couch without significant difficulty. He reported: Back There was no paravertebral muscle spasm present. He demonstrated a three quarters normal range of movement present in his lumbar spine region. He had straight leg raising to 60 in both lower limbs. There was no muscle wasting present in his calf region. There was no localising motor, sensory or reflex abnormalities that I could detect in his lower limbs. He was capable of walking on his heels and toes, with no difficulty. His toes were downgoing. Thoracolumbar spine region He had normal alignment present in his thoracolumbar spine. He demonstrated a good range of movement present in his thoracolumbar spine region. Left hip He had a well healed scar measuring 5cm in length over the posterior aspect of his left thigh. This was not attached to the underlying issues. He had a full range of movement present in both hips and there was no leg length inequality present in his lower limbs. Pelvis There was no pain on compression of his pelvis in either AP or lateral direction.

Dr Bentivoglio went on to report: As far as his back is concerned, he has aggravated pre-existing degenerative changes involving his facet joint on the right hand side at the L5/S1 level of his lumbar spine region. He has undergone appropriate treatment for this (CT-guided cortisone injection). It did not improve his symptoms. No further treatment is indicated for his back complaint. As far as his thoracic spine is concerned, Mr Cobcroft suffers from a DISH syndrome. He has essentially a fused spine. The bone scan indicates he has not fractured his thoracic spine region as such. Any aggravation to his DISH syndrome would be temporary. It is not possible for him to have symptoms coming from his thoracic spine region at this stage, as he has a totally fused thoracic spine. In summary, Mr Cobcroft had a minor aggravation to his thoracic spine in the incident he described in 2006. His thoracic spine symptoms have to have returned to their pre-injury status as it is not possible to have any symptoms from a DISH syndrome unless there is a fracture of the thoracic spine region. As far as the fracture of his ilium is concerned, the fracture has united in anatomical position. There is a small potential for Mr Cobcroft to develop degenerative osteoarthrosis present in his hip region at a later stage, as the fracture did extend into the acetabulum. Physical examination today fails to show any evidence of this. With his back, he would have aggravated some pre-existing degenerative changes involving a facet joint on the right hand side at the L5/S1 level. At this late stage, any aggravation caused to this pre-existing abnormality has long since settled. His ongoing symptoms in this area relate specifically to the pre-existing degenerative changes. Although he did have a significant injury to his person, his fracture has united uneventfully and there is no evidence of any ongoing disability that can be determined on physical examination and any symptoms he has to relate to pre-existing abnormalities. As Mr Cobcroft was perfectly capable of performing his pre-injury duties with his DISH syndrome and degenerative changes involving his facet joint on the right hand side of the L5/S1 level, prior to the accident he had, he is perfectly capable of performing his full pre-injury duties (as far as his orthopaedic injuries are concerned) at this point in time. Indeed, he would have been capable of performing his full pre-injury duties within a period of three months, following the accident.

A year earlier, namely in March 2009, Dr Ostinga, orthopaedic surgeon, reported that the plaintiff was unlikely to return to driving heavy machinery and that the osteoporotic condition in his left hip which was confirmed on X-ray and imaging was likely to deteriorate. He said that the plaintiff would be unlikely to be able to withstand the jolting and jarring involved in driving heavy machinery, and that he would find climbing in and out of heavy vehicles and walking on uneven ground problematic. These difficulties were magnified by his obesity. He said the plaintiff was however suitable for sedentary work.

On 23 February 2010 (two months before Dr Bentivoglio's second report), Dr Matalani, consultant occupational physician, also reported that the plaintiff was virtually unemployable in the industry in which he had spent his working life and that he would have difficulties working as a truck driver, farmhand or tractor driver. He said that he was unfit to return to his pre-injury employment as a bulldozer driver because he would be unable to tolerate the movement of the vehicle and the associated jarring of his back. He also said he would likely have difficulties climbing on and off the bulldozer and working on building sites. He said the plaintiff would be unable to tolerate long periods of sitting and vehicle movement on uneven terrain would be likely to precipitate pain in his back and hips. Dr Matalani said it would be difficult for the plaintiff to find a job in the open labour market because of his narrow skill base, his chronic pain, his dependence on pain killing medications and his inability to tolerate prolonged sitting, standing and walking.

