Gangi v Boral Resources (NSW) Pty Limited (No 2)

By an amended statement of claim filed in Court when the hearing commenced in April 2012 the plaintiff, Mr Gangi, pursued proceedings in negligence against Boral Resources (NSW) Pty Ltd ('Boral'), the occupier of a concrete batching plant located at Artarmon. He claims damages for physical and psychological injuries, as well as economic losses he claims to have suffered after part of the plant collapsed onto the truck that he was driving on 14 December 2007. Boral admitted that it owed Mr Gangi a duty of care, but amongst other things denied that it owed him the duty pleaded, that the alleged risk was foreseeable, or that it caused his injuries and losses.

The hearing was adjourned and resumed in February 2013, so that Mr Gangi could deal with recently served evidence, which revealed information which had previously not been disclosed to him about the collapse and its cause, about which further expert opinions were then obtained.

At the hearing it emerged that Mr Gangi was a director and shareholder of Gangi Holdings Pty Limited, which had had a contract with Boral for a number of years for the provision of services of a cement agitator truck and driver. Before the collapse Mr Gangi drove the company's truck six days a week. On the day of the collapse he was driving a replacement truck. He had reversed that truck under the plant, where it was to be loaded with raw concrete materials stored in large overhead bins. The plant then collapsed without any warning, creating a huge dust cloud, damaging the back of the truck and injuring Mr Gangi.

Mr Gangi returned to work part-time in April 2008. He has never returned to full-time work. Gangi Holdings Pty Limited now engages the services of another driver, three days per week, to fulfil its contract with Boral.

The plant was a steel structure, built some 50 years prior to its collapse, having then been owned and operated by Boral for some 25 years. The plant was gravity fed, the bins being loaded from above and emptied into trucks parked below. It was the bins, carrying hundreds of tonnes of raw materials, sand and aggregate, which collapsed.

The plant operated in a corrosive environment, making it vulnerable to deterioration from constant impact and rust. Boral had a maintenance regime in constant operation at the plant to deal with the effects of this environment. Nevertheless, on its own case, during the entire time of its ownership of the plant, Boral had no knowledge of how the bins which collapsed were supported in the structure and it never maintained those supports. Boral demolished the plant after the collapse and built a new plant on the site.

What caused the collapse was the subject of competing expert evidence. Neither expert had the opportunity to inspect the plant, nor were they given access to information which Boral acquired when it demolished the plant, which would have shed light on how it had been designed and constructed; how the bins were supported in the structure; the condition of those supports; and what caused the plant to collapse. In the result the experts were unable to agree as to how the bins were supported, or what caused the collapse.

In closing submissions it became apparent that the issues document provided by Boral at the outset of the hearing, did not in fact clearly identify all that was put in issue. It was then explained that the document had been intended only to provide 'some information as to the evidentiary matters likely to come before your Honour and require determination'. That approach did not accord either with the duty imposed on the parties by s 56(3) of the Civil Procedure Act 2005, to assist the Court to further the overriding purpose specified in s 56(1), the just, quick and cheap resolution of the real issues in the proceedings, nor the Court's standard directions for trials such as this.

The issues which must be resolved in any trial are those which the parties identify and pursue. That is why it is provided in the Common Law Division's General Case Management List Practice Note 5: "Listing for hearing 52. When ready for trial, for proceedings in which a claim is made for damages for personal injury or disability, standard directions in the form of Appendix B are deemed to have been made, unless the Court otherwise orders."

Appendix B requires that: "57. Within 7 days of a hearing date having been allocated: (i) The plaintiff's legal representative is to prepare a draft chronology of relevant events and serve a copy of it upon other parties which have an address for service; (ii) Each party is to prepare a draft schedule of damages, outlining in detail the heads of damages, and identifying the evidence which supports that head of damage. (iii) Each party is to prepare its final schedule of issues in dispute."

Final identification of the issues in dispute must plainly occur before a trial commences. It follows that these documents should be provided to the trial judge at the commencement of the hearing. They will be relevant to the identification of what evidence is admissible under s 55 and s 56 of the Evidence Act 1995, it being there provided that relevant and admissible evidence is that which could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.

It does not accord with the obligations which s 56 of the Civil Procedure Act imposes on the parties, that clear identification of the issues in dispute is left to final submissions, unless, of course, what is then being clarified is that an issue earlier identified as being in dispute, is no longer being pressed.

Under the Civil Liability Act 2002, an onus is imposed on a plaintiff pursuing a negligence claim to establish that the defendant owed him or her a duty of care; that there was a breach of that duty; that damage was suffered; and that the damage was caused by the breach of the duty. Sections 5B and 5C of the Civil Liability Act provide: "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."

Difficult questions can arise about the nature and extent of a particular duty; whether there has been a breach of that duty; and whether any breach has caused any loss or damage.

In this case there was but little common ground between the parties when the hearing commenced in February 2012, but some agreements emerged at the resumed hearing in 2013, including that Mr Gangi had suffered a psychological injury as the result of the collapse, which Boral accepted had involved him in a horrific experience. Boral also accepted that it owed Mr Gangi a duty to take reasonable care in the performance of its concrete batching plant. That, however, was submitted in final submissions, to 'beg the question', because the scope of the duty was in issue.

Mr Gangi claimed that the risk of harm arising from the collapse of the plant was foreseeable and ought to have been known to a reasonable person in Boral's position, given that Boral knew, or ought to have known that: a. bins housed in structures such as the plant were at risk of catastrophic failure due to the extremely harsh physical and chemical environment in which the plant operated b. the combination of chemical and physical environment in and around the bins can and does lead to corrosive attack on steel and other metal components c. the corrosive effect could be exacerbated over time d. there were no structural steel beams or supporting columns in place which supported the weight of the bins and their contents e. the bins and their contents were being supported only by a row of bolts in shear f. how the bins and their contents were being supported

Boral denied that the collapse of the plant was foreseeable. It also denied that it had constructive knowledge of the risk of such a collapse, or that Mr Gangi's constructive knowledge claim had been properly particularised. It also denied that it should have taken the precautions Mr Gangi claimed should have been taken against the risk of collapse; or that they were precautions which a reasonable person would have taken to guard against that risk; and that the risk of harm was not insignificant.

The precautions that Mr Gangi claimed a reasonable person in Boral's position would have taken to avoid the risk of harm, included: - how they were being held up - whether their structural integrity was adequate to support the weight of the materials being loaded into the bins. - the structural integrity of the support systems was adequate for the load - the method of fixing the bins to the support structure was adequate for the load - additional support was required, given the load

Boral denied that it was negligent in failing to inspect the bin support structure, or in failing to maintain those structures to guard against the risk of collapse. It also denied that but for its negligence the bins would not have collapsed as they did and that it was appropriate for its liability to extend to the harm caused by its negligence.

In closing submissions it was submitted for Boral that as the case had developed, it concerned whether it owed a duty to become suspicious and that therefore, it concerned what it was that held the bins which collapsed in place within the structure, from the time that it acquired the plant in 1982, until it collapsed in 2007. The evidence as to how the plant was designed and constructed, it was submitted, involved but conjecture and speculation, nevertheless, the evidence established that the collapse was caused by a latent defect in its design. That defect was the method by which the bins were fixed to the surrounding structure, which permitted the component parts which held the bin to the structure to deteriorate through corrosion to such a point, that it failed catastrophically in 2007.

It should immediately be observed, for reasons which will become apparent when l deal with the experts' evidence, that it cannot be accepted that there was any defect in the design of this plant, which Boral had successfully operated for some 25 years, before it collapsed, some 50 years after construction. That there was a defect in the design of the plant was not a view which even the expert called by Boral, Mr Taylor, advanced. As he put it, at its highest, the bins' support structure was bad engineering, or poor design. Nevertheless, he considered that the plant could have continued operating indefinitely, had it been maintained.

The significance of the risk to which Mr Gangi was exposed was well established before the accident. The grave risk to which Mr Gangi was exposed when the bins collapsed was as articulated in Boral's closing submissions: "The risk of a person suffering injury as a result of the sudden, catastrophic collapse of the Plant caused by the inappropriate method of securing the storage bin(s) to the structural component(s) of the Plant."

I am satisfied that Mr Gangi made out this aspect of his case.

The importance of the bin supports to the integrity of the plant was because of the huge loads which they carried; the caustic environment in which the plant operated; the considerable loading stress to which both the bins and the supporting steel structure of the plant were constantly subjected; and the fact that trucks and people were located under the bins, as the trucks were being loaded with raw materials.

There was no suggestion that Boral had actual knowledge that the plant was at risk of collapse. Boral's case was that the establishment of its constructive knowledge of this risk necessarily depended upon all of the facts, matters and circumstances which were known to it, or else ought to have been known to it, at the time of its alleged negligence, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences. While the photographs in evidence showed a scene of devastation and catastrophe, an onus fell on Mr Gangi to establish the configuration of the plant immediately before its collapse, so that it could be determined whether that formed a relevant part of the collapse. That onus had not been met.

I am satisfied that these submissions cannot be accepted. In summary, the evidence as to the configuration of the plant showed that the bins were located high above the ground, carrying up to 450 tonnes of materials, which were gravity fed into the trucks parked below, underneath the plant. The bins were not supported from below. Their means of support were neither visible nor known to Boral before the collapse. It did not lead evidence as to the result of the investigations which it undertook after the collapse, which would have shed considerable light on how they were supported and what caused the bins to collapse.

What the evidence did establish was that the plant was not constructed in the standard way in which such plants are generally constructed, where the bins which collapsed are supported in such a way that they could not physically collapse as they did at this plant. Over the course of its 25 years of operation of the plant, Boral assumed that they were supported in the standard way. The bins were in fact supported in such a way that a physical collapse was possible. The actual bin supports were vulnerable to corrosion and were never maintained. In the result, while Boral had safety and maintenance systems constantly in operation at the plant, it never investigated how the bins were supported and never maintained the supports. Eventually they corroded to the point where they could no longer support the weight of the bins, with the result that in December 2007, they collapsed to the ground, injuring Mr Gangi.

The evidence showed that while this risk was not foreseen, it ought to have been, and that if it had been, Boral would have taken available precautions, which would have prevented the risk from materialising.

In the circumstances a reasonable person in Boral's position would have known of the risk, because it would have taken available steps to ensure that it knew of the way in which the bins were supported; and it would have maintained those supports, in accordance with the systems which it operated at the plant. Had it done so, the supports would not have corroded to the point that the bins collapsed.

The evidence on which these conclusions rest is as follows.

The plant was a steel structure built in an old quarry. It was a gravity fed plant, some 50 years old in December 2007. Boral acquired it in late 1982, when it purchased the remaining 70% of the shares of its former owner. It then took over operation of the plant as a going concern. The plant operated in a very harsh, caustic environment, which required Boral to actively protect it from corrosion.

Mr McDonnell, the operations manager for Boral Concrete (NSW) Metropolitan Area, gave evidence that before the collapse, the trucks which dropped their loads into the bins, together with their loads, weighed something in the order of 40 to 50 tonnes each. Some 30 loads per day would be emptied into the bins. The three bins together held loads of up to 450 tonnes of sand and aggregate, which were suspended some 13 metres above the ground.

In a letter sent to Willoughby Council in 2004, Boral advised as to the plant's then existing peak output capacity, when fully stocked, of some 26 loads per hour, which equated to 140 cubic metres of concrete per hour. Other internal documents showed a maximum hourly production of 181 cubic metres in November 2004. Mr Gow, the production manager of the Artarmon batching plant as at 14 December 2007, now the project manager at Barangaroo, said that in 2007 the plant then produced some 12,000 m³ of concrete per month and that the three bins were then holding about 150 tonnes each, when full.

Mr Russell was Boral's maintenance manager for some 21 years before his retirement. He went to the plant about once a week and while there, would walk through the plant, checking its condition. He had tradesman qualifications in fitting and machining and had operated his own maintenance business for some eight years, first providing services to Boral in about 1980 or 1981. He took up employment with it as maintenance manager in 1989. He also had considerable experience with other concrete batching plants around New South Wales.

Mr Russell gave evidence as to difficulties encountered from time to time in record keeping at Boral, including when his office was relocated from Artarmon to Greystanes. It appears, however, that Boral never had any design drawings for this plant. Mr Russell said that it had never obtained any records about the plant's design when it took over its operation. Enquiries later made of Willoughby Council did not produce such drawings and Boral never engaged an engineer to produce such drawings, as Mr Russell accepted it could have done.

Mr McDonnell had been the plant's manager in about 1993. His qualifications were a bachelor of engineering, civil. He confirmed that he also had then no engineering drawings showing the structural steel work at the plant. Searches undertaken after the collapse were unable to locate any.

Mr De Carvalho was the general manager of a business unit known as Boral Resources (NSW) Pty Ltd up until and including December 2007. His evidence was that prior to the collapse Boral had been pursuing a plan to rebuild the plant for a number of years. This had been first considered in about 1990. Mr De Carvalho explained that in 2007 Boral needed to upgrade the plant. It was strategically located, but there were difficulties with access to the site which had to be addressed and a wish to increase the capacity of the plant. Boral obtained advice from engineers which it engaged from time to time, in relation to the proposed upgrade. It received no advice from them as to any risk posed by the way in which the bins were supported in the existing structure. Nor however, did the evidence show that it ever sought such advice.

An environmental impact statement which Boral lodged in October 2007, identified that the plant was due for normal life-cycle replacement of aggregate bins, silos and other equipment. It was then intended to leave the old plant operating, building a new plant around it and then pulling the old plant down, when the new plant was finished. A development application was lodged in November 2007 with the Council.

The system of work in operation involved trucks reversing onto a separately supported grid structure (called a 'cattle grid'), located above the bins, from the Carlotta Street entrance to the site. They dropped their loads into the bins. This cattle grid and its supports, as well as the bins, had to be repaired and replaced from time to time. There were also dividing walls, called 'wind walls' or 'hungry boards', located above the grid, designed to prevent cross contamination of the bins, when trucks emptied their loads into the bins.

On Mr Russell's evidence, when the bins were full, excess material was stacked on top of the grid, against the wind walls. This material fell into the bins, as they were emptied into trucks below. On occasions a front-end loader was used to push the material into the bins.

The collapse was catastrophic. It resulted in the bins which were carrying hundreds of tonnes of sand and aggregate high above Mr Gangi's truck collapsing onto the ground and the back of the truck. The plant was so badly damaged that it was demolished and never went back into operation. Photographs of the truck showed that it had been pushed forward from its position under the plant and that the barrel had been significantly damaged.

Boral accepted that the experience must have been a horrific one for Mr Gangi, which resulted in the psychological injury which he has been diagnosed to be suffering. The extent of the physical injuries which he suffered was, however, in issue.

Mr Gangi's normal procedure was to park the truck under the plant; to alight, in order to push a button which enabled the truck to be loaded with raw materials from the bins; and then to return to the truck, to do his paperwork. His evidence was that on this day the plant collapsed onto the back of the truck suddenly and without warning, soon after he had got out of the truck, after he had reversed it under the plant to receive its load.

Mr Gangi said that he fell to the ground unconscious for a few moments. When he came to, the air was so full of dust that he could see little and he was being hit by flying debris. He got up and found his way to a nearby fence. Others came to his assistance. He was dazed and his neck and shoulders were hurt. An ambulance attended and he was taken to hospital, where he was treated without admission and then went home.

Mr Carrette, another driver, had worked from the plant for some 12-14 years at the time of the collapse. He gave a similar account of how the plant collapsed. He had stopped some 30-40 metres away from the plant, waiting to take his turn to load, while Mr Gangi's truck was being loaded. Theirs were the only trucks then present. He saw Mr Gangi's truck reverse in. It was stopped under the plant for some minutes when he heard what appeared to be a very loud explosion. He saw a lot of dust and debris flying and the walls of the plant shaking and bending. There was so much dust going high up into the air, that he then lost vision.

Mr Carrette said the experience was surreal. In an act of obvious and commendable bravery, when he realised that the plant was falling down, Mr Carrette left his truck and ran to where Mr Gangi's truck was parked under the falling plant, in order to search for Mr Gangi. He could not see through the dust and got to a metre before the front of the truck, before he could see its yellow colour.

Mr Carrette could not see anyone in the cabin and first thought to go to the back of the truck, to look for Mr Gangi, but there was so much debris, that he considered this to be too dangerous. He then started calling Mr Gangi's name, turning as he called, because he had no idea where Mr Gangi was. He called out several times with no response and then Mr Gangi answered him. He appeared to be behind Mr Carrette, who was then standing facing the truck. Mr Carrette turned towards the sound of his voice and took a few steps forward as Mr Gangi came towards him. Mr Gangi seemed very disorientated, so Mr Carrette took him by the shoulders, turned him and led him out of the dust.

