Metri v Nestlé Australia Ltd

Toufic Metri (the plaintiff) claims damages for injuries he sustained as a result of a forklift accident, the most serious of which involved damage to his left lower limb which led to its amputation below the knee. He alleges that his injuries were caused by the negligence of his employer, Nestlé Australia Ltd (Nestlé), the first defendant, and/or Linde Material Handling Pty Limited (Linde), the manufacturer and repairer of the forklift, the second defendant.

The plaintiff’s accident occurred on 16 August 2012. He commenced proceedings under the Motor Accidents Compensation Act 1999 (NSW) by filing a statement of claim on 18 March 2015 which named Nestlé as the sole defendant. On 18 April 2016, Nestlé, which denied liability to the plaintiff, filed a cross-claim against Linde, alleging, relevantly, that Linde’s negligence had caused the accident.

The plaintiff’s case, as ultimately pressed, was as follows. Nestlé was negligent in failing to ensure that forklift 432 was taken out of service unless and until the defect identified in forklift 432 by Jason Connell, another forklift driver, on 10 August 2012 (six days before the plaintiff’s accident) had been identified and remedied. Alternatively, the plaintiff submitted that Nestlé was negligent in failing to provide a forklift which was appropriately designed or fitted (with either guards, a seatbelt or contouring to the seat) to reduce the prospect of a driver becoming dislodged from the seat in the event of a sudden change of movement by the forklift. The plaintiff further alleged that Nestlé had failed to adequately maintain its forklifts.

By further amended statement of claim filed on 12 June 2019 the plaintiff added Linde as a second defendant. The plaintiff alleged that Linde was negligent in failing to repair forklift 432. Linde denies negligence and further alleges that the plaintiff’s claim is not maintainable by reason of s 50C of the Limitation Act 1969 (NSW).

Mr Cranitch SC, appeared on behalf of the plaintiff with Mr (Ty) Hickey (not to be confused with John Hickey, an expert retained by Nestlé). Mr Parker SC appeared with Mr O’Dowd for Nestlé. Mr McCulloch SC appeared with Ms Berberian for Linde.

The plaintiff was born in Lebanon in 1968. He completed school at the age of 18, to the equivalent of Year 12, at the Akkar High School. He was fluent in French and Arabic. He migrated to Australia at the age of 20.

Upon his arrival in Australia, the plaintiff completed a six-week full-time intensive English course before commencing work as a licensed forklift driver at Franklins’ site at Chullora. The plaintiff worked full-time for Franklins from 1989 until he was made redundant in August 1998. The forklifts he drove there were manufactured by Linde and were the same forklifts as those he subsequently drove when employed by Nestlé.

In about 1994, the plaintiff injured his neck and back in the course of his duties at Franklins. He made a workers compensation claim but did not take time off work and recovered completely. He had been very reluctant to take time off work for the injuries as he did not want to jeopardise his regular overtime on Saturdays and Sundays. The overtime pay made a significant difference to his weekly earnings and his capacity to support his wife, Georgette, whom he married in 1992, and with whom he had four children: Samara (born 1993), Matthew (born 1994), Joelle (born 2000) and Martin (born 2001).

Between being made redundant from Franklins in August 1998 and obtaining full-time employment with Nestlé in April 1999, the plaintiff worked as a forklift driver for a Mexican food company in Rooty Hill and, subsequently, for Beacon Lighting in Auburn. For the first four months of his employment with Nestlé, the plaintiff continued to work at Beacon Lighting but, ultimately, found that it was too demanding and resigned from his position at Beacon Lighting to dedicate himself to his employment with Nestlé. He worked at Nestlé’s Arndell Park site. All references to Nestlé’s premises in these reasons are references to the premises at Arndell Park.

In order to understand the roles of various witnesses and others referred to in the evidence it is necessary to give some background.

David Hix was the director of the Australiana section of Nestlé. The Head of Physical Logistics reported to him.

David Neighbour was appointed to the position of the Northern Distribution Centre Manager in 2011. His role was to oversee the operation and management of the physical operations and ensure that day-to-day activities were undertaken at the Arndell Park premises. His role in relation to the reach forklifts was to ensure that they were used and maintained in a safe manner. He reported to the Head of Physical Logistics.

In 2012, Carol Lacy was the operations manager. She reported to Mr Neighbour. The shift managers reported to her.

In 2012, the relevant line manager was Brett Lloyd, who had been employed by Nestlé since 2004, originally as a forklift driver. He was subsequently promoted to shift supervisor and line manager. As line manager, Mr Lloyd was responsible for all the labour on the floor, including ensuring that there were sufficient workers to get through the workload. He was responsible for 23 permanent staff and 6 casual staff who each reported directly to him. Mr Lloyd was the plaintiff’s direct supervisor for about a year before the accident. Mr Lloyd left the Arndell Park site in late 2012 or early 2013.

The plaintiff was a forklift driver, who also worked as a picker. He usually worked inside the warehouse on reach forklifts but, from time to time, he was called upon to drive a counterbalance forklift outside.

When the plaintiff began working for Nestlé in 1999 he was rostered on night shifts. In 2003 he changed to the afternoon shift. In about 2009 he worked for a short period on the day shift but from about 2010 he worked on the afternoon shift.

On average, the plaintiff worked overtime between two and three days a week. He worked more overtime than any of his peers. He tended to be offered overtime because he was known to be willing and was regarded as an experienced forklift driver who was good at his job. Mr Lloyd described the plaintiff as a “motivated person” and said that he “never had any issues with [the plaintiff’s] work performance.”

The plaintiff was a member of the National Union of Workers (the Union) committee within Nestlé. He was also a member of Nestlé’s Occupational Health and Safety Committee (OH&S Committee).

The plaintiff had never been involved in a forklift accident prior to 16 August 2012.

Mr Connell was an experienced forklift driver who had worked at Nestlé’s Arndell Park site since 2003. He usually worked on the day shift (from 7.10am until 3.10pm). Forklift 432 was his regular forklift. On 16 August 2012 he was working as a picker and therefore did not drive forklift 432 on that day. Although Mr Connell’s statement was filed by Nestlé, he was called as a witness in the plaintiff’s case. He was not cross-examined by Mr Parker, although he was cross-examined by Mr McCulloch.

In 2012, Troy Tabone was the facilities manager at Nestlé’s Arndell Park site. Paul Walters and Hien Nguyen were forklift drivers who were working at the time of the plaintiff’s accident, not far from where it occurred. Tony Bilby was a shift supervisor.

Michelle Balewai worked in Nestlé’s Occupational Health and Safety area and came to the scene of the accident soon after the plaintiff fell from the forklift. She also visited the plaintiff in hospital and spoke to Samara, the plaintiff’s eldest daughter.

Mark Massoud, an employee of Nestlé who worked at its site at Rhodes, was called in by Nestlé to assist Ms Balewai in the investigation of the plaintiff’s accident.

In 2012, Jon Gorman was the Technical Support and National Training Manager for Linde. Mr Gorman was qualified as a fitter and turner machinist and had over 40 years of experience working with Linde. He was neither an engineer nor a computer expert, nor did he have qualifications in information technology.

Carlos Raad was a forklift technician. He completed the Technical Baccalaureate in mechanical engineering and qualified as a motor mechanic in Lebanon before migrating to Australia as a skilled migrant in 2004.

Mr Raad was employed by Linde as a technician in about January 2006. As at August 2012, his van was fitted with a fixed terminal which set out the job to be done. As he was often working away from his van, he would generally receive an SMS or a call, informing him of a particular job and the location of the machine to be repaired or serviced and he would make his way to the job.

Mr Raad was the technician to whom Linde allocated the job of repairing forklift 432 on 13 August 2012.

The plaintiff’s wife, Georgette, gave evidence about the effect of the accident on the plaintiff and on family life, as well as the care she has provided to the plaintiff and the division of household tasks between them before and after the accident.

The plaintiff’s eldest daughter, Samara, gave evidence and was cross-examined about retaining Mark Nelson as the solicitor for her father, filling in the claim form for damages under the Motor Accidents Compensation Act, and the care she has provided to her father, as well as the effect of the accident on her father and on family life.

Matri, the elder of the plaintiff’s two sons, also gave evidence about the effect of the accident on his father and the care he has provided to his father. He was not cross-examined.

John Hickey, a qualified mechanical engineer, was an independent expert retained by Nestlé to investigate the plaintiff’s accident. He was called by Nestlé to give evidence in the proceedings. Grant Johnston and Roger Lewis, who were both qualified mechanical engineers, were called by the plaintiff. Dr Tim White, who was also a qualified mechanical engineer, was called by Linde.

Before turning to the plaintiff’s employment at Nestlé, it is necessary to make findings about the environment in which he worked and the forklifts which he operated.

Forklifts, which are also referred to as “forks” or “trucks” fall into two categories. “Counterbalance forklifts” are powered by diesel, have rubber tyres and are operated outdoors. “Reach forklifts” are designed to operate indoors, typically in warehouses and factories, and are powered by an electric battery. Reach forklifts tend to travel at much slower speeds than counterbalance forklifts and may have in-built restrictions to limit their maximum speed.

Nestlé used counterbalance forklifts for outside work and to load and unload trucks in the loading dock. It used reach forklifts for movements within its warehouse. There were 16 reach forklifts in operation in the period leading up to 16 August 2012. Nestlé’s warehouse covered an area of 10-acres and had an internal capacity for about 42,000 pallets on racks and 17,000 in the refrigerated compartments. The warehouse had a concrete floor. There were spaces between the concrete slabs to allow for expansion and contraction at the joints.

These proceedings concern the operation of reach forklift 432. Forklift 432 was one of a number of similar forklifts manufactured by Linde which were initially leased by Nestlé in 2003 for use in its Arndell Park premises.

When the leases for the (reach) forklifts expired, Nestlé purchased the forklifts. Nestlé purchased forklift 432 from Linde in October 2010. As at 2008, Nestlé intended to replace these forklifts with a newer model which was fitted with seatbelts but this did not eventuate and forklift 432 and its counterparts continued to be used at Nestlé’s premises until, relevantly, 16 August 2012. As at 13 August 2012 (according to Linde’s service records), forklift 432 had travelled 17,878km. The characteristics of reach forklifts described below apply to the batch of forklifts used by Nestlé, which included forklift 432.

The forklifts were operated by a Linde Digital Computer (LDC), which functioned as the “brains” of the forklift. The LDC controlled, through software programming, the supply of power to the motor, and therefore the speed. It also produced “fault codes” to indicate faults that were detected in the forklift. Such “fault codes” were stored and could be retrieved by plugging into the forklift a laptop loaded with a program known as the “Truck Doctor”. Certain fault codes, when activated, would have the effect of putting the forklift into “turtle mode” (also known as “creep mode”), which would limit its speed to 2.5km/h. When a forklift goes into turtle mode, it slows down gradually.

Other fault codes cause the forklift to shut down immediately. When a forklift has gone into either of these modes, the minimum requirement to get the forklift to restart is to switch off the forklift with the key switch, release the park brake and operate the traction pedals (the left or right pedal).

There were three types of fault codes which the Truck Doctor recognised: power module fault codes; LDC module fault codes; and reach sensor fault codes. As at 2012, the Truck Doctor for these forklifts stored, without reference to date or time, the fault codes logged during the life of each forklift.

The forklifts had a high cabin in which the operator sat facing sideways to the direction of travel. The driver’s left side faced the rear of the forklift and the right side faced the tines at the front of the forklift. The drivers would typically drive loaded forklifts from the right to the left as the loaded tines were on the right side and blocked the driver’s view towards the right. The driver got in and out of the forklift through the opening to the driver’s left. The training received by the plaintiff and Mr Connell was that a driver should not get out of the forklift while it was still moving because of the associated dangers.

There was an instrument panel on the console next to the steering wheel, with various indicators, including the level of charge in the battery, which would be shown by the number of bars illuminated. There was no speedometer on the instrument panel.

The forklifts were not fitted with either seatbelts or railings to keep the driver inside the cabin. There was some contouring at either side of the back of the seat at the level of the hip, which Mr Hickey described in his evidence as “insubstantial.” The seat, which was constructed of vinyl, was relatively flat and uncontoured. It could be adjusted to suit the height of the driver.

The forklifts were powered by a battery, which weighed in the order of a tonne and sat beside the driver. Although a new battery would last for about 12 hours, older batteries, such as the one in forklift 432 would retain charge for as little as 6 hours. The age of the forklift also tended to compromise the efficiency of the battery charge. A crane or hoist was required to change the battery. The battery of a forklift which is in constant use needs to be changed every shift. If the battery charge drops to 20%, the battery automatically goes into turtle mode (see below).

The connection between the battery and the power module of the forklift is governed by a battery-locking sensor, which is located behind the battery wall of the forklift and operates like a switch. If the battery-locking sensor was not locked in place or became disengaged, the forklift was designed to go into turtle mode (limited to 2.5km/h), which was sufficient to drive the machine at a safe speed to the tag-out area within the warehouse for any necessary repair.

Typically, a battery-locking sensor can disengage if the forklift is being driven over rough and uneven floors or has a minor collision. Movement of the battery pack can cause intermittent changes in the speed of the forklift (without any action on the part of the forklift driver) because of the intermittent delivery of power by reason of the battery sensor not being fully and consistently engaged. Disengagement can also occur when a new battery is put in and the alignment is imperfect. If the battery sensor becomes disconnected from the battery, the forklift will shut down. Once the battery sensor re-engages, the forklift will, when either the left or right pedal is pressed by the driver, accelerate to its usual speed.

The forklifts had three wheels, two under the tines of the fork and one under the driver’s cabin. The wheels were constructed of polyurethane, were solid, hard and had no tread as they were designed to operate in dry conditions within the warehouse.

There were three pedals on the floor of the forklift which were operated by the driver’s feet. The left pedal operated as an accelerator and, when pressed, would propel the forklift in the direction away from the tines. The right pedal, also an accelerator, would propel the forklift in the direction of the tines. The central pedal was a foot brake, which operated hydraulically.

There were various methods of causing a forklift to slow down or come to a stop. First, the driver could release the pedal which corresponded to the direction of travel. This method, known as “regenerative braking”, operates by depriving the forklift of forward power and causes it to slow to a stop. Secondly, the driver could apply pressure to the central pedal to operate the hydraulic brake. This method was regarded as the fastest means of braking. Thirdly, the driver could apply pressure to the opposite pedal to create a countervailing force, which would also cause the forklift to slow and stop. This method was referred to as “reverse current braking”. Fourthly, the driver could apply the emergency brake, or parking brake, which was on the console of the forklift. Fifthly, there was also a “dead man’s brake” which operated automatically when the driver’s weight was no longer on the seat of the forklift.

The plaintiff was familiar with, and used, all methods of braking, other than the reverse current braking, which he regarded as both dangerous to others who might be in the vicinity and inconsistent with his training. Mr Connell confirmed his experience that a driver could make a forklift slow down more quickly by pressing the opposite pedal, which acted as a “sort of brake”.

The maximum speed which the forklifts were capable of travelling was a significant issue in the proceedings. As there was no instrument panel on the forklifts, the driver’s estimate of the maximum speed, or a given speed, could only be a matter of impression. It was common ground that the LDC for forklifts such as forklift 432 set the nominal maximum speed of the forklift at 12.5km/h. I accept the evidence of Mr Raad, an experienced employee of Linde who regularly repaired such forklifts for Nestlé, that these forklifts would probably not have been able to reach their maximum speed of 12.5km/h in 2012 because of their age.

It was possible to reduce the initial maximum speed set by the manufacturer. However, any change in the maximum speed could be done only by plugging the Truck Doctor laptop into the forklift when the forklift was switched off. The plaintiff’s belief that a lower setting had been put in for safety reasons was, at least partly, corroborated by Nestlé’s documents which prescribed a speed limit of 10km/h within the warehouse.