In short, Dr Matalani advised that as a consequence of his injuries, the plaintiff would be unsuitable for work which involved the following activities:

However, Dr Matalani said: [The plaintiff] is fit for permanently modified duties within the above restrictions and requires work, which allows him to alternate between sitting and standing regularly, and take frequent rest breaks.

On 10 May 2010 Dr Sage, orthopaedic surgeon, conducted a full examination of the plaintiff and a review of Dr Ostinga's reported views. He was not provided with Dr Bentivoglio's report despite the fact that it predated his clinical examination. After noting the plaintiff's orthopaedic injures, the treatment he had received and his response to it in uncontroversial terms, he reported the plaintiff's condition as follows: Back : I got him to touch where he gets his back discomfort. He had surprisingly good internal rotation of the shoulders and reached to the lower thoracic spine to indicate where he gets his pain. There is some possible irradiation to the lateral aspects of the hips and at times it seems to also go into the legs. There is groin pain on adduction of the left hip. Function of the back Sedentary activities : Personal care is mostly satisfactory, but he has difficulty getting to his feet, which would be mainly from his hips and his large size. Accustomed moderate activities : He is restricted to walking short distances and this appears to be related to the left hip. Left hip : There is pain on the lateral aspect of the hip, but that might be spinal, but he has groin pain, which is related to adduction of the hip and with walking. [He concluded on examination a marked restriction of movement likely to be an exaggeration of degenerative change resulting from the accident.] Function of the left hip Sedentary activities : He walks with a limp. He has reduced movements. Accustomed moderate activities : This is his main restrictor with regard to walking. [He concluded that restriction was probably due to the plaintiff's weight rather than the hip joint.] Both knees : Initially he pointed to the front of the knees as where he gets his pain, but later it was medial. It was difficult to know what increases the discomfort, as it is overshadowed by the left hip. [He regarded the knees as stable.] Function of both knees Sedentary activities : Not affected. Accustomed moderate activities : I do not think it contributes to his limitations. Cervical spine : The discomfort is in the mid cervical spine. It is intermittent. Headaches do not seem to be a significant feature. There is no irradiation. Function of the cervical spine Sedentary activities : Not affected. He has a good range of movement. Accustomed moderate activities : Probably not significant with regard to limitations.

Ultimately, Dr Sage was also of the opinion that the plaintiff was not fit for work which involved physical labour or operating heavy plant equipment. He was of the same view as Dr Ostinga, that the plaintiff's injuries effectively precluded him from ever driving heavy equipment or undertaking any physically demanding manual work. He noted that weight reduction would assist his management (especially his knees) which is rendered difficult because he cannot walk distances without pain.

He also reported that: There is apparently a significant literacy problem making selected duties possible, however, he had difficulty sitting for a period and has difficulty walking other than short distances, so sedentary type work is not practical.

In November 2010 Dr Dalton, a rehabilitation physician, reported that the degenerative change in the plaintiff's thoracolumbar spine was such that he would not be able to cope with the repetitive jarring involved with driving heavy machinery and that it would be unlikely he would ever be able to return to his pre-injury employment. He recommended that the plaintiff attempt to find part-time or full-time light manual work. Dr Dalton advised that he should avoid any work involving repetitive bending or heavy lifting and that he change his posture regularly throughout the day.

Under cross-examination, counsel for Aggcon suggested to the plaintiff that he could employ the modest management skills he developed in the position of transport manager when he was working for Riordan Farms between 1985 and 1994, and later between 1997 and 2003, or to seek out a more sedentary role within the mining industry. The plaintiff, while keen to find work, felt that his chronic pain had undermined his confidence to take on managerial responsibilities. He said that although he has not attempted to find employment at a management level, he has unsuccessfully sought work as a bus driver and truck driver since the accident.

The plaintiff gave evidence that on several occasions between 2007 and 2009 he had attempted to seek employment with Aggcon. He said that he had telephoned Mr Hawkins several times requesting work. He gave evidence that at one point Mr Hawkins had offered him a position in Hillston, (a town approximately 750km away from where he lived with his parents in Tamworth) collecting timesheets from machinery operators. The plaintiff said that at the time his doctor had restricted him to working 12 hours, three days a week for four hours. Other restrictions included no heavy lifting, no bending or travelling for any more than 50 kilometres. Essentially, work restricted to light duties. He gave evidence that the drive to Hillston would have taken him 12 hours and that the distance was prohibitive.