He led Mr Gangi some four or five metres away, where another driver, Mr Healis, joined them. They assisted Mr Gangi to get away as far as possible, sitting him down about 40 metres away. Mr Carrette did not know whether Mr Gangi was injured. There were no apparent injuries, but he was very disoriented. An ambulance attended and Mr Gangi was taken to hospital.

Mr De Carvalho attended the plant immediately on being advised of the collapse. Steps were taken to take control of what was an emergency situation. There was a headcount and it was necessary to cooperate with police, who had established a crime scene, as well as with WorkCover. He later addressed a meeting of staff and an engineer, Mr Soong, was engaged to determine the state of the plant.

WorkCover investigated the collapse. Mr Prokopenko, a WorkCover inspector, met with Boral representatives after the collapse. Boral was asked to provide copies of risk assessments and maintenance records. No risk assessment was produced. Maintenance records were later provided. Mr Weerasinghe, an engineer employed by WorkCover, attended the site after the collapse, but was finally not asked to conduct an engineering investigation, or to produce a report. No prosecution ensued.

Because of the corrosive environment in which the plant operated, constant maintenance of the plant was critical to its ongoing operation.

Mr De Carvalho's evidence was that prior to the collapse, there had been no report of any problem which could lead to the collapse of the plant. On his evidence it is unquestionable that if such a report had been received, Boral would have taken the steps necessary to prevent its collapse, by undertaking the necessary maintenance, including by engaging the services of qualified engineers, who were engaged when necessary.

Mr De Carvalho and other witnesses Boral called described the inspection and maintenance systems it had in operation before the collapse and the new protocol which it introduced afterwards. It is apparent from his evidence that the collapse drew to its attention a deficiency in its systems, which it then attended to.

Beforehand, Boral had a programmed maintenance system in operation for items known to wear out at a certain rate, which then had to be replaced, as well as a regular visual inspection system which included inspection of the bins which collapsed. In cross-examination Mr De Carvalho said that he considered that it was appropriate that personnel on site also make their own visual inspections of plant structures and that their observations be recorded. He also agreed that a suitably qualified engineer should inspect all structural elements, but there was no such inspection undertaken of the bin support structures.

The plant was regularly inspected both by Boral employees and by contractors for wear and tear. There was a budget for routine maintenance and if additional significant repairs were required, they were authorised by Mr De Carvalho and Mr McDonnell. When necessary the plant was taken off-line for required maintenance, which was best done around Easter and Christmas.

In 2007 the regular inspections undertaken at the plant were conducted by employees by reference to a checklist, with hazards identified being rated according to a scale, ranging from good to poor. Mr De Carvalho explained that anything reported as being in poor condition should have been fixed under this system. Mr Gow agreed that the reports did not indicate what corrective action had been taken to fix the hazards identified, as the documents envisaged, but did not accept that they had not been dealt with.

Mr McDonnell attended the plant every month to six weeks. He explained how perceived safety issues were dealt with at the plant, by way of site plant meetings involving everyone on site, including all 20 drivers who operated from the site and at area cluster meetings. He also explained how Boral's overarching safety management plan operated.

He also explained that workplace inspections were undertaken by two people, so that two sets of eyes, were looking at potential problems and that it was they who completed the pro forma checklist. Boral recorded the results in its electronic system known as Site Safe, where any hazards identified were entered. Some matters were brought to Mr McDonnell's attention, but at the time that he gave his evidence, the 2007 records could not be located. In some cases work necessary to be undertaken required his approval, depending on cost. Nothing, however, had ever been brought to his attention which had led him to form the view that the plant might collapse, nor had he ever observed anything that led him to form the view that it might collapse.

Mr McDonnell agreed that the purpose of the visual inspection system was to make a record of obvious visual problems, including any structural defects. He said that tradesmen engaged to undertake specific repair jobs, were also expected to draw attention to any problems they noticed, when performing their work. Anyone attending the site could also raise a hazard which they noticed, in a hazard book. Managers who attended the site could also provide snapshot reports of any problems which they identified.

Mr Gow also described the operation of the Site Safe system at the plant in 2007, which included toolbox meetings held early in the morning, a workplace inspection program, the hazard alert system and a facility allowing employees on site to raise hazards directly, using a hazard report form. Mr Gow explained the hazard identification process and how the results of the inspections were provided to Boral's safety department and entered into the electronic system. He was the chairperson of the site safety meetings and took minutes. He also had responsibility for day-to-day maintenance of the plant.

Mr Russell said that the safety system involved employees conducting bi-monthly inspections of the plant, according to a written checklist. The inspections sought to identify hazards, by classifying the condition of what was inspected.

Mr Azar, then the plant supervisor, described how the checklist was followed during visual inspections undertaken on a walk-through of the plant, which he said he preferred to conduct top down, from Carlotta Street. There was no official walkway on the grid at that level, which could only be traversed if there was no material lying on the grid.

He explained that bin liners could only be inspected from the top, if there was no material in the bins. If the bins were empty, vision could be obtained to halfway, with the use of a torch. Bin walls could be seen from the bottom of the plant and level 2. Inspections looked for wear and tear, holes and rust. If holes were observed they were then repaired with a steel patch welded to the outside of the bins. Some such holes required the plant to be shut down in order for repairs to be undertaken. Rust was attended to by use of a needle gun. On occasions fitters undertook welding inside the bins.

In cross-examination, Mr Azar said that the inspection system did not provide for the condition of the structural steel supporting the bins to be recorded on the form in use and that such an inspection was not required as part of the walk-through. From level 2 only part of the bin walls could be seen, but not how they were held in place. The inspection did not involve the use of any tools or any inspection of the point in the structure where the bins were supported by structural steel work. Mr Azar regarded that to be an engineer's job, but on Mr Russell's evidence, structural engineers engaged to inspect the plant were not asked to inspect the connection between the bins and support structure.

Mr Russell also explained how hazards identified under this inspection system were then dealt with, in consultation with the plant manager and safety officer, at regular occupational, health and safety meetings. He then acted on identified hazards, by inspecting the hazard and engaging contractors to undertake necessary repairs. The results were entered into the computerised safety system.

Mr Russell also said that the bins would be drained two to three times a year and their condition checked, typically during a shutdown. The bin area was then the highest spend at the plant, requiring regular maintenance work, particularly on the dividing walls and grids. Boral had, however, never engaged any contractor or engineer to inspect the point where the bins were supported in the structure, even though it had no structural drawings from which it could determine what pattern of regular inspection was required for maintenance of this part of the plant.

Mr Hawkeswood, a boilermaker, metal fabrication, described how damaged liner plates could be replaced, either from underneath the bin, by removal of the gate, or from above, by the bin being filled to the desired height, so that access to part of the liner which required repair could be gained. He said that such work was typically undertaken twice a year, by use of a needle gun to deal with corrosion and by welding.

The grid rails could be completely removed and were routinely inspected and replaced as required. Such repairs were typically undertaken by contractors and if necessary, with advice sought from engineers. This regular inspection system did not extend to the bin support structure.

In the result, prior to the collapse, the maintenance system never extended to the bin support structures and they were never maintained by Boral.

The evidence given by various witnesses called by Boral, identified certain deficiencies in the systems which it operated. The hazard identification system was not entirely operating, as I will explain. The visual inspection system did not extend to the structural supports for the bins. Together this created a real deficiency, the identification of which did not depend on the collapse. Had the nature of hazards identified prior to the collapse been rated and dealt with, as Boral's system envisaged they would be, problems identified with the condition of the bins ought to have led to a closer inspection of the bins and their support structures, than was ever undertaken.

On Mr De Carvalho's evidence, prior to December 2007 there was no system of engineers carrying out regular inspections of the plant; they came only on request, when a problem that needed rectification was identified. An example he gave was in respect of the Carlotta Street grid rails, where loads were tipped into the bins. When major work was required on the rails, engineers were called in. Mr De Carvalho agreed that calling in engineers occurred reactively to a problem being identified. He agreed, however, that a suitably qualified engineer should have inspected all structural elements at the plant systematically, in order to spot problems, before they arose. There was no such system in operation at the Artarmon plant, before the collapse. This changed after the collapse.

He also agreed that the structural integrity of steel could be degraded by corrosion, by distortion, by deflection and by bolt deterioration, or by excessive vibration. Mr De Carvalho considered that it was necessary to make regular inspections of steel members of the concrete plant, because of such potential problems. He also agreed that corrosion of steel was due to reactions with its surroundings and in most cases, due to constant exposure to air, water and oxygen. He also agreed that corrosion was the single greatest threat to the integrity of steel structures and could be an underlying catalyst for detrimental effects on steel. He also considered that advanced corrosion had a negative effect on the sectional size of steel and that if it takes hold, the steel member will be weakened.

Mr De Carvahlo also agreed that in many industrial structures anchor bolts are used to hold structural members in place and that cross member supports often also contain heavy duty bolts and nuts, which may over time become loose as a result of temperature fluctuations or corrosion. He agreed that such nuts and bolts have to be kept securely fastened so that the structural integrity of the supporting load is not compromised.

He also agreed that any inspection of a steel structure should look, amongst other things, at any welds present and that it was undesirable that the owner of any steel structure should not know of the way in which it was constructed, although, he said by use of an analogy, that as an owner of a house, he was not fully conversant with how the house was constructed.

After the collapse Boral created a new written protocol for inspections of plant structures. Mr De Carvalho agreed that the necessity for such a system of inspection had existed before it was introduced. That view reflected, no doubt, the complete absence beforehand, of any system of inspection of the bin support structure.

Mr Russell also agreed that a programme of inspection should have included an annual visual inspection of the support structure for the bins, including the mechanism by which the bins were connected to the structure. He also agreed that an understanding of the support structure would have been assisted by access to either the original drawings, or a set of drawings later created by an engineer.

Mr Gow explained that he had never engaged an external engineer to investigate what was holding the bins up, he said because: "Well, there was no, prior to that date, there was no precedent, there was no previous failure of any plant, so in my opinion there was no need to do that at my level"

He said that on occasion he had turned his mind to this, when he had inspected bins and bin linings and had some concern as to whether "[o]kay is the bin lining going to collapse?" He had become nervous around certain bin lining structures being concerned that the bin floor, or the side of a bin wall might collapse, because it had become too thin. He also said that he had thought about the structures that were holding the plant in place, when undertaking repair and maintenance work, when he was looking at the structures and the beams holding the plant in place, but he had never seen anything that gave him cause for concern. He had, however, never gotten into the bins himself, because he was not confined space trained.

The absence of any inspection of the bin support structures, has to be in a context where Mr Gow agreed that the bins and bin linings had been identified to be inadequate and needing to be patched up in 2007. In one report it was noted that 'condition of plant and bin structures - corrosion/damage' and 'very old plant/lots of patch up jobs'. Mr Gow explained that the bin linings were made of steel. They were attached to the fundamental structure of the bins, and the bin linings got to a point where they could no longer be patched and then the bins had to be relined.

In cross-examination, Mr Gow also agreed that before the collapse there was no system of regular inspection of the structural elements of the plant by appropriately qualified engineers and that Boral had had no warning that there was any structural problem with the plant which might lead to its collapse. He explained that such structures deteriorate very slowly, so that he was not sure whether they required regular inspection, 'so long as the plant has been designed for a certain lifespan'. Boral, however, had no information as to the design life of this plant. He also agreed that if the structural design of an element of the plant that holds up other elements was not known, then an engineer should be engaged to produce design drawings.

Mr Gow considered, however, that it was other managers who had responsibility for the plant and its structures, so far as major maintenance and rebuilding were concerned. For his part he assumed that the structure which held the bins up must have been adequate and that all that was required was visual inspection for any problems arising in the area. His belief was that the bins were supported at the top, where beams coming out of the cliff could be seen. The top of the plant was frequently inspected, but the focus was on inspection of the cattle grids, rather than the beams underneath. The set regime of safety inspections at the plant, included bi-monthly walk-through and inspections, but engineers were never engaged to inspect the structure and support of the bins. He was not aware whether they had ever been inspected from the time that the plant was first constructed. Mr Gow said that photographs taken after the collapse, showed corrosion and deformation of the steel structure. The corrosion was present before the collapse, but he was not sure about the deformation.

In cross-examination, Mr Gow agreed that the hazard identification system required consideration to be given to the condition of plant, as to corrosion or damage, but not whether the system supporting the bins was in good working order.

On all of this evidence, in my view, it must be concluded that there was a real deficiency in the inspection and maintenance system which Boral operated. It must be remembered that even though Boral never had any drawings of how the plant was designed or built and no information as to its design life, it did consider that it had reached the end of its working life and required replacement.

In those circumstances, even if the assumptions on which it had earlier proceeded as to how the bins were supported had been reasonable, by the time that it came to this view, it could no longer reasonably proceed on the basis of an assumption that the unknown structural supports for the bins, which had never been maintained by it over the course of some 25 years, were capable of continuing to adequately support them.

Given that the hazard identification system had in fact identified that there was 'corrosion/damage' to bin structures, it was then no longer reasonable to proceed on the basis of the assumptions it had made, without further investigations.

The outside of the plant was clad with a corrugated material which was installed by Boral in about 1990, when asbestos was removed from the plant. The steel structure was then sandblasted and painted with red oxide, in order to stop rust.

Various photographs showed the plant in its collapsed state in December 2007. Mr Russell's evidence was that it was the bins which held raw materials high above the ground which collapsed, not the support structure of the plant itself, although that structure was so damaged by the collapsing bins, that the entire plant was demolished.

A number of witnesses who had worked at the plant gave evidence as to its condition prior to its collapse.

A driver, Mr Robinson, who worked from the plant, described the plant prior to the collapse as old, deteriorated and rusty. Mr De Carvalho had overall responsibility for Boral's plants. He went regularly to the plant and had also observed that in December 2007 corrosion affected certain parts of the steel structure, including, 'probably' the side walls of the bins which collapsed.

Mr Gow's evidence was that he, too, had observed corrosion from time to time, including in the bin linings. He explained that members that were structural or integral to the structure of the plant would generally exhibit superficial or surface corrosion, like that to be seen on a railway line, where the brown tinge of corrosion could be seen on the sides of railway tracks. Occasionally, there were holes or pitting in large steel members, but pitting was more typical in the metal linings of the bins, where corrosion was heavier. He said that in December 2007 the structure showed signs of superficial surface corrosion. Other than that, there was no evidence of any other corrosion or damage to the structure. In re-examination, he said that with regard to failure of structural steel, he looked for heavy corrosion on elements that were load bearing, which would affect its load-bearing capacity, as well as any warping or distortion.

In cross-examination, Mr De Carvalho said, however, that before the collapse in 2007 the plant had been worked pretty hard and it was considered that it was time for a change. He then believed he had an understanding of how the structure worked, which he had obtained from his own observations, but he never saw any drawings of the plant. In reality, prior to the collapse Boral had no understanding of how the bins were supported in the structure, nor any information as to whether the plant had then exceeded its designed lifespan.

Even so, in re-examination, Mr Gow said, by then the plant was not always able to operate efficiently, but he was never concerned about its ability to operate long term.

In December 2007, Mr Russell also had no concern that there was any risk of the plant collapsing in the way that it did. He was then a part of the team pursuing the redevelopment proposal and agreed that as the plant had aged, it had deteriorated and required more regular maintenance. He expected that if it had not been redeveloped, from a structural point of view the plant would have continued to operate on normal ongoing repairs, but he explained that the cost of such repairs would have become a relevant consideration. It was then the bins which were requiring most frequent maintenance.

The 2007 workplace inspection reports identified, however, that the condition of the plant and bin structures was poor and that repairs were required. The system envisaged that a hazard having been so identified, it would be given a rating, which would determine what Boral's response would be. This aspect of the system was not operating fully. The records which Boral maintained do not identify what response Boral then considered this hazard required, or how it was dealt with. On the evidence, the steps taken did not extend to the bin structures.

It must be concluded from all of this evidence that prior to the collapse of the bins, Boral had actually identified that the bin structures required maintenance. None was undertaken. At the least, what had been identified required that the adequacy of the bin support structure be investigated and repaired, if that was found to be necessary.

Mr Russell explained that a gravity fed plant was a common style of plant. In his experience in most plants support for the bins was provided in such a way that a bin could not collapse. Unbeknownst to Boral, that was not the way in which the bins were supported in this plant. After the collapse it became apparent that assumptions which Boral had made about how the bins were supported, were incorrect.