Despite the apparent importance of the speed of the forklift in the proceedings, no tests capable of determining the speed with any precision were conducted. Dr White, the expert engineer retained by Linde, endeavoured to measure the speed of the forklift by mounting a camera to its frame and measuring the time taken to travel the distance of 1m between cones. This measurement was performed to assess the likelihood of the braking systems of a forklift being sufficient to generate a g-force which would dislodge the driver from a forklift. He accepted that the results were “noisy” (that is, the variability between results was substantial) because of the vibration level in the forklift, which increased with the speed of the forklift. It follows that there is no reliable evidence to determine the maximum speed of which forklift 432 was capable on 16 August 2012.

The plaintiff described the top speed of the reach forklifts at Arndell Park as a “brisk walking pace” and said that, until 16 August 2012, he had never seen a reach forklift go faster than such a pace. According to the plaintiff, reach forklifts are “usually very slow to move from a stationary position to the usual maximum speed (brisk walking pace).” He made no distinction between particular reach forklifts in this respect and said that each behaved in a similar way as far as speed was concerned. It was common ground that 12.5km/h was significantly greater than “brisk walking pace” and that a brisk walking pace would be in the order of 6-7km/h. Mr Connell, who usually drove forklift 432 on the day shift, estimated its usual speed to be about 10km/h.

I do not regard these discrepancies as affecting the credibility of the plaintiff or Mr Connell in any material way. However, they indicate the difficulties of making findings of speed and distance based on the uncorroborated evidence of witnesses, who are necessarily making estimates. These issues will be addressed further when the expert evidence is considered.

The drivers of reach forklifts at Nestlé’s premises at Arndell Park worked in three shifts. The day shift ran from 7.10am to 3.10pm. The afternoon shift ran from 3.10pm until 11.10pm and the night shift began at 11.10pm and ended at 7.10am. If a worker was rostered on for a particular shift but was unable to perform that shift, Nestlé would arrange for a person from the previous shift to cover the first four hours of the shift and a person from the subsequent shift to cover the last four hours of the shift.

The forklifts were generally in operation 24 hours a day. Each worker would generally use the same forklift when working his or her regular shift. However, if a worker was required to work a different shift, or required to work overtime on another shift, the worker would usually have to work on a forklift other than the one usually allocated to him or her.

Drivers of reach forklifts who were employed by Nestlé at the Arndell Park premises were required, at the commencement of the shift, to report to the supervisor’s office to be allocated work for the shift. The parking area for the reach forklifts was in front of this office. If a driver was working a shift for which he or she was usually rostered, the driver would use the forklift which he or she generally used. However, if a driver was working on another shift or if the driver’s usual forklift was unserviceable, the driver would be allocated another forklift at the commencement of the shift.

Before commencing allocated tasks, forklift drivers were required to complete a pre-operation checklist in relation to the particular forklift, the identification number of which was required to be included by the driver at the top of the form (for example, forklift “432”), together with the driver’s name, the date and the shift (day, afternoon or night). The items on the checklist included “lights working”, “horn working”, “tyre condition”, “battery charged”, “seat – adjustable/not worn” and “hydraulic system – leaks/hoses”. The driver was to tick one of two alternatives, either “Good” or “Needs work”.

In order to perform the check, the plaintiff’s usual practice was to sit on the forklift, turn it on, release the parking brake (which was operated by a switch on the console) and move it a short distance forwards (by applying his right foot to the right pedal) and backwards (by applying his left foot to the left pedal) to make sure that it was operating normally. His usual practice for checking the item, “hydraulic system – leaks/hoses” was to check the ground beneath the hydraulic system and the hoses which travel down the mast of the forklift. If there was no leak on the ground below the mast, the plaintiff would indicate on the checklist that the condition of this item was “good”. As part of his pre-operation check of the forklift, the plaintiff would also check the battery charge, as indicated on the instrument panel on the console, to make sure that the forklift was either fully charged or sufficiently charged to last the shift.

When the checklist had been completed, it would be returned by the driver to the desk in the office. I accept that it was the plaintiff’s invariable practice to fill out such a form after checking the forklift and before undertaking his work on a particular shift. In his evidence, Mr Connell described a similar practice to the one described by the plaintiff, which is summarised above.

Nestlé would provide the forklift drivers with details of the work they were to perform and track and assess their performance of the tasks allocated to them. The forklift drivers were obliged to enter, on a computer system, details of when and where components of the tasks allocated had been completed. A tablet was attached to the forklift for this purpose. The worker would log in as a picker or as a forklift driver, depending on the tasks which the particular job entailed.

The forklift drivers used their forklifts to move pallets from one location to another within the warehouse. Pickers were required to assemble orders that were to be despatched, which required them to lift and carry boxes and place them on a pallet. They did not use forklifts for this task. The individual weights of items ranged between 2kg and 25kg, with 16kg being the most common weight.

From time to time, Nestlé conducted assessments of the risks posed to its employees by the use and operation of the forklifts at Arndell Park. One such assessment resulted in the production of a document dated 9 May 2008, which identified particular hazards, risks and controls relating to particular activities or equipment (the 2008 Risk Assessment). It contained a table which set out particular risks, the rating for each risk, the measure that would be effective to control the risk and the rating of the residual risk (after the control had been implemented). The risks were rated by a number in a table which reflected the likelihood of the risk ensuing and the most likely consequence of the risk. The various possibilities for the “most likely consequence” were (from most serious to least serious): “disastrous”, “critical”, “serious”, “moderate” or “minor”. The various possibilities for “likelihood” ranged from “almost certainly will occur” to “extremely unlikely to occur”.

Nestlé reviewed the 2008 Risk Assessment from time to time, including in 2010 and in 2012. The dates of its review are not material for present purposes since the following entry was in the original version published in 2008 and remained in future iterations revealed by the evidence:

A risk rating of 14 was associated with an event which was unlikely to occur (more than once in 3 years but less than once a year) but for which the most likely consequence is “critical”. By contrast, a risk rating of 6 was associated with an event which was extremely unlikely to occur (occurrence has not occurred and is expected to occur less than once in 3 years) and for which the most likely consequence is “serious”.

Although at the time the 2008 Risk Assessment was produced, Nestlé intended to replace its forklifts in 2009/2010 with forklifts which would be fitted with seatbelts, this did not eventuate. From April 2012, Nestlé was considering moving its premises from Arndell Park because of a change in volume of the product being moved through the distribution centre, which would have led to replacement of the forklifts prior to the plaintiff’s accident. It deferred replacement of the forklifts pending a decision on relocation.

Notwithstanding the proposals for their replacement, the forklifts, which had been in use since 2003 and which did not have seatbelts, continued to be used. None was fitted with a seatbelt or other restraining device at the time of the plaintiff’s accident. Mr Neighbour was unable to explain why seatbelts were not fitted to the existing forklifts when their replacement was deferred, apparently indefinitely. He said that if he had been in his current position at the time the decision not to replace the forklift fleet had been made, he would have engaged Linde to ascertain whether it was feasible to have seatbelts fitted to the existing forklifts. Mr Neighbour did not consider cost to be an issue because of the value which he understood Nestlé placed on safety.

In 2008, Linde undertook a risk assessment of its reach forklifts, including those of the same model as forklift 432. It produced a risk assessment dated 24 August 2008, which was tendered in the plaintiff’s case. It identified risks within a table, which included the following:

Linde also included other hazards which it rated, including the tipping over of the forklift with the consequence that “the driver jumps from the cabin and is struck by the overhead guard resulting in a fatality”. The required risk reduction measures for this risk were said to be as follows:

Linde also identified as a hazardous incident, “lack of truck control whilst braking”, which was relevantly caused by “travel at speed with load”. One of the consequences was said to be “operator thrown forward & impact the cabin (LTI [Lost Time Injury])”. The safeguards proposed were: site assessment, procedures, training, speed limits, regenerative brakes (controlled deceleration) and bump stops on truck. The required risk reduction measures were said to be:

On 30 September 2009, Nestlé produced and published a document entitled “NDC [Northern Distribution Centre] Forklift Procedure, Safe Forklift Operation”. The procedure, which was relevantly updated on 30 September 2011, covered both counterbalance forklifts and reach forklifts, although these were separately identified and defined in the document.

The procedure which was addressed to operators of forklifts included the following:

Section 6.5 of the procedure made provision for the tag-out/lock out procedure and provided that the tag-out procedure was to be used when authorised by a supervisor and that the tag-out book was required to be completed. The mechanic was to notify the shift supervisor when the repairs had been carried out. Only the repairing mechanic or the shift supervisor or “persons in authority” were entitled to remove a tag. Such a person would have to sign the book after the repair was completed.

If a fault was detected in a forklift, the usual practice was for the operator to apply a tag to the machine so that it could not be used until the fault was rectified. On occasions, the forklift would also be “locked out” to prevent its use. The details of forklifts which had been tagged or locked out would be entered in a spiral notebook which was kept in a locked cabinet in the office where the forklift drivers would enter to obtain their work allocation for each shift. Each page had a printed grid with columns labelled as follows:

The final column was required to be completed by a Nestlé employee.

In addition to tagging out the forklift, its driver would generally have a conversation with the shift supervisor to elaborate on the issue which had caused the driver to tag the machine out, thereby conveying information beyond that which was recorded in the tag-out book.

Tagged or locked out machines would be repaired or serviced by mechanics employed by Linde and then, when repaired, would be returned to service. According to Mr Neighbour and Mr Lloyd, the supervisor would be expected to speak to the Linde technician to provide greater detail of the particular nature of the fault identified by the forklift operator. There does not appear to have been any formal procedure or mechanism for this to occur. The evidence does not suggest that the technician was privy to the contents of the tag-out book and the Linde service history document recorded only a brief description of the issue with the forklift.

Mr Raad said in his evidentiary statement that he usually spoke to “a supervisor at Nestlé” before working on any of the forklifts. He identified the persons to whom he spoke as being either Tony (which I take to be a reference to Mr Bilby) or, if he was not available, Troy (which I take to be a reference to Mr Tabone). He said that he would not usually have spoken to Mr Lloyd about technical issues relating to a forklift as Mr Lloyd was “operational in the warehouse” and, as far as Mr Raad was concerned, “not looking after the forklifts”.

Mr Neighbour also said that if the Linde technician needed further clarification of the issue, the technician would discuss this with the forklift operator directly.

Nestlé would conduct staff safety meetings (referred to as “SHE” meetings) at which any incident was raised and running totals were recorded of Lost Time Injury Frequency Rate (LTIR) and Recordable Injury Frequency Rate (RIFR). The minutes of a meeting on 14 June 2011 recorded that on 11 April 2011 the “Lock Out Tag Out” issue was raised. The following “action required” was specified:

Ms Balewai was identified as the “person responsible”. The issue was raised again on 18 June 2012 at a safety meeting which was chaired by Mr Connell. The notation said:

The person responsible was said to be “ALL”, which I take to be a reference to all employees. The issue was raised again at the SHE meeting on 16 July 2012, for which the plaintiff is recorded as having given his apologies. The “action required” was said to be:

Once again, the person responsible was said to be “ALL”.

On 20 August 2012 (four days after the plaintiff’s accident), the “Lock out Tag out” topic remained on the agenda. On this occasion the “action required” was recorded as:

The SHE committee’s conclusion that the process was not being followed was supported by the fact that, of the 24 tag-out events in the extracts from the tag-out book in evidence, only 5 had the final column completed (to indicate the date and signature of removal of the tag), a ratio of 21%.

Up until 2008 and from 2010 onwards, Nestlé contracted with Linde for the service and maintenance of its forklifts at its Arndell Park site. As at the time of the plaintiff’s accident, the terms of the maintenance agreement, which was in writing and dated 17 November 2011, were relevantly as follows:

When Linde performed work on a forklift, the technician would return the forklift to one of the shift managers or superiors, who would sign a document to indicate that the work had been done. This would provide the mechanism for Linde to issue an invoice for the work.

According to Mr Neighbour, no one from Linde had ever advised Nestlé that seatbelts or restraints ought be installed on the reach forklifts.

In February 2012, Mr Connell noticed that forklift 432 was going slowly. He approached the Linde mechanic who happened to be on site. As far as Mr Connell could tell, the mechanic rectified the problem, which meant that the forklift did not have to be tagged out.

According to the Linde Service History Listing, on 1 March 2012, forklift 432 was put in for service with the history, “no traction book light flashing”. The follow-up note recorded by Linde said:

On 29 May 2012, Mr Connell noticed that forklift 432 did not remain stationary when neither the left nor the right pedal was depressed. Consequently, he tagged it out. It was subsequently repaired and returned to service.

On 10 August 2012, Mr Connell worked the day shift and, as usual, was allocated forklift 432. He was driving it down an aisle and had his left foot on the accelerator pedal to cause it to travel in the direction away from the tines. His foot depressed the pedal to its lowest (maximum) position on the floor. Suddenly the forklift sped up “more than it usually does”. Without warning, the forklift decelerated, as if a handbrake had been applied, although Mr Connell had done nothing to make this happen. As there was no actual handbrake on these vehicles (although there was a park brake), I infer that he was endeavouring to convey the sensation he experienced when the forklift suddenly decelerated which, in his experience, was unprecedented.

The suddenness of the change in motion was almost sufficient to cause Mr Connell to be thrown off the forklift. Thereafter, the forklift returned to its normal cruising speed (which Mr Connell estimated to be in the order of 10km/h). He immediately stopped the forklift and drove it slowly back to the forklift parking area and tagged it out for repair.

In the tag-out book referred to above, Mr Connell recorded as follows:

Once he had tagged out forklift 432, Mr Connell said to Mr Lloyd, who was on duty at the time:

In cross-examination, Mr Connell explained that when he said that the brakes “pulsed”, he felt that the brake appeared to activate itself without the brake pedal having been touched by him. Mr Connell was an experienced forklift operator who presented as a reliable witness. I accept his description of what occurred on 10 August 2012, including what he told Mr Lloyd.

As there is an issue about how much of what Mr Connell told Mr Lloyd, Mr Lloyd passed on to Linde, it is necessary to address, in some detail, Mr Lloyd’s evidence on this topic.

Mr Lloyd did not make a note of what Mr Connell had told him or what he said he had told Mr Raad. When Mr Lloyd made a statement to an investigator on 6 November 2012, he did not mention either that Mr Connell had spoken to him or that he had spoken to Mr Raad.

In his statement made on 7 December 2018 (over six years after the accident), Mr Lloyd said that recalled Mr Connell saying to him, “My machine is playing up and I have tagged it out.” He also recalled Mr Connell telling him that “[t]he machine [forklift 432] had sped up for no reason faster than normal, and suddenly braked, giving [him] a real fright.” Also in his statement dated 7 December 2018, Mr Lloyd said that Mr Connell had given him a more detailed description but that he could not recall the further detail. Mr Lloyd said that he formed the view, when he heard Mr Connell’s description, that it was necessary to tag-out the machine and have it examined by Mr Raad.

Mr Lloyd described his usual practice of speaking to the technician to relay what he had been told by the driver. Mr Lloyd concluded that, after speaking with Mr Connell on 10 August 2012, he had told Mr Raad of the problem at Nestlé’s premises on the same day, although he could not recall what he had said to Mr Raad about forklift 432.

However, after Mr Lloyd made his statement dated 7 December 2018, Linde served a statement made by Mr Raad dated 19 May 2020 in which Mr Raad said that he did not attend the Nestlé premises at Arndell Park on 10 August 2012 although he had attended on 13 August 2012. Nestlé’s solicitors showed Mr Lloyd two further documents: Mr Raad’s statement; and Mr Hickey’s report, which contained a report of what Mr Connell had said was wrong with forklift 432.