On 23 February 2010 Dr Akkerman, psychiatrist, (whose report was relied upon by the plaintiff) diagnosed the plaintiff with post-traumatic stress disorder and major depression. On mental state he found: He was a man who walked with great difficulty. He was morbidly obese. His mood was depressed. His affect was similar. His concentration was down. His short term memory was down. He was somewhat irritable. He was not tearful. He became visibly upset when he described the incident. He used avoidance. He startled easily. He was hypervigilant.

He advised that at the time of examination the plaintiff was unable to work and was unlikely to ever work again. It was unclear as to the basis for this finding since he was also of the view that his prognosis whilst guarded was likely to improve with treatment.

On 13 January 2011 Dr Smith, consultant psychiatrist, (whose report was tendered by the second defendant) disagreed with Dr Akkerman's diagnosis. He was of the opinion that the plaintiff did not demonstrate the diagnostic criteria for a post-traumatic stress disorder or for a major depressive episode. Rather, he diagnosed the plaintiff with an adjustment disorder with depressed and anxious mood, albeit chronic in duration. Furthermore, Dr Smith was of the opinion that, from a psychiatric point of view, the plaintiff was fit for employment. He said that: [a]ny restrictions in regard to [the plaintiff's] employment are related to his orthopaedic condition and in particular his chronic pain. He does however display a markedly negative and pessimistic view of his ability to work and has adopted a disabled mode of functioning. Secondary gain factors could not be categorically excluded. Attempts at rehabilitation have failed.

In March 2009 Dr Ostinga was of the opinion that: [The plaintiff's] ability to lead a normal life has been significantly impaired by the injury suffered in the accident associated with the effect on his left hip.

In February 2010 Dr Matalani reported that as a result of the pain and discomfort in the plaintiff's thoracic spine, hips, groin and knees: [the plaintiff's] maximum walking, standing and sitting capacities are restricted to approximately 20 minutes. Driving longer than 30 minutes aggravates his pain. The pain often disturbs his sleep. Ascending and descending stairs is very difficult and he avoids it. He finds squatting and kneeling painful. Coughing and sneezing precipitates the pain in his back.

This was consistent with the plaintiff's unchallenged evidence that he needs to move slowly and steadily to avoid aggravating the generalised pain from which he suffers. He said: ...when I go down the street or anywhere, if I know I have to go down the street for something I have to take a painkiller before I go and then I walk from park bench to park bench, I just go from one block to one block and sit down. I can't just run down to the shop. I can't get out of the bed straight up. I lift my feet over, slowly get up and I can't take straight off. Everything has to be slow and steady. ... The only real exercise I can get is up at the hydrotherapy pool because you are more or less weightless down there and the heat of the pool, the hot water, it's like sitting in a bathtub for an hour. The hot water penetrates into you.

Although the plaintiff is able to drive, he has difficulty driving over distance and needs to take frequent breaks: If I am driving - I drove down to Newcastle and then I caught the train down from there to here. A trip to Newcastle is usually about three, three and a half hours. It will take me five hours because I stop and start. I usually drive for half an hour, three-quarters of an hour, then pull up, get out, have a stretch and then go again, and I have always done that since the accident.

He gave evidence that the pain in his hips and back is getting worse.

I accept that the plaintiff's debilitating and generalised pain in the back, groin and hips and marked restriction makes it difficult for him to carry out general household duties. He said that prior to the accident, when he was away from home, he would attend to his own domestic needs, and when he was at home between jobs he assisted with tasks such as mowing the lawn, washing up, hanging out the washing, vacuuming and peeling vegetables.

After the plaintiff returned to his parents' home from respite care he required the assistance of a walking frame for a month. Because he was unable to drive and had difficulty walking and attending to his domestic needs, for a further three to four months his mother drove him to and from hydrotherapy daily, collected his prescriptions and other items he required. The plaintiff gave evidence that he was unable to participate in the maintenance of his parents' home for at least 12 months after the accident. He currently assists to the extent that he is able but, given the age of his parents and their ill health, he would prefer to engage domestic help to make that contribution and to relieve his mother, in particular, of the ongoing responsibility of assisting him.

Prior to the accident the plaintiff gave evidence that he was a keen fisherman, surfer and swimmer. The plaintiff has attempted to return to these recreational pursuits without any real success.