Both Mr Hawkeswood, a tradesman who had been providing repair services to Boral since 2000, and Mr Russell had repeatedly been inside the bins before the collapse and inspected the collapsed bins together, after the collapse. They then saw sheared off bolts, which surprised them, but which provided an explanation for the collapse, namely that the bins had not been supported in the traditional way which had been assumed to that point.

How the bins were actually supported in this structure was not explained in Boral's case, even though it had the cause of the collapse investigated by experts, before the hearing. Nor did it instruct Mr Taylor, with information which it then obtained.

After the collapse Boral engaged a contractor to demolish the plant under the supervision of a firm of engineers. The site was passed over to that contractor. The Boral manager in charge of the site at that time was Mr Jackson. He was not called to give evidence. Mr De Carvalho had observed structural elements being put aside during the demolition. He knew that they were photographed, but Boral did not put the photographs into evidence, nor provide them to its expert Mr Taylor. At the hearing it claimed privilege when the photographs and the advice it received were called for.

What the evidence showed was that the plant was constructed of eight vertical steel columns. The bins sat between them, in a square section. The bins were constructed of plates of angle iron and sheet steel attached to the structural beams of the plant, which Mr Gow described to have been an inverted pyramid. In cross-examination, he explained that there were also I-beams which protruded from the cliff and other I-beams fixed to those horizontal beams, which formed part of the structure.

The bins themselves were V, or cone shaped. The middle bin held aggregate and the outside bins held sand. They each narrowed to a funnel, towards a gate located at the bottom of each bin. The bins were emptied in measured amounts through the gates, into the agitator trucks parked below. The angle iron ran horizontally around the bins, Mr Russell explained, in order to stop the bin walls from buckling and in order to break the fall of material being tipped into the bins. The bins were lined with disposable steel or plastic liners, designed to protect the bin walls. The liners located on the tapered walls of the bins had to be replaced twice as often as those on the vertical walls.

Mr Carey, a tradesman fitter and turner, was one of those who provided contract services to Boral at this and other of its plants before the collapse. He often went to the Artarmon plant when called by Boral to undertake repair work to metal surfaces which had corroded, or had holes in them, including the bins which collapsed. He explained that on occasions he had to repair holes in the steel walls of the bins, but it could be years before such repairs were required. Those holes were repaired by a hammer used to remove rust and a new section of steel being welded onto the existing bin wall, to cover the hole.

In cross-examination, he explained that such holes were the result of abrasion from the material stored in the bins. Aggregate being harder than steel, it wore the steel away. Sand caused the steel to rust away.

Unlike other witnesses, Mr Gow had never entered the bins. He could not recall whether he was able to see how the bins were fixed to the beams he described, but agreed that looking down into the bins, how they were attached to the beams could not be seen.

Mr Gow also agreed that an essential factor in being satisfied that these bins were going to be adequately supported and remain in place, was to know not only the support structure, but also how the bins were attached to the structure. He could not recall whether he had inspected the point at which the bins were attached to the beams, but explained that when the bins were not full, rain and air could enter freely, which was how they came to rust. Mr Gow expected that the bins were welded to the supporting beams, because he did not recall any plant that had bolted on steel plate walls at that time. In re-examination, he said that his understanding at the time was that no plants had bolts to hold up bins.

Mr Hawkeswood had been inside the bins one week prior to the collapse. He explained that while he was in the bins, he always observed rust, more in the sand bins than in the aggregate bins, which would wear out rather than rust, because of the abrasive nature of aggregate. He also said that on one occasion, while in a bin repairing lining, he had noticed that the support beams for the grid had rust sections in them, which he had reported and as a result, a structural engineer was called in, it was boxed in and repaired. While he was in the bins he did not, however, see anything which gave him any information as to how the bins were being held in place within the structure; he could not see the connection point, which was covered by a beam.

Mr Russell had also been inside the bins. He said that inside, all that could be seen was a flat plate and a beam that ran around the bin, towards the top. The means of attachment of the bins to the structure was on the other side of the plate and could not be seen from the inside. When the cladding was removed in 1990, the beams could be seen from outside, including the beam which sat on top of the supporting vertical stanchions. There was, however, then no close inspection of the support structure undertaken. The cladding was never again removed, although it could have been, if any inspection of the structure had been required.

Mr Russell said that when he was the bins he was in a position "that I should have been able to see how they were attached", but nothing made him think that the bins were attached "in any way different to any other concrete plant in Sydney". He explained that construction to be: "You would put up stanchions, posts if you like, in a vertical position, and then there would be a beam run around the top of those six or eight stanchions, depending on the size of the bins, and the bins would then be lowered in in one or two sections and they would also have a bin which sat on top of that bin so that it was physically impossible for the bin to fall down through the centre. In other words, the top of the bin structurally was wider than what the stanchions were."

This ring beam could not be seen from inside these bins. When the cladding was removed from the outside of the plant Mr Russell said that he did not believe that the method of attaching the bins to the structure was then visible, because it was hidden behind an external beam. He said that he considered that to see what was in there, you had to demolish the plant. Later in cross-examination, however, he agreed that there were a number of other ways in which this attachment could have been inspected, without damaging the plant. That never occurred.

Mr Russell explained that in a traditionally constructed plant, it is a ring beam which supports the weight of the bins, which is visible from several angles at the top of the bins. Mr Russell did not see such a beam when the cladding was stripped off this plant in 1990. What he then saw was a beam half a metre from the top of the bin wall. He agreed that he knew from his visual inspection at that time, that this beam was not supporting the bins. He then assumed that there was another horizontal beam welded to the bin, inside the beam, which could not be seen. After the collapse he learned that there were in fact three beams there.

Mr Russell's evidence was that between 1982 until the plant collapsed in December 2007, no work of a structural nature was undertaken to the part of the plant where the bins joined the surrounding structure. In 2002, the independent grid structure on top of the bins was replaced. Boral then took the advice of structural engineers, as it did at various other times. At that time Mr Russell inspected the beams on which the grid structure sat, as well as the bins. Those beams were independent of the main structure. Some of those beams were then replaced and minor repairs were undertaken to the bins.

Mr Russell considered that the attachment of the bins to the beams could have been inspected by use of mirrors, which would have been difficult, but not impossible. He had undertaken such inspections himself. He also considered that if undertaken, such an inspection would have shown that the bins were not welded in the normal fashion to the top of the stanchions, but not the bolts which he first saw after the collapse. He considered that had such an investigation then been undertaken, it would probably have resulted in further investigation being pursued. Engineers could have undertaken those investigations by use of x-ray or ultrasound. Ultrasonic testing of the thickness of the lining of the aggregate bin was then being undertaken.

Mr Russell and Mr Hawkeswood inspected the plant shortly after it collapsed from a crane lowered above the plant, before it was demolished.

Mr Hawkeswood gave evidence that what he saw before the collapse did not tell him anything as to how the bins were affixed to the structure. What he saw after the collapse suggested to him that the bins seemed to be bolted to the horizontal member with the bolts in sheer, not in tension. When taken to the photos he said that the support column for the bins there visible, appeared to be in good condition and not rusty. In cross-examination, he agreed however, that the bin could not be seen in the photo, the dividing walls had collapsed and fallen down. He also explained that the I-beam at the top could be seen. It was painted with red oxide and covered in dust sand and cementious product.

In a statement which he had made in March 2012, Mr Russell had said that from what he saw after the collapse, the upper anchor points for the bins were attached by bolts to two flanges, inside the upper ring beams, that went around the tip of the structure, which covered their appearance and that basically the bins hung from the support beams. His evidence in cross-examination was to somewhat different effect.

Then Mr Russell said that from what he could then see of the structure, it did not look corroded and apart from what had been distorted or involved in the collapse, the structure looked as it had done beforehand. Most of the bin was covered by material which had fallen down with it, but Mr Russell saw that: "There was one section, probably two metres long, and that had bolt holes in a portion of it and there were bolts freshly sheered through another section of about a metre. That was the first time that I had actually seen a bin bolted in that manner and was startled."

He explained that he was startled because he did not consider that to be good engineering. He could only observe the face area, which had been up against the section which was bolted. He could not see the external heads of the bolts, but what he saw looked like the bolts filled the holes completely and they were cleanly broken.

In cross-examination, Mr Russell also explained that he then had a good view of this section, being some 7 to 10 metres above the broken section, in the boom. It was Mr Hawkeswood, who took the photos in evidence. He explained that only the central part of the cattle grid over the bins had collapsed, that on the left and right sides was still there. Mr Russell then saw a section of the centre rear wall of the aggregate bin, which had a number of boltholes with no bolts in them and probably half a dozen bolts which were cleanly broken. He saw no bolt heads and no nuts, the bolts were sheared flush in the holes. Mr Russell then said that he did not know how those bolts could have been put in and tightened. He did not see any indication in a beam that there were boltholes.

Mr Russell also said in cross-examination that he was struggling to understand how the bins were attached physically to the structure. He considered that it was a possibility that the beams were bolted together and that the bin was dropped in and welded to the internal beam, but, he did not know how, if he was asked to do this, he would physically do it. He also agreed that if the bolts were bolted to a smaller beam, which was behind, on the far side of the larger beam, it would be necessary to drill through the larger beam. He saw no boltholes on that external beam.

By reference to Mr Hawkeswood's photographs, Mr Russell also said that he could not work out if the bin was bolted and if it was, what it was bolted to, or through. The bolts did not come through the bin wall, where they would have been visible. In his view this meant that they had to be bolted to something on the outside of the bin, which had to be welded to the bin, such as a beam or flange, which was bolted to the ring beam or another flange. He saw no such beam or flanges. The photographs did not show the external walls of the bins. Mr Russell agreed that the possibility of such welding was one which he had not advanced in his evidence in chief.

Mr Russell also said that he had never seen such an arrangement and that his theories depended on an assumption that it was the failure of the supporting bolts, which had caused the bins to collapse. Even so, he could not work out what the bolts would have been bolted to, or through.

The experts, Mr Appleyard and Mr Taylor, had considered various theories as to how the bins were supported in the structure and what caused it to collapse, but finally came to no common view. Their theories had to be considered in light of the evidence received at the hearing.

Neither Mr Appleyard nor Mr Taylor had the opportunity to inspect the plant or its components, or the photographs taken of the plant as it was disassembled after the collapse, or the engineering report Boral obtained afterwards. From its investigations after the collapse Boral plainly had information as to how the plant was constructed, which it did not reveal.

Mr Taylor and Mr Appleyard had been instructed to give their opinions on the basis of specified assumptions, not all of which were born out by the evidence given by those who had worked at the plant. Their reports were in evidence, as was their joint report. They gave their oral evidence concurrently, by way of response to an agenda prepared by the parties, during which evidence received was put to them.

It was common ground between the experts that it was not unusual for successive owners of industrial plants not to have access to original construction drawings, particularly with plants as old as this one. They did not agree on whether in such a situation, owners could reasonably rely on people with trade qualifications and experience such as Mr Russell had, to obtain an understanding of the structure and what was required to maintain it, or whether that required advice to be obtained from qualified engineers.

Mr Russell's evidence was that he had always approached his work on the basis of an assumption that at this plant, like conventionally constructed plants, it was impossible for the bins to collapse as they did, given their construction. While the experts agreed that this was a reasonable assumption for him to have made, they also considered that a reasonably prudent operator, having operated the plant for some 25 years, ought to have had a good practical working knowledge of the condition of all aspects of the plant, as well as knowing what the structural supports for the bins were.

As it transpired, Boral did not have such knowledge. The evidence shows that the question of what held the bins up, was something which a reasonable person in Boral's position over the course of the 25 years that it operated the plant, should have considered and resolved. That was put beyond question by what the 2007 hazard reports had identified as to the condition of the bins at a time when Boral considered the plant as nearing the end of its working life and to require replacement. It had been necessary for other support structures, as well as the bins and other structures at the plant to be maintained over the years. Boral knew this, but never undertook any investigation as to how the bins were supported and whether those supports required maintenance, even when hazard reports identified the poor condition of the bins in 2007, at a time when they were requiring the most maintenance.

Also to be considered is that when the cladding was removed from the plant in 1990, it appears that what could then be seen of the bin support structure suggested it may not have been the conventional one. The ring beam which Mr Russell explained could ordinarily be seen to support the underneath edge of the top of the bins in such a structure, was either not visible or very difficult to see. Even so, the experts did not agree as to whether it was reasonably prudent for Boral then to have inspected the support structure.

Given Mr Russell's evidence, what could then be seen appears to have departed from what could be seen in a conventionally constructed plant. That was the point at which Boral should have determined, as was put for it in submissions, 'well we should check this out', rather than continuing to proceed on the basis of its earlier assumptions.

Boral had no drawings of the plant. It was then apparent that there was a difficulty in seeing the bin support structure. That meant that reasonable prudence required that an inspection be undertaken, engaging an engineer if necessary, to determine whether the assumption which had been made as to the construction of the bin support structure was sound. Such an inspection was not undertaken. Had it been, there is no question that the unusual support structure would then have been revealed and that afterwards, the bin supports would have received necessary maintenance, which would have prevented the collapse which occurred in 2007.

Whether such an inspection would have required an engineer to be engaged, depended on the difficulty of the inspection. On Mr Russell's evidence while that would have been difficult, if the use of mirrors had not permitted an adequate inspection, then x-ray or ultrasound could have been used and if necessary, other physical means of examination could have been pursued. The experts agreed. It appears that such investigations would have required a qualified engineer to be engaged. Such engineers were now and then engaged when it was necessary. It follows that is what reasonable prudence would have required in the circumstances. Such an inspection was not attempted when the cladding was removed, or at any time before the collapse in 2007, even though by then, Boral considered that the plant needed to be replaced and the poor condition of the bins structures had been identified.

After the collapse Mr Russell saw sheared off bolts and empty bolt holes, which surprised him. The experts agreed that a system of bin support by bolts alone would have involved bad engineering. That was not because such a design of the bins was structurally inadequate, but rather that the likelihood of their collapse increased over time, due to operating conditions at the plant and the resulting deterioration of the support components, which were vulnerable to corrosion, but could not easily be seen.

This was an accident waiting to happen, Mr Taylor considered. It could have happened 20 years before or after the collapse. Mr Appleyard agreed, given that the bolts, if they had been the support mechanism, had never been maintained. They did not agree, however, that this was how the bins were supported, or that it was even theoretically possible for them to have been so supported. Mr Taylor said that he was 99% sure that they were so supported. Mr Appleyard disagreed, being, he said, 99% sure that it was not held up by bolts in tension.

Mr Appleyard considered that in all probability the bins were welded in place, and that there was a failure either of the welds, or more likely, of the steel material immediately adjacent to the welds, that caused the collapse. He said that it was relatively rare for a weld to fail per se. It was much more common for a steel component, which has been welded to another steel component to fail, because of corrosion or fatigue. He did not consider it possible for the bins to have been constructed and supported by bolts alone.

Mr Taylor disagreed. For technical reasons which he explained, he considered it possible for the bins to have been so supported. Mr Appleyard disagreed, for reasons which he explained. It is not necessary to resolve this disagreement.

The experts revisited their opinions in light of the evidence received at trial. For his part Mr Taylor could see nothing in the photographs evidencing a weld or plate failure. He considered that the immediate cause of the collapse was due to the failure of the fasteners holding the bins onto the supporting structure, because of corrosion over time. By reference to blow ups of one photograph, Mr Taylor postulated that the fasteners were fastened through the bin. He explained that such fasteners could have been bolts, or rivets, or screws, or welded studs. The evidence was that no such fasteners had ever been observed before the collapse. Two possible explanations for this, in Mr Taylor's view, were that the heads of the fasteners were flush with the inside faces of the bin walls, or that they were covered in some way, for example by a cover sheet or cover plate, to protect them from wear, which otherwise would have been a problem.

Mr Appleyard considered this not to have been physically possible, given the size of the fasteners necessary to support the weight of the bins. Mr Taylor disagreed.

The experts' opinions had to be considered in light of the evidence of those who had worked at the plant. Mr Russell and Mr Hawkeswood had repeatedly been inside the bins over the years. They had also seen the collapsed bins, when they had observed sheared off bolts. Mr Russell certainly did not consider it to be possible for the bins to have been supported only by bolts, as Mr Taylor postulated, nor was that consistent with what he had observed of the bins while the plant was operating. Mr Russell concluded that if bolts had supported the bins, some welding must have been involved.

Mr Taylor was present when Mr Russell gave his evidence and explained that he considered that what Mr Russell had been trying to say, was that the bin support structure would have involved flanges, one welded to the support structure and the other to the top of the bin, which were fixed together with fasteners. Mr Appleyard accepted that flanges being so welded was conceivable. Mr Taylor later produced two drawings in order to illustrate his theories as to how the bins could have been so supported.