In a supplementary statement on 26 February 2021, Mr Lloyd accepted that the conversation which he had with Mr Raad had taken place on 13 August 2012 rather than, as previously stated, 10 August 2012. He also purported to be able to recall that he told Mr Raad that:

The inference is available from Mr Lloyd’s evidence of his usual practice, that Mr Lloyd did, in fact, relay what Mr Connell had told him: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721 (Asprey JA, Mason JA agreeing). However, I am not satisfied that this actually occurred. First, the conversation between Mr Connell and Mr Lloyd took place on 10 August 2012 but Mr Lloyd did not speak to Mr Raad (if at all) until 13 August 2012, which was after the weekend. Further, Mr Lloyd’s general approach was that it was for the technician to work out the problem with the forklift and that his responsibility began and ended with making sure it was tagged out until it had been looked at by Linde. This approach is evident from the following exchange in the cross-examination of Mr Lloyd:

The approach is also consistent with Mr Lloyd not recalling whether he had made a point of trying to find out what the problem was that Mr Raad had discovered, once the repairs had been completed.

Mr Lloyd accepted that his conversation with Mr Connell on 10 August 2012 was the first time that he had ever heard of a forklift accelerating beyond its usual speed and agreed that he regarded it as a “very serious and startling event”. He also agreed in cross-examination that a forklift which suddenly speeds up and then suddenly brakes had the potential to cause serious injury to the operator if the operator was thrown off the forklift. However, having regard to his view about the division between his responsibilities and Linde’s responsibilities, I do not consider that the novelty and potential danger of the issue which Mr Connell had brought to his attention caused him to act any differently at the time than he usually did.

Although Mr Lloyd purported to have a recollection of the detail of this conversation, I am not satisfied that his “recollection” was any more than a reconstruction of what he would have done had he followed what he said was his usual practice of relaying to the technician what a forklift operator had told him about the problem with a particular forklift. It is understandable that Mr Lloyd’s actual memory would have faded: the alleged conversation occurred on 13 August 2012 and Mr Lloyd does not appear to have been asked about it in detail until February 2021, at which time he was shown Mr Connell’s description of what had occurred on 10 August 2012. In these circumstances, I am not satisfied that Mr Lloyd passed on to Mr Raad the detail of what Mr Connell had described to him.

Mr Gorman taught Linde technicians, including Mr Raad, to adopt the following process when working on a forklift:

Mr Gorman accepted that there was nothing in this description which involved making any contact with the operator of the truck for the purpose of assisting with the diagnosis. He confirmed that technicians do not rely on the operator or the customer to tell them what the fault is. Technicians are trained to undertake the diagnosis themselves after making their own enquiries, although a customer might direct a technician’s attention to a particular area of concern. Mr Gorman explained that the reason for this approach was that the machines are very sophisticated and the customer would rarely be in a position to provide any assistance to the technician. Nonetheless, he agreed that if he was not able to replicate a fault identified by a customer, he would inform the customer of that circumstance.

A screenshot from Linde’s computer system revealed that, at 2.36pm on 13 August 2012, Linde received a service call from “Tony” which identified that a forklift (432) required attention. The details which were put into the system, apart from the identity of the machine, were limited to “machines [sic] speed is playing up”. This description was then inserted into Linde’s computerised service listing history.

Linde’s service listing history indicated that on 13 August 2012, Linde allocated the job of repairing forklift 432 to Mr Raad. Mr Raad had access to the description logged by Linde when the service call was made but he would not generally have access to what had been recorded on the tag-out records kept by Nestlé. For the purposes of these proceedings, Mr Raad has had access to what Mr Connell wrote on the tag-out for forklift 432 (“speed sensor issues”). Mr Raad said that such a description could only be a reference to the battery locking sensor and could not refer to any other issue with the forklift.

The service history listing, which Mr Raad filled in after the job was completed, recorded that Mr Raad spent an hour and a half working on forklift 432, which had, by that time, done 17,878km.

Mr Raad did not have any particular memory of the job and was dependent on the business records kept by Linde and his knowledge of his usual practice. He did not recall talking about the job to Mr Lloyd, whom he regarded as performing an operational role, and said that he usually dealt with someone called Tony. Mr Raad did not consider that what he was told by supervisors or staff of Nestlé was of particular utility, other than to direct him to the relevant area of the forklift which was to be repaired. Mr Parker put to Mr Raad that he had had a conversation with Mr Lloyd along the lines of what is set out above. Mr Raad accepted that it was “possible”. For the reasons given above, I do not accept that such a conversation occurred along the lines given by Mr Lloyd. If there was any such conversation (which I doubt), it was probably limited to what was on the tag-out (speed sensor issues). I am satisfied that Mr Raad followed his usual practice on 10 August 2012 when repairing forklift 432.

Mr Raad ran the Truck Doctor on forklift 432. The Truck Doctor diagnosed two faults: one relating to the battery locking sensor and the other relating to the reach sensor.

After having reviewed the service history, Mr Raad confirmed that he diagnosed a fault with the battery locking sensor: it was out of range and put the forklift in turtle mode when it was driving over bumps. This would cause the forklift to decelerate slowly down to 2.5km/h and then accelerate slowly to 12.5km/h. Mr Raad readjusted the battery locking sensor so that it would stay engaged with the battery tray when locked into place. Mr Raad then tested the repair by operating the unit in both directions to check that the battery locking sensor would stay in place.

He also diagnosed a fault with the reach sensor: that it was also out of range. The effect of this fault was that the reach function (mast reaching out and reaching back) would operate slowly.

Mr Raad recorded the following in the service history listing:

After Mr Raad had performed the repairs recorded above, he test-drove the forklift for between 20 minutes and half an hour. In accordance with his usual practice, he tested all the safety features and the steering and brakes in order to satisfy himself that the machine was operating normally. He then informed the supervisor at Nestlé that the machine had been repaired.

After forklift 432 had been tagged out on 10 August 2012, there is no record of there being a problem with its performance until 16 August 2012. It was returned to service on 13 August 2012 after maintenance had been completed.

Pre-operation checklists were filled in by other workers in the intervening days. These workers were not called by Nestlé. Mr Connell had no occasion to use forklift 432 again. As set out above, it was permanently removed from service following the plaintiff’s accident on 16 August 2012.

On Wednesday 15 August 2012, the plaintiff worked a normal day shift and finished at 11.10pm. He went to bed, slept well and got up at about 9am on 16 August 2012.

That morning, someone from Nestlé called the plaintiff to ask him to do overtime for the last four hours of the day shift. In accordance with his usual practice, the plaintiff agreed to do the additional overtime from 11.20am before commencing the afternoon shift at 3.10pm.

On 16 August 2012, the plaintiff arrived at Nestlé’s Arndell Park site at about 10.40am. He waited in the staff meal room until it was time to begin his shift. His usual forklift, 430, was driven by the person who usually drove it for the day shift. Mr Lloyd was the line manager for the day shift that day.

The plaintiff went into the supervisor’s office at 11.20am. He was allocated forklift 432 and told to do “put aways”, which involved using the forklift to move pallets of incoming stock to racks identified by the computer screen in his forklift. The plaintiff could not recall a previous occasion on which he had driven forklift 432. There were no tags or lock-outs on forklift 432 which indicated that it ought not be used.

Mr Connell was also working the day shift (commencing at 7.10am and concluding at 3.10pm) but as he was working as a “lay picker”, he did not need to drive a forklift. I infer that this was why forklift 432, which was Mr Connell’s usual forklift, was allocated to the plaintiff.

Although Nestlé could not locate the pre-operation checklist for forklift 432 on 16 August 2012, I accept the plaintiff’s evidence that he followed his usual practice of completing a pre-operation checklist for forklift 432 before commencing work on the day shift. He did not note that there were any concerns about any of the items on the list, although he observed that the seat on forklift 432 was sloping to the left and was “badly worn out”.

He explained in his evidence why he had not ticked the box which indicated that the seats needed work:

After returning the pre-operation checklist to the office, the plaintiff went to forklift 432, logged onto the computer screen and began working.

At about 1.25pm, the plaintiff was driving the forklift from the dock to the rack section in accordance with an instruction shown on his computer screen within the forklift to proceed to aisle AD to collect a pallet to bring to the assembly line. He pushed the right pedal with his right foot to move the forklift to its full speed, which he described as a “brisk walking pace”. The forklift went over a gap in the concrete floor of the warehouse which caused it to rattle.

At that point, the forklift accelerated to a speed which the plaintiff had never before experienced in a reach forklift. He said he could hear a whistling noise from the motor, which smelled as if something was burning. He lifted his foot from the accelerator but, instead of slowing, the forklift kept getting faster. He was very concerned about the speed of the forklift because he could see two other workers, Mr Walters and Mr Nguyen, coming out towards the main path, on which forklift 432 was travelling. Suddenly the forklift decelerated, which caused the plaintiff to lose balance, come off the forklift and fall onto the ground. His left arm went under his back. The forklift continued to move towards him and went over his left leg. The plaintiff started to scream with pain.

Mr Walters and Mr Nguyen were the first on the scene. Mr Lloyd and Mr Tabone heard on the two-way radio that there was an emergency at aisle AH and went straight to where the plaintiff was lying beside the forklift, as did Mr Connell and Ms Balewai. When he heard the call for help, Mr Neighbour came directly from the conference room. The ambulance was called. Those present tried to comfort the plaintiff and keep him conscious until the ambulance arrived. Mr Connell tried to calm the plaintiff down and distract him by asking questions about football. Mr Tabone asked the plaintiff to try to keep his eyes open and engaged him with conversation about the Bulldogs football team to divert his attention from the incident.

The ambulance took the plaintiff to Westmead Hospital where he remained from 16 August 2012 until 21 August 2012. He was given morphine and ketamine for the pain. Further findings regarding the plaintiff’s injuries are set out below in the context of the assessment of damages.

There is an issue about whether the plaintiff applied pressure to the central pedal on the floor of the forklift, thereby activating the hydraulic foot brake. As the plaintiff’s evidence was the only evidence on the topic, it is necessary to examine the versions he gave at various times to determine the question.

As soon as Mr Neighbour arrived at the scene, which was shortly after the plaintiff had fallen from the forklift, he heard the plaintiff telling Mr Lloyd:

In an email dated 17 August 2012, Mr Lloyd recorded his recollection as to what the plaintiff said at the time as follows:

Mr Tabone’s recollection was also set out in an email which he sent to Mr Neighbour dated 17 August 2012. Mr Tabone said, of present relevance:

On 17 August 2012 at 2.45pm Mr Hix, Mr Neighbour and Ms Balewai visited the plaintiff who was at Westmead Hospital. The plaintiff’s wife was with him at the time. After leaving the hospital, Mr Neighbour prepared the following summary of what the plaintiff had told them in the course of their hour-long visit:

On 10 October 2012, Mark Nelson, the plaintiff’s solicitor, brought a Motor Accidents Compensation Act claim form to The Hills Private Hospital to be filled out on behalf of the plaintiff. Samara, who was also present, read out to her father the questions on the claim form and carefully recorded his answers. Although some formal details were completed by Mr Nelson, Samara wrote most of the answers, as dictated to her by her father. When the form was completed, the plaintiff declared its contents to be true and correct. Mr Nelson witnessed the plaintiff’s signature, as required for a statutory declaration.

Although the plaintiff intimated in his evidence that he was not in a fit state at that time to give a version of the accident, I am satisfied that neither Samara nor Mr Nelson would have pressed him to fill in the form had they not believed him to be capable of providing the necessary details or sufficiently lucid to express his answers to them. Had either had any concerns about whether the plaintiff was sufficiently alert to make the statutory declaration attached to the claim form, I am satisfied that the process of filling in the form would have been deferred.

Samara took down the plaintiff’s description of the accident and wrote it in the claim form, as follows:

In his evidentiary statement dated 4 October 2017, the plaintiff said that he had been about to apply his right foot to the brake but that he had come off the forklift before he had in fact applied it.

In his evidence in chief the plaintiff reiterated the version he had given in his statement of 4 October 2017 and said:

I am satisfied that, after the forklift sped up, the plaintiff applied the brake to slow it down. I do not accept the later versions which are inconsistent with versions which the plaintiff gave much closer to the time of the incident.

The plaintiff gave evidence that the forklift skidded. He referred to there being a skid mark on the concrete floor near where his forklift stopped. However, the evidence as to the mark is not clear. The presence or materiality of the skid mark was not regarded as particularly germane by the experts, who were unable to replicate it. Accordingly, it is not necessary to address it further. It is the experience of courts that the witnesses who are suffering trauma at the time of the relevant event may have unreliable recollections of peripheral details (such as whistling, burning smell or skidding). I do not regard these matters as otherwise affecting the plaintiff’s credibility.

Samara gave evidence that three employees of Nestlé had told her that the forklift which her father had been driving when the accident had occurred had previously been reported as faulty. The first such statement had been made to her in Accident and Emergency at Westmead Hospital on 16 August 2012, when Ms Balewai told her that the forklift had been reported to be faulty. According to Samara, Ms Balewai told her that at the time of the accident, a man was screaming, “Why is this fork on the floor? I’ve reported it for the same problems multiple times in the preceding months.”

Samara also gave evidence that when she spoke with Mr Neighbour the day after the accident, he could not say what was wrong with the forklift but told her that it was being investigated. He confirmed that the forklift had been reported faulty before the accident.

Samara also gave evidence that when the plaintiff was still at Westmead Hospital, Mr Hix had been present when she and her mother were visiting the plaintiff. She asked Mr Hix whether he had been aware that the forklift was reported faulty shortly before the accident, to which Mr Hix answered, “yes”.

On the assumption (which need not be determined) that Ms Balewai, Mr Neighbour and Mr Hix had authority to make admissions on behalf of Nestlé, these admissions (which are admissible only against Nestlé and not against Linde) do not take the matter any further since they accord with the uncontroverted evidence that forklift 432 had a fault on 10 August 2012, when Mr Connell was driving it, and that the reason for the fault which the plaintiff described could not be determined. Further, Mr Connell’s evidence was that he had said words to the effect of those reported by Ms Balewai although he denied that he had screamed them. Mr Connell’s evidence about the operation of forklift 432 on 10 August 2012 is summarised above.

Neither Mr Gorman nor Mr Raad could explain the fault described by the plaintiff. Mr Raad said that he was not aware of any mechanical malfunction, fault or defect which could cause the machine to behave or operate in the manner described by the plaintiff, as under all normal or fault based circumstances the machine will decrease or increase its speed gradually.

Mr Raad said that, had he been told that forklift 432 was going faster than usual, he would have regarded that behaviour as highly unusual. He agreed that if that had been the problem he would not have returned the forklift to service until he had solved the problem.

The cause of the accident is further addressed below when I turn to the evidence of the independent experts.

Mr Neighbour removed forklift 432 from service and arranged for it to be isolated by barriers and tagged out of service. It was not used again. Mr Neighbour kept the key in his office. It was parked within sight of his office so that it could not be tampered with.

On 17 August 2012, an incident investigation form was completed by Mr Massoud and Ms Balewai, who were identified on the form as investigators. They included the following description of the accident:

On 20 August 2012, Nestlé staff (Ms Balewai, Mr Lloyd, Mr Connell and Mr Massoud) filled in a pro forma “problem solving worksheet” with respect to the plaintiff’s accident. The specific problem was said to be that an “employee [was] ejected off forklift 432 outside aisle AI-AH in thoroughfare, causing foot to be caught under forklift.” The objective was said to be: “Eliminate all associated risks with forklift crushing injuries.” The relevance of the issue was said to arise “anywhere internally in the warehouse” “when forklift is in motion” and concerned “any lateral motion on the floor” and “all shifts/all operators”.

One of the issues identified was “no restraint” on the forklift. The action required was said to be “obtain quote for seatbelts” on forklifts.

The possible causes in the “product” (the forklift) were listed and included: aged forklift, no lip on forklift seat, condition of tyres, mechanical fault in forklift, no seatbelt, smooth seat surface, forklift brakes lock up, forklift sped up automatically. The possible causes in the “system” included “LOTO [Lock Out Tag Out log book] not closed/completed”, which I take to be a reference to the blank final column following forklift 432’s return to service after it had been repaired by Mr Raad on 13 August 2012. The possible causes in the “process” included the frequency with which the forklifts were serviced and maintained.