From August 2007 the plaintiff has been treated by Dr Parkhurst, psychologist, including counselling sessions and breathing exercises. The plaintiff gave evidence that one aspect of his treatment with Dr Parkhurst included practising getting back on a piece of earthmoving equipment and gradually beginning to operate it in increasingly more difficult situations. The plaintiff said that he went to Narrabri on one occasion to drive a bulldozer, but could only operate it for approximately 10 to 15 minutes because the machine was too physically "rough" for him and he did not feel confident driving it.

As noted above, Dr Akkerman, psychiatrist, diagnosed the plaintiff with post-traumatic stress disorder with major depression. He also noted that the plaintiff's condition was "severe" and that he has an ongoing impairment. He was of the opinion that the plaintiff's ability to lead a normal life had been seriously impacted by the injury suffered in the accident.

In January 2011 Dr Smith reported the following psychiatric opinion: ...it is my opinion that Mr Cobcroft in response to the accident that he was involved in on 14 December 2006 has developed chronic and persistent pain with restrictions of movement. Mr Cobcroft has also developed marked avoidant and dependant behaviour. He was morbidly obese prior to the accident and his weight has incremented by a further 10kg in response to further inactivity. From a psychiatric perspective I would view Mr Cobcroft as demonstrating clinical features of an Adjustment Disorder with Depressed and Anxious Mood, chronic in duration. As Adjustment Disorder is a formal psychiatric disorder defined in the Diagnostic and Statistical Manual of Mental Disorders (fourth edition) of the American Psychiatric Association. It refers to the development of emotional and behavioural symptomatologies in response to a psychosocial stressor. The accident in question was a distressing event to Mr Cobcroft. He reported experiencing pain with marked restrictions of movement requiring a lengthy period of hospitalisation and rehabilitation. He reported that he felt un supported in the work setting and that he has not been able to return to work as a bulldozer driver. Attempts to rehabilitate him have not been successful. He described being anxious and apprehensive and prone to panic attacks. He has also been depressed. His self esteem and self confidence have been lowered and he described feelings of inadequacy, pessimism, despair and hopelessness. He also reported being irritable. Despite ongoing physical and psychological treatments Mr Cobcroft reported no significant improvements.

Despite the different psychiatric diagnoses both doctors share the view that there is disabling psychiatric sequelae as a result of the plaintiff's injury and chronic pain. The plaintiff gave evidence that antidepressant medication (Aurorix and Valium) has helped to stabilise his moods and his sleeping patterns.

On 18 December 2006, shortly after the accident, Dr Doig described the plaintiff as morbidly obese (no weight was recorded by the doctor). The plaintiff gave evidence that he could not be weighed at this time because part of his treatment was complete non-weight bearing bed rest for 12 months. At the time of the trial the plaintiff gave evidence that he weighed approximately 142.7kg. He said that prior to the accident he weighed approximately 127kg. According to a report by Dr Dalton, rehabilitation physician, (also relied upon by the plaintiff) the plaintiff reported that he weighed 140kg prior to the accident. When cross-examined as to this apparent inconsistency the plaintiff said that he did not recall telling Dr Dalton his weight. He disagreed with counsel for Aggcon that he was approximately the same weight at the time of the trial as before the accident.

On 2 November 2007 Dr Dalton (whose report was also tendered by the plaintiff) advised the plaintiff that his obesity was a major obstacle to recovery. By May 2008, following an extensive program for his rehabilitation (involving hydrotherapy, walking and dietary assistance) the plaintiff's weight dropped to 125kg. However, the plaintiff gave evidence that the exercise program had to be curtailed a month later due to persistent pain and that lack of exercise has retarded his attempts at sustained weight loss since that time to the extent that he has gained weight. He said that the only exercise he can withstand is in the hydrotherapy pool. He said that the steps he has taken to reduce his weight have been visiting a dietician (he said his last visit at the date of the trial was between six to twelve months ago) and conscientiously attempting to reduce his calorie intake by eating low-fat food.

According to the reports tendered from various practitioners, the plaintiff weighed 147kg in June 2007, 138 kg in November 2007, 125kg in May 2008, 146kg in December 2009, 145kg in March 2010, 148kg in May 2010 and 150kg in January 2011. I note that the plaintiff gained 20kg between May 2008 and May 2010 as reflected in Dr Bentivoglio's reports.

The plaintiff gave evidence that prior to the accident he intended to seek work as a plant operator/bulldozer driver in the mining industry. He said that he wanted to work in the mining industry as the remuneration would enable him to save to purchase a house. He undertook employment with Aggcon to gain additional experience with equipment that he would likely be required to operate in an open cut mine. The plaintiff gave evidence that he had no preference as to where in Australia he might look for work in the mining industry but that he preferred to work above ground.