It seems to me that Mr Taylor's theories cannot be accepted. They do not accord with the evidence of what had been observed by those witnesses who had repeatedly inspected the insides of these bins and repaired and replaced the bin walls and liners over many years. Mr Taylor did not know the means by which the bin liners were attached to the metal bin. There was no evidence suggesting that a cover strip of the kind Mr Taylor postulated had ever been seen. Given the way in which the bins were lined and repaired, it is unlikely that such a cover would not have been noticed over the course of 25 years. Such a cover is itself likely to have required repair over that time, given what it would have been exposed to, inside the bins. If it had been there, questions as to the bin support structure would undoubtedly have arisen and been attended to, given that this would have departed from the normal way in which such bins were constructed.

Mr Taylor's other theory was that the supports were not observed because the heads of the bolts had been flush with the bins walls, perhaps welded and ground off. Mr Appleyard considered that would not have made them invisible, although Mr Taylor said that when the structure was old and dirty they would not be obvious.

It seems to me on the evidence that if bins had been so connected to the structure, something would have been seen and investigated over the course of Boral's 25 years of operation of the plant and the constant maintenance, repair and replacement of the bin walls and bin liners, over that time. Nothing of that kind was observed.

The evidence also did not suggest that there would be any reason for those constructing this plant so concealing the existence of the bin support structure, which in this caustic environment would have plainly required ongoing maintenance and repair. That makes it unlikely, it seems to me, that steps would have taken to conceal the existence of the bolts which Mr Russell saw, particularly if they had they alone supported the bins.

The photographs did not show those parts of the bin structure to which any flanges would have been welded, if the bins had been connected to the support structure by fasteners and flanges. Mr Russell could not conceive how they could have been so attached, given what he could observe after the collapse and what he had seen beforehand. On the evidence of what it would have required to construct these bins by way of fastening with such flanges or bolts alone, it seems most unlikely that this was the method of construction used for these bins.

On all of the evidence it seems to me that the bins must have been connected to the support structure of the plant by a combination of welding and bolts. I can see no reason for rejecting the evidence of Mr Russell and Mr Hawkeswood as to what they saw. That the bolts were performing some function in the bin support structure must be accepted, but on all of the evidence it appears most unlikely that they alone could have supported these bins over the entire course of the plant's 50 years of operation, in the caustic environment in which it operated, particularly when it is remembered that they had been given no maintenance at all, over the entire course of that time and Mr De Carvalho's evidence as to the maintenance which such bolts generally required. The experts agreed that a construction of the bin support structure using welding and bolts was unconventional, but possible. They did not agree that support of the bins by bolts alone, also unconventional, was possible. On the balance of probabilities, it seems to me unlikely that they were supported by bolts alone.

On the evidence the failure of this support structure was caused by the connections between the bins and the support structure becoming too weak to continue carrying the weight of the bins and the materials they held. That was the result of none of these connections ever having been inspected or maintained, as they needed to be. While they were either not visible, or difficult to see, they were, however, constantly exposed to the caustic environment in which the plant operated, the result of the interaction of sand, air and water. They were also subjected to considerable ongoing load shocks. This environment was the reason for the otherwise thorough system of inspection and maintenance which Boral operated at the plant. It was a system which should have extended to these connections. Had it been, the bins would not have collapsed as they did.

As discussed by Gummow J in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [49] 'while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care'. In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48: "[T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

In its submissions Boral relied on Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 to argue that there was no evidence as to the balancing economics involved in the maintenance which the bin support structure required and so Mr Gangi's case must fail. There it was observed (at 318 - 319): "It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils. "The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle." That statement, made by Lord Keith of Avonholm in Cavanagh v. Ulster Weaving Co. Ltd. (1960) AC 145, at p 165 was repeated and approved in the House of Lords in Brown v. Rolls Royce Ltd. (1960) 1 WLR 210 The latter case and Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. [1963] HCA 4; (1963) 108 CLR 362 establish that the legal burden of proving an absence of reasonable care on the part of a defendant employer remains on the plaintiff workman throughout. Observations to the contrary in McDonald v. British Transport Commission (1955) 3 All ER 789 should be disregarded. For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, "What is 'a proper system of work' is a matter for evidence, not for law books": per Lord Denning in Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743, at p 760"

There the plaintiff alleged that the defendant was negligent in two respects. First, in not installing machinery which would have made it unnecessary to remove bottles from a pasteurizer by hand and second, in not providing the plaintiff with thicker gloves. There was evidence that in some other breweries in New South Wales bottles were not removed from the pasteurizer and placed on a conveyor by hand, but were taken both into and out of the pasteurizer on a conveyor, from which it was accepted it might reasonably be inferred that the risk of a man having his hand cut would be reduced, by eliminating the handling of bottles at the stage when they were most likely to burst. But the evidence about this mechanical arrangement was found to be scanty and scrappy; it did not appear to be in general use in Australian breweries; and no description of it was given sufficient to enable it to be contrasted with the defendant's system, or to assess its advantages and disadvantages, or to say whether or not it would have been practicable and reasonable to install it in the defendant's premises. It followed that it could not rationally be concluded that its absence showed that the defendant was careless of the safety of its employees.

This, clearly, was quite a different case. Here there was evidence that inspection and maintenance of the support structure which a reasonable person in Boral's position should have taken, was available and a course which it would have taken, had it been aware that the support structure required such maintenance. That Boral would not have maintained the structure, had it known how the bins were supported, was entirely inconsistent with Mr De Carvalho's evidence. Such maintenance would plainly have required engineers to be engaged. On the evidence Boral engaged engineers whenever that was necessary, to ensure that the plant was adequately maintained, so that it could operate safely. Such maintenance would have made the necessary difference, that is, the support structure would have been maintained and the bins would not have collapsed.

Boral also relied on Neill v NSW Fresh Food & Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362, where the onus lying on a plaintiff to lead evidence which would establish that an appropriate method which would eliminate or minimize the risk was reasonably available, was discussed. The evidence there led was considered to have left the jury entirely in the dark as to the steps which the respondent, as a reasonably prudent employer, might have been expected to take, to address the risk of slipping there in question. Kitto J, there observed at 360: "The appellant, as a servant of the respondent, was required to work in the confined space of a cylindrical milk container, on a slippery surface which the doing of his work necessarily made more slippery still. In such circumstances the risk of his falling and suffering some degree of injury was obvious. The respondent therefore owed him a duty to provide all reasonable protection against the danger of a fall. In fact it gave him no protection at all. At the trial the burden lay upon the appellant of satisfying the jury that some protection was reasonable, and that his injury resulted from the absence of it. I should not have thought that evidence was needed to entitle the jury to be satisfied that some means by which a man might steady himself inside the container could have been provided. There could hardly be any physical difficulty in the way of adding a handrail, for example. Of course, in designing and installing any such thing, care would need to be taken not to create unhygienic corners or crevices, but in these days it is hard to think that that would present any problem. The difficulty that seems to me to stand in the appellant's way is that without evidence from a person qualified to speak on the subject it remained a matter of conjecture whether any handrail or other steadying device could have been so located in the container that, while on the one hand it could be effectually used without undue inconvenience by a person doing the appellant's work, on the other hand it would not create a counterbalancing hazard for such a person by forming a projection which he might accidentally strike. A rail along the top, for example, might be either too high to serve the purpose in view, having regard to the exigencies of the work, or so low that the worker would be in danger of hitting his head on it. There was a complete absence of evidence as to the merits and demerits of a handrail or of anything else that imagination might suggest as a possibly appropriate provision, and particularly as to any deficiencies or drawbacks which, in the circumstances of the appellant's work, might outweigh the advantages of any such provision. For that reason, in my opinion, the verdict given for the appellant cannot be supported."

This is not such a case.

Here there was considerable evidence as to what Boral should reasonably have done in the circumstances, given that it considered that the plant had reached the end of its working life and its inspection system had identified that the bins structures were in poor condition. Its own witnesses considered there was then a need to have engineers inspect the structure. That is a view which plainly did not rest on hindsight alone.

The experts did not agree that Boral's inspections of its plant should have been directed to the identification of design faults, or that it was necessary for engineers to be engaged to conduct various inspections, but they did agree that in a plant such as this, every structural element was at risk of failing and thus required monitoring, inspection and repair. On the evidence, Boral failed in this regard. The bin support system was not understood, inspected or repaired, as it ought to have been, particularly given the plant's age when it collapsed; that it was then considered to be nearing the end of its operating life; and that the poor condition of the bin structure had been identified.

The experts also agreed that given the nature of the loads in the bins which this structure had to support, a reasonably prudent operator would have known that inspections of the support structure were necessary. They were not agreed as to whether this necessarily required engineers to be engaged, or all that such an inspection regime would involve. But there was a common view that some priority had to be given to parts of the plant which were subject to corrosion and that whatever was physically connecting these bins to the support structure, was a part of the plant subject to corrosive forces. It follows that Boral failed in this regard. There was no such inspection ever undertaken.

One of the reasons for the disagreement as to what such an inspection regime might have reasonably required, related to the age of the plant. It was common ground that such structures can be built for a specific design life, but on the evidence that was information which Boral did not have. Mr Appleyard considered that at 50 years, the structure was likely to have exceeded its design life. Mr Taylor did not agree. He took the view that safe operating life of the structural elements of such a plant depended on an operator taking appropriate precautions in relation to corrosion, wear and repair of damage and that with appropriate maintenance, the life of steel structures could be extended almost indefinitely. An example which he gave of this was the Sydney Harbour Bridge. Mr Appleyard did not disagree with this, but said that extension of operating life of a structure depended in part on maintenance cost. On the evidence that was a concern at this plant, which Boral considered to be at the end of its working life.

What the experts were agreed about was that given that this plant was some 50 years old, there was a need to conduct an inspection of the overall adequacy of the supporting members of the plant, even if there was no outward sign of deterioration. Such an inspection would include consideration of things like corrosion, distortion, deflection, deterioration, and excessive vibration.

No such inspection was ever conducted by Boral of the bin support structure, as it clearly could have been. It follows that reasonable care required such inspection be undertaken, before the collapse occurred in 2007. The risk that the plant could collapse was not far fetched or fanciful. It was a present risk to which Boral directed considerable but as it transpired, regrettably inadequate effort to avoid. In the circumstances, it was plainly one which it ought to have addressed by means of inspection and maintenance, clearly available to it, with the assistance of engineers.

As to the requirements of s 5B, Sackville AJA observed in Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Limited [2009] NSWCA 263; (2009) 77 NSWLR 360 at 444: "444 While s 5B of the Civil Liability Act incorporates concepts derived from the common law, the primary Judge was required by statute to satisfy himself that each of the matters specified in s 5B(1) was satisfied before he could find that the RTA had been negligent in failing to take precautions against the risk of objects being thrown or falling from the Glenlee Bridge onto vehicles travelling along the F5 Freeway. In order for the primary Judge to find that the criterion stated in s 5B(1)(c) was satisfied ("in the circumstances, a reasonable person in [the RTA's] position would have taken these precautions"), his Honour had to weigh the competing considerations identified in s 5B(2)." Emphasis added

As I have explained, here, the considerable risk in question ought to have been foreseen by Boral. On all of the evidence it must be concluded as to s 5B(2)(a) that given: the nature of this plant and what it and the bins which collapsed were designed to do; its known age of some 50 years; the corrosive environment in which it had operated over that time; the loads which the bins had to carry and the load shocks to which they were constantly subjected; the bin support structure could not be seen and its condition had had never been inspected; that Boral had operated the plant for some 25 years without access to plans or other information which revealed the structure of the bins' supports or the plant's design life; that in 2007 the plant was considered to have worked hard, to be nearing the end of its practical life and to require replacement; and that it was known that the plant was requiring increasing maintenance; that whatever supported the bins, had never been maintained and that the condition of the bins structures had been identified to be poor an owner in Boral's position, ought to have been aware of the real probability that harm would occur, if steps were not taken to ensure that the plant was capable of continued safe operation, without any maintenance to the bin support structure being undertaken.

The evidence also establishes that the likely seriousness of the harm which could result, was significant, given that what the plant was at risk of was collapse of the bin support structure, with the result that the bins and the load they carried could fall some 13 metres to the ground onto the trucks and people working below (s 5B(2)(b)). In the context of the operation of this plant and all that Boral did in order to maintain it under the systems which it operated, the burden of taking available precautions to avoid the risk of harm materialising was not substantial. Given the activity that created the risk, Boral's commercial operation of the plant for profit, a reasonable person in Boral's position would have taken those precautions (s 5B(2)(c)).

Section 5D of the Civil Liability Act provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

As observed in Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [132]: "132 As a result of the decision of the High Court in Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48; (2009) 239 CLR 420 at [55], it is now established that factual causation is to be determined by the " but for " test in all but the undefined group of exceptional cases contemplated by s 5B(2): see also Zanner v Zanner [2010] NSWCA 343 at [11]."

Boral argued that Mr Gangi had sought to draw together several unrelated events to form a cable upon which it could be found that there had been some omission on its part, which was causatively related to his accident. It relied on the observations of Spigelman CJ in Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, to submit that the evidence provided no foundation for the conclusions urged. There it was observed at [80] - [84]: "80 The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. See especially the unanimous joint judgment of the High Court in St George Club Ltd v Hines (1961-62) 35 ALJR 106 at 107 where the court referred to Bonnington Castings Ltd v Wardlaw (1956) AC 613 as authority for the following proposition : "In an action at law a plaintiff does not prove his case merely be showing that it was possible that his injury was caused by the defendant's default." 81 In Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724, Mason J referred to: "...the ordinary onus of proof which rests upon a plaintiff to establish on the probabilities that a medical condition or disability from which he suffers is 'caused or materially contributed to' by the defendant's wrongful conduct (Bonnington Castings Ltd v Wardlaw [1956] AC 613, at 620 per Lord Reid). Consequently as the decision in that case demonstrates, the plaintiff will fail if all that he can show is that his disability might have been so caused...". 82 See also Cole v Commonwealth of Australia (1961) 62 SR(NSW) 700 at 708. In Roulstone v Tetley (1966) 2 NSWR 389 at 394, Walsh J made a clear distinction between a "theoretical possibility" and "future probabilities", as approved on appeal in Tetley v Roulstone (1960-61) 34 ALJR 495 at 497 and see 496. Further see Sydney County Council v Furner (1991) 7 NSWCCR 210 at 213-217. 83 The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190 at 197: "The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360N. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence." 84 It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists."

I am satisfied that the evidence to which I have referred established that the psychological injuries which Boral conceded Mr Gangi had suffered as the result of the collapse, were caused by its negligence and that but for that negligence, he would not have sustained this injury, or the soft tissue injury which he also clearly suffered.

The evidence did establish that it was more probable than not that, but for its failure to inspect and maintain the bin support structure, the collapse would not have occurred. That is, the absence of such inspection and maintenance was a necessary condition of the collapse. Because the absence of such inspection and maintenance was a necessary condition of the occurrence of the harm which Mr Gangi suffered, s 5D(1) was satisfied.

Boral ought not, on a reasonably prudent basis, to have continued operating this plant without obtaining the advice of qualified engineers as to the configuration of the structural elements of the plant and how the bins were supported in that structure; whether those supports, not ever having been maintained, remained capable of supporting the bins and the loads which they had to carry; and what ongoing maintenance they required, to ensure that the plant could continue operating safely, before it was replaced.

The evidence established that necessary inspection of the bin support structure did not require 'microscopic examination or audit', as was postulated in Boral's submissions. Nor did the evidence establish that the reason that the plant was considered to be nearing the end of its operating life, at the time it collapsed, was purely an economic one, having in mind its output capacity. As Mr De Carvalho explained, it was not only considered that the plant had worked hard over its life, but that it required replacement. That reflected, no doubt, the increasing maintenance which Mr Russell said it required, especially to the bins.

What had been seen when the cladding walls were removed in the early 1990s, called into question that the bins were constructed and supported in the conventional way that Boral had assumed that they were. Its assumptions as to the bin support structure should then have been investigated. In 1999, an alteration to the grid structure, separately supported above the bins, does not appear to have resulted in such an investigation of the bin support structure, even though it was referred to in the report Boral then received. On the expert evidence, there can be no question that if the engineers then engaged had investigated that support structure, its design and construction would have been revealed. That was consistent with Mr Russell's evidence that no such investigation had ever been commissioned.

Even though that was not then investigated, over the ensuing years, the bin walls and bin liners had to be repeatedly repaired and from time to time replaced. On the expert evidence, in the circumstances prevailing in 2007, the exercise of reasonable care required a reasonably prudent concrete batching plant operator in Boral's position to obtain advice that the plant could continue to be safely operated.