On 28 August 2012, Mr Gorman went to Nestlé’s site to inspect forklift 432 to ascertain whether there was any detectable fault and also to operate the forklift. Mr Gorman used a track area of approximately 50m in length at the warehouse to test the braking and traction of forklift 432 in different situations, including reverse current braking and regenerative braking. The testing took about an hour and was conducted in the presence of Mr Hickey and Adam Fisher, of Linde. The test-driving was repeated to confirm the first results.

After he had finished test-driving forklift 432, Mr Gorman connected a laptop computer, which had been loaded with the Truck Doctor software, to the forklift to ascertain what fault codes had been logged in the past. He listed the fault codes found and confirmed that each fault code logged would have put the forklift either into turtle mode or into shutdown mode. For example, Mr Gorman identified three occasions on which fault code “77” had been logged and explained that this fault code indicates that the output signals from the battery do not correspond with the measured current from the motor, which means that the power is not being delivered to the forklift. This quickly leads to the forklift becoming stationary following slow deceleration. No faults were detected in forklift 432 when Mr Gorman operated it on 28 August 2012.

Mr Gorman’s evidence, in a technical report attached to his witness statement, was:

Mr Gorman was unable to explain how or why forklift 432 had behaved as the plaintiff had described on 16 August 2012. Nor was he able to explain why what Mr Connell described as having happened on 10 August 2012 had occurred. In his 43 years working with forklifts he had never before seen a forklift come to an abrupt stop and then start again at full speed.

On 3 September 2012, Mr Hickey, Mr Gorman and Mr Fisher returned to Nestlé’s Arndell Park premises to inspect and test forklift 432 as well as another forklift of identical make and model (the exemplar).

The purpose of the testing was to work out whether the g-forces experienced by the plaintiff in forklift 432 were sufficient to eject him from the seat. The g-forces on a driver were calculated by measuring the stopping distance of forklift 432 and the exemplar when certain brakes on the forklift were operated. This question was ultimately the subject of the expert conclave which is addressed further below.

No measurements were taken of the maximum attainable speed of either forklift 432 or the exemplar. As it was not measured, it was accepted that it was unknown and was, accordingly, the subject of alternative assumptions.

Four permutations were tested. Each required the driver of the forklift to use a different braking method when a particular marking was crossed. The four permutations were: first, the emergency stop brake alone; secondly, the hydraulically operated foot brake; thirdly, the foot brake and the emergency stop brake (located on the drive motor); and fourthly, the seat switch brake (otherwise known as the deadman’s brake).

The test involved a person driving the forklift (432 and the exemplar) to its maximum speed by pressing the pedal to the floor and, at a designated braking point, braking, using the particular brake or brakes in the relevant permutation. The stopping distance (being the distance between the designated braking point and the point at which the forklift came to rest) was then measured. As each test was repeated twice, there were three results for each brake permutation (set out above) and each forklift (432 and the exemplar).

The formula used to calculate the g-force on the driver was: v2 = u2 + 2as.

The letter “v” is the final speed of the forklift (in this case, zero, as it had stopped). The letter “a” is the calculated g-force. The letter “s” is the stopping distance. The letter “u” is the initial velocity, which was assumed to be either 12.5km/h or 7.5km/h). Thus, the only measurement taken was the stopping distance since the other variable of the initial velocity was assumed and the final velocity was necessarily zero (as the vehicle had stopped).

The bases for the alternative assumptions as to the maximum speed of the forklift were:

The results, in terms of g-forces which would apply to a person in the driver’s seat of the forklift were set out in a table, which also recorded the measured stopping distance. The measured stopping distance was necessarily the same for each individual test on either assumption but the g-force calculation was significantly lower on the assumption that the maximum speed of the two forklifts was 7.5km/h, rather than the other assumption of 12.5km/h. The greatest g-forces were calculated for permutation 3 (emergency brake and foot brake together) for the exemplar, where a stopping distance of 1000mm was recorded; and permutation 2 (hydraulically operated foot brake alone) for forklift 432, where a stopping distance of 1000mm was also recorded. In both of these cases, the assumption was made that the forklift was travelling at a maximum speed of 12.5km/h. In both cases, the g-force calculated was 0.62g. The same result was brought about by the identical assumed maximum speed and the identical stopping distance, these being the two variables with which the g-force was calculated.

On the assumption that the maximum speed of the forklift was 7.5km/h, the stopping distance of 1000mm resulted in a g-force of 0.22g.

As is apparent from the descriptions of the qualifications and experience of those directly and indirectly involved in the operations of Nestlé at the time of the plaintiff’s accident, many of the lay witnesses were also experts. Before addressing the evidence of the independent experts, I propose to summarise the opinions of the lay experts in so far as they bear on the issues considered by the independent experts.

On 16 August 2012, when the plaintiff was being treated at the scene by ambulance officers, Mr Connell said to someone on the management team of Nestlé (he cannot recall to whom) that forklift 432 had had the same issue the week before. I infer from Mr Lloyd’s evidence that Mr Lloyd was one of the people to whom Mr Connell expressed his opinion.

Mr Lloyd agreed in cross-examination that the plaintiff’s description of what had happened with the forklift was “very similar” to the description which he had been given by Mr Connell six days previously.

Mr Gorman was unable to reconcile the behaviour of forklift 432 as described by Mr Connell (or the plaintiff) with what he knew about the characteristics of the forklift. He considered that the forklift was designed to decrease speed slowly if it went into turtle mode and then would accelerate normally when coming out of turtle mode. I note that neither Mr Connell nor the plaintiff described forklift 432 as having gone into turtle mode.

The liability experts met in conclave on 11 February 2020 and prepared a joint report which was admitted as a court exhibit. They gave concurrent evidence on 18 and 19 March 2021. Each of the experts was a qualified engineer. None had particular expertise in computers, nor did they have the expertise in the LDC which governed the functions of the Linde forklifts used by Nestlé.

The substantial consensus between the liability experts, as expressed in the conclave and in their concurrent evidence, relieves me of the task of summarising the reports of each, as the relevant material was reviewed in oral evidence.

Much of the experts’ consideration turned on whether the forklift could exceed its maximum set speed of 12.5km/h. Because of the way Mr Cranitch ultimately put the plaintiff’s case, it is not necessary to determine this question. The question is, in any event, arid as forklift 432 was not shown to be capable of travelling at that speed in any event. For completeness, I propose to summarise the opinions of the experts on the question.

Mr Johnston opined that because 12.5km/h was the pre-programmed speed, the forklift should not exceed that speed “but that is not to say it didn’t or it can’t.” He agreed that there was nothing in the motor of the drive mechanism of the forklift that would prevent it, in the absence of the LDC control, exceeding the set speed. Mr Hickey confirmed that he had simply accepted that 12.5km/h was the maximum speed as he does not have expertise in electronics.

Mr Lewis and Dr White agreed that the only way the speed could exceed 12.5km/h would be if the LDC had an electronic problem. Dr White considered that if there was a failure in the electronic parts of the LDC which caused the maximum speed to be exceeded, he would expect those components to fail permanently if they were to fail at all. He considered an intermittent fault to be unlikely.

As referred to above, the four liability experts considered the results of the tests performed by Mr Hickey and Dr White, when opining on whether the g-forces were sufficient to eject a driver (such as the plaintiff) from the seat of the forklift. The starting point was Newton’s first law of physics: that a body in motion will remain in motion unless acted on by an external force. A material consideration in this question was the circumstance that the plaintiff was facing perpendicular to the direction of travel, with the consequence that the momentum which operated on his body would be in a direction either towards or away from the opening to his left. This contrasts with the usual situation of a driver in a vehicle, such as a car, where the momentum is towards or away from the windscreen of the vehicle.

Dr White did not consider that there would be sufficient friction between the tyres of the forklift and the concrete floor of the warehouse to generate a level of deceleration of 0.62g (as calculated by Mr Hickey on the two occasions referred to above). He would expect the highest value to be in the order of 0.5g.

The experts noted maximum braking force which Dr White was able to achieve (with hydraulic brakes pressed as hard as possible) was 0.4g (which was deduced as an average of measurements). The other experts were concerned that the noise of the data meant that the result contained significant uncertainty. Dr White added that if, as the plaintiff said in his evidence in chief, he did not apply the hydraulic brakes at all, the maximum rate of deceleration would be limited by the electric power delivered by the motor. Thus, if the forklift “braked itself” without the application of the hydraulic brake, the forces would be significantly less. This evidence is of limited relevance, having regard to my finding that the plaintiff did apply the foot (hydraulic) brake, as reflected in his more contemporaneous versions.

The experts agreed that although they could speculate about the forces that applied to the plaintiff’s body at the time, they could not calculate the forces because of the number of unknown variables, including the actual speed of the forklift. Even on the basis of assumed speeds, the variables were such that they regarded the question as not being susceptible of scientific determination.

The experts were also asked to opine on what forces would have been required to eject an occupant from the seat of a forklift such as forklift 432. Mr Lewis relied on research conducted in 1980 on sideways facing passengers on public transport which produced the following data:

On this basis, Mr Lewis considered that, on the figures calculated by Dr White, the chance of the plaintiff being dislodged in the way he described was between 20% and 60%. Dr White was critical of the applicability of this data because he considered that it related to people who were, typically, not expecting the deceleration. He contrasted their position with that of the plaintiff, who, having pressed the brake pedal, must have been expecting the deceleration and could brace himself for it. Mr Lewis responded by saying that in the data he used, the participants were not expecting the deceleration, except in a general sense (they were participating in a test).

Mr Johnston had regard to data contained in the Australia Rural Road Design Guide relating to the forces required to dislodge a person from a seat. He considered that, based on these figures, when the deceleration begins to approach 0.4g, the occupant needs to actively resist the inertia or they will be forced out of position.

Dr White considered that g-forces of more than 0.45g would be required to dislodge the plaintiff from the seat of the forklift.

Mr Hickey regarded the question of what force was required to dislodge the plaintiff from his seat to be incapable of scientific determination, as he explained in the following passage:

On 19 March 2021, the second day on which the experts gave concurrent evidence, Mr Hickey opined that the quantum of the g-force, though a relevant factor in the question whether someone would be dislodged from a seat, was only one of a number of factors and not necessarily the most significant. He instanced other factors such as the material of the clothing worn by the occupant and the material of the seat, whether the seat is contoured, and in what way, whether the occupant is anticipating the braking effect (and can therefore adopt a bracing position) or surprised by it, and the physical attributes of the occupant. Mr Hickey illustrated this point by instancing a bus crash where, although the g-forces on all passengers would be the same, some passengers would walk away unharmed, whereas others would be killed or severely injured. He considered that in light of these factors it was not scientifically determinable whether someone will become dislodged from their seat at a particular g-force. Mr Hickey added that, if the plaintiff applied the foot brake, then this would tend to lessen the chance that he would be dislodged because he would then be expecting the deceleration which would incline him to brace accordingly. However, Mr Hickey and Dr White agreed that if the bracing was in a different direction to the direction of travel (as in a forklift such as forklift 432, or when, for example, passengers in a tram are oriented perpendicular to the direction of travel on centre-facing seats), the efficacy of bracing to resist the sideways movement would depend on the friction between the parts of the body and the seat, the floor and other parts of the forklift.

Ultimately, all experts agreed that there was nothing implausible in the plaintiff being dislodged from the seat of forklift 432 by reason of the forces occasioned by the movement of the forklift on 16 August 2012.

The experts were asked to opine on the probable cause of the event, as described by the plaintiff. The version which formed the basis of the opinions was as follows. The plaintiff, who was seated in the forklift facing the controls, pressed the left pedal to cause the forklift to move in the direction opposite the tines. The forklift encountered a crack in the concrete floor which rattled the forklift. He continued to press the left pedal. The forklift accelerated beyond its usual speed. The plaintiff took his left foot off the left pedal but instead of slowing, the forklift went faster. At that point the plaintiff decided to apply the foot brake but before he had pressed the pedal the forklift decelerated sharply and dislodged him from his seat.

Mr Johnston and Mr Lewis agreed that the described defect must derive from the LDC. Otherwise, they could not say what caused the problem.

Mr Hickey and Dr White had difficulty rationalising the plaintiff’s description of the accident with all the faults recorded by the forklift. Neither could find a fault indicator which corresponded with the plaintiff’s version of what occurred.

The experts said as follows in their joint report:

The experts were asked to opine on the following conduct of the forklift described by Mr Connell:

In substance, the experts gave the same answers to this scenario as they did to the scenario regarding the plaintiff’s accident.

The experts opined that if the only information provided to Mr Raad on 13 August 2012 was that recorded on the tag (“speed sensor issues”) or as conveyed in the telephone call-out (“machine speed playing up”), Mr Raad did what would reasonably be expected of him. Mr Hickey said that by logging the fault code, performing diagnostic work to determine an applicable fault code, relating sensor issues (which would affect speed) to that fault code, repairing the sensors and testing the performance of the forklift, Mr Raad had performed the task allocated to him. Dr White opined that there were two issues which Mr Raad identified which were potentially making the speed of the forklift go up and down and that, by remedying these two issues, Mr Raad had done what was expected of him.

However, the experts were also asked to consider the scenario of Mr Raad being given Mr Connell’s description of the behaviour of forklift 432 (which Mr Connell said he communicated to Mr Lloyd and which Mr Lloyd accepted was communicated to him).

The other experts agreed with Mr Johnston’s opinion that the primary issue raised by Mr Connell’s description to Mr Lloyd was an “over-speed phenomenon”. He said that this would not be attributable to the battery sensor and therefore repair of the battery sensor could not be expected to solve that problem. Dr White explained the difference in the following passage:

The experts agreed that, had Mr Raad been aware of the over-speeding issue and had no cause been ascertained, they would have expected further discussion with Mr Connell to isolate the issues and that forklift 432 would have been kept out of service “until clarity on the issue and its causes was understood.”

It was common ground among the experts that, at the time of the accident, the applicable Australian Standard, AS 2359, did not require seatbelts to be worn by the drivers of reach forklifts, although such seatbelts were required to be worn in counterbalance forklifts.

There was other material within the industry in Australia and elsewhere which indicated, according to Mr Hickey:

Mr Hickey explained the materiality of the distinction as follows:

However, Mr Hickey added that there was little risk of a reach forklift tipping over because such vehicles generally operate on a firm, level surface inside warehouses and are designed to operate between racks which are very high. The experts opined generally about the differences of opinion in the industry. In the end, these differences are not helpful because of the lack of specificity of circumstances in which forklifts are intended to operate. For example, whether reach forklifts are picking up loads from loading docks bears on the risk of tipping since this activity increases that risk.

When the experts’ attention was drawn to the internal Nestlé document entitled “NDC [Northern Distribution Centre] Forklift Procedure, Safe Forklift Operation”, dated 30 September 2009, which instructed a forklift driver not to jump out of the forklift, Mr Hickey opined that the instruction would have been intended to apply to drivers of counterbalance forklifts since the author did not appear to address the distinction between counterbalance and high-reach forklifts.

However, Mr Lewis pointed to the 2008 Risk Assessment, which identified the risk of the driver of a reach forklift falling out of the vehicle and indicated that the “new” forklifts (which were to be acquired in 2010, but were not in fact acquired) would be fitted with a preventative seatbelt device. Mr Lewis considered that this document reflected a risk analysis which had been conducted by Nestlé which specifically applied to reach forklifts and would appear to require forklift drivers to use the seatbelts which were to be fixed to forklifts.

The experts agreed that if Nestlé were to install seatbelts, or otherwise change the contour of the seats, to those reach forklifts in operation at any time up to, relevantly, 16 August 2012 (including forklift 432), Nestlé ought to have consulted Linde to ascertain whether this could be done since industry convention (which may have been reflected in the applicable Australian Standard) prevented such modifications being carried out without the approval of the manufacturer.