Mr Cranitch submitted that although the plaintiff had made no specific arrangements to secure work in the mining industry, prior to the accident he was working towards being in a position to approach the mines with his experience as a licensed operator of heavy moving equipment to support his candidacy. The plaintiff said that he had some experience working for a short-term contract for Aggcon in a coal mine at Werris Creek where he operated a laser bucket.

The plaintiff gave evidence that he was aware of certain medical requirements to qualify for work in the mining industry. He was unaware whether these requirements varied dependent upon the type of mining. He said that when he worked on the coal mine at Werris Creek full-time operators were subject to a weight restriction of 120kg. He said that although he exceeded this weight requirement, strict adherence to the weight requirement was not imposed by the mine operators because he was working on contract.

The plaintiff disagreed with counsel for Curtis Barrier that for at least five years prior to the accident he weighed approximately 140kg. However, he did not know whether his weight fluctuated in this time period. He was certain that at one stage (he was unsure when) he weighed 127kg at which time he aimed to lose 7kg in order to meet the mining industry weight requirements.

Mr McClymont is employed as a plant operator and trainer/assessor at a large coal mine in Hail Creek, Queensland. He gave evidence that part of his job involved assessing applicants for work in the mine, in particular levels of competence in the operation of heavy equipment. He said that regardless of the experience an applicant might possess, each prospective employee has to undergo a skills assessment before being offered employment.

In assessing competence, Mr McClymont gave evidence that he looks to a candidate's previous experience as one aspect of that assessment. He was questioned as to the plaintiff's suitability to work in the mining industry: Q. What is your knowledge of Mr Cobcroft's experience as a plant operator? A. Just through talking to people and talking to [the plaintiff] himself. He actually, he actually encouraged me to go into the mines because he was talking about it himself and he, you know, he's helped with my experience in the mines and operating equipment. Q. How did that come about, how did he help you? A. He, he just encouraged me, he didn't really help me, just encouraged me in the mines. Oh, helped me I suppose talking about equipment he's operated and how, giving me pointers on how to do different things. Q. And I want you to assume that he has, in terms of his road driving experience, a licence to drive up to anything and including a road train and that since 2003 through to 2006 he has been operating various pieces of earthmoving equipment on behalf of the company known as Aggcon. Do you know of Aggcon yourself? A. No, I don't, myself. Q. And that that involved driving various pieces of equipment including front end loaders and scrapers and laser levellers and bulldozers. Is that the sort of equipment experience that you would be looking for as an assessor? A. Yes. Q. And I want you also to assume that he has worked in Werris Creek mines, are you familiar with those? A. No, I'm not. Q. Apparently it is an open cut mine and apparently he was required there to drive a laser bucket and he was there for some weeks, about five weeks in all. Would that assist if you were required to assess him for the purpose of working in the mine? A. Experience in any quarries or any mine would be an advantage, yes. Q. Do you think he would have any difficulty in the light of what I just told you in obtaining work? A. No.

Mr McClymont gave evidence that a medical examination is required prior to working in the mining industry. He confirmed the existence of weight restrictions for operators of heavy machinery in the industry.

As stated above, Dr Bentivoglio was of the opinion that the accident had not caused any physical disability to the plaintiff and there was nothing preventing him from returning to his full pre-injury duties.

Dr Matalani reported the following prognosis: [The plaintiff's] long term prognosis is guarded. His tolerance to prolonged standing, walking and sitting would be reduced. His occupational functioning will be adversely affected. His condition is unlikely to change substantially with or without further medical treatment. His injuries have stabilised and reached maximum medical improvement".

Dr Akkerman was also of the opinion that the plaintiff's prognosis is guarded. In addition, he said that the plaintiff required further psychiatric treatment and that it is necessary for his use of antidepressants to be regularly reviewed. He said that although the plaintiff's condition is not stable, with appropriate treatment he is likely to improve.

Dr Smith reported as follows: I would view Mr Cobcroft's prognosis as closely related to amelioration of his pain symptomatologies. His psychological symptoms are directly linked to his ongoing pain and inability to reintegrate at work. Indeed the development of his Adjustment Disorder is secondary to his chronic pain symptoms.