By that time Boral had for some time considered that it required replacement. That is consistent with evidence as to its then condition, as revealed by reports regularly made under the hazard identification system, designed to ensure that steps were taken to address problems observed on inspection, given the risk posed by the hazard so identified. The advice which Boral required was readily available. Even though the way in which the bins were connected to the support structure was either difficult or impossible to see visually from inside the bins, the evidence establishes that necessary inspection of the bin supports could have been undertaken by available means such as the use of mirrors, ultrasound or x-ray and other physically invasive means then available. This could have been undertaken by engagement of qualified engineers, who Boral engaged routinely, when it considered their services were required. There was no suggestion that the cost involved would have been prohibitive, or that such investigation it would have itself prevented the plant operating. Plainly it could have been undertaken at a time which the plant was otherwise not operating, when maintenance was undertaken.

It was common ground between the experts that such investigations, if undertaken, would have revealed how the structure was supported. On the balance of probabilities it would also have revealed that maintenance was required, if the plant was to continue to operate.

Such inspection would not only have revealed how the bins were supported, but also the state of those connections and that they required maintenance. There is no suggestion on the evidence that necessary maintenance could not then have been undertaken. To the contrary, on the evidence of Boral's senior management personnel, it cannot be doubted that it would have been undertaken, if the necessary inspections of the connections had occurred.

While no doubt Boral had the right to operate the plant as it saw fit without interruption of its profit making operation, that it could or would do so, without attending to required maintenance, which would have prevented the plant collapsing as it did, cannot be accepted, particularly given the obligations it accepted it had, as occupier of the plant. In the result, it must be concluded that the requirements of s 5D(1) have been satisfied.

Before turning to damages, something must be said as to certain inferences available to be drawn against Boral.

In Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 it was observed by Windeyer J, as to a party's failure to lead evidence to support its case (at [15] - [16]): "15. As I think that the matter was properly left to the jury, I turn to what directions the judge should have given them concerning the failure of Hegedus to give evidence. I think, firstly, that in referring to his statement, his Honour rightly told the jury that they could have regard to it as recording what Hegedus had said; and I can see little force in counsel's objection to his Honour's, perhaps incautious, description of it as "his evidence"; but, in the circumstances, it would have been better if he had explained that it was unsworn, and that, as Hegedus had not been called, there was no opportunity of testing it by cross-examination. Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 as follows: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." (at p321) 16. This is plain commonsense. If authority were needed, two passages from R. v. Burdett (1820) 4 B & Ald 95 (106 ER 873) may be cited. Abbott C.J. said: "No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected." (1820) 4 B & Ald, at pp 161; 162 (106 ER, at p 898) And Best J. said: "Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just." (1820) 4 B & Ald, at p 122 (106 ER, at p 883) (at p321)"

In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, Heydon, Crennan and Bell JJ observed at [62] - [63]: "62 The significance of the trial judge's finding. The conclusion of the trial judge that the plaintiff was "reluctant to say precisely what happened" is an important one. If that conclusion were soundly arrived at, it would be a significant factor against the plaintiff's success. So, at least, the trial judge, the Court of Appeal majority and the first respondent thought. It would be significant because of the following considerations. Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was "reluctant" to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness's knowledge for which the question does call). To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth. That is a serious conclusion to reach, for the following reasons. 63 The rule in Jones v Dunkel [[1959] HCA 8; (1959) 101 CLR 298 at 308, 312 and 320-321; [1959] HCA 8.] is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness [Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582.]. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn [Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 at 225 [102].]. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue [Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419. Handley JA stated some stronger propositions in those passages, but what he said is at least authority for what is stated above.]. That problem did not arise here. The plaintiff's counsel did ask the plaintiff relevant questions."

On the expert evidence, it is apparent that if an engineer had been engaged by Boral to investigate how the plant had been constructed, prior to the collapse, its design and the risk of collapse to which the plant succumbed, would have been uncovered. On Mr Russell's evidence, no such investigation was ever undertaken, before the collapse. It was, however, undertaken after the collapse.

During the course of the experts' concurrent evidence, however, after all of the lay evidence had been received, a draft 1999 report of Scott Wilson Irwin Johnston Pty Ltd was tendered for Boral. That document was one which Mr Appleyard had seen at the time he prepared his report, but not Mr Taylor. It had not been tendered by Boral through Mr Russell, as one might have expected, given its contents and he had not been cross-examined about it.

Mr Russell's evidence was that Boral had never engaged any engineers to inspect the bin support structure. It was he who was responsible for engaging all such experts. As I have noted earlier, the inference is that whatever inspection was then undertaken, it did not include an inspection of the hidden bin support structure.

This firm had been engaged to provide a report on the design of a safety barrier system to guard against trucks toppling over, while unloading into the aggregate bin on top of the grids of the bins. The report proposed three options, after inspection and investigation of the plant. The report noted: "This report outlines and presents in conceptual form, three options for a rollover safety barrier. This information along with budget costing is intended to assist Boral, in conjunction with operational and long term planning issues, to determine an appropriate level of protection and expenditure for such a system."

The three-page draft report refers to an initial walk through inspection with Boral personnel for familiarisation and then 'a subsequent and more detailed inspection of the bin supporting structure'. It makes no mention of what was discovered, if anything, about the bin support structure. This report has to be understood in a context where it was the evidence of all those who had worked at the plant and were involved in its ongoing maintenance from 1980, that a visual inspection of the bins, even from the inside, could not have revealed how the bins were supported. The bin support structure could not be seen. The separate support structure for the grid system above the bin, where the proposed work was to be undertaken, could.

Given the way in which this report emerged, the experts' common view that an inspection of the bin support structure, if undertaken by engineers, would have revealed that the bins were supported in an unexpected way and that this would then have been drawn to Boral's attention, that Mr Russell did not refer to this 1999 report in his evidence, the proper inference is that the investigation then undertaken did not in fact involve an investigation of the bin support structure, as opposed to the separate grid support structure, notwithstanding the reference made in the report to the bin support structure.

Even if by some undisclosed means access was gained in 1999 to this hidden support structure and it was then actually inspected, there was no further inspection of the condition of the support structure undertaken prior to the collapse in 2007. Had Boral obtained information in 1999, as to how the bins were supported, its failure afterwards to further inspect or maintain the bins' connection to the support structure, would clearly have been negligent in the circumstances. On Mr Russell's evidence, such negligence seems unlikely. It is much more likely that in 1999 Scott Wilson Irwin Johnston Pty Ltd inspected the separate grid support structure, to which no reference is made in the report, rather than the bin support structure.

After the collapse, engineering experts were engaged to investigate its cause. That occurred in the context of a WorkCover investigation into the plant collapse. No prosecution resulted from that investigation.

The instructions given to those experts were in evidence. Boral, however, claimed privilege over that report and the photographs taken of the collapsed plant during that investigation. It engaged a different expert, Mr Taylor, to give evidence in these proceedings. It did not instruct that expert with either this report, or any of the information which the investigating experts obtained in the course of their investigation. That information appears to have been considerable.

In the result, the experts who gave evidence in these proceedings were denied access to relevant information in Boral's hands, which would have shed considerable light not only on how the plant was actually constructed, but what in fact caused the collapse.

For Mr Gangi it was submitted that an inference must be drawn against Boral, that this information would not have assisted its case. Boral submitted that such an inference was not available to be drawn.

In Christian v R [2012] NSWCCA 34, it was observed at [28] - [29]: "28 Counsel who appeared for the appellant on the appeal acknowledged that the matter had not been well handled by defence counsel. I infer from his submission that he accepts that the question which was asked was rightly rejected having regard to the foundation which defence counsel said supported it. However, although counsel on the appeal submitted that defence counsel accepted that there was a "privilege question" in relation to the statement, he submitted that defence counsel's real purpose was to elicit an explanation from the complainant as to why he was claiming privilege, apparently on the basis that this would be relevant to his credibility. 29 Before evidence can be admitted it must be relevant to a fact in issue in the proceedings: Evidence Act 1995 s 56. The law excludes the drawing of an inference adverse to a person from the fact that they have claimed client legal privilege: Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 at [15]; McGuiness v State of New South Wales [2009] NSWSC 40; [2009] 73 NSWLR 104 at [147]-[148]. It follows that the reasons for the complainant's claim of client legal privilege was not a matter from which the jury could have drawn any inference. Questions directed to the complainant's reasons for claiming privilege were not admissible."

In McGuinness v State of New South Wales [2009] NSWSC 40; (2009) 73 NSWLR 104, it was public interest immunity which was claimed. There it was observed at [147]: "147 The principle that applies where such a claim is validly made and is not disputed (as in the present case) is that stated in Wayne Lawrence Pty Limited v Hunt & Ors [1999] NSWSC 1044 per Hodgson CJ in Eq (as his Honour then was), namely,:- "It appears to be the law that where legal professional privilege or other privilege is claimed, that of itself cannot be the basis of an adverse inference being drawn against the party claiming that privilege. However, in my opinion, where a party is claiming to make out a case, and that party bears the onus of proof, and where that case could be given positive support by calling evidence of legal advice or lack of legal advice, the failure of that party to call that evidence can be taken into account in deciding whether that party has discharged the onus of proof which it bears."

In Wayne Lawrence Pty Limited v Hunt & Ors, what was in issue was s 122 of the Evidence Act and whether legal professional privilege had been waived.

Here what is in contention was not whether an adverse inference should be drawn from the fact that Boral claimed legal professional privilege in the photographs and the report, but whether an adverse inference could be drawn from its failure to rely on information it had in its possession, as to how the plant had been designed and constructed, how the bins had been supported and what had caused the plant to collapse as it did.

In my view Boral's failure to lead any evidence as to the information which was undoubtedly in its hands as to these matters, gives rise to the obvious inference that the information would not have supported the case it advanced. If it had, no doubt the information would have been provided to its expert and relied on in these proceedings. It is not the fact that Boral has claimed privilege in the reports which it commissioned, from which the inference flows, but from its failure to rely on information which it has in its hands and is entitled to rely on.

As was submitted for Mr Gangi, the position in regard to this report can be no different to that of any other expert opinion, that of a doctor for example. If a defendant engages a doctor to examine an injured person and the doctor gathers relevant information, undertakes tests and provides a report, if the privilege lying in that report is not waived and the report not tendered, an inference is available to be drawn against the defendant, that what was so learned would not have assisted the defence. In my view this situation is no different, with the result that it must be inferred that the information in Boral's hands as to what caused the plant to collapse, would not have assisted its defence of Mr Gangi's claim

Mr Gangi's liability case was supported by these conclusions, but did not depend upon them. I have already concluded that the evidence otherwise establishes the case he advanced as to Boral's liability.

There was no issue that Mr Gangi suffered a psychological injury, but whether he had suffered the physical injuries he claimed was in issue.

Mr Gangi completed an apprenticeship as an electrician after leaving school and had studied and obtained other qualifications at TAFE while working as a driver. He had worked for Boral as a driver since 1998, initially as a casual for another driver and operating his own company from 2001, after he purchased a truck and run from another Boral driver. His wife was also a shareholder and director in the company, performing certain of its administrative work.

In 2002, Mr Gangi was hit in the head at work by a kibble. He then claimed he had suffered injuries to his neck and shoulder, as well as psychological injuries, for which he pursued damages in contested proceedings in the District Court. They were resolved in his favour. In those proceedings he claimed to have injuries to his neck, persistent headaches, ongoing severe pain in the neck and shoulders, reduction in concentration, feelings of lethargy, reduced memory and libido, depression, damage to his right eye, inability to attend to his precedent employment on a full-time basis and gross interference in the enjoyment of his life. He was then diagnosed with soft tissue injuries and post-traumatic stress disorder. At that time he underwent considerable investigation of his injuries, as well as rehabilitation and other treatment.

In 2003, he returned to work part-time and eventually to full-time work, after an appeal against the decision made in his favour was settled. His evidence was that he had completely recovered from all of his injuries, when he was injured again in 2007.

Boral's case was that the histories which Mr Gangi had given various doctors after the 2007 collapse underrated the nature and extent of the injuries and ongoing disabilities which he had suffered in 2002 and exaggerated the injuries which he had suffered in 2007. Having carefully considered the evidence, there seems to me to be some force in those submissions. On my assessment there was evidence which raised questions both as to the reliability and credibility of aspects of Mr Gangi's evidence.

The challenge to Mr Gangi's credibility had to be considered in the context of evidence given by other witnesses, what contemporaneous documents and surveillance tapes showed and the evidence he gave himself at trial. That evidence cast some doubt as to the case which he advanced.

At the hearing Mr Gangi had no apparent difficulty with his recollection when giving his evidence in chief. Mr Gangi was cross-examined about the 2002 injury, the resulting litigation and its settlement, his recovery and what he had told treating doctors after his injury in 2007, about his 2002 injuries. Mr Gangi denied that he was exaggerating his symptoms, or not being entirely truthful. In cross-examination however, he repeatedly answered questions with 'I don't recall' or 'I don't recall specific conversations', to the point where the truthfulness of some of his answers appeared questionable.

The evidence shows that Mr Gangi did not reveal much to those who treated him after the 2007 accident, about his 2002 injury and that what he did say, did not entirely accord with the evidence in these proceedings, as to the injuries which he had then suffered and his recovery from them. In cross-examination his memory of those events was also seemingly very poor.

Mr Gangi then could not recall matters such as when the 2002 proceedings were resolved; when he returned to full-time work; whether he had claimed loss of income in those proceedings; or what evidence he had given in the District Court proceedings as to the injuries he had suffered, or their consequences. He could not recall giving evidence of any intention to change his career. He said it was his head, neck, back and shoulders which were then painful, but he could not remember whether he had then experienced neck and right shoulder pain when cleaning the concrete chute after a pour. He did agree that the pain he experienced after the 2007 accident was similar to that experienced after the 2002 accident. He did not recall then reducing his working hours, or when he stopped using relief drivers. He said that when he did return to work full-time, he suffered no more pain and had made a complete recovery, but he could not recollect when he had stopped seeing a doctor about his psychological treatment, or what he had told his doctor about then feeling forgetful and tired.

While it must be remembered that Mr Gangi was giving evidence in 2013, a considerable time after these events, it was difficult to credit the limited extent of his recollection of the consequences of his earlier injury.

Also to be considered was that Mr Gangi's account of his 2007 injuries and the pain which he suffered as a consequence, have altered over time. Documents suggest that earlier accounts which he gave of were of less serious injury and less severe pain than later accounts, including that given at the hearing.

Mr Gangi became the subject of surveillance prior to the hearing in 2013. He was then still not working full-time. His company was then employing a relief driver to replace him three days a week, depending on the driver's availability, not Mr Gangi's physical condition. The surveillance tapes showed Mr Gangi going about his daily life, at work and outside it, without apparent discomfort. His evidence in cross-examination was that on his days off he was able to attend to normal activities such as walking, driving, taking his children to school and picking them up, depending on his pain levels. At work he still found certain duties such as operating and cleaning the cement chute and cleaning his truck painful.

Aspects of the accounts which he gave to doctors who examined him as to what the movements he was capable of performing, do not appear to me to accord with what Mr Gangi can be seen to be doing on the surveillance tapes, without apparent discomfort. As Mr Gangi himself finally accepted in cross-examination, what he can there be seen doing is moving in the same way as a fit, healthy man of about 32 years, without apparent restriction.

While it must be accepted that these tapes alone could not have had a substantial impact on Mr Gangi's credibility, because they are relatively short and do not show a great deal of his daily activities at work and elsewhere, when considered together with other evidence, the need to approach his evidence with some caution became apparent. Mr Gangi's various accounts of what happened to him when the plant collapsed and the physical injuries which he then suffered, what various tests later revealed as to his condition, what later clinical physical examination revealed and the evidence which he gave at trial, do not readily sit together.

This had to be considered in a context where ongoing objective testing revealed little which could explain the extent and seriousness of the pain which Mr Gangi then said he continued to suffer largely unabated, despite various treatment and pain relief. On accounts given to some doctors years after the events of December 2007, his condition had seemingly worsened over time, without apparent reason. This was even though he had earlier told other doctors who had examined him, that his condition was not as serious as it had been in December 2007 and that there had been improvement in his symptoms since then.

Mr Gangi could not recall seeing various doctors after his 2007 injury. He did not remember failing to take studies he was required to take with him to appointments and denied ever having exaggerated his symptoms on examination.