The experts agreed that seatbelts were not the only way to decrease the chance of a forklift driver being dislodged from the seat and opined that better seat contouring, a side guard, supplementary hip or torso bolsters or changing the material of which the seat was made would also tend to have the effect of limiting lateral movement. Mr Lewis opined that it would be possible to install a seat which would help to keep the occupant in place but also allow free entry and exit. He instanced a hip guard which formed part of the contouring of the seat.

The duty of care which Nestlé, as the plaintiff’s employer, owed to him included a duty to obtain suitable equipment and take reasonable care to maintain and repair it: TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 at [60]-[61] (Mason P); see also, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 at [102] (Kirby J).

Although parts of the Civil Liability Act 2002 (NSW) do not apply to motor vehicle accidents (which is the basis of the plaintiff’s claim against Nestlé), Divisions 1-4 and 8 of Part 1A (Negligence) do apply: s 3B(2)(a) of the Civil Liability Act. It is therefore necessary to address the applicable provisions when determining the scope of the duty of care, whether there was a breach and whether causation has been established.

The starting point is the identification of the risk of harm in respect of which it is said the relevant defendant was obliged to take reasonable precautions as required by ss 5B and 5C of the Civil Liability Act. It is against that risk of harm that the court determines the defendant’s knowledge (actual or constructive) of a specified risk of harm, assess the probability of that risk occurring in order to evaluate the reasonableness of the defendant’s response or lack of response: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 (Dederer) at [59]-[61] (Gummow J).

The risk of harm must be articulated with sufficient precision to be relevant to the assessment of reasonableness but ought not be so specific as to be unworkable: Dederer at [59]. In the present case, the risk of harm is the risk of a forklift operator being dislodged from the forklift while the forklift is still in motion. Factors such as the configuration of the forklift, which is open to the side opposite the tines; the lack of a restraining device or any significant contouring on the seat; and the orientation of the driver, who sits perpendicular to the direction of travel, mean that the risk is plainly foreseeable. Any sudden or unexpected change in the speed of the forklift will give rise to this risk of harm. Such a change may occur because of a malfunction in the brakes or speed controls of the forklift but may also come about as a result of a collision between the forklift and another object which will bring it to a sudden stop or require it to change direction. This risk cannot be regarded as insignificant.

As a matter of logic, as well as evidence, the precautions required to mitigate the risk of harm will potentially involve one or more of the following:

In order to determine whether Nestlé (or Linde, which is considered below) ought to have taken precautions against a risk of harm, I am required by s 5B(2) of the Civil Liability Act to consider the following four factors, and any others I consider relevant: first, the probability that the harm would occur if care were not taken; secondly, the likely seriousness of the harm; thirdly, the burden of taking precautions to avoid the risk of harm; and, fourthly, the social utility of the activity that creates the risk of harm. These will be addressed in turn.

The probability that the harm will occur if care were not taken depends on various factors which include the speed of the forklift, the co-efficient of friction between the material of which the driver’s clothing is made and the material with which the seat is covered, any contouring of the seat and whether the driver is expecting the change and is in a position to brace to counteract the forces. The prospect of a driver being ejected from the forklift in the event of a sudden change of movement of the forklift must be regarded as relatively low, having regard to the speed at which such forklifts (that is, reach forklifts) travel, although it is higher than it would be if the driver’s seat were oriented in the direction of travel rather than perpendicular to it.

The likely seriousness of the harm is very great. If a forklift driver is dislodged from the seat of a forklift, he or she will probably fall on a hard surface since such forklifts typically travel on the concrete floors of warehouses. The impact of the fall itself could cause substantial injury. An even greater concern is the prospect (which occurred in the present case) that the driver will fall into the path of the forklift and that the forklift will continue to move, albeit for a short period, after the driver has been dislodged from the seat. The momentum of a forklift is such that the body of the driver will be insufficient to stop or materially retard its progress. Thus, if the driver’s body, or any part of it, is in the path of the forklift, catastrophic injury or death is foreseeable, if not inevitable.

The documents produced by Nestlé after the accident indicate the seriousness with which it regarded the incident. For example, in the problem-solving worksheet dated 20 August 2012 (referred to above), the “objective” was stated to be to “eliminate all associated risks with forklift crushing injuries”.

The burden of taking reasonable precautions depends on the identification of the precautions proposed. The plaintiff proposed three precautions. The first is that the forklifts be regularly and adequately maintained and replaced before they exceed their useful life; the second is that there be adequate communication between the operator of the forklift (in the present case, Nestlé) and the repair technician if an issue arises which causes the forklift to behave erratically, including by over-speeding. The third precaution proposed by the plaintiff was that there be contouring of the seat or a safety device, such as a seatbelt or a guard to assist the driver to remain in the seat. There is no evidence to suggest that there would be any particular burden imposed by the implementation of either such requirements. The evidence does not suggest that such steps would be particularly expensive, difficult or impractical.

However, before inferring that the installation of a seatbelt would constitute a reasonable precaution, it is necessary to address the issue raised in the concurrent evidence of the experts: is it, on balance, safer or more dangerous to fit a seatbelt on a reach forklift? The reason for the question is that, pursuant to s 5C(a) of the Civil Liability Act, 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. Thus, if restraining a driver within a reach forklift would render the driver susceptible to a greater risk of harm than were the driver to be unrestrained, it will not be a reasonable precaution to require a seatbelt to be installed. Negligence is to be determined prospectively and not retrospectively: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 240; [2009] HCA 48 at [31] and [40] (French CJ, Gummow, Hayne, Heydon and Crennan JJ).

The experts were equivocal about the relative benefits of seatbelts in forklifts and appeared to answer such questions by reference to their inherent biases (those with experience in road accidents tended to favour restraint because of the overwhelming benefits of seatbelts in such scenarios). They drew attention to the literature which tended not to distinguish between counterbalance forklifts (which are at significantly greater risk of tipping) and reach forklifts, notwithstanding the differences between them which are summarised above.

As has been said in other contexts, the “instinct and judgment of traders is not to be lightly rejected”: Australian Woollen Mills Limited v F S Walton and Company Limited (1937) 58 CLR 641 at 657 (Dixon and McTiernan JJ); [1937] HCA 51. On this basis, Nestlé can be taken to have been in the best position to assess the relative risk of restraining, or not restraining, its drivers of reach forklifts with seatbelts when driving in its own warehouse. Linde’s assessment of the risk is also significant because of its knowledge of the Nestlé warehouse and the forklifts which it had manufactured.

I consider the 2008 Risk Assessment undertaken by Nestlé to constitute the best evidence that, in the setting of Nestlé’s warehouse, it was safer to have seatbelts installed on reach forklifts, which the drivers would be obliged to use, than to leave the drivers unrestrained. Nestlé was plainly aware of the risks associated with forklift drivers being unrestrained in forklifts. Its procedure expressly required forklift drivers to “drive smoothly, refraining from excessively rapid acceleration or quick stops”. The 2008 Risk Assessment is corroborated by Linde’s own assessment, dated 24 August 2008, that the driver should “stay with the truck and hold on”, rather than jump out, as well as Linde’s decision to manufacture a new model designed to replace the model of which forklift 432 was an example, with a forklift which was fitted with seatbelts.

Notwithstanding Nestlé’s assessment of risk, as evident from the 2008 Risk Assessment, it decided to take the risk, at the expense of the safety of its forklift drivers, of deferring either fleet replacement (with forklifts fitted with seatbelts) or replacing the seats or seat coverings or installing seatbelts in the forklifts in its existing fleet.

There is some evidence of the cost of installing a seatbelt in a forklift. The Linde Service History for forklift 432 includes that a request was made on 23 August 2008 for a seatbelt to be installed on the forklift. The entry was included in the description of work on 15 October 2012 and deleted on the same day. The cost of the “seatbelt kit” was included in the service history and was stated to be $241.86. The service person identified in the service history was “N15”, which other evidence established was a reference to Mr Raad. Mr Raad was called by Linde but not questioned about this entry. In these circumstances I am entitled to draw the inference that his evidence on this entry would not have assisted Linde’s case: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-19 (Handley JA).

It is possible that the entry was reversed because it was appreciated, after the order had been made, that forklift 432 had been removed from service and was to be disposed of, after it had been tested by relevant experts for the purposes of these proceedings. In the absence of evidence that the same entry appeared for the other 15 or so forklifts in the same category, I would not infer that it was a fleet-wide order, although it may have been, having regard to the recommendations made in Nestlé’s problem solving worksheet dated 20 August 2012 referred to above.

Forklifts are used in depots which, like the one operated by Nestlé at Arndell Park, are used to store and distribute grocery items throughout the Sydney metropolitan area and elsewhere. There is a social utility in manufactured household goods, including food, being able to be assembled in a large warehouse before being distributed to retailers. The timely assembly and distribution of such goods and the quantities in which they are stored requires, on the present state of knowledge, the movement of goods. A forklift is particularly well suited to effect such movements. I consider the social utility of the activity that creates the risk of harm to be high.

In my view, a reasonable person in the position of Nestlé on 16 August 2012, would have taken all three of the precautions identified by the plaintiff: namely, adopted a system of maintenance and replacement of forklifts in accordance with Linde’s recommendations, implemented a system where the forklift operators description of the fault was communicated in terms to the repair technician; and the fitting of seats within the forklift that contained seatbelts or other means (such as contouring and appropriate fabric) in order to minimise the risk of a driver being involuntarily dislodged from the seat.

Indeed, Nestlé intended to replace its fleet with forklifts which were fitted with seatbelts. Had the replacement proceeded in accordance with the initial schedule, the forklifts would have been replaced in 2008. Had it not been for the possibility that Nestlé would relocate the operations conducted at Arndell Park to another site, the forklift fleet would have been replaced prior to the plaintiff’s accident. Had the fleet been replaced, the drivers would have been provided with safer forklifts, fitted with seatbelts, which Nestlé’s procedure would have obliged them to use when driving them.

I infer, in the absence of any evidence to the contrary, that it was not impractical to replace the seats, or their covering, or install seatbelts on the existing seats. Indeed, such evidence as there is on the topic would indicate that the costs of a seatbelt kit was $241.86. Linde’s reluctance to replace the LDC power module for forklift 432 on 7 July 2012 (as recorded in Linde’s service history) because of the cost and the supposed rarity of the occurrence may indicate a more general disinclination, pre-accident, to spend money on forklifts which were overdue for replacement.

Nestlé was astute, immediately following the accident, to work out what had gone wrong and make sure that such an incident would not recur. In prescribing appropriate measures, it needed to look no further than the documents already in its possession and its existing knowledge of the risk and how to attenuate it. While it is important to avoid engaging in hindsight reasoning, it is evident from the pre-accident material tendered by the plaintiff in his case against Nestlé (which is summarised and extracted above), that Nestlé was well aware of the need for restraints for forklift drivers (from its 2008 Risk Assessment). It had refrained from replacing the forklifts for operational reasons (the possible relocation of its operations).

The minutes of the SHE meetings in the period immediately prior to the plaintiff’s accident demonstrate Nestlé’s appreciation of the importance of repair technicians being given comprehensive information about why a forklift had been tagged out so that it could be properly repaired in a way which was responsive to the history given by the forklift driver.

The problem worksheet produced by Nestlé on 20 August 2012 indicates that Nestlé knew precisely how to eliminate the risk (that being the stated objective): installation of seatbelts, proper contouring of seats and eradicating the “smooth seat surface” were among the solutions the team which prepared the document (Ms Balewai, Mr Lloyd, Mr Connell and Mr Massoud) were able to identify.

While the chances of a forklift driver being ejected from the forklift onto the warehouse floor might have been relatively small, having regard to the number of drivers and forklift movements engaged in 24-hours a day at Arndell Park, the risk was nonetheless material and foreseeable. The likely consequential harm was, as the 2008 Risk Assessment recognised, “critical”. Therefore, the availability of precautions which were reasonable has been proved to the requisite standard.

In order to determine the question of causation, it is first necessary to address what happened on 10 August 2012 and 16 August 2012, and why it happened.

Both Mr Connell and the plaintiff were, in August 2012, very experienced forklift drivers. There was no relevant challenge to the reliability of their versions, except, in the plaintiff’s case, as to whether he had applied pressure to the foot brake before being dislodged from the forklift. For the reasons given above, I am satisfied, on the basis of contemporaneous versions given, that the plaintiff did apply pressure to the foot brake. There was no suggestion that Mr Connell and the plaintiff had colluded in giving their evidence to assist the plaintiff’s case. I am satisfied that they are both witnesses of truth who gave evidence as to the circumstances of the operation of forklift 432 reliably and accurately (with the exception referred to above in the case of the plaintiff). While the plaintiff could be not be regarded as relevantly disinterested (because of his claim for damages), Mr Connell had no particular motive other than to tell the truth, since the erratic conduct of forklift 432, while it had given him a shock, had not caused him any injury.

I regard it as significant that Mr Connell, as soon as he heard the plaintiff’s description of what had caused him to fall from the forklift on 16 August 2012, was concerned that the forklift had been allowed to return to service when it exhibited what was, to his mind, similar deficiencies as had been evident on 10 August 2012, which had led him to tag it out. It is also telling that when Mr Lloyd (who had been a forklift driver himself before being promoted) heard about what had happened to the plaintiff, he made the connection with the description which Mr Connell had given to him six days previously, which he regarded as “very similar”.

The “lay” evidence of the plaintiff, Mr Connell and Mr Lloyd is significant because of their lengthy experience in the use and operation of forklifts of the make and model of forklift 432. It is also telling that there was no challenge to Mr Connell’s reliability and only limited challenge to the plaintiff’s reliability (regarding the use of the foot brake) and to that of Mr Lloyd (regarding his recollection of what he passed on to Mr Raad of what he had been told by Mr Connell).

I note that part of the experts’ inability to discern what had happened, and why, stemmed from the lack of reliable data as to the actual speed at which forklift 432 was capable of travelling. The experts assumed that it could travel at 12.5km/h and that the plaintiff was saying that, immediately prior to his being dislodged from the seat of forklift 432, it was travelling faster than 12.5km/h. However, the plaintiff’s assessment of its maximum speed was that it was a brisk walking pace. Mr Connell estimated its maximum speed to be about 10km/h. Mr Raad considered that forklift 432 would be unlikely to be capable of travelling at a speed of 12.5km/h on 16 August 2012 because of its age.

The plaintiff’s inability to explain what caused the behaviour of forklift 432 on 10 August 2012 and 16 August 2012 is not fatal to his case in negligence: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 317 (Mason P), citing Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45 at 563-564 (Rich ACJ), 569 (Dixon J); Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720.

The expert liability evidence must be seen in this context. The experts could not explain why the phenomenon described by Mr Connell and the plaintiff occurred, or reconcile their descriptions with what they knew of the operation of the forklift. Their knowledge was largely derived from the operating instructions since they lacked the expertise to interrogate the software which comprised the LDC, except in so far as faults were revealed by the Truck Doctor. Although they had reservations that forklift 432 had acted in the manner described (in part because they misapprehended that the plaintiff was saying that forklift 432 exceeded the speed of 12.5km/h) and could not explain it, the primary facts themselves, as described by Mr Connell and the plaintiff, could not be excluded by the experts.

It follows from my acceptance of Mr Connell’s and the plaintiff’s description of the behaviour of forklift 432 that Nestlé, through Mr Lloyd, was aware on 10 August 2012, because of what Mr Connell told him, that forklift 432 was behaving erratically, including by spontaneously over-speeding and braking suddenly, thereby exposing Mr Connell to forces which almost caused him to be thrown from the forklift. As a consequence, the duty of care which Nestlé owed to the plaintiff required it to take steps to ensure that the forklift remained out of service unless and until the defect could be replicated, identified and remedied, having regard to the dangers (to the driver and to others in the vicinity) posed by a forklift which behaved erratically.