Dr Ostinga and Dr Sage were of the shared view that the condition in the plaintiff's back with associated pain and discomfort is unlikely to change, although in Dr Ostinga's view he may develop arthritic changes in the joints impacted by the fractures. He was of the view that the plaintiff is unlikely to require any specific treatment or surgical interference. Both doctors were of the view that there will be progression of degenerative changes in the plaintiff's left hip where the injury was a significant factor in that progression. While they were of the view that the condition of both his knees is likely to deteriorate as a result of degenerative changes it is unlikely that the condition of his knees is in any way related to the accident. Dr Sage advised that the plaintiff would require a joint replacement at his left hip. He also said that weight reduction should be attempted. He conceded that the plaintiff is restricted in movement and thus would be unable to reduce his weight through exercise, so reduction in calorie and alcohol intake is advised.

In respect of attendant care, Dr Akkerman was of the opinion that the plaintiff would benefit from 4-8 hours of care per week in the past and for the next two years. Dr Matalani was of the opinion that he required assistance in the vicinity of 4-6 hours per week. The plaintiff did not call any evidence from an occupational therapist which might have supported a conclusive finding of the need for assistance at the upper end of the notional scale of 4-8 hours. So far as the need for ongoing assistance for his psychiatric condition is concerned, I note that no symptoms of post-traumatic stress have occurred since August 2009 and that counselling was only recommended by Dr Smith on a needs basis.

Damages for past out of pocket expenses were agreed as was the Fox v Wood component ([1981] HCA 41; 148 CLR 438). In addition, there was little real dispute as to the need for domestic care in the past or the future. There was no evidence led as to the rate at which it should be calculated although it was agreed that allowance should be made for 13 hours each week for 13 weeks and thereafter 8 hours per week. I fix the rate at $20 per hour. Curtis Barrier accepted that it is reasonable for the plaintiff to have paid future care but sought that it be limited to 4 hours per week. No rationale was offered for any measure of improvement in the plaintiff's ability to attend to his domestic needs as he ages, in fact, given that he has reached maximum improvement this is unlikely. I propose to allow 8 hours per week paid care on a continuing basis at the rate of $30 per hour.

In the same vein whilst there was no agreement as to future medical expenses (Curtis Barrier proposing an estimate of $50,000 including an allowance for future surgery) I invite the parties to produce a more precise assessment of future expenses based upon a finding that the plaintiff has a legitimate need for weekly hydrotherapy, that the medications prescribed by his general practitioner for both pain relief and depression require review on a monthly basis and a monthly allowance for attendance on a podiatrist. I propose to allow a cushion of $20,000 to allow for future surgery, footwear and psychological counselling

In addition to his loss of function as a working man, and the distress that this has given rise to, the ordinary physical demands of daily life are also made more difficult by reason of the plaintiff's injuries. I was impressed by the authenticity in the plaintiff's unsolicited statement in evidence that he "loved his work and lived for it". I accept that his work with Aggcon (and the work he had done in the past with Riordan Farms) was more than simply a livelihood. It was for him a source of self-respect, independence and pride. I also accept that his chosen leisure activities are no longer a realistic option. Sadly, the increasingly sedentary life he has been forced to live since the accident has also negatively impacted on what I regard as genuine efforts to address his weight which in turn retards his attempts to improve his physical fitness and his mobility. I also accept as genuine his desire to find remunerative work to regain some measure of independence and social utility and that he is frustrated by his narrow work options given his age, his level of schooling, his physical disabilities and his work history.

Counsel for Curtis Barrier invited me to assess his damages for non-economic loss at 30 per cent of a most extreme case of its kind while Mr Cranitch submitted that it should be assessed at 45 per cent. I assess the severity of his loss at 40 per cent of a most extreme case. In that assessment I do not seek to minimise the impact of the injury on the plaintiff's sense of worth and the loss of independence and confidence that entails. I do however take into account that since his injury he has formed a supportive and ongoing relationship with a woman and, to that extent at least, his emotional and social life appears secure. It was not suggested his injury has caused any friction in his new relationship or that it limits their enjoyment of each other's company in any way.

The differential between the plaintiff's claim for past and future economic loss and related heads of damage and that proposed by Curtis Barrier is largely based upon the contention by Curtis Barrier and Aggcon that the plaintiff has retained an earning capacity of 40 per cent. This is in turn dependent on my acceptance of Dr Bentivoglio's assessment that as from 8 May 2008 the plaintiff was fit to return to his pre-injury employment, albeit qualified in the way he expressed in his reports. Aggcon's counsel proposed a calculation of past and future economic loss referable to ss 35 and 151I of the Workers Compensation Act . Counsel for Curtis Barrier adopted the same calculation despite the fact that the loss for which it is liable is to be assessed under the Civil Liability Act .

Short of both counsel baldly stating a preference for Dr Bentivoglio's views, neither counsel undertook any analysis of the medical evidence I have been at pains to summarise, or to distinguish the views of the other specialists upon whose evidence the plaintiff relied in support of his claim to have his economic loss assessed on the basis of being unable to resume his pre-injury employment with an accompanying significant diminishment of his future earning capacity. None of the experts were called to give evidence. Furthermore, it was not suggested to the plaintiff that he could in fact return to work or could have in May 2008. To the contrary. He gave unchallenged evidence that while he was eager to return to the workforce and, despite his efforts to find work, he had been unsuccessful. In an unsolicited response under cross-examination he said: I [am] sick and tired of sitting around and doing nothing. From a man who used to work all the time. I loved to work, I lived to work and I loved to do it and this accident took all that away from me. It degraded me. I enjoyed work. I had a good job.

I am satisfied that the weight of the evidence favours the approach to the calculation of loss advanced by the plaintiff, modified by what I am satisfied is the plaintiff's residual earning capacity for light work of a largely sedentary kind. Dr Bentivoglio's view as to the plaintiff's ability to resume his pre-injury employment seem to hinge upon the doctor's uncritical and erroneous view that the work was neither arduous nor demanding. He appeared to give no weight to the range of factors his colleagues took into account as disabling the plaintiff from resuming his pre-injury work, namely the jolting and jarring movement of the heavy vehicles, the need for flexibility and mobility in climbing in and out of the vehicles and the rough conditions on site.

I propose to assess the plaintiff's economic loss on the basis that although his injuries have resolved and he has reached the maximum level of medical improvement, the generalised and unremitting pain he suffers as a direct result of the injury, and the degree of generalised restriction in movement he suffers as a consequence, renders him incapable of resuming his pre-accident employment as a plant operator or operator of any heavy equipment. I am also satisfied that his injuries limit the range of alternative work that he might be able to undertake. I am not persuaded however that he is without residual earning capacity altogether, or as Mr Cranitch submitted, that his functional earning capacity is nil or that he is unemployable. I am satisfied that his capacity is very considerably reduced but not by the 60 per cent loss of capacity that the defendants' counsel contend for (as and from May 2008 over the term of his working life) but as best as I can estimate it by 85 per cent effective from March 2009, the date of Dr Ostinga's report summarised at [150]. Prior to that date I am satisfied that the plaintiff was unable to work and that his past economic loss should be calculated accordingly.

Aggcon submitted that the plaintiff's past economic loss and future loss should be assessed by reference to indexed weekly earnings under the Workers Compensation Act and, as I have observed, counsel for Curtis Barrier uncritically adopted that approach despite the fact that the assessment of future loss for which it is liable is governed by the Civil Liability Act . Mr Cranitch's schedule of damages did not address the application of ss 35 and 151I of the Workers Compensation Act and he did not deal with it in submissions. The schedule of damages he provided offered a range of salary brackets in $10,000 increments between $70,000 and $120,000, with the lower figure being commensurate with the plaintiff's earnings at the time of the accident as reflected in his tax records and the upper figure being a salary the plaintiff would be likely to receive were he to have secured work in the mining industry. No effort was made to explain the basis for the incremental increases in between or how they might apply to the calculation of the plaintiff's damages.

The plaintiff's future economic loss (referable to his impaired earning capacity) for which Curtis Barrier is liable is governed by s 13 of the Civil Liability Act . It provides as follows: 13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

In Williams v Twynam Agricultural Group Pty Ltd Hoeben J (at [216] after referring to the authorities) summarised the effect of the approach mandated by the section which I gratefully adopt: The meaning of s 126 Motor Accidents Compensation Act 1999 (MAC Act), which is in identical terms to s 13 CLA, was considered in Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145, (2004) 41 MVR 235; Penrith City Council v Parks [2004] NSWCA 201, Nominal Defendant v Lane [2004] NSWCA 405. Section 13 CLA was considered in Burton v Brooks [2011] NSWCA 175. The effect of those decisions is as follows: (1) The Court must assess the "most likely" of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration); (2) Assess the plaintiff's economic prospects as a consequence of the accident; (3) Compensate the claimant for the difference between (1) and (2) including, where appropriate, through the use of a buffer; (4) Adjust (3) by an appropriate percentage for vicissitudes, to reflect the possibility that the plaintiff may not have achieved one even had the accident not occurred; (5) Include a statement of the assumptions made as the plaintiff's most likely future circumstances for the appropriate percentage adjustment.

I am left in doubt as to whether the plaintiff would have succeeded in reducing his weight to industry requirements at some indefinite time after December 2006 (and be able to maintain it over the balance of his working life). Despite what is said to be his weight gain after the accident, the evidence is strongly suggestive that at the time of the accident he was up to 20kg in excess of the industry limit of 120kg and had struggled with his weight for some years. I am not persuaded that the plaintiff's most likely future economic circumstances (given his age and weight) are that he would have gained full-time work in the mining industry despite his skill base. Mr Cranitch invited me to allow a buffer for the likelihood that he would have secured contract work in the industry where weight restrictions are not imposed. There was, however, no evidence of the extent of or even the availability of contract work in the industry either on a full-time or part-time basis under contract (other than through the plaintiff working a single short-term contract at Werris Creek through Aggcon). Mr Cranitch conceded the evidence to support a buffer was "thin". I am not persuaded that a buffer is appropriate.

Accordingly, the plaintiff's future economic loss for which Curtis Barrier is liable is to be calculated by reference to the following factors: (i) he was in secure employment at the time of the accident as a full-time employee and would likely have retained that employment for a nominated period of years to retirement; (ii) his changed economic prospects as a result of the accident, namely that he will not return to that work (or comparable work) but will be forced to seek other less remunerative work; and (iii) an adjustment of 15 per cent for vicissitudes, as the plaintiff proposed and I accept as appropriate.

Aggcon led no evidence that would entitle me to come to any view other than that the plaintiff was a valued full-time employee who could have expected to retain his employment, in some continuing capacity, with that company through to retirement. However, given the physical nature of the work and some pre-existing health issues (inclusive of his weight which was likely to have negatively impacted on his health over time) I am not satisfied he would have worked beyond the age of 65 years. Although the schedule of damages prepared by Aggcon (and adopted by Curtis Barrier) proceeds on similar assumptions, the plaintiff's future loss is calculated at his net weekly earnings at the time of the injury with no allowance for any increase as a result of indexed earnings since that time up to the current time. I am satisfied that the plaintiff's future economic loss (for which both Curtis Barrier and Aggcon are liable) should be calculated at the indexed rate with a residual earning capacity of 15 per cent reflected in the final calculation.

Past and future superannuation loss will also need to be calculated by reference to these amounts.

The damages which the plaintiff is entitled to recover from Curtis Barrier then have to be adjusted in accordance with the formula in s 151Z(2) of the Workers Compensation Act . That section provides: If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise-the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution-subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.

It will be necessary for the parties to recalculate damages in accordance with my various findings and to produce an agreed schedule for incorporation into final orders.

In summary, the plaintiff is entitled to a verdict against both Curtis Barrier and Aggcon as joint tortfeasors. Aggcon's liability is to be assessed under the Workers Compensation Act and Curtis Barrier's under the Civil Liability Act with the apportionment of liability being 75 per cent for Curtis Barrier and 25 per cent for Aggcon. Aggcon is entitled to a judgment against Curtis Barrier in respect of its payments of compensation to the plaintiff to account for its 25 per cent responsibility for the plaintiff's injuries. Curtis Barrier's cross claim is dismissed. I invite the parties to further consider the question of costs in light of my findings.

On 2 December 2011 final orders were made by agreement in the following terms: 1. Verdict for the plaintiff in the sum of $1,356,453 for which Curtis Barrier is liable for 75 per cent. 2. Judgment for the plaintiff against Curtis Barrier in the sum of $1,017,339. 3. Judgment for the plaintiff against Aggcon in the sum of $706,667. 4. Curtis Barrier's cross claim is dismissed. 5. Judgment for Aggcon in its cross claim against Curtis Barrier in the sum of $136,055. 6. Curtis Barrier is to pay the plaintiff's costs assessed on the ordinary basis. 7. Curtis Barrier is to pay Aggcon's costs of the cross claim. 8. I note that by agreement the plaintiff has undertaken not to enforce judgment within 21 days of today.