That the psychological injury might have had an impact on Mr Gangi's recovery from his physical injuries, also has to be considered. Even taking this possibility into account, I have concluded that it is difficult to accept aspects of Mr Gangi's evidence as to the extent of the physical injuries which he suffered on the day of the collapse, how they were caused and their aftermath.

In April 2002, Mr Gangi suffered an injury to his forehead and neck. He was assessed by a neurologist and found to be suffering post-traumatic headaches and concentration difficulties, which continued up until last seen in July 2003.

He returned to work within a day of this accident, worked full-time until July 2002 when he had some weeks off, returned part-time for four days a week in August 2002 and returned to five days per week in August 2003. In evidence which he gave in proceedings in November 2003 he said he continued to have problems with his neck. In his evidence before the District Court, he said that he intended to pursue other work, because he felt that he might not be able to continue truck driving. Later medical records show ongoing complaints of headache, neck ache and backache to June 2004. After the settlement of the appeal he made a complete recovery and continued his truck driving for Boral, working normally, six days a week, up until the December 2007 collapse.

His evidence at the trial in 2013 was that as the result of the 2007 accident, he still could not perform all of his duties normally. He was only able to work three days a week. In cross-examination, he said that while he could perform his driving duties, when he had to use his right hand to scrape out the cement chute at job sites and later, to clean the truck at the end of the day, he still suffered pain. Even though the surveillance footage showed him moving without apparent restriction, even when cleaning the chute, his evidence was that he was then in pain when performing that work.

This evidence has to be considered against the following evidence as to how the 2007 accident occurred, what injuries he then suffered, how they were investigated and treated and how they improved over time.

Mr Gangi's evidence in 2013 was that ordinarily, after stopping the truck he alighted, pressed a button and then returned to the truck to do paperwork, while the truck was being loaded and that when the plant collapsed, he was outside the truck. Given the evidence as to how the bins collapsed to the ground and the many tonnes of material which then fell onto the truck, significantly damaging the back of the truck and pushing it forward, that Mr Gangi was outside the truck at that time and suffered such little injury as he did, would seem to have been miraculous. Much more likely, it seems to me, is that he was inside the truck when the plant collapsed, sheltering him from most of what fell onto the truck and that he was injured only after he got out of the truck. That seems to accord not only with what contemporaneous documents record of the accounts which he then gave, but also with the evidence of Mr Carrette, who observed no injuries, but described Mr Gangi to have appeared disoriented when he found him, as I have earlier outlined.

In considering these records, attention must be paid to the obvious fact that such records are not prepared for proceedings such as this. Rather, they are a summary of what Mr Gangi then said, recorded by persons who have not been called in the proceedings (see Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2] - [4]). Nevertheless, the documents do shed some light on what Mr Gangi told those who treated him at the time of the collapse and subsequently, as to what had happened to him, what injuries he had suffered, what treatment he sought and when. I am unable to accept the submission advanced for Mr Gangi that these records, containing as they do various inconsistencies as to the mechanism of his injuries and other matters, can shed no light on the credibility of the evidence which he gave at trial.

The ambulance report of 14 December 2007 recorded that Mr Gangi had escaped from the truck and scurried out of the quarry, injuring his shoulder. He was taken to hospital where he was treated, but not admitted. The hospital records note an account that he pulled himself out of the truck, injuring his right shoulder. There were no physical injuries recorded, but a headache was noted. The notes also record that the account which he gave a nurse, was that he had hit his shoulder while scurrying up an embankment.

A report of a senior resident medical officer, Ms Taylor, of the hospital's emergency department, noted that Mr Gangi had run out of the way of the collapse, somehow injuring his right shoulder. Some tenderness in the right shoulder was observed, but x-rays were normal. He was discharged with Panadeine forte.

Mr Gangi did not see his GP, Dr Nakhle, until 17 December 2007. His notes record pains after a collapse on his truck; soft tissue injuries; grazes on legs etc and face; pains in the right shoulder blade and thoracic spine. Mr Gangi was certified unfit for work for back pain, shoulder pain, trauma, anxiety and neck pain.

Mr Gangi was referred to a psychiatrist, Dr Newlyn, who recounted a history given on 30 January 2008, that Mr Gangi had differing recollections of what had occurred to him. In one account, Mr Gangi recollected that he was in the vehicle under the plant and in another that he was outside, with the plant crashing down on him. He then reported suffering extreme pain in his right shoulder, as well as pain to his right earlobe, neck, shoulder and in the thoracic region. Dr Newlyn diagnosed post-traumatic stress disorder and considered that Mr Gangi was not fit for his pre-injury duties.

On 12 March, Dr Nakhle noted that Mr Gangi had developed pains in his neck on the right side, extending to his arms and the middle fingers of his hand. On 27 March, he noted that the pain down the right side of the neck to the arms was severe.

A CT scan of Mr Gangi's thoracic spin in February 2008 was, however, normal. A CT scan of his cervical spine in March 2008 showed degenerative changes and a minor central disc bulge, but no significant canal or neural exit stenosis. A CT scan of his lumbar spine in April 2008 was also normal. There was no evidence of neural compression, or significant disc bulge or protrusion at any level and disc spaces were preserved.

Mr Gangi returned to work one to two days in April and two to three days per week on 1 May 2008. His working hours have never increased since then.

A June 2008 x-ray of his right shoulder was also normal, with no abnormal opacification in the soft tissues found. A June 2008 MRI showed limited sequences, because Mr Gangi declined further scans. There was mild arthropathy in the AC joint and some subdeltoid bursitis, but no tear found.

Dr Sher, an orthopaedic surgeon, saw Mr Gangi on 19 June 2008. There was then no history recorded as to Mr Gangi having suffered any injury in 2002. The history then noted was that he was out of the truck when the collapse occurred and that on regaining consciousness "he felt as if he had been knocked out with pain in his neck extending from the right ear down the side of the right neck, right shoulder and down the arm." This account does not accord with the earlier reports and records.

Mr Gangi reported to Dr Sher, however, that he was feeling better than he did initially, but was still suffering continuing pain on the right side of the neck, from the right ear down across the right shoulder blade, right shoulder and down the right arm, to the middle and ring fingers. He also however reported pins and needles in the arm and fingers most of the time, and loss of sensitivity in the middle and ring finger. He also described pain in the front of the shoulder with elevation of the right arm, which he had to do, in order to scrape out cement, and that he did so with considerable pain. He also reported pain down the upper back, finding it difficult when turning his chest.

Dr Sher noted the consequences of his clinical examination of Mr Gangi. He considered Mr Gangi's condition to have stabilised. He assessed a 12% whole person impairment arising from the accident, excluding psychiatric impairment.

In July 2008, Mr Gangi reported similar symptoms to a sports physician, Dr Cusi, who found Mr Gangi's right shoulder to be normal on examination; he had a good range of flexion and extension of the cervical spine, but side bending to the right was limited and there was hyperactivity of his right paracervical gutter, as well as of the trapezius. Neurological examination was normal. Dr Cusi considered that Mr Gangi had a fairly severe soft tissue injury to the right shoulder and neck, and had developed postural syndrome, with a particularly stiff thoracic spine. He required psychological counselling to continue to help him to manage stress and pain and a specific postural exercise program, as well as stretches . He was prescribed a strict regime of pain relief and anti-inflammatories.

In August 2008, Mr Gangi reported no change in his symptoms. Dr Cusi found that he was not doing recommended exercises correctly and that it was not surprising that there had been no change. He explained to Mr Gangi that the small changes at two levels in the discs shown by his cervical spine MRI were not significant, but may have triggered a reaction, which had become a vicious circle. No arrangements were made to review him.

In a report of 11 July 2008, Dr Smith, a consultant psychiatrist, noted that treatment by a psychologist had been of partial assistance to Mr Gangi. The history taken was that prior to the 2007 incident he had been in good health. Dr Smith noted that "[h]e sustained a work related accident in 2002 when his head was struck by metal bar. He was off work approximately one week. There does not appear to be sequelae arising from the injury." A diagnosis of post-traumatic stress disorder was confirmed and further treatment recommended.

An MRI of Mr Gangi's spine on 29 July found no evidence of fracture, that his spinal cord was normal and mild disc bulges at C3/4 and C5/6.

Ms Alway, a psychologist practising at the Royal Prince Alfred Pain Management Centre, saw Mr Gangi in September 2008. The pain problem which he then reported was pain in his right ear lobe, which travelled down his neck and spine, across the right shoulder and down his arms to his fingers. He also reported numbness and pins and needles in his fingers at times and that pain was variable. Medication took the bite out of the pain, as did chiropractic treatment, for a time. Mr Gangi described activity-based physiotherapy as not having resulted in a noticeable increase in functioning and that the exercises were difficult to complete, due to pain.

Mr Gangi was then consulting with a psychologist on a fortnightly basis. His post-traumatic stress disorder was considered to reduce his ability to attend work regularly, because aspects of his work continued to trigger distressing memories of his accident and psychological distress was also triggered by flare-ups in his pain condition, which in turn exacerbated his pain experience. He was then considered to have developed clinical depression, which made it difficult for him to remain hopeful of recovery and placed him at risk of increased long-term disability. A pain management program and ongoing psychological and psychiatric treatment was recommended.

In September 2008, Mr Gangi also saw Mr Campbell, a physiotherapist at the Royal Prince Alfred Hospital pain management centre. He reported that he had his own TENS machine, which he used occasionally, but that he preferred to use heat and liniment rubbed into the neck and shoulder. He reported that physiotherapy and chiropractic treatment had not provided lasting benefit and that he did not perform exercises he had been provided with, which he found too painful. He was then taking various pain relief and complained of a dull ache from his ear across his shoulder, along the forearm to the base of the 3rd and 4th fingers and from his scapula to the mid to lower lumbar region. There was also a constant sharp pain in the neck and shoulder and frequent headache and mental confusion reported. Movements on physical examination were limited by pain. It was noted that Mr Gangi believed that his problem was due to nerve damage and disk protrusion, as per MRI findings.

Mr Campbell considered Mr Gangi's work pattern unsustainable. He was then working full days on two to three days per week, interspersed with days of little activity, driven by financial pressure and involving significant psychological stress. He was considered to be suitable for the intensive pain management program, to improve his physical abilities and tolerances, by addressing concerns in behaviour that limited his ability to upgrade his work and to learn new strategies for coping with chronic pain. His work pattern was considered to be locking him into a pattern that he was unlikely to break out of and in time to result in further disability. Attendance at the workplace on a daily basis for limited hours was recommended, but not pursued.

In November 2008, Mr Gangi reported to Dr Gibson at the Royal Prince Alfred Hospital pain management centre, a history of significant injury in 2002, which resulted in him having headaches for approximately 18 months. He then said that there were also ongoing headaches after the 2007 injury, which Dr Gibson considered appeared to have produced a new pain syndrome. Mr Gangi reported that this pain had a general severity of around 5/10, being exacerbated to 7/10 at work or on exertion. There was also arm pain with severity, generally, of around 2/10, although that increased if he slept on his right side. On examination the right trapezius muscle was tight and tender; there was weak right finger flexion; hand reflexes were reduced on the right-hand side, and there were pinprick sensations.

In November 2008, Mr Gangi also saw the clinical psychologist Ms Cooper, for treatment of post-traumatic stress disorder and major depression. Chronic pain from physical injuries sustained in the accident was then considered to be compounding his difficulty attending work and participating in normal activities. He also reported being at a worksite in October 2008, when a pipe exploded some metres away from him. This made him feel overwhelmed and he was not able to drive his truck back to the plant. He had then been unsuccessful in obtaining another driver of his truck, and could not himself return to work full-time. Further psychological treatment and pain management programs were recommended.

Dr Harvey-Sutton, a consultant occupational physician, saw Mr Gangi in December 2008. She recorded that Mr Gangi denied "any aches or pains or problems in his neck, upper back, or right arm prior to the accident. He had pains in his neck following a work accident in 2002 when a metal bin hit his head and he suffered a soft tissue damage to the neck. However he said all the symptoms subsided after two to three years."

The history of the 2007 incident was similar to that given to Dr Sher, namely that he was outside the truck at the time of the collapse and he came to, feeling as if he had been knocked out, with pain in his neck extending from the right ear, down the side of the right neck, right shoulder and down the arm. On discharge from hospital he had pains in his neck, upper back, right shoulder and right arm, including the hand, middle and ring fingers of the right hand, with pins and needles in the whole of the right arm and in the middle and ring fingers.

Mr Gangi told Dr Harvey-Sutton that he felt better than he did initially, but he still had continuing pain in the areas described. At this time he reported that pain in the shoulder woke him up at night.

In March 2009, Mr Gangi saw Dr Parmegiani, a consultant psychiatrist. Mr Gangi then gave an account of the 2002 accident, which he said resulted in frequent headaches and depression, but that he returned to work after a few days, continuing to suffer psychological problems, with a depression which eventually resolved. He gave a history of experiencing cervical pain after the 2007 accident, which radiated to his right shoulder, thoracic spine and right arm. Dr Parmegiani considered that his post-traumatic stress disorder would continue to improve with time, taking a further 18 months to two years to resolve. Open-ended treatment was not recommended, as Dr Parmegiani considered that it perpetuates dependence on a therapist and acts as a reminder of the incident. Dr Parmegiani considered that his psychiatric impairment to equate to a whole person impairment of 5%.

In June 2009, Mr Gangi saw Dr Price for injury management. The history he gave her was of a work-related injury in April 2002, when he was off work for days, but had ongoing headache and neck investigations as well as seeing a psychologist and psychiatrist. There was a financial settlement of $60,000 some years later, after which his condition resolved completely. She recorded that he was then troubled by his neck, right shoulder and upper thoracic spine, with constant pain on the lower part of the neck, radiating across the right shoulder down the right arm, with numbness on the 3rd and 4th digits of the right hand stop. He then rated the pain at 7 to 8 on a scale of 10. He continued to feel depressed and anxious and worried about ongoing pain. Flexion of the neck was full, but extension was limited to 70% of the normal range and rotation to the left and right limited by approximately 30%. Abduction of the right shoulder was to 150 while adduction was to 45.

Dr Price considered that Mr Gangi could manage work in addition to the three days per week that he was working, given his transferable skills. It was considered that he was fit for full hours of duty, and if he was unable to manage truck driving, he should be able to manage other duties. It was suggested that he could start by employing a truck driver to take up the other two days a week and look at other work options. It was suggested that a rehabilitation provider could assist. This was discussed with Dr Nakhle, who it was noted agreed that if there were other jobs that Mr Gangi could do, he would upgrade the hours on his selected duties certificate. That never occurred.

In March 2010, cortisone injections into the AC joint provided Mr Gangi with little relief. In June 2010, a bone scan of his neck, back and right arm showed evidence of minor degenerative disease in his cervical spine, with minor facet joint arthritis; mild degenerative arthritis in his hands, wrists, elbows, in the joints and in the hips and mild prominent uptake by the lumbar spinous processes.

Mr Gangi saw Ms Cooper again in March 2010. He was unable to increase his working days due to pain and was still experiencing anxiety at work, despite participation in a pain management program and cognitive behaviour therapy. Further treatment was recommended.

In May 2010, Mr Gangi was assessed by Ms Easley, an Exercise Rehabilitant. To her he reported that at the time of the accident he felt as if he was paralysed on his right side and after multiple scans was diagnosed with soft tissue injury. He reported not finding physiotherapy beneficial and that chiropractic treatment provided relief for only a few hours. He was taking Tramal and/or morphine patches, whilst performing work, as the pain intensified. He then described pain in the right side of his neck, shoulder, down the right arm and into the ring and middle fingers of his right hand, to be a level of 9/10. This pain varied from sharp to aching , requiring him to lie down when it became unbearable. Reported high levels of pain when working above shoulder height were said to be at the level of 10 out of 10. Triggers were raising up above shoulder height and applying pressure. Vocational redirection was proposed, but his psychological issues were considered to prevent an upgrade in return to work activities.

In June 2010, Mr Gangi participated in a Peak Conditioning upgrading program, in order to restore his confidence to undertake physical activity.

In September 2010, Mr Gangi saw Dr Russo, a consultant rheumatologist. He then reported being struck on the right shoulder/neck and suffering severe pain in the region. Since then the pain had remained unchanged. It was constant, aggravated by activity, particularly work. The pain was described to be an ache, superimposed with more severe, intense pain of the shoulder and upper thoracic region. Chiropractic treatment provided moderate short-term relief, but physiotherapy aggravated his symptoms. He had recently commenced a gym exercise program and continued taking pain relief and anti-depressant, without obvious benefit. A chronic pain course had not been not very useful.