The duty of care which Nestlé owed to its employees required it, for the reasons given above, to ensure that Mr Raad was made aware of Mr Connell’s description of the behaviour of forklift 432. Nestlé failed to do this. Its system of relaying a shorthand version of the problem (“machine speed playing up”) was manifestly inadequate to inform Mr Raad of the gravamen of the principal fault in forklift 432. Had Mr Raad been informed of what Mr Connell described, he would have recommended that the forklift remain tagged out and not used unless and until the problem could be replicated and remedied. Thus, had Nestlé taken this reasonable precaution, the plaintiff would not have been injured. This is sufficient to satisfy the “but for” test of factual causation in s 5D(1)(a) of the Civil Liability Act: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [16] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).

Further, in my view, it is appropriate for the scope of Nestlé’s liability to extend to the harm so caused. It owned forklift 432 and employed Mr Connell. It contracted with Linde to maintain the forklifts. Nestlé appreciated that any defect in a forklift could give rise to a risk of injury in those present in the warehouse, including drivers, pickers and other persons who happened to be there. Its failure to implement a system to ensure that the technician had the information which was available to Nestlé was negligent.

Although 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 constitute an admission of liability, it is nonetheless relevant that forklift 432 was taken out of service on 16 August 2012 and never used again. This action was taken notwithstanding that the defect in forklift 432, of which Mr Connell and the plaintiff complained (which I am satisfied was substantially the same fault and had the same (unknown) genesis), could not be replicated. Had this precautionary approach been taken on 10 August 2012, the plaintiff would not have been injured. Mr Connell’s “near miss” ought to have been sufficient to remind and alert Nestlé of the dangers posed when a driver, because of an incident/collision, falls out of a forklift, due to forces operating on the driver, which include erratic acceleration or deceleration.

Had the seat in forklift 432 been contoured, upholstered with textured fabric or fitted with a seatbelt, the plaintiff would probably not have been ejected from it. This is sufficient to satisfy the “but for” test of factual causation in s 5D(1)(a) of the Civil Liability Act. I am satisfied that it is appropriate for Nestlé’s liability to extend to the harm caused in the present case. Having conducted the 2008 Risk Assessment, Nestlé was well aware of the risk of a driver being dislodged from the seat of a reach forklift. It determined that seats fitted with seatbelts was an appropriate control to reduce the risk from “critical” to “serious”. Yet, four years after the 2008 Risk Assessment was performed, Nestlé had done nothing to mitigate that particular risk, whether by installing contoured seats, fitting seatbelts or replacing the forklifts.

The evidence is insufficient to establish that there was any particular error in the maintenance of the forklift fleet which caused the accident or that the forklifts had necessarily come to the end of their useful life. It is, accordingly, not necessary to address this aspect of the plaintiff’s case against Nestlé further.

For the reasons given above, I am satisfied that Nestlé is liable to the plaintiff for damages in negligence.

Before addressing whether Linde is liable in negligence to the plaintiff, it is necessary to consider Linde’s alleged limitation defence.

Linde has pleaded a defence under the Limitation Act in respect of the plaintiff’s claim against it. Section 50C(1)(a) of the Limitation Act relevantly provides that an action for damages for personal injury is not maintainable if brought after the expiration of the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff.

Section 50D relevantly provides as follows:

The parties agreed that the only issue was whether the plaintiff knew or ought to have known of the fact that his injuries were caused by the fault of Linde (s 50D(1)(b)) by 12 June 2016, being three years before the statement of claim was amended to add Linde as a party on 12 June 2019. In order to determine this issue, it is necessary to make findings as to the relevant facts.

The plaintiff admitted that, from the time of the injury (which he immediately realised was serious and permanent), he knew that he had done nothing wrong and, accordingly, attributed the accident to the fault of someone else. He believed that it was a fault in the forklift which caused the accident and understood that Linde was responsible for the maintenance and repair of the forklifts. He had observed Linde service staff on the Nestlé premises at Arndell Park working on forklifts.

The plaintiff’s eldest daughter, Samara, made enquiries of solicitors who could advise her father about what remedy he might have for his injuries. To that end, she contacted Mr Nelson, who agreed to provide advice. Mr Nelson, an accredited specialist in the area of claims for personal injury, was aware of the limitation period in ss 50C and 50D of the Limitation Act and understood that it was necessary for the plaintiff to bring a claim against an alleged tortfeasor within three years of the commencement of the discoverability period. He was first instructed by the plaintiff on 29 August 2012, who was then still in hospital.

On 10 October 2012, Mr Nelson and Samara visited the plaintiff at The Hills Private Hospital. As referred to above, Mr Nelson had brought a Motor Accident Personal Injury Claim Form to be filled in by the plaintiff. Most of the form was filled in by Samara, who asked the plaintiff to answer the questions asked in the form, before filling in the answers given by him. She inserted her email address on the form. The plaintiff dictated to Samara the description of the accident which is set out above. The plaintiff identified the relevant vehicle as a Linde forklift. He identified two witnesses, Mr Walters and Mr Connell, whom he described as having “previously reported the fork faulty”. The plaintiff admitted that he knew that, in order to make a claim in respect of a motor vehicle accident, he needed to establish either that the driver of another vehicle was at fault or that there was something wrong with the vehicle he was driving. A few details on the form were filled in by Mr Nelson, who was present while Samara was filling in the form on behalf of the plaintiff.

On 24 October 2012 Mr Nelson conferred for about an hour with Mr Cranitch, whom he had instructed on behalf of the plaintiff. Mr Nelson could not recall what Mr Cranitch advised at the conference. However, he recorded the following:

Mr Nelson confirmed that the reference to a claim against Linde was a reference to a common law claim for damages in negligence against Linde.

Mr Nelson also recorded that he telephoned Samara after conferring with Mr Cranitch. His file note recorded:

Mr Nelson explained in cross-examination that the rights against the employer to which he was referring were rights to workers compensation payments. He also explained, when asked about the “very valuable residual rights … against Linde on a common law basis”, that he was “assuring the daughter of a terribly injured man within weeks of an accident that we were doing everything that could humanly be done” to ensure that he obtained a remedy. He could not recall whether the last paragraph was a note to himself or a summary of what he told Samara in the course of the telephone conversation.

By letter dated 25 October 2012, Mr Nelson wrote to Mr Hix and said, in part:

On 28 October 2012, while the plaintiff was still an in-patient at The Hills Private Hospital, he gave a statement to an investigator. In a handwritten portion of the statement (which he confirmed to be true, in his evidence), he said:

The plaintiff made a claim for workers compensation so that he could obtain weekly payments. Soon after he had been discharged from The Hills Private Hospital, the plaintiff went to see Mr Cranitch with his solicitor, Mr Nelson.

On 1 November 2012, Mr Nelson wrote an email to Mr Hix, which was copied to Mr Neighbour and others, requesting that forklift 432 not be disposed of (as was proposed by Nestlé) until after it had been made available for testing by an expert retained by the plaintiff’s solicitors. Mr Nelson rejected the proposition put to him by Mr McCulloch in cross-examination that his concern to preserve forklift 432 indicated that he was considering a common law claim against Linde. Mr Nelson explained that he wanted the expert he retained to have the opportunity to inspect forklift 432 before it was disposed of, in order to advance the plaintiff’s claim against Nestlé. Mr Nelson said that, at that time, his view was that Linde might “potentially be the subject of litigation one day if there was sufficient evidence to … bring proceedings against them.”

In cross-examination, the plaintiff admitted that, by the end of 2012, he was aware that Nestlé’s staff considered that there had been a prior problem reported with the same forklift which caused his injuries. However, he maintained in his evidence that, as at the end of 2012, he was not thinking of suing anyone other than Nestlé. To the extent to which he had described the forklift in the claim form as a “Linde” forklift, he said that it was simply the brand name of the forklift and he did not turn his mind to whether Linde was at fault.

On 12 November 2012, Mr Nelson wrote to the plaintiff to report on developments. He said, of present relevance:

Mr Nelson accepted in cross-examination that, by 12 November 2012, he was aware of an assertion having been made in the plaintiff’s presence that forklift 432 had behaved in a similar way a few days earlier, in that he knew that someone had yelled out in the plaintiff’s presence, “Why is this forklift still in circulation?” Mr Nelson also accepted that these matters had been documented in the WorkCover investigation. Mr Nelson did not regard the fact that Mr Raad had purported to repair a previous fault which might have recurred as providing, without more, a sufficient basis for the plaintiff to allege that Linde was negligent.

On 18 March 2015, Mr Nelson commenced these proceedings by filing a statement of claim which named Nestlé as the sole defendant. The statement of claim bore Mr Nelson’s certification pursuant to s 347 of the Legal Profession Act 2004 (NSW) that “there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success.” Section 347 applied to the proceedings as they were commenced prior to 1 July 2015, being the commencement date of the Legal Profession Uniform Law Application Act 2014 (NSW). Its statutory successor is cl 4(2) of Sch 2 to the Legal Profession Uniform Law Application Act.

Mr Nelson denied that, as at the date of filing, he had formed the view that the plaintiff’s injury was caused by the fault of Linde. He said that he had formed the view that the forklift was defective and that, accordingly, Nestlé, its owner, was liable to be sued under the Motor Accidents Compensation Act. He confirmed in cross-examination that he would not have advised the plaintiff to make a claim in tort against Nestlé in its capacity as his employer because future medical expenses cannot be awarded to an employee who makes a claim in tort against his or her employer.

Mr Nelson accepted that, as at the time of filing the statement of claim, he was aware that there was a contract between Nestlé and Linde pursuant to which Linde agreed to maintain the forklifts used by Nestlé. When asked to identify the deficiencies in his knowledge which led him not to add Linde as a party to the proceedings when he filed the statement of claim against Nestlé, Mr Nelson said that he lacked the particularity of the communication between Nestlé and Linde regarding forklift 432.

Mr Nelson agreed that Nestlé filed a cross-claim against Linde on 18 April 2016 and that he became aware of it around that time. Mr Nelson also agreed that the solicitors for Nestlé were putting pressure on him to add Linde as a defendant but said that he did not accede to the pressure because he was concerned that there was insufficient evidence to permit his “legal team” (he, Mr Cranitch and junior counsel, initially Nicholas Broadbent, and subsequently Mr Hickey) to make the decision to do so.

In cross-examination, Mr Nelson rejected the proposition that the plaintiff could simply repeat the allegations which Nestlé had made in the cross-claim in an amended statement of claim which added Linde as a defendant. He noted that Nestlé’s claim against Linde was based on the maintenance contract between them and the correlative duty of care which was owed by reason of the contract.

On 20 June 2017, Mr Cranitch and Mr Hickey (junior counsel) gave advice in a written memorandum that there was “no case for the plaintiff to pursue against [Linde].”

Prior to 14 December 2018, Nestlé served the following evidence in support of its cross-claim against Linde: a statement of Mr Connell dated 10 December 2018; a statement of Brett Lloyd dated 7 December 2018; and an expert report of Mr Hickey on liability dated 13 November 2018. Mr Nelson briefed Mr Cranitch and junior counsel, Mr Hickey, with this evidence.

On 14 December 2018, Mr Cranitch and Mr Hickey advised Mr Nelson orally that Linde ought be added to the proceedings as a second defendant. According to Mr Nelson, the advice “outlined the significance of the evidence [recently served by Nestlé against Linde].” As a result of this evidence, Mr Nelson considered, for the first time, that a common law claim against Linde had reasonable prospects of success. He explained the importance of the recently served evidence as follows:

On 4 March 2019, Mr Cranitch and Mr Hickey advised Mr Nelson in writing that an application ought be made to add Linde as a second defendant. On 12 March 2019, Mr Hickey provided a further advice which outlined the significance of the additional evidence referred to above.

On 1 April 2019, Mr Nelson filed a notice of motion for leave to file a further amended statement of claim to add Linde as the second defendant. The motion was returnable on 16 April 2019, at which time it was listed for hearing before Davies J on 7 June 2019. Neither defendant opposed the application and the order was duly made. On 17 June 2019 Mr Nelson filed a further amended statement of claim which added Linde as a second defendant.

I note that it was not argued by the plaintiff that Linde, by not opposing its joinder as a party to the plaintiff’s claim, had waived its right to plead the limitation defence or that the amendment would date back to the filing of the original statement of claim.

A cause of action is “discoverable” within the meaning of s 50C of the Limitation Act if the plaintiff has either actual or constructive knowledge of certain facts: that is, if the plaintiff knew or ought to have known (assessed objectively) of certain facts: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 (Baker-Morrison) at [25] and [41] (Basten JA, Ipp and Macfarlan JJA agreeing).

Some facts, such as whether a putative defendant has caused a particular injury or death, will require an evaluative judgment, which is ascertainable by legal assistance: Baker-Morrison at [27] (Basten JA, Ipp and Macfarlan JJA agreeing); see also Baggs v University of Sydney Union [2013] NSWCA 451 at [13] (Meagher JA, Macfarlan and Hoeben JJA agreeing). Although the plaintiff knew that he had been seriously injured, the determination of whether Linde was at fault required an evaluative judgment. Section 50C of the Limitation Act is to be read consistently with s 347 of the Legal Profession Act (and its statutory successor, cl 4 of Sch 2 of the Legal Profession Uniform Law Application Act) as there is no basis to displace the presumption that two laws enacted by the same legislature are intended to work together: Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5 at [48]-[49] (Gummow and Hayne JJ). Thus, s 50C cannot be read as requiring a statement of claim to be filed in circumstances where a solicitor could not properly certify that the proceedings had reasonable prospects of success.

The plaintiff’s legal advisers only became aware of the relevant facts, which enabled the evaluative judgment to be made that Linde was at fault, in December 2018 when they received the statements of Mr Connell and Mr Lloyd in which Mr Connell set out what he told Mr Lloyd and Mr Lloyd set out what he told Mr Raad. Had Mr Raad been aware of the full extent of the issue with forklift 432 then it would have been insufficient for him to conduct routine service and maintenance and return the forklift to service, notwithstanding that he had been unable to replicate, much less remedy, the over-speeding fault described by Mr Connell. Linde has not identified any basis on which it could be said that the plaintiff or his legal advisers knew, or ought to have known, of this communication earlier than December 2018.

Further, Mr Nelson was plainly concerned that if he caused Linde to be joined as a party to the plaintiff’s claim, the plaintiff, even if successful against Nestlé, would be liable for Linde’s costs if the plaintiff failed against Linde. In addition, if Mr Nelson had added Linde as a defendant at a time when the plaintiff’s claim against Linde lacked reasonable prospects of success, he would have exposed himself to a personal costs order: s 348 of the Legal Profession Act (now cl 5 of Sch 2 of the Legal Profession Uniform Law Application). Mr Nelson could draw no particular comfort from the cross-claim served by Nestlé against Linde because this was based on a duty of care which arose by reason of the maintenance contract between Nestlé and Linde: see Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6. Mr Nelson would appear to have reviewed the question of Linde’s potential liability whenever new material came to hand. He cannot be criticised for refraining from acceding to Nestlé’s exhortations that he seek that Linde be added as a defendant when he had lacked a sufficient basis on which to provide the certification that the claim had reasonable prospects of success.

For these reasons, the discoverability period commenced in December 2018. As the further amended statement of claim adding Linde as a defendant was filed on 12 June 2019, the plaintiff’s action against Linde was brought within time. Accordingly, Linde’s defence under the Limitation Act has not been made out.

Because the plaintiff is someone who could be expected to be within the reasonable contemplation of Linde when repairing forklifts which employees such as the plaintiff were to drive, Linde owed the plaintiff a duty to take reasonable care in repairing Nestlé’s forklifts, including forklift 432.