On physical examination loss of muscle bulk of the right trapezius was found, as well as weakness of elbow and wrist extension and finger flexion, but with preserved elbow flexion. Injury to his back, most likely involving the lower trunk, which would not have been seen on the MRI scans of the neck were considered to explain radiating pain, weakness and atrophy. Nerve conduction studies to investigate this suspicion were recommended, as well as further pain management treatment.

Dr Reddel, a consultant neurologist, provided an electrophysiology report, after examining the Mr Gangi on 17 January 2011. He found normal nerve conduction, suggesting any pathology was preganglionic and mild partial denervation changes in the triceps only, in context, he considered most likely due to chronic C7 changes.

In a report from Peak Conditioning of 17 January, improvement was noted in Mr Gangi's lifting technique, with less over activation of the trapezius and related musculature. He reported an improvement in physical function and general energy levels, but that pain levels remained consistent with pre-program levels. Those pain levels were considered to explain the failure to return to full hours on pre-injury duties, rather than his physical capacity. An upgrade in his current part-time duties medical certificate was recommended, with another day per week then considered to be a reasonable increase and the remaining day to be added, when Dr Nakhle felt Mr Gangi was capable of full-time hours.

Dr Rimmer, an orthopaedic surgeon, saw Mr Gangi in March 2011. He then gave a history of having injured his cervical spine in 2002, from which he made a full recovery. Mr Gangi brought no investigations with him, despite being asked to do so. He described suffering right-sided neck and shoulder pain after the accident, for which he received extensive physiotherapy initially and then chiropractic treatment, with minimal beneficial effect, as well as cortisone injections into the right shoulder, which made the pain worse. Dr Cusi's treatment, had also been of little to no benefit. He took Tramadol on a daily basis and Durogesic on as needs basis

He then described suffering a dull constant pain, to the right side of his neck, his right shoulder, radiating along his right upper limb to the dorsal aspect of his right ring and middle fingers. He had limited range of motion in his cervical spine and right shoulder.

Dr Rimmer found normal alignment of the cervical spine, mildly tender to palpation, but all movements produced pain. There was moderate right-sided cervico-brachial irritation. His right shoulder was symmetrical in position, with no evidence of peri-scapula muscle wasting. Dr Rimmer considered the severe pain Mr Gangi alleged resulted from light palpation, not to be consistent with any known organic pathology. All movements reproduced pain. Dr Rimmer's diagnosis was abnormal illness behaviour.

Dr Harvey-Sutton saw Mr Gangi again in December 2011. He then described working two to three days per week, but feeling nauseous every morning going to work. However he said that he liked what he did and wanted to continue working as a cement truck driver. Dr Harvey-Sutton noted that Dr Sher had diagnosed a soft tissue injury and that there was no surgery available for his condition and Dr Cusi had advised him that he had just a disc bulge.

His current status was then said to be continuing pain in the right side of the neck from the ear down into the right shoulder, the right upper arm and forearm, and into the middle fingers. There was always an aching pain present, its severity depending on workload, what he had been doing, and changes in weather. The pains were worse with increased movements such as when he had to do a lot of scraping at work. They were only improved with chiropractic treatment, medication and use of a heat pack. There was also pain in the chest, which Dr Harvey-Sutton considered to be consistent with cervical neck pain.

Dr Harvey-Sutton considered that Mr Gangi's injuries were:

Dr Harvey-Sutton considered that Mr Gangi's prognosis was guarded and that his condition would not materially change in the future. His physical capacity to perform heavy physical work in the future was limited and that more likely than not, he would not regain the endurance to work full-time.

Mr Gangi reported that since December 2008 there had been no further accidents, injuries or surgical procedures and that there had been some improvement in his condition, but they had plateaued. Physical inspection revealed no significant wasting or deformity of the upper limbs and a reduction in circumference of the upper arm since the previous assessment, consistent with a reported history of decreased work. There was also mild wasting in the right shoulder joint.

There were, however, changes found in the range of movement in the shoulder. For example while in 2008, Dr Harvey-Sutton noted normal extension in Mr Gangi's right shoulder of 50%; in 2010 it had reduced to 30%; adduction had reduced from 40% to 30% and internal rotation had reduced from 80% to 60%. There were also changes in the range of neck motion, for example in 2008 rotation to the right was 30°, but it had reduced to 20° in 2010 and to the left it had decreased from 40° to 30°, bending to the right increased from 30° to 40° and lateral moving to the left had increased from 20° to 30°.

Dr Russo, a consultant rheumatologist, saw Mr Gangi in September 2010 and February 2011. In a report of 28 December 2011, he noted a history of Mr Gangi having been struck on the right shoulder/neck region with subsequent pain in that region extending into the right hand, arm and hand. MRIs and scans had found minor degenerative disease at multiple levels, but whether the changes described were as a result of the accident was difficult to discern. His suspicion was that there were injuries to the soft tissues in the upper shoulder/neck region including neural structures, such as brachial plexus injury, not objectively apparent on imaging studies. He considered that pain in the arm could be referred pain from the injuries to the neck and shoulder. The pain was described to be constant, aggravated by activity, particularly work, which caused more intense pain.

On physical examination, weakness in elbow extension, wrist extension and finger flexion on the right side in the context of loss of muscle bulk of the right trapezius was found, there was difficulty in performing a large number of functional tasks, such as lifting and a loss of range of motion in the shoulder and cervical spine. The psychological injuries were noted. Dr Russo expected improvement in muscoskeletal injury over time, but the time course was difficult to predict. It was possible that Mr Gangi might have partial or no improvement. He considered further treatment would be beneficial.

Dr Parmegiani saw Mr Gangi again in March 2012. He noted that his post-traumatic stress disorder had not improved significantly. Chronic pain and financial hardship were considered to have had an in adverse impact on his mental state, perpetuating his disorder. Dr Parmegiani considered, that his psychiatric injuries had stabilised and that there would be no significant improvement expected in the foreseeable future. Mr Gangi had found psychological treatment of limited benefit and that ongoing treatment was not indicated. Allowance should be made for six further sessions to allow termination of therapy. There was no change in the assessment of his whole person impairment.

Dr Rimmer also saw Mr Gangi again in March 2012. Again, he brought no investigations for review, stating that "he does not have a clue where they are". He then said that the 2002 injury caused right-sided neck pain, which fully resolved after a number of months, on conservative management. He then described the 2007 incident as involving several tonnes of material striking his neck and right shoulder, but he did not lose consciousness. He had sustained injuries to the right side of his neck and right shoulder, with pain radiating along the arm to the wrist level, with numbness in his right middle and ring fingers. He continued to attend a chiropractor for one session a week.

Mr Rimmer observed Mr Gangi to be in no apparent discomfort, but firm palpation of his cervical spine was mildly tender. There was then no evidence of the cervicobrachial irritation, but his range of right lateral spinal rotation had decreased from 45° in 2011, to 25° in 2012. There was mild tenderness to firm palpation of his right shoulder, but the range of motion had improved with abduction being 120°, rather than 90° in 2011.

Dr Rimmer had been provided with the surveillance tapes. Mr Gangi was asked to replicate a number of movements which he could be observed performing on the tapes, but he said that he could not do so, without discomfort. Dr Rimmer considered that Mr Gangi's presentation on the video was not consistent with his presentation on examination and that he was exaggerating his symptoms. He did not consider that Mr Gangi still then had any genuine symptoms resulting from the 2007 incident.

This history reveals that Mr Gangi was treated for the psychological injury which he was diagnosed to be suffering after the collapse, as well as for the ongoing effects of a physical injury, which inexplicably seems to have worsened over time. That was despite various treatments and ongoing investigations, which seemingly excluded all of the possible causes of the significant ongoing pain about which Mr Gangi continued to complain was causing considerable pain and difficulty in movement. It is against that picture that the doctors' oral evidence must be considered.

Dr Nakhle, Dr Rimmer and Dr Harvey-Sutton all saw the surveillance footage and gave oral evidence as to their opinions of what it revealed.

Dr Rimmer's view was that it showed that Mr Gangi was suffering no discomfort in his neck whatsoever and that he had a full spontaneous range of movement. He considered that what could be seen on the footage supported his assessment of Mr Gangi.

Mr Gangi did not display a full spontaneous range of movement of his neck and shoulder, when Dr Rimmer conducted his clinical examinations, although beforehand, he did display such movement. He displayed dysmetria. Dr Rimmer explained that his original finding of moderate right sided cervicobrachial irritation, reflected what Mr Gangi then told him. He considered his examination to be highly unusual, however, due to the amount of discomfort he alleged to the lightest touch.

At the time of his second examination, Dr Rimmer considered that Mr Gangi could have worked six days per week. He did not consider his complaint that doing his work two to three days a week caused him pain and problems to be valid. At the time of this examination, almost four years after the accident, he formed the view that Mr Gangi no longer had anything wrong with him.

In cross-examination, Dr Rimmer did agree that one explanation for a change in a person's personality and outlook, from someone who is content and happy, to someone who is irritable and even angry from time to time, was that pain wears people down. In re-examination, he said that he considered the footage to be an invaluable tool in forming his opinion of Mr Gangi.

Dr Harvey-Sutton also said that the footage showed a normal range of spontaneous movements, consistent with her examination of Mr Gangi. She considered, however, that nothing that she there saw was dissonant or contradictory to what she had seen in her examination of him. The footage showed that he was able to perform his usual duties at work, which he was performing three days a week. She did not, however, consider that he was capable of performing his work duties six days a week because, she explained, of problems with his endurance. That view was based on the history Mr Gangi had given her, it had not been the subject of any testing.

Dr Harvey-Sutton agreed that the history Mr Gangi had given her had not included any injury to the right shoulder in 2002, and if there had then been a neck complaint, that would have caused her to question whether or not what was observed in 2011, might have been a hangover of that previous injury.

Dr Harvey-Sutton described situations where a patient self restricts on examination, something she explained, she had looked for when examining Mr Gangi. She accepted that, on occasions, patients are able to demonstrate clinically a range of movement less than that which they are actually able to perform. Abnormal illness behaviour, that is exaggeration of symptoms or inability to perform work, was not, however, something which she found present in Mr Gangi's case, although she had looked for it. She said that about 30% to 40% of people who came to see her displayed this.

Dr Harvey-Sutton explained how she had tested for dysmetria, or asymmetry, as well as Mr Gangi's range of motion. She explained that a component of endurance was a psychological desire to endure work, or motivation, as to which she had said in her report that she considered that it was to Mr Gangi's credit, that he had returned to work. She said that she then considered that he was definitely not suffering from a brachial plexus injury. All nerve conduction studies undertaken were normal.

Dr Nakhle also said that he frequently saw people who, according to his examination, should be able to work, but they just did not want to. He did recollect that he had come to form the view that Mr Gangi could return to work full-time, subject to him not feeling like he was in pain.

Mr Gangi's evidence must be considered against this background. His evidence was that he had reversed his truck into place under the plant and hopped out of the truck. The next thing that he remembered was coming to, lying on the ground about two metres from the door of the truck, to find building material from the plant crashing all around him and being struck on the right side of his body on the shoulder. He staggered towards the fence, using it as a guide mark to walk out of the general vicinity. Visibility was quite obscured by the dust which he was covered in. He followed the fence until he got to some clear space away from the falling plant, where two others, Mr Healis and Mr Carrette, assisted him.

In cross-examination, Mr Gangi said that he had a clear memory of being outside the truck when the plant started to collapse and that he had never told anyone that he had been inside the truck. This and other aspects of his evidence are difficult to accept, particularly in the face of Mr Carrette's evidence and what the various later records reveal. Given all the other problems he had remembering things which had occurred, I am unable to accept that Mr Gangi had the clear memory he claimed at the hearing as to where he was when the collapse occurred.

Mr Carrette's evidence was that he observed that Mr Gangi was disoriented when he found him, not surprisingly in the circumstances. That could well account for the differing accounts which Mr Gangi has given over time, as to what occurred to him, but not his claim to have a clear memory of these events in 2013.

Mr Gangi then said that he did not recall any conversations at the hospital, but denied having said that he had hurt himself scurrying up an embankment. He also said that he felt pain in the neck when he was at the hospital, but could not recall what he had then said, or what he later told Dr Nakhle.

Initially, in cross-examination, Mr Gangi could also not recall whether it was in March 2008 that he first complained to Dr Nakhle about the pain in his neck, but later he said he had told Dr Nakhle about his neck pain directly after the accident. Mr Gangi said that when he was discharged from the hospital, he was feeling pain down the right side of his body, predominantly on the right shoulder and his neck just below his right ear lobe. The pain travelled down his arm into his middle and ring fingers. When he saw Dr Nakhle the pain continued and there was also pain down the right side of his back stopping at his thoracic region.

He was off work for four months, experiencing pain constantly, for which he was taking Panadeine forte, which helped make it manageable. He was also often experiencing intrusive thoughts, which interfered with his sleep. Mr Gangi said he had never gone back to work six days, because his work caused him a lot of pain and discomfort on the right side. There had been no improvement after the pain management program he had undertaken, but he was now better than he was three years ago.

His work involved driving, operating the truck, scraping down the cement chute at the rear and generally keeping the truck clean at the end of every day, at the yard. This still caused him pain for which he took painkillers. On his days off he recuperated and sought chiropractic treatment. Otherwise he was at home. He had constant numbness and loss of sensation in his middle and ring finger on the right hand, as well as constant pain in his right shoulder which got worse at work. There was also pain in his neck. This had not improved in the last two years His sleeping had improved, but he still got intrusive thoughts and dreams in which he relived the accident. He was scared every time he stood under a concrete batching plant.

He was no longer able to do any jobs outside the house, which were now done by his wife, and there were a range of domestic chores which he used to do inside the house, which he was no longer capable of performing. Mrs Gangi gave corroborative evidence, which was not challenged.

The evidence establishes that in 2007 Mr Gangi suffered a soft tissue injury when he was escaping from the collapsing plant. Dr Rimmer's cross-examination makes it apparent that even he did not consider otherwise. It may be accepted that how such an injury presents from time to time depends on a variety of things, including when the injury was suffered, what Mr Gangi had been doing prior to examination, what treatment he had received and what medication, if any, he had taken to treat the injury prior to examination. Mr Gangi certainly received considerable treatment and varied pain relief medication over time, with, he claimed, but little effect.

The different conclusions which Dr Harvey-Sutton and Dr Rimmer reached when they examined Mr Gangi cannot be accounted for by any deterioration in his condition. On his own account, he has improved somewhat over time and while he has never been able to return to full-time work because of ongoing pain, his condition has permitted him to perform the work he has performed three days per week, for some years now, so long as he took pain relief. While on the one hand he said that he was now better than he had then been three years ago, on the other, he claims that this improvement has never permitted him to increase his working hours.

That account is not, however, consistent with the apparent physical deterioration which both Dr Rimmer and Dr Harvey-Sutton found on their second examinations of Mr Gangi. Nor is it consistent with Mr Gangi's refusal to even attempt to undertake movements which he claimed caused him pain, when Dr Rimmer examined him on the second occasion, which he could be seen on the surveillance footage to be performing without apparent discomfort.

The footage shows him in a social situation, speaking to other parents over an extended period after he had dropped his child at school; putting a child into a car seat and driving; as well as performing his normal work. It shows him moving normally in all these situations, with a full range of movement, without apparent discomfort.

His evidence that even with ongoing pain medication, he is always in pain when in these situations, was very difficult to credit. When this is considered together with the way in which Mr Gangi gave his evidence in cross-examination and what various objective testing of his physical condition has revealed over time, I simply am unable to accept that his ongoing physical problems are such as to preclude him from all of the physical activities which he claimed ongoing pain precluded him from performing in 2013.

It is against those conclusions that his specific claims must be considered.

Mr Gangi claimed an award of damages for non-economic loss of 40% of a most extreme case given the evidence that he was suffering both chronic post-traumatic stress disorder and a chronic physical condition as well. Boral's case was that he did not satisfy the statutory 15% minimum threshold and if it was concluded that he did, his loss could be assessed at no greater than 20%. On all of the evidence which I have discussed, particularly the evidence of his now chronic psychological injury and its impact on his recovery from his physical injury, it seems to me that it must be concluded that Mr Gangi has satisfied the threshold. In the result, I accept Boral's submission as properly reflecting the evidence and assess Mr Gangi's loss at 20%.

In summary, that conclusion rests on the following.

There was no issue that Mr Gangi sustained a psychological injury, as the result of what Boral properly accepted must have been a horrific experience, which has an ongoing impact upon him, whenever he is at work. In the result it conceded that he had suffered a psychological injury as the result of the collapse. He was referred by Boral for assessment by a psychiatrist, Dr Potter. His report was not tendered and so, it must be inferred, his opinion would not have assisted Boral's case. Mr Gangi's psychological injury is now chronic.

Also to be considered is that on the expert evidence, of itself, this injury, even though now chronic, does not now preclude him from working and is of such a nature that it requires but limited further treatment.

On the evidence of both Mr Gangi and Mrs Gangi this injury is still having an impact. Mrs Gangi described him now often to be tense, withdrawn and suffering from mood swings, especially when he returns from work. His injury has affected his life and his enjoyment of activities which he previously participated in, but no longer pursues, as well as his relationship with her and their children. He also no longer performs tasks at home which he previously undertook. On the evidence it cannot be concluded that they are all physically beyond him, but the impact of his ongoing psychological injury must be accepted.

As to the soft tissue injury, when he gave his evidence in 2013, Mr Gangi said he continued to suffer pain in his neck, shoulder, back, arm and fingers, which required him to take painkillers daily. It was not suggested that he was not taking that pain relief. The only possible explanation for all that he claims to continue to suffer, appears to be the ongoing impact of the psychological injury.

Mr Gangi has been otherwise inexplicably slow to recover from the soft tissue injury. In the result, it seems to me that his recovery was to an extent affected by the psychological injury he had certainly suffered, must be accepted. That was first suggested in September 2008 in a report of Ms Alway. Even then, however, his psychological condition was not considered to preclude a return to full time employment. In December 2008, Dr Harvey-Sutton considered Mr Gangi's prognosis to be guarded. She was also of the view that both his psychiatric and physical injuries were the cause of his ongoing disability. Even in March 2009, however, Dr Parmegiani considered that he was capable of performing more work than he was in fact performing in 2013.

In 2013 Mr Gangi considered that his ongoing pain was of such a level that it prevented him from working for more than three days a week and interfered significantly with his physical ability to undertake all of the activities which he undertook without problems beforehand.

Having carefully considered all of the evidence, for reasons I have explained, I have not been able to accept this evidence. I am not satisfied that it has been established that in 2013 Mr Gangi continues to experience ongoing pain of such severity, that it prevents him from working at all, on more than three days a week. That conclusion is simply not consistent with much of the medical evidence to which I have referred, or with what the surveillance tapes reveal.

Both Dr Harvey-Sutton and Dr Rimmer found a presentation consistent with an injury to the brachial plexus. In her cross-examination, Dr Harvey-Sutton accepted that the subsequent testing for brachial plexus strain, which she suspected might have been the cause of Mr Gangi's ongoing pain, suggested that if there had been such a strain, it had resolved. The level of ongoing pain about which Mr Gangi gave evidence in 2013 could not be explained by such a strain and was not consistent with the results of other earlier objective testing and with the movements he can be observed performing on the surveillance footage.

Given what can be seen on that surveillance footage, which even Mr Gangi accepted showed him moving normally, without apparent discomfort, both socially and at work, I am simply not able to conclude that the ongoing consequences of his injuries are as serious as he claims.

Dr Rimmer's conclusion that the explanation for Mr Gangi's presentation was abnormal illness behaviour appears to have had some foundation, although I accept that the ongoing psychological injury must not be overlooked. That explanation was something which Dr Harvey-Sutton had earlier considered and excluded, as she explained in her cross-examination, her view being that the ongoing effects of his injuries were affecting his endurance, so that he was no longer capable of working six days a week.

Despite Dr Harvey Sutton's views, I am satisfied on all of the evidence that it must be concluded that Mr Gangi has not established that it is more probable than not that he continues to suffer the effects of physical and psychological injuries which prevent him working more than three days per week. Still, I am satisfied that the injuries which he has suffered are such that he has met the threshold and must be assessed at 20%.

Boral's case was that Mr Gangi's damages were limited to the period from the date of injury in December 2007 to the date when he employed a relief driver, around the beginning of June 2009. The arrangement made with the relief driver did not depend on his claimed level of incapacity.

Boral submitted that thereafter, Mr Gangi was fit for full-time duties. Even if he did have any continuing incapacity, which was denied, he had transferable skills which he could have used in other work, if motivated. At best, if any continuing loss of earning capacity was found, it could be no more than one day per week.

The parties agreed on the calculation of this loss. There was no issue between them as to an award on this basis, if liability was established. The figure agreed reflects periods of total and partial incapacity from 15 December 2007 to 30 June 2009. Thereafter the daily rate was also agreed, but any further award was opposed by Boral.

Mr Gangi's case was that his injuries precluded him from performing his normal work for more than three days, that being what Dr Nakhle had repeatedly certified, up until trial.

Dr Price had recommended, at about the time of the start of the disputed period, that Mr Gangi engage a relief driver and pursue other work, using his transferable skills. He made no attempt to do the latter. Dr Nakhle thereafter repeatedly certified him as not being fit to work for more than three days a week.

Even so, I am not satisfied that the evidence established that prior to the hearing in 2013, Mr Gangi did not have the capacity even to attempt to perform any work on more than three days per week. Dr Nakhle's certificates do not accord even with Dr Harvey-Sutton's initial view, formed in 2010, that Mr Gangi's capacity had been reduced only by 40%. His work has never increased above a 50% reduction.

Also to be considered is that much of Mr Gangi's work involves driving, which on his own evidence does not cause him problems. There was, however, no evidence of any attempt to obtain other driving work, despite Dr Price's advice that he should attempt other work, in which he could use his transferable skills.

Dr Harvey-Sutton finally considered that Mr Gangi's capacity for heavy lifting was limited and that he should avoid lifting weights greater than 8kg to 10kg. There was no suggestion that his work at Boral involved heavier lifting. His evidence was that it was the work of cleaning the chute after cement pour and cleaning the truck at the end of the day, which causes him ongoing difficulty. This accorded with Dr Harvey-Sutton's views about his difficulties with motions such as pulling, dragging and twisting and that he should avoid working at mid-chest level and above. On his evidence, Mr Gangi performed work of that kind with pain, when scraping the chute after a cement pour and when cleaning the truck at the end of the day.

Dr Harvey-Sutton was finally of the view that it was most likely that Mr Gangi would not regain sufficient endurance to work full-time and that in future, he would continue part time as a cement truck driver, rather than being vocationally redeployed. That view rested entirely on what Mr Gangi had told her. She did not, however, express the view that he would be limited to part time work of three days per week.

The basis for Dr Harvey-Sutton's view that he was unlikely to perform work other than driving a cement truck was not apparent. It is a view which seems unduly pessimistic, given his considerable transferable skills and that his ongoing psychological injury appears affected by continuing such work.

Mr Gangi did not give Dr Harvey-Sutton a history of his 2002 injury. In the 2002 proceedings his evidence was that he intended to sell his truck and run and pursue other work. He then pursued various retraining. On the evidence it is apparent that he does have the transferable skills to which Dr Price referred.

Also necessary to be considered is that Dr Parmegiani, Dr Rimmer and also Dr Nakhle considered that Mr Gangi could have performed more work, in Dr Nakhle's case, if pain had permitted.

Those views have to be considered in light of the fact that the actual days which Mr Gangi worked in this period were not dictated by his physical condition, but by the availability of the relief driver which his company employed to fulfil its contract to Boral.

The evidence, in my view, does not establish that Mr Gangi's condition in the disputed period was such that he could not have performed either his normal duties on more than three days per week, or other suitable duties, using his transferable skills, as Dr Price assessed in June 2009.

Given the other medical opinions I have referred to, his obvious resilience, given the evidence of his eventual recovery from his similar 2002 injuries, the steps he took to retrain and that the three days per week which he was working in the disputed period, were not selected to accommodate his physical limitations, but the availability of a driver, I cannot conclude that this aspect of his claim was established.

In the result I have concluded that in the disputed period Mr Gangi's capacity to work was reduced, largely as the result of the ongoing impact of his psychological injury, but that he was not exercising his capacity to its full extent. Over time his condition improved, as was his evidence. In the result I have concluded that his capacity was in this period initially reduced by only two days per week and by the time of Dr Rimmer's final examination, by one day per week.

The parties also agreed on various figures on which this aspect of Mr Gangi's claim rested, which was advanced on the basis of a working life to age 67, reduced by 15% for vicissitudes. There was no dispute about the calculation, but Boral disputed that the claim had been established on the evidence.

This aspect of the claim turns on the question of whether the evidence establishes that Mr Gangi is now exercising his earning capacity in full and whether he is likely to be able to continue doing so in future. Mr Gangi's claim is calculated on the basis that his current work reflects his current capacity, which is unlikely to change in future.

Future economic loss must be assessed by reference to loss of capacity to earn income, as discussed in State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [71]: "71 Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss ... The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act." In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history." They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages ...". The majority (Deane, Gaudron and McHugh JJ) in Malec v J C Hutton Pty Ltd said at 643 that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials": Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffman (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259 per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792 per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570: "when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award."

This claim was pressed on the basis that but for his injuries, Mr Gangi would have generated earnings by operation of his concrete cartage business for Boral, six days a week. His most likely future circumstances were that he would only work three days a week and have to employ alternative labour for the other three days, for the balance of his working life expectancy.

The difficulty with Mr Gangi's claim was that it paid no attention to his ability to perform other work, using his transferable skills; to the views which Dr Harvey-Sutton had formed that his capacity to work had been reduced only by 40%; the other medical evidence to which I have referred; and the surveillance evidence, which showed Mr Gangi now performing his ordinary work and engaging in social activities, as he himself accepted, seemingly without discomfort.

In State of New South Wales v Moss it was observed at [67]: "67 Thus, in relation to the first of these themes, in Paff v Speed (1961) 105 CLR 549 at 559 Fullagar J said that the "usual method of proving damages under [this] head is by calling evidence to show what the plaintiff could probably have earned during the rest of his life if he had not been injured and what, if anything, he is now capable of earning". The same is true where the defendant is seeking to demonstrate that the diminution of earning capacity is only partial. Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 657 said of a plaintiff who had been rendered almost a quadriplegic: "He has lost his earning capacity, so far as the evidence goes, all earning capacity. In this connexion, however, too little attention it seems to me is paid to the possibilities which have and will yet open up for paraplegics and quadriplegics: but this ought to be the subject of the evidence and not of mere suggestion on the part of judge or advocate."

I do not consider that the evidence established that Mr Gangi's capacity to perform work has been so reduced that in future, he can only work three days per week. The real question necessary to be resolved is whether it establishes that his future capacity is less than full-time. The evidence as to his physical limitations, even as assessed by Dr Harvey-Sutton, does not suggest that he could not perform other work, including driving work, which did not involve the movements which she considered he has difficulties with. Mr Gangi also has other skills, including those attained from the TAFE studies he has pursued and from his trade as an electrician.

Weighing up the risks and chances which the evidence reveals in this case, necessarily means, however, that the ongoing impact of his chronic psychological illness and its impact on his physical condition, may not be ignored.

In the result I have concluded, on balance, that in future there will be some limited ongoing impact on his capacity to work, which I assess at one day per week.

Past out of pocket expenses were also agreed up to 30 June 2009. There is a dispute as to the expenses incurred subsequently. They have all largely been paid by the insurer and Mr Gangi has an obligation to repay this amount, if successful in these proceedings.

There was ongoing treatment for the psychological injury after 30 June 2009. It seems to me that there can be no question that Mr Gangi must have an order in his favour for the cost of that treatment, particularly when it is considered that Dr Parmegiani was also of the view that Mr Gangi might require some limited further treatment in the future.

Other disputed expenses were in relation to medication and chiropractic treatment. There is no question that such treatment was received, but on the evidence it provided but little relief, reflective, it seems to me that the cause of Mr Gangi's ongoing problems were related more to his psychological injury, than his physical condition.

In the result, nevertheless, it seems to me that a case for these past expenses has been established.

There is also a case for future treatment expenses on the basis assessed by Dr Parmegiani in his last report and for the claim in relation to the painkillers which Mr Gangi undoubtedly still takes.

I am not able to conclude that a case has been established for the claimed chiropractic expenses, which on the evidence do not seem to be either required or effective.

This claim was brought under s 15 Damages for gratuitous attendant care services: general of the Act, which relevantly provides: "(1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months."

The operation of the section was considered in Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 where Allsop P, Beazley and Giles JJA said in a joint judgment at [163]: "163 Section 15(3) as amended by the 2008 amending Act had the effect of reinstating this Court's decision in Geaghan v D'Aubert [2002] NSWCA 260; 36 MVR 542. The effect of Geaghan is that for a plaintiff to obtain damages for future attendant care services under subs (3), both limbs of the provision have to be satisfied. That is, the services have to had been provided for at least 6 hours per week and 6 months concurrently, before damages are recoverable with respect to the period in question."

The section was further considered in Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470. There Sackville AJA, with whom Tobias JA agreed, discussed what his Honour described as the 'intensity requirement' at [93] to [98]. He concluded that the intensity requirement in s 15(3)(a) is ongoing, with the result that such damages can not be recovered in respect of any period during which the gratuitous services are not provided (or are not to be provided) to the claimant for at least six hours per week.

Here the claim finally pressed was for six hours gratuitous care provided by Mrs Gangi, as well as for the cost of lawn mowing, which on the evidence Mr Gangi would engage a contractor to perform, if he had funds in future.

Mr Gangi gave evidence as to various domestic duties which he had performed before December 2007, such as various cleaning tasks, cooking and a lot of outdoor tasks, including lawn mowing. The latter would certainly fall within the restrictions which Dr Harvey-Sutton considered, but duties such as cooking would not. He estimated that he had undertaken two hours a week internal domestic tasks and three hours external, which he no longer did after the accident. Mr Gangi agreed in cross-examination however, that if necessary, he could now perform those duties if he had to.

Mrs Gangi's evidence was that Mr Gangi had undertaken various tasks in the past, because she had difficulties with them, because she suffered from asthma. It was she who now performed these duties, which included vacuuming and mopping, bleaching the shower and bathtub and cleaning outdoor areas. She assessed this to involve her in four hours internal and three hours external work. That included the lawn mowing. She was not cross-examined about her estimate.

On Mrs Gangi's evidence, it was submitted for Mr Gangi, his claims had been established, given the time that it took her to perform the duties he formerly performed. His evidence, which would not bring him to the statutory threshold, it was submitted, also had to be considered together with Dr Harvey-Sutton's opinions as to his limitations. The test under s 15(2) was whether there was a reasonable need for such services, not whether under sufferance, he could perform those duties.

I take the view that on the balance of probabilities, Mr Gangi has established the claim for past assistance, but not the claim for future assistance. That his wife estimates that she has provided such assistance of some seven hours per week in the past, cannot in the face of the other relevant evidence, including what was seen in the surveillance footage and the evidence which Mr Gangi himself gave as to his capacity in 2013, lead to the conclusion urged that in future he would require at least six hours per week of such assistance.

Dr Harvey-Sutton's opinions were based on information which Mr Gangi provided a considerable time ago. On his own evidence in 2013, having been working three days a week since June 2009, without on the surveillance footage, it appeared, apparent discomfort, he said that he was also capable of doing such domestic tasks, if he had to. Certain of those tasks do not fall within Dr Harvey-Sutton's restrictions. On all of that evidence, it cannot be concluded that an ongoing requirement for assistance for at least six hours per week into the future, has been established.

In the result there must be judgment for Mr Gangi.

The parties must undertake the resulting mathematical calculation of damages in accordance with the conclusions which I have reached on the various matters dealt with in the judgment. They should provide short minutes within 21 days. The order should include an order that: All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

The usual order as to costs is that they follow the event, which in this case is an order in favour of Mr Gangi, as agreed or assessed. If the parties wish to be heard on costs they should approach. TABLE OF CONTENTS The issues [8] Mr Gangi's case and how it was defended [16] The risk was not insignificant [22] The risk of harm was foreseeable and one which ought to have been known to a reasonable person in Boral's position [23] The plant [31] The system of work at the plant [39] The collapse [41] How the plant was maintained [51] Identified deficiencies in Boral's systems [70] The bin support structure required maintenance before the bins collapsed [86] How were the bins supported? [96] The expert's opinions [122] What reasonable care required [147] The requirements of s 5B [159] Causation [162] Should inferences be drawn against Boral? [175] Mr Gangi's Injuries [196] Mr Gangi's credibility [201] How was Mr Gangi injured? [213] Where was Mr Gangi when the plant collapsed? [217] What the medical records revealed [218] The doctors' oral evidence [269] Mr Gangi's evidence at trial [280] Conclusions [288] Non-economic loss [294] Economic Loss [307] Past loss of earning capacity [309] Future economic loss [323] Out of pocket expenses [332] Past out of pocket expenses [333] Future out of pocket expenses [336] Domestic assistance [338] Orders [347]