In substance, the plaintiff alleged that Linde failed to take reasonable care to inspect and repair forklift 432 after it was tagged out by Mr Connell on 10 August 2012 and that it ought not to have allowed forklift 432 to be returned to service before identifying and rectifying the cause of the over-speeding issue. The plaintiff also alleged that Linde was negligent in not detecting the over-speeding problem in forklift 432 before it occurred. The plaintiff also relied on the principle of res ipsa loquitur (meaning the thing speaks for itself, which in the present context meant that the fault in forklift 432 was itself evidence of Linde’s failure to take reasonable care).

For the reasons given above, I am not satisfied that Mr Raad was privy to any further knowledge about the defect in forklift 432 when he repaired it on 13 August 2012 than that with which Linde had been provided by “Tony” when the call was made at 2.36pm (“machine speed is playing up”). The shorthand description, while accurate, was incomplete since it missed two crucial integers: that forklift 432 was not only accelerating and decelerating erratically, but that it was also over-speeding. These two factors were what elevated the “speed playing up” issue to one which ought to have led to the forklift being taken out of service unless and until the defect could be both replicated and rectified. It was known to both Nestlé and Linde that over-speeding or erratic movement of a forklift would subject the driver to the risk of becoming dislodged from the forklift, given the lack of restraint or suitable seating in the forklifts and the driver’s orientation perpendicular to the direction of travel which made it more difficult for the driver to brace.

In light of the information which Mr Raad was given, he has not shown to be negligent. Having been informed that the speed of forklift 432 was playing up, he tested it and fixed the battery sensor (which could account for the variability in speed) as well as the mast reach sensors. When he test-drove forklift 432, he did not detect any issue and was able to ascertain that the battery sensor and the mast reach sensor were working normally.

The defect in forklift 432, which caused it to behave as it did on 10 August 2012 (when Mr Connell was almost dislodged from the seat of forklift 432) and on 16 August 2012 (when the plaintiff was dislodged from the seat of forklift 432) has not otherwise been able to be replicated. Nor has a cause been positively identified. In these circumstances, the principle of res ipsa loquitur is inapposite: see the discussion in Schellenberg v Tunnel Holdings Pty Ltd at [20]-[25] and [39]-[47] (Gleeson CJ and McHugh J).

The plaintiff has not discharged its onus of proving that Linde breached the duty of care which it owed to him.

Section 5R of the Civil Liability Act provides that the principles which are applicable in determining whether a person has been negligent also apply to determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. As s 5R is in Division 8 of the Civil Liability Act, s 3B(2) of the Civil Liability Act makes this provision applicable to motor accidents. However, s 138 of the Motor Accidents Compensation Act also applies to the plaintiff’s claim against Nestlé (and therefore any deduction for the plaintiff’s contributory negligence) and therefore, s 138 also needs to be considered. For present purposes, the relevant sub-sections of s 138 are s 138(3) (which requires damages to be reduced by such percentage as the court thinks just and equitable) and s 138(4) (that the court must state its reasons for determining the particular percentage).

Notwithstanding s 5R of the Civil Liability Act, Nestlé did not make submissions on the risk of harm. Nor did its written submissions contain any submission relating to contributory negligence, except to indicate reliance on Linde’s submissions. Linde did not address contributory negligence. Accordingly, in the event that the allegation of contributory negligence was actually pressed and needs to be determined, it is necessary to address the particulars of contributory negligence provided in Nestlé’s defence as follows:

I am not satisfied that any of these particulars has been made out. Nestlé’s allegation that the plaintiff was not sitting properly in his seat was not put to him and I take it to have been abandoned. The plaintiff applied the hydraulic brake because he was concerned about the speed and erratic behaviour of forklift 432 and the proximity of Mr Walters and Mr Nguyen, who were approaching the main path, on which forklift 432 was travelling. The plaintiff applied the brake to avert further harm, to others or to himself, and to prevent a collision. That the forces created by the application of the brake, in combination with the speed of the forklift, dislodged him from his seat was not something which he could reasonably be expected to have ascertained in advance.

I am not satisfied that the plaintiff’s damages ought be reduced for contributory negligence as I am not satisfied that the plaintiff contributed to the harm which he suffered. Further, the plaintiff, when he applied the hydraulic brake, was plainly thinking of the safety of others (most particularly Mr Walters and Mr Nguyen), who were on foot and, therefore, particularly vulnerable. In these circumstances, it would be neither just nor equitable (s 138(3) of the Motor Accidents Compensation Act) to reduce his damages on the ground of contributory negligence.

Nestlé put its cross-claim against Linde on several bases: that Linde was negligent in failing to remedy the fault in forklift 432; that it was negligent in failing to advise Nestlé that it ought to have modified the forklifts to install seatbelts or guard rails; and that it was negligent in failing to adequately maintain the forklift so as to cause a spontaneous malfunctioning which resulted in the plaintiff’s accident. The first and third allegations will be addressed together.

Nestlé relied on an implied term in its maintenance contract with Linde that Linde would exercise reasonable skill, care and diligence when carrying out the maintenance, service and repair of Nestlé’s forklifts. Such a term was implied by operation of law, as confirmed in Astley v Austrust Ltd at [47] (Gleeson CJ, McHugh, Gummow and Hayne JJ), which was decided after, and can be seen to be consistent with, Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347 (Mason J); [1982] HCA 24. Thus, it can be inferred that such a term is reasonable and equitable; is necessary to give business efficacy to the contract; is so obvious that it “goes without saying”; is capable of clear expression and does not contradict any express term of the contract.

Nestlé accepted, for the purposes of the cross-claim, that the fault which caused the plaintiff’s accident was present when forklift 432 was serviced by Mr Raad on 13 August 2012. For the reasons given in relation to the plaintiff’s claim against Linde, I am satisfied of this matter. I am also prepared to accept (since it must follow) that Linde failed to remedy the defect in forklift 432 that was present on 10 and 13 August 2012 and which caused the plaintiff’s accident on 16 August 2012.

However, in order to determine whether there was any failure on the part of Linde to exercise reasonable care, it is necessary to address what Linde knew at the time Mr Raad was asked to repair forklift 432. For the reasons given above, all he was told was that the machine speed was “playing up”. He detected a potential cause (a defect in the battery sensor) and fixed another defect. He test drove forklift 432. For the reasons given above in relation to the plaintiff’s claim against Linde, Linde was not in breach of either the implied term of the contract or the correlative duty of care which it owed to Nestlé in so far as the repair of forklift 432 is concerned.

Nestlé also alleged that the defect which caused the plaintiff’s accident ought to have been detected and repaired had Linde exercised reasonable care in maintaining the forklifts.

Nestlé also alleged that Linde owed a duty to advise it about the need to install seatbelts or guard rails on the forklifts to make them safer for the forklift operators.

Even assuming that Linde had owed such a duty to Nestlé, the evidence does not reveal that Linde’s knowledge about the safety aspects of the forklifts was superior to Nestlé’s. Linde had devised and manufactured new forklifts which were fitted with seatbelts. Nestlé decided to acquire the new forklifts which it had assessed would be safer than its existing forklifts. Notwithstanding the 2008 Risk Assessment, Nestlé deferred replacing its fleet for the following four years until after the plaintiff’s accident. Had Linde recommended the new forklifts on the basis that the new features would avert the risk of the driver being dislodged from the forklift, I infer that Nestlé would simply have told Linde that it was aware of the relative risk (having assessed it in 2008) and was prepared to take the risk rather than replace the forklifts or make enquiries about the modifications to its existing forklifts which could ameliorate the risk posed by the lack of contouring or restraint in the existing forklifts.

There is some analogy between the cross-claim in the present case and an action against a medical professional for failure to advise of a particular treatment. In Wallace v Kam, the High Court dismissed an appeal by a patient against a doctor in circumstances where the patient was prepared to accept the risk of the very consequence that ensued (neurapraxia). The Court (French CJ, Crennan, Kiefel, Gageler and Keane JJ) said at [39]:

In the present case, the evidence established that Nestlé was prepared to accept the risk that a driver would be dislodged from a forklift due to lack of restraint provided in the cabin of the forklift. Linde is not liable for this choice, which was within the power of Nestlé to make. Just as Nestlé was entitled to reject Linde’s advice to replace the power module in the LDC of forklift 432 in July 2012, it was entitled to reject advice that Linde gave along the lines of its 2008 Risk Assessment. Although there is no evidence that Linde gave advice, the evidence was that any failure to give the advice was not causative of the harm suffered because Nestlé would probably not have taken the advice.

Although it is not strictly necessary to decide the point because of the conclusion expressed above, I note that Mr McCulloch put orally that Nestlé’s claim for contribution from Linde did not fall within s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) because the plaintiff’s claim against Linde was statute-barred. Section 5(1)(c) provides as follows:

Mr McCulloch submitted that if the plaintiff’s claim against Linde was statute-barred, Linde is not a tortfeasor who “would if sued” have been liable because Linde has been sued and (on the basis) would not be liable. Mr McCulloch’s submission must be rejected on the basis of Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213; [1966] HCA 3 where the High Court held that s 5(1)(c) ought be read as if the words “at any time” were inserted after the words “if sued”, at 220 (Barwick CJ, McTiernan J agreeing), 221-222 (Windeyer J) and 225 (Owen J). Thus, even if the plaintiff’s claim against Linde was statute-barred (contrary to my finding set out above), it would not follow that Nestlé’s claim against Linde was statute-barred.

For the reasons given above, Linde is entitled to judgment on the cross-claim brought by Nestlé.

The purpose of an award of damages in tort is to put a person in the position he or she would have been but for the tort. The measure of damages in tort has been modified by legislation. The assessment of the damages for which Nestlé is liable to the plaintiff is modified by the Motor Accidents Compensation Act and the Civil Liability Act (in so far as it applies to motor accidents as provided for in s 3B(2) of the Civil Liability Act).

The parties informed me that they would prefer that I assess damages against Nestlé and then indicate apportionment by reference to a percentage, rather than assess damages separately by reference to the Civil Liability Act. I understood the reason for this preference to be that s 151Z of the Workers Compensation Act 1987 (NSW) needs to be factored into any apportionment and that the process is not without difficulty. The parties indicated that they were confident that agreement could be reached on actual figures if I adopted the approach set out above.

As I am not persuaded that Linde is liable, either on the plaintiff’s claim or on the cross-claim, this process would appear to be unnecessary. However, there are some figures, such as past out-of-pocket expenses which depend on the date on which the judgment is delivered (as the workers compensation insurer will, as I understand it, continue to pay out-of-pocket expenses and workers compensation until the date of judgment) and others which are difficult to calculate without further information (such as the Fox v Wood (1981) 148 CLR 439; [1981] HCA 41 component). In these circumstances, it would be useful if the parties could calculate the final quantum, in light of these reasons, taking into account such matters.

I note that the parties have tendered a plethora of medical reports, each of which has been considered. It has been of substantial assistance that the occupational therapists (Kate Dawson, Susan Arnold and Amanda McLaughlin) have met in conclave, prepared a joint report and given concurrent evidence. The rehabilitation physicians (Dr Buckley and Associate Professor Jones) have also met in conclave and produced a joint report, which I have considered with all the other evidence. As it proved difficult for the parties to arrange to have them give evidence concurrently, the parties agreed that neither would be required to attend court for cross-examination and that their reports and the joint report would be admitted into evidence.

The plaintiff suffered a degloving injury to his left lower leg which resulted in a below-knee amputation. He aggravated degenerative changes in his spine. He also sustained an avulsion fracture of his left elbow which has had a resultant effect on his shoulder. As a result of these injuries and their consequences he has suffered both post-traumatic stress disorder and major depression. He continues to suffer physical restrictions in the form of impaired mobility, heavy stump sweating (which reduces prosthetic efficiency) and reduced range of movement of the left elbow. These restrictions are permanent.

He required a substantial amount of hospitalisation for treatment, surgery and rehabilitation. As referred to above, the plaintiff was a patient at Westmead Hospital from 16 August until 21 August 2012. He was treated for pain with morphine and ketamine. On 21 August 2012 he was transferred to Norwest Private Hospital where he remained as an in-patient for about three weeks. While he was there, his left leg was amputated below the knee. On 12 September 2012 he was transferred to The Hills Private Hospital for rehabilitation. He received treatment which included physiotherapy treatment, as well as treatment for his left elbow which he had also injured in the accident. On 21 November 2012, he was ultimately discharged and returned home.

Non-economic loss is to be assessed in accordance with Part 5.3 of the Motor Accidents Compensation Act. It was common ground that the plaintiff’s degree of permanent impairment exceeds the 10% threshold in s 131. It was also common ground that the maximum amount that could be awarded for damages for non-economic loss under s 134 of the Motor Accidents Compensation Act is presently $590,000.

The plaintiff sustained very significant injuries in the accident. He was subjected to trauma at the time, the effects of which continue. At the time he was injured, he took pride in his job, his willingness to do overtime, his capacity to be the sole financial provider for his family and the home which he and his wife had created for their children. He was a gregarious family man who regularly entertained and took an active part in family life, to the extent to which his working hours permitted. He had limited activities beyond his family and his work. A favourite activity was to walk with his wife around Stanhope Gardens. They walked up to 7km for exercise and recreation.

The immediate effect of the accident was devastating for the plaintiff, both physically and mentally. In a statement given to an investigator dated 29 October 2012, the plaintiff (who was still an in-patient at The Hills Private Hospital), said:

The plaintiff’s wife described her husband as being, pre-accident, a “confident” person and “a most energetic and attentive husband and father” who “took great pride in our home being a place where extended family would be invited for barbecues and gatherings”. She described him as being, post-accident, “a very different person to the husband and father [she] knew before the accident.” In a statement given on 31 August 2013, about a year after the accident, she said:

In a statement dated 31 August 2017, Matri said that his father no longer socialised with his siblings and was “visibly affected by any questions about how he is”. In a statement dated 10 February 2021, Matri said that the plaintiff has become “socially very isolated since the accident”, “seems angry with the world and it is difficult to talk to him a lot of the time”. Matri described him before the accident in the following terms:

One of the consequences of the accident was that in late 2018, the plaintiff’s wife left the family home and stayed away for about a year until early 2020 when she moved back shortly after Samara’s wedding. She has remained in the family home since then.

The plaintiff’s injuries and changed personality have undoubtedly had an effect on the whole family. I accept that the plaintiff feels this keenly. The loss of part of a lower limb might be less than catastrophic for a person who lives a sedentary life and does a job which uses more of the mind than the body. However, in the plaintiff’s case, I am satisfied that it has been substantial and traumatic.

There are separate amounts awarded for heads of damages such as loss of earning capacity and care but it is necessary, in deciding on an appropriate figure for non-economic loss, to take into account matters such as the plaintiff’s self-esteem, which has been substantially diminished by his inability to provide for his family through his own labour. It is also necessary to take into account the plaintiff’s embarrassment in having to manoeuvre himself around the house on crutches or, when getting up or downstairs, on his backside, and that these matters cause him to feel a certain loss of dignity. I also take into account the continued pain and discomfort which the plaintiff experiences when wearing his prosthesis (for which he has limited tolerance), which he feels obliged to wear whenever he is away from home. He can only climb stairs with difficulty, cannot engage in bilateral lifting and carrying or climb ladders. He can neither kneel nor squat and is subject to increased risk of falling. Because of his well-founded fear of falling, he is reluctant to do things which would increase the risk. These matters serve as a daily reminder of what he has lost as a result of the accident.

Nonetheless, the plaintiff can continue to live at home where he is surrounded by his loving family; he can partake in family activities; he can drive and, in the main, he can perform basic toileting and washing tasks without assistance. His mental health, while compromised by the accident, is likely to improve now that the proceedings have been heard.

Taking all these matters into account and the evidence of the plaintiff and his family as a whole, I award him $400,000 for non-economic loss.

Amounts intended to compensate for the future are subject to a discount for vicissitudes in accordance with Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497 (Dawson, Toohey, Gaudron and Gummow JJ); [1995] HCA 53. Although, this Court has a discretion to select the % discount for vicissitudes (Chung v Anderson [2004] NSWCA 321 at [81] (McColl JA, Santow JA and Cripps AJA agreeing)), I am not satisfied that there is a basis to depart from the orthodox figure of 15%. I reject Mr Cranitch’s submission that the discount is built into the multipliers and that there ought be no further discount.

There is a slight disagreement in the amount for past economic loss. Counsel assured me that this would be agreed in due course. The difference between the figures is small (the plaintiff’s figure is $504,274.15; the defendants’ figure is $507,713). I assume that there will be agreement on this figure as well as the component for Fox v Wood and loss of past superannuation.

Section 126(1) of the Motor Accidents Compensation Act provides that a court cannot award damages for future economic loss unless the plaintiff discharges the onus of satisfying the court that the assumptions about future earning capacity accord with the plaintiff’s likely future circumstances but for the injury. The amount is required to be adjusted for the percentage possibility that the events might have occurred but for the injury: s 126(2). The court is required to state the assumptions on which the award is based and the relevant percentage, if any, by which the damages were adjusted: s 126(3).

The plaintiff claims a total figure for future economic loss of $860,916 which is calculated by multiplying $1,343.45 net per week by 555, being the 5% multiplier, as prescribed by s 127 of the Motor Accidents Compensation Act) for 15 years (reflecting the most likely future circumstance that the plaintiff would have continued to work until the age of 67), to give $745,614.75 and adding a figure for future superannuation of $115,301.25 (before any discount is applied for vicissitudes). The differences in the base figures (for earnings and superannuation) derive from the plaintiff’s contention that he has no residual earning capacity and the defendants’ position that the plaintiff’s earning capacity is in the order of 30% of his pre-accident earning capacity.

The plaintiff’s likely future circumstances but for the injury are that he would have continued to work full-time, including overtime, as a forklift driver. Since he was 20, it is the only occupation he has pursued and he has pursued it both consistently and continuously. Nestlé did not submit that the plaintiff would not have continued to work until the age of 67 years. Nor did it contend that there would have been changes to his hours of work or duties in the future which would have led to a loss of income.

Dr Buckley and Associate Professor Jones agreed and recorded in their joint conclave report that the plaintiff was unemployable on the open labour market.

The defendants’ contention that the plaintiff has a residual earning capacity derives from two sources: first, the opinions of the occupational therapists, who relied on a report of Ms Stellen, which was not tendered, in which it was said that the plaintiff could do a sedentary job for 20 hours a week as he has virtually unlimited tolerance for sitting and can drive. I reject this opinion on the basis that it is not supported by the evidence.

Second, the defendants’ contention derives from a remark the plaintiff is recorded as having made to Associate Professor Richard Jones, a consultant physician in rehabilitation medicine, retained by Nestlé for the purposes of the proceedings, that he would like to open a restaurant with his wife and work part-time in the restaurant. In his oral evidence, the plaintiff explained that he was pressed by Associate Professor Jones to identify some occupation which he would like to pursue and that he had volunteered this proposal because it was something he and his wife had thought of doing in the distant past. I accept that opening a restaurant business is not within the plaintiff’s realistic contemplation and that he would not be able to work productively in one. There does not appear to be any other basis for the defendants’ contention that the plaintiff has a residual earning capacity.

While the plaintiff can tolerate extended sitting, it does not follow that he can do sedentary work. Nor was any suitable occupation suggested by any witness or counsel. The plaintiff’s spoken English is of a reasonable standard but his written English reflects the circumstance that he undertook his schooling in French and Arabic but not English. The standard of his written English is such that he can be understood (as is evident from what he added to the statement drafted by the investigator who visited him in hospital in 2012, which is extracted above) but it is not such that would make him competitive in the open labour market for sedentary jobs.

Although the plaintiff obviously had a strong work ethic, he would be confronted by obstacles at every turn were he to try to obtain employment. His lack of formal education in English would stand in his way of a clerical job and his physical disabilities would stand in the way of a job as a console operator in a service station, or a shop assistant in a store, since such persons are commonly required to lift and carry items for customers, load fridges and do other manual work which would be beyond the plaintiff’s capacity. Although he has unlimited capacity for sitting, he does not have unlimited capacity for driving since his licence is subject to a condition that he wear his prosthesis when driving. He is to be compensated on the basis that he has no residual earning capacity.

Accordingly, I accept the plaintiff’s figure for future economic loss, which is based on the assumption that he would have continued to work as a forklift driver until the age of 67, at which time he would qualify for the aged pension.

Section 141B(2) of the Motor Accidents Compensation Act provides that no compensation is to be awarded for attendant care services if the services would have been provided to the person even if the person had not been injured in the accident. No compensation is to be awarded for such services if the services are provided, or to be provided, for at least 6 hours a week and for a period of at least 6 months: s 141B(3).

The effect of s 141B(2) is that it also is necessary to examine what services were provided to the plaintiff by his wife before the accident, since these will not be compensable if they would have been provided to him even if he had not been injured.

At the time of the accident, the plaintiff’s children were all still undergoing their education and did not assist with household chores. The plaintiff and his wife placed great store on their children’s education and preferred for them to spend their time studying rather than helping around the house. Their aim (which was fulfilled) was for each of their children to graduate with a degree from a university. As referred to above, the plaintiff worked long hours to support his family. His wife worked at home, running the household and bringing up their children. This resulted in a division of labour between the couple prior to the accident, where the plaintiff’s wife did most of the housework relating to the inside of the house. She also did the shopping although at times he helped her with the heavy lifting.

Despite his long working hours, the plaintiff spent about eight hours a week doing things inside the house, principally vacuuming and cleaning the bathrooms. Because of the number of people living in the house he used to do the vacuuming twice a week for a period of 45 minutes to an hour, and clean the toilets (of which there were three in the house) every couple of days for a period of an hour to an hour and a half and the showers every three days. Every 4-6 months, he and his wife would spring clean the house together and wash the windows and the curtains. This would take them about a day. The services provided by the plaintiff were for the benefit of the household as a whole and would not have been required at that level had he lived there by himself, or just with his wife.

The plaintiff was also responsible for outdoor work, such as mowing and gardening. Before the accident, the plaintiff spent about two hours a week working in the garden. As with his indoor tasks, these tasks benefited not only the plaintiff but also the whole family.

For the two years after the accident, the plaintiff’s wife drove her husband “everywhere”, including to medical appointments. She would spend at least three hours a week driving him around.

About two years after the accident, the plaintiff began to drive again. In early 2018, the plaintiff’s wife’s back became sore. During this period, the plaintiff’s son, Matri, helped his father to wash himself and also helped him to shave once every three days. Matri was sure that his father was capable of shaving himself but said that he had to be encouraged to do so because he was “so withdrawn and disinterested in every aspect of life”. In her mother’s absence, Samara would visit the plaintiff at the family home every morning for up to three hours and would clean the house and take meals to her father. At that time, according to Samara the plaintiff was “devastated emotionally” and “not functioning very well at all”.

The plaintiff is able to make himself a cup of tea and toast for breakfast and sandwiches for lunch. However, he is not comfortable doing basic cooking because he does not want to stand for a prolonged period and subject himself to the risk of falling. He accepted in cross-examination that he could sit on a higher stool and work at the stove or at the kitchen bench.

The plaintiff accepted that he could shave himself and go to the toilet without assistance.

In order to calculate damages for past care, some differentiation needs to be made between the immediate post-discharge period and later periods when the plaintiff had become more accustomed to his prosthesis and to his disabilities generally. The dispute between the parties is as to the level of the plaintiff’s needs. The plaintiff’s family gave evidence as to the care which was provided, the quantum of which was estimated. The defendants relied on the evidence of occupational therapists who opined that the plaintiff’s needs were fewer and that he required less assistance. They applied the principle, which they understood to underpin their training in occupational therapy, that it is preferable to encourage the injured person to become as independent as possible, rather than to enable the injured person to become more dependent than necessary, by providing additional care at a level beyond that which is reasonably necessary.

The expert occupational therapists differ as to the amount of care reasonably required. Ms Arnold and Ms McLaughlin considered that the plaintiff’s family had provided him with care which he could have provided for himself and, accordingly, which he did not reasonably require. They considered that the plaintiff was, or could have been, had he applied himself, independent in self-care within a year of the accident and that the only allowance which needed to be made was to allow an amount for heavy tasks and outside work. By contrast, Ms Dawson considered that the plaintiff needed, and will continue to need, care at a relatively high level (two hours a day).

As to the plaintiff’s future care needs, there is also the question of whether the plaintiff’s wife will continue to provide his care needs or whether this is, having regard to her own health issues, unreasonable and unsustainable. There is also an issue about whether the marriage will endure, having regard to the undoubted stresses and strains placed on it by the accident and its consequences.

In these circumstances, it is not helpful to address the evidence in a precise way since the versions given by the plaintiff and his wife are, understandably slightly different over time. It is also difficult to differentiate between what the plaintiff received by way of care and what he reasonably needed, bearing in mind at all times that he is not to be compensated for care that would have been provided in any event.

In light of these matters, I have made a broad-brush assessment of the plaintiff’s need for care to ensure that he is adequately compensated but not over-compensated. I have used a blended hourly rate for the future to take account of the possibility that the tasks to be performed for him, both inside and outside the house, might at times be done by family members and at other times by paid carers or workers who would, accordingly, need to be paid commercial rates. I have not, in the figures used, differentiated between inside and outside work or descended into the detail of how often a lawn needs to be mown in summer rather than winter. These matters are taken into account in a general way, together with other factors, such as the possibility that the plaintiff will fall and require more care for a defined period before reverting to an optimal level of self-care. My findings as to hours and rates are set out in the table below and reflect the approach which I have described above.

In adopting the process I have set out above, I note that I have been considerably assisted by the detailed calculations performed by the experts and the legal representatives for the parties.

It was common ground that the total past out of pocket expenses were $444,357.61 and that this amount had been paid in full by the workers compensation insurer and would be required to be repaid from the damages awarded to the plaintiff. The plaintiff has not incurred the cost of any out of pocket expenses since the accident.

The task of determining the plaintiff’s future out of pocket expenses has been assisted by the joint reports of the experts.

Dr Buckley and Associate Professor Jones agreed that the plaintiff reasonably requires the following:

With the following exception, the experts agreed that these items comprised the total treatment required. Dr Buckley considered the plaintiff would be likely to require four minor skin grafting procedures and one major skin grafting procedure at some stage in the future. Associate Professor Jones considered this to be unlikely. Associate Professor Jones’s opinion would appear to be based on the finding that the plaintiff had an “excellent stump as of 15/11/2015”. As the experts were not cross-examined and did not give concurrent evidence, it is difficult to determine this dispute. As Dr Buckley is well qualified to express the view, I consider that the plaintiff has established that there is at least some prospect that he will require these treatments. Associate Professor Jones’s view would appear to be based on information which is historical (albeit based on observations made more than three years after the accident) and may not reflect the current position. The cost of the treatments referred to above appears in Dr Buckley’s reports and elsewhere. I propose to quantify damages for these items by awarding a buffer.

They also opined that the plaintiff needed a walking prosthesis similar to his current artificial leg with socket modifications two or three times a year. They recommended that the prosthesis be replaced every three to five years. On this basis, I consider it to be reasonable to allow for replacement every four years.

I note that the plaintiff has been advised that, if he were to have another operation, he may be able to achieve a better fit between the stump and his prosthesis. He does not want to undergo another operation on his leg. It was not suggested that this decision was unreasonable.

The evidence established that the plaintiff continue to see Dr Nguyen, a psychiatrist for treatment for chronic Post Traumatic Stress Disorder and Major Depression. The plaintiff’s claim (as included in the composite table handed up by Mr O’Dowd) was the cost of consulting with his psychologist or psychiatrist at least four times annually for three years and thereafter twice annually. The cost of each consultation is $365, or $1,460.00 per year. The relevant calculation is $28.08 (per week) x 145.6 (5% multiplier for 3 years) = $4,088.45. The cost per year for the years thereafter is $730. The plaintiff calculated his claim as follows: $14.04 (per week) x 809.6 (5% multiplier for the remainder of the plaintiff’s life expectancy) x 0.864 (deferral multiplier) = $9,820.90. The plaintiff claimed $13,909.35, being the sum of $4,088.45 and $9,820.90.

Nestlé accepted that the amount of $13,909.35 was reasonable but submitted that it ought be discounted by 15% for vicissitudes, to result in an award for this head of $11,823.

However, notwithstanding the claim for that amount, the plaintiff submitted (as indicated in its table) that the plaintiff’s present and foreseeable requirements for psychiatric treatment significantly exceeded the claim in terms of frequency and that the workers compensation insurer no longer accepted Dr Nguyen’s recommendations.

This Court is not bound by what the workers compensation insurer has agreed to pay in the past for such treatment. However, the Court ought not award more than a plaintiff’s claim since this would amount to a denial of procedural fairness to the defendants. In these circumstances, I accept the plaintiff’s claim of $13,909.35.

In their joint report, the occupational therapists agreed that it would be reasonable to allow for the plaintiff to be educated to a total of 10 hours on home modifications at the rate of $193.99 (being the rate for the National Disability Insurance Scheme (NDIS)). They agreed that a 2-hour review every 5 years was also reasonable.

It was agreed that the plaintiff takes Lyrica for pain. The frequency of prescriptions is also agreed. The plaintiff claims a cost of $70.55 per prescription, which I am told equates to the amount paid by the workers compensation insurer for each prescription. Mr O’Dowd submitted that Lyrica was available for purchase at Chemist Warehouse for $20 per prescription. Although there was a prospect of agreement, I am yet to be informed of any agreement. In these circumstances, I propose to defer making a finding. The parties can inform me of any agreement when short minutes are prepared to reflect the findings in orders to be made by the Court.

Before the accident the plaintiff shared the main bedroom upstairs with his wife. After his discharge from The Hills Private Hospital, a bed was set up for him in the main lounge room but he was not comfortable there because it was in a public space, so he moved to the garage and slept there instead. He has difficulty navigating the stairs in the house, which also makes it easier to sleep in the garage.

There are two bathrooms upstairs and one toilet downstairs. The plaintiff manages to get up the stairs to have a shower by sitting down and manoeuvring himself on his buttocks on the stairs as he considers this to be safer than trying to navigate the stairs with his prosthesis or crutches. Wearing the prosthesis on stairs makes the plaintiff tired and renders him more susceptible to slipping and falling. The parties agreed that it was reasonable that a downstairs bathroom be installed in the plaintiff’s house so that he would not need to go upstairs for that purpose. The agreed cost of the bathroom is $60,000.

The plaintiff has made claims for damages in respect of particular heads which I am not satisfied ought form part of the award. For example, his legal representatives have claimed the cost of gym membership in the absence of evidence that the plaintiff would ever take up such membership. They also claimed the cost of a high-definition silicone prosthesis although the experts did not support such an item. There was a claim for “major stump reconstruction” although the plaintiff’s evidence was that he would not be prepared to have such an operation. To the extent to which a claim which has been made does not appear in the table below, it has been rejected, either because I am not satisfied that it is reasonably necessary or I am not satisfied that the plaintiff would be prepared to undertake the activity, undergo the treatment or use the device.

It is convenient to express my assessment on damages in a table, which replicates the form of the tables provided by the parties. The figures are calculated on the basis that the plaintiff is 52 years old. He has a remaining life expectancy of 32.33 years and, but for the accident, would have retired at 67 years of age. The 5% multiplier for the plaintiff’s life expectancy is 845 and for his retirement age is 555 (being 15 years). I understand these figures to be common ground.

Where the basis of the award is an agreed figure, this is indicated in the table.

I have not heard the parties on costs. Accordingly, I am unaware of any reason why the usual rule that costs follow the event ought not apply in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). For this reason, it is appropriate to reserve costs and to grant liberty to the parties to apply to re-list the matter for argument on costs, if required. Alternatively, the question of costs can be dealt with on the papers.

For the reasons given above, I make the following orders: