Scott v Usinch Pty Ltd

1. [1]

   In July 2017 Mr Scott, an employee of Epona, a labour hire company, was seriously injured while working at an abattoir owned by Usinch, then known as EC Throsby Pty Ltd. The two companies had the one sole working director, Mr Throsby and they both operated out of the same premises, where the abattoir was located.

2. [2]

   When he was injured, Mr Scott had only been working at the abattoir as a labourer for a little over two weeks, during which he had also, on a few occasions, operated the forklift. He was a licensed forklift driver but had been provided by Epona to undertake labouring work for Usinch. Its forklift was then usually being driven by another worker supplied by Epona, Mr Smith, also a labourer.

3. [3]

   Mr Scott was injured when Mr Smith used the forklift to move a stillage at the commencement of their day shift. It was part of a storage system for packaged meat. That stillage slipped off the tines of the forklift as Mr Smith was reversing and turning the forklift, striking Mr Scott in the head and back and knocking him unconscious.

4. [4]

   The accident was partially captured by CCTV, but Mr Scott was not in the frame. The footage does show Mr Smith stopping the forklift and he and others going to Mr Scott’s aid. He was soon taken to hospital by helicopter where he underwent at least a five level spinal fusion, that surgery being required to stabilise his spine.

5. [5]

   When they arrived to commence their work that day Mr Smith and Mr Scott had found stillages, stacked three high, in the load out area of the abattoir where they had to perform their work. The stillages should not have been left there and so had to be moved, in order that their work could begin. Mr Smith operated the forklift to move the stillage, despite no supervisor then being present.

6. [6]

   The stillage slid off the forklift as Mr Smith drove it backwards and began turning sharply, all the while also lowering the stillage. That was because he had had to lift the stillage off the two other stillages on which it had been stacked. Their combined height totalled some 3.6 metres. The stillage weighed some 200kg, was 1.8 metres high and thus fell from a considerable height, because it had still not been fully lowered, when it slipped off the tines.

7. [7]

   Mr Scott has not worked since the accident. His injuries were very serious. His head, spine, ribs and teeth were all damaged and he also suffered soft tissue injuries. His spine has been left misaligned and he also now has an acute kyphosis, that is, a forward rounding in his thoracic spine, which appears to have been contributed to by previously asymptomatic Scheuermann’s disease. The possibility that he will require further surgery has been raised, although that is not planned.

8. [8]

   Mr Scott has also been diagnosed to be suffering a chronic adjustment disorder with mixed anxious and depressed mood and continues to suffer now chronic pain.

9. [9]

   Mr Scott has successfully pursued a workers compensation claim against Epona. Initially he received workers compensation payments, but they were stopped by the insurer in 2019, it then considering that he had not complied with the obligations that the Workers Compensation Act 1987 (NSW) imposed on injured workers.

10. [10]

    There is a dispute about the circumstances in which that decision was made and its consequences. But there was no issue that the results included that Epona terminated Mr Scott’s employment in 2019.

11. [11]

    Despite this, it was in April 2020 that Mr Scott and Epona agreed that as a result of the injuries he had suffered in the accident, his degree of permanent impairment was greater than 20%. That made him a “worker with high needs”, entitled under s 59A(5) of the Workers Compensation Act to be paid medical and related expenses. Despite this relatively few such expenses have since been paid.

12. [12]

    On his evidence that is because Mr Scott did not pursue psychological or dental treatment which he requires, given his concerns that the costs would not be met. He intending to would pursue such treatment once these proceedings are concluded, although they have taken longer than he had been advised.

13. [13]

    On the case he pressed, his position was the result of him not understanding his statutory entitlements, despite the legal advice he has received. That is disputed.

14. [14]

    But there is no issue that Mr Scott’s teeth have still not been repaired and that he has also not had the physiotherapy and psychological counselling his GP referred him for in 2020, which the experts agreed would have assisted his recovery. As well as the possibility of him being able to return to some form of light or sedentary work.

15. [15]

    Both defendants resist Mr Scott’s claims, but they did not pursue cross claims against each other. Nor, curiously, did either call evidence from any of those who witnessed how Mr Scott came to be injured, or from those who could have shed light on what lies in issue between them and Mr Scott about how he came to be injured and how work was undertaken at the abattoir.

16. [16]

    That was not explained by the evidence which either defendant led.

17. [17]

    They also both claimed that Mr Scott had been contributorily negligent. That was also disputed. The defendants relying on Mr Scott not having called evidence from obvious witnesses such as his wife, to resist his claims.

18. [18]

    Mr Scott and the defendants did lead expert evidence. Joint reports were produced, but not all of the experts were required for cross examination, a large measure of agreement having been reached between them.

19. [19]

    Doctors Buckley, Zeman, Samuel and Teoh were called to give concurrent evidence, as were the physiotherapists Mr Smith and Dr Farag. Their evidence is relevant to a number of issues lying between the parties.

Conclusion

1. [20]

   In summary, on all of the evidence I have concluded that:

   1. (1)

      Mr Smith was negligent, given the way in which he drove the forklift;

   2. (2)

      Mr Scott was not contributorily negligent;

   3. (3)

      Usinch was vicariously liable for Mr Smith’s negligence;

   4. (4)

      Both Usinch and Epona owed Mr Scott a duty of care which they breached;

   5. (5)

      Usinch had greater responsibility for the damages which Mr Scott suffered than Epona; and

   6. (6)

      Mr Scott is entitled to damages, but not all those which he claimed.

Issues

1. [21]

   What was not in issue between the parties included that:

   1. (1)

      The labour hire agreement between Epona and Usinch had not been documented;

   2. (2)

      Epona owed Mr Scott a non-delegable duty of care as his employer;

   3. (3)

      Usinch also owed Mr Scott a duty of care as occupier and operator of the abattoir: Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 at [70];

   4. (4)

      Epona and Usinch were operated by the one controlling mind, although they were separate legal entities each with their own obligations, of which account must be taken, even though they both acted through the one mouth or hand: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 at [49];

   5. (5)

      It was Usinch which leased the forklift and directed the work Mr Scott and Mr Smith did at the abattoir day to day, including when driving the forklift;

   6. (6)

      The forklift was neither registered nor insured;

   7. (7)

      Usinch had standard operating procedures for forklift driving, which required that only licensed forklift drivers operate the forklift and that its tines be lowered before it was driven;

   8. (8)

      While there was documentary evidence that both Mr Smith and Mr Scott had been trained in various of Usinch’s procedures, there was no evidence that they had been trained in its forklift procedures;

   9. (9)

      There was also no evidence that Mr Smith was a licensed forklift driver, as Mr Scott was at the time of the accident, even though unlike Mr Scott’s personnel file, Mr Smith’s was located and produced;

   10. (10)

       After the accident Mr Scott had made both a workers compensation claim and a claim under the Motor Accidents Compensation Act 1999 (NSW) and received certain workers compensation payments;

   11. (11)

       Mr Scott suffered both physical and psychological injuries as a result of the accident which has also left him suffering chronic pain, which precludes him from returning to the manual work he performed before the accident;

   12. (12)

       Those who assessed him have observed Mr Scott to be irritated, angry, frustrated and depressed about his injuries and their consequences, as well as at times tearful and crying; and

   13. (13)

       The provisions of the Civil Liability Act 2005 (NSW) apply to Mr Scott’s claim against Usinch.

2. [22]

   Mr Scott’s evidence was challenged on the basis that he was not a reliable historian; had given inconsistent and incomplete accounts of relevant matters to those who had examined him; and had also exaggerated his symptoms and the pain he was suffering, in an attempt to maximise his damages. But neither Usinch nor Epona led evidence from those working at the abattoir when he was injured to challenge his evidence.

3. [23]

   What was in issue thus included:

   1. (1)

      The credibility and reliability of Mr Scott’s evidence;

   2. (2)

      What inferences should be drawn as the result of the failure of Usinch, Epona and Mr Smith to lead evidence it would be expected that they would have each lead;

   3. (3)

      What Usinch’s systems of work were and whether its standard operating procedure for forklift driving was in operation at the time Mr Scott was injured;

   4. (4)

      Whether Mr Scott was standing in the ‘safe spot’ he claimed at the time he was struck by the falling stillage, as was his evidence;

   5. (5)

      Whether Mr Smith had been negligent;

   6. (6)

      Whether Epona or Usinch was vicariously liable for his negligence;

   7. (7)

      Whether Epona breached the duty of care which it owed Mr Scott;

   8. (8)

      The nature of the duty Usinch owed Mr Scott;

   9. (9)

      Whether Usinch breached its duty;

   10. (10)

       Whether Mr Scott had been contributorily negligent;

   11. (11)

       Whether Mr Scott had failed to comply with his obligation to mitigate;

   12. (12)

       Whether the accident constituted a motor accident under s 3 of the Motor Accidents Compensation Act 1999;

   13. (13)

       Whether the claim against Epona has to be determined under the Motor Accidents Compensation Act or the Workers Compensation Act; and

   14. (14)

       Whether the requirements of the Civil Liability Act are satisfied.

The parties’ cases

1. [24]

   Mr Scott contended that Usinch owed him a duty of care and was also vicariously liable for Mr Smith’s negligence, it having had the day to day control of his work: Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 61.

2. [25]

   That being the result of Usinch and Epona’s workers having been placed in a relationship, day in and day out, indistinguishable from that of employee and employer: TNT Australia Pty Limited V Christie [2003] NSWCA 47 at [41]. While Epona also owed him a non-delegable duty of care which it had breached, even though it was not vicariously liable for Mr Smith’s negligence, in the circumstances.

3. [26]

   The result was that Epona and Usinch equally shared liability for his injuries and damages, given the negligence which had resulted in the accident.

4. [27]

   Mr Scott’s contract of employment was not in evidence, his personnel file not having been located, but Mr Smith’s contract was. Mr Scott’s case was that this personnel file shed light on Epona’s involvement in the work its employees performed at the abattoir and that Usinch’s documents shed light on the unsafe system of work which it had in operation there. The evidence also establishing that its documented forklift procedures were not in practical operation.

5. [28]

   That it was Usinch which had investigated the accident, obtaining various statements and producing a report, was argued to support Mr Scott’s case. The SafeWork NSW improvement notice was issued to it under s 191 of the Work Health and Safety Act 2011 (Cth) requiring it to make various changes. Usinch later physically altering its stillages and changing the place where it undertook the load out operation at its abattoir. This all supporting his case, given that:

6. [29]

   Mr Scott also claimed that his injuries were not the result of a casual act of negligence on Mr Smith’s part for which Usinch was not responsible, as was its case. But rather the result of work Mr Smith had been given to perform in accordance with its unsafe system of work, he being an unskilled, untrained employee who it used to drive the forklift while stillages were unsecured and while unsupervised, contrary to its written policies.

7. [30]

   Mr Smith’s circumstances thus not falling into those discussed in De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 at [41], where it was observed that a “person is not without more vicariously liable for the tortious act of an independent contractor who performs a casual act of negligence when carrying out a function which is well within his or her expertise and as to which there has been no direction in relation to the manner of its performance.”

8. [31]

   Mr Scott also relied on the report of the expert, Mr Cauduro, who later inspected the abattoir, as supporting his case. By then the load out operation had been moved. His report was unchallenged and included a diagram of the area where the accident occurred, which is not to scale and does not seem entirely to accord with what can be seen in the CCTV footage. But that might be the result of the way in which the camera, which captured the accident, was angled. Mr Cauduro was not required for cross examination.

9. [32]

   The case against Epona was brought in the alternative. Whether the Motor Accidents Compensation Act 1999 or the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the Workers Compensation Act which applied, having to be determined. It being Mr Scott’s case that it was the Motor Accidents Compensation Act which applied.

10. [33]

    Epona and Usinch both denied any liability and also contended that Mr Scott was contributorily negligent. The cases they each advanced lay blame on the other.

11. [34]

    Mr Scott’s evidence about where he was standing when he was struck by the stillage was put in issue, given his Motor Accidents Compensation Act claim form, where he had given a different account about where he was standing, to that given in his evidence. Reliance was also placed on Usinch’s investigation report, which accorded with the claim form.

12. [35]

    Other claimed problems with Mr Scott’s evidence were relied on to resist various of the heads of damages which he pursues. The defence case being that even when giving his evidence at the hearing, Mr Scott was not entirely honest.

13. [36]

    Usinch’s case, finally, was that the “but for” test had to be applied in determining factual causation under s 5D of the Civil Liability Act: Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255 at [103] referring to Adeels Palace at [45] and Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [18]. That Mr Smith was not licensed could not establish the required causation, his error just as easily having been made by a licensed driver and the evidence establishing his familiarity with the task.

14. [37]

    In the result it would be accepted that Mr Scott’s injuries were the result of a casual act of negligence on Mr Smith’s part for which Usinch was not responsible.

15. [38]

    It was Epona’s case that the evidence did not establish that Usinch had a safe system of work in operation. That was disputed by Usinch. Epona also contended that it was Usinch’s failures which had caused Mr Scott’s injuries, not a casual act of negligence by Mr Smith for which it was not responsible. He not being responsible for not having followed Usinch’s unsafe system of work.

16. [39]

    While Epona accepted that it had a non-delegable duty to take reasonable care to avoid Mr Scott being exposed to unnecessary risk of injury, which required it to ensure that reasonable care was taken by Usinch, it contended that Usinch’s many failures had been causal, with the result that it had primary liability for the accident which resulted from its unsafe system of work, not Epona. That was denied by Usinch.

17. [40]

    The parties did reach some measure of agreement about the calculation of Mr Scott’s damages, but they agreed that they would need to consider the conclusions arrived at in this judgment, in order to finally calculate his damages and to formulate the appropriate orders.

Mr Scott’s credibility and reliability

1. [41]

   I am satisfied that aspects of Mr Scott’s evidence must be approached with some caution, given what emerged in his cross examination, despite the conclusion which he urged, that he be accepted as a witness of truth. The defence case being that he had exaggerated, in order to maximise his damages.

2. [42]

   His cross examination having established that he had not been entirely frank in his evidentiary statement, or in histories he had earlier given those who had examined him about his past employment record and certain other relevant matters. Although he made relevant concessions in cross examination about some of them. Still I do not accept that what he said about his prior history can properly be described as having merely been “a bit vague”.

3. [43]

   It may not be overlooked, however, that some contemporaneous documents, including ambulance and hospital records which shed some light on what is in issue, support aspects Mr Scott’s evidence. As does the CCTV footage.

4. [44]

   The expert report of Mr Cauduro, whose expertise was not challenged, also supported aspects of Mr Scott’s evidence although views he reached rested on instructions Mr Scott had given. Still his report also provided some objective support for the case Mr Scott advanced. It including, for example, photos of stillages, including some stacked three high. They helped establish how easily a mistake could be made in where the tines of a forklift were placed, when such stillages had to be moved, that supporting the conclusion that they could not be safely moved without being attached to the forklift.

5. [45]

   The report also included a photo of the substantial metal barrier behind which Mr Smith claimed he was standing when he was struck by the falling stillage, as well as information about forklift safety provided by WorkCover. It referring to most serious injuries resulting when loads fall from a forklift because an attachment was not used when needed.

6. [46]

   Mr Cauduro’s unchallenged opinion was that it was entirely foreseeable that the defendants’ allowing pedestrians and mobile plant to move in the same area as the forklift, without adequate control measures in the circumstances Mr Smith had described, would expose them to a considerable risk of being struck by falling objects, unless appropriate preventative measures were effectively and unfailingly implemented.

7. [47]

   The result is that parts of Mr Scott’s evidence have to be accepted, including as to how forklift work was not safely undertaken at the abattoir, the defendants not having called evidence from those who worked there to challenge his evidence.

8. [48]

   Mr Scott takes no medication for the chronic pain he still undoubtedly suffers. He explained how his tolerance for pain had grown, as well as his desire not to mask what his body continues to undergo. Although he has reported the resumption of his former marihuana use, which he has described taking in varying amounts since the accident.

9. [49]

   That he still suffers pain, I am satisfied, must also be accepted. But there is an issue about what is claimed to be an exaggeration of his ongoing symptoms and lack of capacity.

10. [50]

    It was in 2020 that Mr Scott brought these proceedings, which he has told those who examined him that he had not settled because he considered offers made to him were inadequate. That does not alter the onus which falls on the respective parties in these proceedings, in which Mr Scott finally pursued damages exceeding $2 million.

11. [51]

    In resolving what is in issue it is necessary to consider the evidence of the experts, not all of whom were called to give concurrent evidence. Their reports established that Mr Scott had given them an incomplete history. That affecting opinions which the experts called had earlier formed.

12. [52]

    When cross examined Mr Scott readily accepted what was put to him about his history of having worked very little since a motor vehicle accident in 2001. That must be taken into account when resolving what lies in issue between the parties about various aspects of his claimed damages and must result in those claims having to be approached with some care.

13. [53]

    But what I am satisfied was established by the expert evidence is that Mr Scott did not exaggerate the fractures and other physical injuries which he suffered in the accident. They resulted in surgery affecting his T8, 9, 10 and 11 vertebrae, some of which had been fractured and/or crushed, which necessitated the surgery he underwent to stabilise his spine and protect his spinal cord.

14. [54]

    I am also satisfied that Mr Scott’s evidence that his injuries continue to cause him ongoing pain must be accepted. As must that this is likely to continue indefinitely and is unlikely ever to resolve completely, given the expert evidence.

15. [55]

    That was what the physiotherapists Mr Smith and Dr Farag, for example, agreed in their joint report, from which they did not resile in their concurrent evidence, despite Mr Scott’s accurate past history having been put to them.

16. [56]

    I am also satisfied that Mr Scott sustained a psychiatric injury in the accident, which helps explain the somewhat peculiar course he has pursued since Epona terminated his employment, in circumstances for which I am satisfied, he was not responsible.

Where was Mr Scott standing when he was struck by the falling stillage?

1. [57]

   Also in issue was where Mr Scott was standing when he was struck. Despite what I have explained must be considered in assessing his evidence, I am satisfied that his evidence about this must be accepted.

2. [58]

   The CCTV footage captured the forklift being driven by Mr Smith and the stillage falling off its tines, but it did not capture where Mr Scott was standing. Usinch’s report into the accident had him standing inside the load out area, not behind the barrier, as was his evidence. The sketch it contained indicated that he had been pinned between the stillage and the guard rail.

3. [59]

   That the report rested on information provided by anyone who saw the stillage fall is not apparent. There is no suggestion that Mr Scott was involved in its preparation.

4. [60]

   The motor vehicle injury claim Mr Scott himself made some 6 months after the accident also contains a sketch which places him in the load out area rather than behind the barrier, but on Mr Scott’s evidence it was inaccurate.

5. [61]

   Mr Scott explained how that came to be. He had not made that sketch, his claim form having been prepared with the assistance of a solicitor, given his state at that time. Despite having signed the form and attesting to the correctness of the information he had thereby provided, it was incorrect because it showed him to be standing on the wrong side of the barrier which separated the forklift from the safe area in which he was standing when the stillage fell and struck him. This being the location where others worked throughout the day while the forklift was being operated in the load out area.

6. [62]

   Mr Scott also explained that when the mistake was made he was still considerably affected by his injuries and so needed assistance to complete the form. He also explained how there was not enough space for the forklift to have been driven as the footage showed it had been, if he had been standing where the sketches in the form and in Usinch’s report indicated.

7. [63]

   Mr Scott was cross examined about this. He denied altering his account in order to maximise his damages. I accept that this evidence was honestly given. It was not challenged by evidence called from anyone present when he was injured.

8. [64]

   That six months after the accident Mr Scott was still adversely affected by his serious injuries, with the result that the sketch which accompanied the claim form did not accurately depict where he was standing when he was struck, was plainly possible. That flowing from the nature and extent of all of his injuries, the pain they caused him and how that contributed to the psychological condition which he developed.

9. [65]

   In coming to the conclusion that this aspect of his evidence has to be accepted, I have taken account of neither Usinch nor Epona having called any evidence from those who worked at the abattoir day to day, who were present when Mr Scott was injured, who attended him shortly after he was struck, including the forklift driver Mr Smith, or from those involved in preparation of Usinch’s investigation report. That they could all have shed some light on where Mr Scott was standing, but were not called, compels the acceptance of this part of his evidence.

10. [66]

    Usinch relied on no accident reconstruction evidence having been led to support Mr Scott’s case. But neither did it nor Epona lead such evidence, which might also have been expected, if it would have supported their defence.

11. [67]

    The parties all relied on Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. It was concerned with an unexplained failure to call evidence which may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness.

12. [68]

    Epona relied on Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 343. There reference is made to the usual reasonable explanation for not compelling attendance by subpoena being that the witness was likely to be friendly to the interests of another, which has been accepted to be sufficient. The example there given being of an insurer who failed to call the husband or friend of the plaintiff who had been responsible for the accident.

13. [69]

    But there was no explanation for the defendants not having called evidence from obvious witnesses and no evidentiary basis for the conclusion that they were likely to be friendly to Mr Scott.

14. [70]

    I am satisfied that the proper inference is that the evidence of those who worked at the abattoir would not have assisted the case of either defendant. They not having explained why such evidence had not been called, despite what the CCTV footage established and their reliance on Usinch’s investigation into the accident.

15. [71]

    Other evidence made that report difficult to accept.

16. [72]

    On Mr Scott’s unchallenged evidence there having been but limited space available for the forklift to reverse and turn as it did in the load out area where the stillages which had to be moved had been stacked and even less if he had been standing in the place identified in the report. That accords with the footage, which shows that pallets were also stacked there and that in order to move away from Mr Scott after he was struck, the forklift had to be moved partly into the adjacent doorway, under a conveyor.

17. [73]

    If Mr Scott had been standing on the side of the barrier for which Usinch and Epona contended, it is also difficult to understand how he came to be injured as he was.

18. [74]

    His extensive injuries are not consistent with the falling stillage having struck Mr Scott while he was standing outside the safe zone, in the load out area, unprotected by the barrier. Had he been standing there it seems that he would have been pushed into that barrier, but that is not consistent with the extensive injuries to his spine and the fractures to his ribs. Contrary to the submission advanced for Epona, these injuries are not consistent with Mr Scott having been struck a glancing blow to the head by the falling stillage.

19. [75]

    Mr Scott’s front teeth were also damaged. That is consistent with the stillage having thrown him to the ground, face first and not into the barrier. That is also supported by contemporaneous ambulance and hospital records which refer to him having been pinned to the floor.

20. [76]

    If Mr Scott was standing outside the barrier in the load out area, it is certainly difficult to see how he could so have injured his teeth. In that event it is likely that he would have been left slung across the barrier, with the stillage either toppled on the other side, or possibly pinning him to the barrier.

21. [77]

    That neither Epona nor Usinch called any evidence to establish that was where Mr Scott was, when other workers moved him, before the ambulance arrived, as Usinch’s investigation report shows that they did, must be taken into account. It must be inferred that their evidence would not have assisted the defence case, that being consistent with Mr Smith, who made a statement during Usinch’s investigation, not having referred to Mr Scott being pinned to or hitting the barrier.

22. [78]

    It is not in issue that Mr Scott was struck in the head and the back with resulting fractures and crushing of five of his vertebrae, as well as rib fractures, he understood, close to his spine, as well as soft tissue injuries. Usinch submitted that his evidence that the rib fractures were near his spine was convenient. I cannot accept that submission.

23. [79]

    There was a deal of medical evidence. It was not suggested that any of it supported the conclusion that Mr Scott’s evidence about those fractures was incorrect. I consider it must be accepted, supported as his evidence also was by the concurrent evidence of the rehabilitation experts, Dr Zeman and Dr Buckley, for example.

24. [80]

    They explaining that his principal injury involved a fracture dislocation and crushed vertebrae which required the treatment he received to reduce the fracture and stabilise his thoracic spine. The result was the extensive fusion which he underwent at five levels of his spine, in order to protect his spinal cord, which was then at extremely high risk, given the nature of the injury to his spine. The place of the fusion not having been favourable and not having enabled his spine to be straightened, with the result his remaining kyphosis.

25. [81]

    They could not agree on the angle, which Dr Buckley had measured from an X-ray which Dr Zeman had not been supplied with. But they agreed that if it was a 45 degree kyphosis, as Dr Buckley had measured, Mr Scott would have been left suffering considerable pain. They also agreed that the pain he was reporting to the treating surgeon in 2019 was consistent with the interaction between the fracture and the hyper kyphosis.

26. [82]

    I accept that the nature of his injuries also supported Mr Scott’s evidence about where he was standing when he was struck.

27. [83]

    In the result I am persuaded that Mr Scott’s evidence about where he was standing must be accepted and that a mistake was made in the sketch which accompanied the motor accident claim form, as well as in Usinch’s report. Despite those records I am satisfied that his evidence about where he was standing cannot fairly be rejected.

Mr Scott’s work at the abattoir and the termination of his employment

1. [84]

   There was no issue that before the accident Mr Scott had himself moved stillages when he operated the forklift. On his evidence he was aware of the risk of them slipping off the tines and had raised with those who supervised him, as well as with the owner who also worked at the abattoir, his concerns about Mr Smith’s forklift operation and his desire to be engaged to perform that work. That did not eventuate before he was injured.

2. [85]

   During his short period of employment Mr Scott had also developed hopes of progressing into a supervisory position at the abattoir. He believed that had been encouraged by those with whom he spoke, including the owner, given work he had already undertaken there.

3. [86]

   I accept that was his belief. But will return to the question of whether it was shown to have had a real foundation, which I am satisfied cannot be accepted.

4. [87]

   Despite this ambition, when Mr Scott was later offered an opportunity to attempt a return to work, he refused. That was at a time when John Hunter Hospital had issued a certificate that he was unfit for work until December 2017. Despite this, Epona’s HR Manager Ms Ross took steps which resulted in she and Mr Scott meeting at the abattoir with a doctor, Dr McGinty, who Epona retained. There is no suggestion that she became Mr Scott’s treating doctor.

5. [88]

   At the hearing there was no issue that as the result of the injuries he had suffered, Mr Scott will never be able to return to the heavy manual work he performed at the abattoir before the accident.

6. [89]

   Dr McGinty issued a certificate in November 2017 which indicated that Mr Scott was then fit to resume his former work, for 3 hours on 2 days of the week with some restrictions. That entirely contradicted the Hospital’s then current certificate. No evidence was called from Dr McGinty to explain her certificate.

7. [90]

   That puts beyond question that there was no proper basis for the certificate which Dr McGinty issued in 2017. Certificates later issued by Mr Scott’s treating doctors established that he would still have had significant restrictions, even if he had been able to return to light or sedentary work.

8. [91]

   Understandably, Dr McGinty’s certificate resulted in a disagreement. Mr Scott explained to Ms Ross his concern that it contradicted the Hospital’s advice that he was unfit to resume work. He being anxious not to risk his recovery understandably led him to question the certificate. Regrettably, this resulted in him not attending another meeting with Ms Ross and Dr McGinty. That resulted in his workers compensation payments being stopped and his employment terminated, rather than the certificate being revisited.

9. [92]

   That was contrary to the approach which the rehabilitation experts explained in their concurrent evidence, was desirable in the circumstances. No evidence was called from Ms Ross or Dr McGinty to explain the course which resulted in Epona dismissing Mr Smith and his payments ceasing, rather than being offered a return to work program about which the experts also gave evidence.

10. [93]

    Mr Scott denied that he could, even now, attempt sedentary or light duties. He has not undertaken further treatments such as physiotherapy, occupational therapy, dental or even medical treatments. Although he claims that he could not afford this, he has not apparently explored available options, even under Medicare. Nor has he enrolled in Centrelink.

11. [94]

    Even so, I am satisfied that Mr Scott’s evidence about how his injuries affected him at the time Epona required him to return to his pre-accident heavy manual work only some 4 months after the accident must be accepted. I do not accept that he was then exaggerating his condition, or that this contributed to the termination of his employment.

The negligence of Mr Smith, Usinch and Epona

1. [95]

   On all the evidence I am satisfied that Mr Scott has established his claims against both Epona and Usinch, given Mr Smith’s negligent driving of the forklift, which was captured by the CCTV footage. Usinch was the owner and operator of the abattoir who had Mr Smith drive the forklift, despite being unlicensed, untrained and unsupervised, although Epona also operated out of the site.

2. [96]

   In final submissions Usinch submitted that there was no doubt that Mr Smith had been negligent, but denied that it was liable for that negligence. It also contended that but for his mistake in placing the tines under, rather than in the stillage, the accident would not have happened.

3. [97]

   But that was not Mr Smith’s only mistake, given the unsafe way in which he actually drove the forklift while so carrying the stillage. The evidence also does not permit the finding that it was only as the result of casual acts of negligence by Mr Smith for which Usinch was not liable, that Mr Scott was injured as he was.

4. [98]

   The evidence well establishing that what occurred was considerably contributed to by Usinch’s unsafe system of work. Even its documented forklift procedure, which required that the forklift only be driven by licensed operators and that it not be driven until its tines were lowered, not being in practical operation.

5. [99]

   Given how Epona operated at the abattoir, it having the same controlling mind as Usinch, I am also satisfied that the conclusion that it was also negligent cannot be avoided.

6. [100]

   This was denied by Epona, but Usinch’s case was that in all of the circumstances it was improbable that it was not aware of what was going on, when its employees were at work at the abattoir. I am persuaded that this must be accepted, given the way the two companies arranged their activities while both operating out of the same premises and both being under the controlling mind of Mr Throsby.

7. [101]

   On all the evidence, in summary, I am satisfied that it must be found that:

8. [102]

   Whether Usinch had its forklift policy in practical operation was disputed.

9. [103]

   Usinch had developed policies for how various work was to be performed at the abattoir, which it updated from time to time. It trained workers supplied by Epona, including Mr Smith and Mr Scott, in various of those policies, as well as supervising the work it required them to perform.

10. [104]

    But on the evidence neither was trained in its 2016 forklift procedures and their supervisor was not present when the accident occurred.

11. [105]

    Usinch kept documents recording when workers were trained in its policies, with both the workers and the supervisor signing an acknowledgment. Mr Scott, Mr Smith and their supervisor, Mr Strachan, had all signed such documents. But no such documents were tendered to establish that either Mr Smith or Mr Scott had been trained in the forklift policy, despite both performing forklift work at the abattoir.

12. [106]

    No other evidence was led to establish that the forklift policy was in practical operation.

13. [107]

    What the evidence does establish shows that it was not.

14. [108]

    The forklift policy only permitted licensed forklift drivers to operate the forklift. Mr Scott’s unchallenged evidence was that he had raised his concerns about the safety of Mr Smith’s forklift operation and him not being licensed to drive the forklift with supervisors and managers, who were not concerned. No evidence was called from them and Usinch led no other evidence to establish that Mr Smith was licensed or trained in forklift driving. That was also not established by his personnel file.

15. [109]

    That there was a reason for concern about Mr Smith’s driving was evidenced by the CCTV footage.

16. [110]

    Lowering the stillage before the forklift was driven was required by the forklift policy. The footage shows that Mr Smith was still lowering the stillage when it slid off the tines. The evidence accords with other express requirements of the policy not then being complied with, including:

17. [111]

    The result of Usinch’s failure to lead any evidence to establish that it had put this policy into practical operation, given what the CCTV footage established, must result in the inference being drawn that such evidence would also not have assisted its case.

18. [112]

    The result is that it must be found that the documented forklift procedures were not in practical operation at the abattoir when the accident occurred. Further, that Mr Smith was neither trained in the policy nor supervised when he operated the forklift, despite not being licensed, as it required.

19. [113]

    It was Epona’s case that the accident was the result of Usinch’s unsafe system of work, not Mr Smith’s negligent operation of the forklift, he never having had the opportunity to drive it safely. That was because he had not undergone the training or theoretical and practical assessment that a licensed forklift operator would normally undergo, despite which in 2017 a Usinch assessor had assessed Mr Smith’s understanding of forklift operation, without identifying that his answers departed from its own policies.

20. [114]

    I am satisfied by the unsafe way the CCTV footage reveals Mr Smith drove the forklift as well as the documentary evidence, that it was both his negligence and that of Usinch which contributed to the risk to which Mr Scott was exposed. But so did Epona’s own negligence, even though it must be accepted that Usinch’s system of work was unsafe.

21. [115]

    It was Usinch’s case that Mr Scott’s evidence and the footage established that Mr Smith had made a mistake when he lifted the stillage by placing the tines underneath it. And that he may have made another mistake by not lowering the stillage before he reversed and turned the forklift. Although that may have been necessary because of the pallets which had been stacked high near the stillages, they resulting in the need to manoeuvre the forklift around them. That preventing Mr Smith from first lowering the stillage until the forklift had moved sufficiently, as Mr Scott had acknowledged in cross examination.

22. [116]

    Usinch called no evidence to make its submissions good. The case it advanced did not permit the finding that the system of work which it had in operation was safe.

23. [117]

    In cross examination Mr Scott said that it was Mr Smith, the normal forklift operator, who had decided at the commencement of the day shift to move the stillage which they found had not been removed as it should have been, during the preceding shift. It was preventing their work commencing. There was then no supervisor present but that situation was undoubtedly known to Usinch, who left it to Mr Smith to move the stillage, operating the forklift as the footage shows, while he went to stand in the safe area.

24. [118]

    On reports made after the accident, the supervisor attended afterwards. His statement did not accord with Mr Smith’s description of where he was standing when he was struck, but the supervisor was not then present. Mr Smith did not indicate in his statement where Mr Scott had been standing.

25. [119]

    That Usinch’s system was unsafe supported by the CCTV footage. It showing how the accident occurred and the negligence involved in Mr Smith’s driving of the forklift.

26. [120]

    Mr Smith had to move the stillage in a confined space. It first had to be lifted off the other two stillages on which it had been stacked during the previous shift. But it was not lowered or secured to the forklift, before Mr Smith moved it. The foreseeable result of the way in which Mr Smith operated the forklift, reversing and turning sharply while also lowering the stillage at the same time, was that it slipped and fell to the ground.

27. [121]

    That was the result of an obviously dangerous approach to this task. The result can be seen on the footage. Unsurprisingly the unsecured stillage struck Mr Smith as it fell, before the forklift had completed its turn.

28. [122]

    The footage did not capture the stillage hitting and injuring Mr Scott, how and where he fell, or how he was assisted after the forklift was stopped. But it did show the forklift being stopped while one other worker was present and another soon coming to assist him. The forklift was then backed away, seemingly under a nearby conveyor and partly through a doorway into a cold store, because of the tight space in which it had to be operated.

29. [123]

    I am satisfied that what the footage, Mr Scott’s evidence and the documentary evidence well establishes is not only of Mr Smith’s negligent operation of the forklift, but also that Usinch’s system of work was unsafe. Mr Smith, who was untrained and unlicensed having been left to operate the forklift unsupervised in the confined space where the stillages had to be moved. And Usinch leading no evidence to establish that Mr Smith had departed from the safe way in which he usually drove the forklift.

30. [124]

    On Mr Scott’s earlier observation Mr Smith did not understand what safe operation of the forklift required. That understanding accorded with what the footage depicted and the absence of any documentary record or evidence that Mr Smith had been trained in its safe operation.

31. [125]

    Mr Scott agreed in cross examination that Mr Smith had erred in placing the tines of the forklift under the stillage. The normal method of moving the stillage involving placing the tines in the first of the three rows of the stillage, that helping to prevent sideways slippage. The tines then being lowered before the forklift was driven away. That was not what Mr Smith did.

32. [126]

    But under the documented procedure, the forklift should not have been driven without the stillage first being lowered and it should not have been driven while the stillage was being lowered. Although Mr Scott agreed at times it was necessary to move the forklift for a distance, before what was being carried could be lowered.

33. [127]

    Still I am satisfied that the CCTV footage established that Mr Smith could have lowered the stillage before he reversed and turned the forklift sharply as he did. Not having lowered the stillage before he made that sharp turn was what caused it to fall from height while the forklift was still reversing and the stillage was still being lowered.

34. [128]

    I do not accept that the pallets had prevented Mr Smith lowering the stillage before he turned the forklift. Usinch did not lead any evidence which might have established this and the footage not establishing that for which it contended.

35. [129]

    The evidence also established that it was the way in which the stillages were configured at the time, which permitted the tines to be inserted under, rather than inside the stillage, as was the normal method of operation, that contributed to the way it fell. Still that method of moving stillages permitted a stillage to slide sideways for some distance before it was stopped, as well as permitting it to fall forwards off the tines. That accorded with Usinch’s system being unsafe.

36. [130]

    The evidence also established that a safe system of moving the stillage was then available, but not utilised. It involving the stillage being attached to the forklift by use of a chain, when it was being moved.

37. [131]

    Usinch later modified its stillages by adding sleeves into which the tines could be inserted. They preventing sideways, but not forward slippage. As was Usinch’s case, that would still not have prevented a forklift driver mistakenly failing to place the tines in the sleeve of a stillage, with the result that it could then still slide sideways off the tines. The modification also did not prevent them sliding forwards, even if the tines were inserted into the sleeve.

38. [132]

    On its own case the way in which Usinch altered its system did thus not address the risk of slipping off the tines which had materialised when Mr Scott was injured.

39. [133]

    Mr Smith using the chain to attach the stillage to the forklift would have prevented any such movement. Use of a chain being available, but not part of Usinch’s system either before or after the accident, I am satisfied established beyond argument that its system was not only unsafe but that its negligence also resulted in Mr Scott being injured as he was.

40. [134]

    I will return to the question of Mr Scott’s contributory negligence. But on the evidence, I am also satisfied that it cannot be concluded that this accident was the result of Mr Smith’s negligent departure from Usinch’s written forklift procedure.

41. [135]

    The evidence not establishing that Mr Smith was a licensed forklift driver, as the documented procedure required, nor that he was trained in that procedure and him not having been supervised in the forklift work he undertook. The result is that it must be accepted both that Mr Scott was injured as the result of Mr Smith’s negligence and the breach of the duty Usinch owed him.

42. [136]

    It is long settled that it is the employment relationship itself which creates an employer’s non-delegable duty to an employee: Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 at [245]-[249], [307]-[308], [353].

43. [137]

    That is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [21]. The employer must also take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work: Czatyrko v Edith Cowan University [2005] HCA 14 at [12].

44. [138]

    Where services of an employee are temporarily used by another, both employers will not be liable for the employee’s negligence, with liability usually remaining with the general employer: Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 641; [1986] HCA 34.

45. [139]

    But a host employer like Usinch can breach the duty it owes as occupier and operator, as the result of the systems and supervision of the work it arranges to have undertaken by labour hire workers: Mt Owen Pty Ltd at [70].

46. [140]

    In TNT Australia Pty Limited v Christie [2003] NSWCA 47 it was explained at [67] that the normal incidents of an employment relationship are not modified simply because employees are sent off to work for a client. But the very fact that employees are placed under the de facto management of another will, “in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees”.

47. [141]

    To resist its liability Epona relied on De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 at [36], where reference was made to McDonald v The Commonwealth (1945) 46 SR (NSW) 129 at 132. There it was explained that if the employer vests in a third party complete, or substantially complete, control of the employee, so that he is entitled not only to direct the employee what he is to do but how he is to do it, and the employee was performing services stipulated for, or authorised by, the third party at the time, the third party is liable. But if the control vested is only partial, so that although the third party is entitled to give directions to the employee as to what he is to do, he is not entitled to direct him how he is to do it, the employer remains liable.

48. [142]

    Epona’s case being that it was not aware of the way in which Usinch actually utilised the labour it supplied to drive the forklift and that it had vested the required complete control in Usinch.

49. [143]

    I am unable to accept the case so advanced, Epona not having led any evidence to provide a factual foundation for this submission.

50. [144]

    Located as Epona was and given what the evidence established about what it knew about what Usinch was requiring its employees to do and how it was involved in their management and the control which it exercised over them, I am satisfied that it must be concluded that Epona’s position required it to take additional measures to ensure its employees’ safety while working at the abattoir, of the kind discussed in TNT. At the least, to ensure that Mr Smith had the necessary licensing and training in forklift driving.

51. [145]

    There is no issue that Epona supplied Mr Smith, Mr Scott and others to Usinch as labourers. They were both paid as such while working at the abattoir where Epona was also located and where they were utilised to perform forklift driving, in Mr Smith’s case for a number of years, even though they had both been supplied only to do labouring work.

52. [146]

    Both companies were under the control of the same mind. The result of the way they arranged their affairs, was that Mr Smith and Mr Scott were working at Usinch’s premises where Epona also operated. Mr Smith’s personnel file accords with it being aware of the forklift driving work Usinch was having him undertake there and that he was not licensed or trained in such work: at [81].

53. [147]

    There was no suggestion that Epona supplied Usinch with any other workers to drive the forklift; there was no issue that Mr Scott was a licensed forklift driver, but no evidence that Mr Scott was licensed; no evidence that either was trained in Usinch’s documented forklift procedures; and the evidence according with that policy not being in practical operation.

54. [148]

    Mr Smith’s personnel file also helped establish Epona’s involvement in the management of the performance of the workers it supplied to Usinch. It showing, for example, that it counselled and warned Mr Smith about his performance and absences before he left its employ after the accident. It later rehiring him, the history he then gave including having earlier driven the forklift at Usinch, but still not claiming that he had a license.

55. [149]

    That and other evidence established that while Usinch exercised day to day control over the particular work that the workers Epona provided it were given to perform at the abattoir, Epona not only undertook the ongoing HR function for its workers, it also exercised a measure of ongoing control over them and their work.

56. [150]

    In Mr Scott’s case, not only dealing with his workers compensation claim, but also directing his resumption of his normal work at the abattoir, at a time when he had been certified to be unfit for work and then dismissing him when he failed to comply with its direction.

57. [151]

    It was Epona’s HR Manager, Ms Ross who met with Mr Scott and the doctor it retained, Dr McGinty, to discuss with him a return to work at the abattoir, despite the John Hunter Hospital having issued the certificate certifying that he was unfit to resume his former duties. It later directed his return and dismissed him when he did not comply.

58. [152]

    I do not accept the submission advanced in Usinch’s final oral submissions, that Dr McGinty’s certificate should be understood as having reflected an error, she not having removed aspects of the certificate which were automatically generated to indicate that a worker was under no work restrictions. There was no evidence about the process by which that certificate was produced. That there was such an error made was thus not established. Nor could it have been apparent to Mr Scott, even if made.

59. [153]

    Such an error was certainly not identified by Epona, which terminated Mr Scott’s employment because he refused to return to his former work at the abattoir, which Dr McGinty had certified he was fit to perform.

60. [154]

    Whether the supervisors and managers who worked at the abattoir were also supplied by Epona was not established by the evidence. But nothing turns on this, Mr Throsby being as he was the controlling mind of both companies who also worked at the abattoir, described himself to be the managing director and who was understood, it should be inferred, by Mr Smith to be the owner. Albeit it may not be overlooked that they are separate legal entities each with their own obligations: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 at [49].

61. [155]

    The reasons for the conclusion that Epona also breached the duty it owed Mr Scott lie in:

    1. (1)

       Its location at the abattoir;

    2. (2)

       Its control by the same mind as Usinch;

    3. (3)

       That it did not supply Usinch any licensed operator to drive the forklift in use at the abattoir;

    4. (4)

       That it knew Usinch utilised Mr Smith to drive the forklift; and

    5. (5)

       Its involvement in the control of the work which the labour it supplied performed at the abattoir, including in the case of Mr Smith, despite which it took no steps to ensure the safety of other of its employees who had to work in the vicinity of the forklift he operated.

62. [156]

    The evidence well establishing that Epona failed to take practical measures by way of warning or training its employees, in order to discharge the continuing common law duty of care it owed them, despite what he knew about the work Usinch gave Mr Smith to do. The result was that Epona it failed to meet the duty which it continued to owe Mr Scott.

63. [157]

    There was no issue that only one of the defendants could be vicariously liable for Mr Smith’s negligence: Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 at [32] and [46]. Like in that case I am satisfied that it must be found that Mr Smith was so incorporated into Usinch’s workforce, as to render it vicariously liable for his negligence.

64. [158]

    The test is that discussed in Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 61. Namely, that a defendant is not vicariously liable for the tortious act of a worker who is not its employee, if the defendant has no authority to control the doing of the act and does not directly authorize it, even if the tortious act is done in performing work for the defendant’s benefit.

65. [159]

    Prima facie, the worker’s employer is vicariously liable for the tortious act. But if the employer is able and has transferred authority to control the doing of that act to the defendant, the defendant is liable. It is the nature and extent of the control transferred to the defendant or retained by the employer, which determines whether there is a shift of such liability from the employer to the defendant: Kondis at 692 per Brennan J.

66. [160]

    The relevant factors to consider were identified in Mt Owen at [49] to be:

67. [161]

    Even where the employer is not vicariously liable, it can also still be liable for loss resulting from its own negligence: Oceanic Crest Shipping Co discussed in Mt Owen at [32]. As I have explained, such negligence on Epona’s part was also established.

68. [162]

    On the evidence, unlike the circumstances which arose to be considered in De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56, it is the control which Usinch had and exercised over Mr Smith’s actual work, day to day, which resulted in him being vicariously liable for his negligence. It having required him to drive the forklift, despite being unlicensed, Epona not having provided him as a forklift driver but as a labourer and it paying him as such and having not trained him in or supervised his forklift work, that having resulted in the negligent driving which resulted in Mr Scott being injured as he was.

69. [163]

    It is in those circumstances that it must be found that it was Usinch which was vicariously liable for Mr Smith’s negligence, not Epona.

70. [164]

    As I have explained, it must also be found that it was not a casual act of negligence when carrying out a function which was well within Mr Smith’s expertise, for which Usinch was not responsible, which resulted in his negligent driving of the forklift. He having been given that work to perform despite not having the necessary expertise.

71. [165]

    In the result, Usinch having engaged him to drive the forklift as it did, it was responsible for his negligence: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13. It having expressly authorised him to drive the forklift, despite not being licensed to do so: Day v Ocean Beach Hotel (2013) 85 NSWLR 335; [2013] NSWCA 250 at [15]. Usinch and Mr Smith having placed themselves in a relationship day in and day out, indistinguishable from that of employee and employer, he being under its direction and practical control, with the result that its relationship with him was more than that of a mere occupier of the abattoir: TNT at [41].

72. [166]

    Usinch was thus vicariously liable for Mr Smith’s negligence.

73. [167]

    Despite this conclusion on all of the evidence I have explained it must be found that both Usinch and Epona breached the duty of care they each owed Mr Scott, it not being able to be accepted that the accident was solely the result of a casual act of negligence for which Epona is liable. Neither took reasonable precautions to keep Mr Scott safe from harm.

74. [168]

    For its part Epona could not avoid its duty to Mr Scott, simply by relying on its delegation to Usinch: Lepore v State of New South Wales (2001) 52 NSWLR 420; [2001] NSWCA 112 at [29]. Its liability is the result of the breach of duty involved in its failure to take the required care, knowing that Usinch was using Mr Smith to drive the forklift, its system of work not being safe, its forklift policy not being in practical operation, Mr Smith not being licensed or trained in forklift driving and left to perform such work unsupervised: Elliott v Bickerstaff (1999) 48 NSWLR 214 at 238; [1999] NSWCA 453.

75. [169]

    The evidence well establishes that Mr Scott’s injuries were the result of neither Usinch nor Epona having taken the required reasonable care, which would have involved Usinch ensuring that the documented forklift procedures were in operation, that precluding their use of Mr Smith as a forklift driver. And if he was to be used for such work, requiring Epona to take additional measures, in order to discharge its continuing common law duty of care to its employees. It took no such measures.

76. [170]

    The result of their both companies’ failures was that they both exposed Mr Scott to unnecessary risk of injury, which materialised: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 98; [1999] HCA 59.

77. [171]

    It was Usinch which directed Mr Smith to perform the forklift driving work at the abattoir, it having devised the system of work which operated in practice, as well as the forklift policy, which did not. Both companies operated at the site when they were both involved in the management of the workers Epona supplied, with the result that they both breached the duty which they each owed Mr Scott.

Does the MAC Act apply?

1. [172]

   Mr Scott advanced his case in the alternative in the case of Epona, having made claims both under the MAC Act and the Workers Compensation Act.

2. [173]

   The latter provides for both weekly payments representing loss of income, medical expenses and, in some cases, lump sum compensation for permanent impairment payable by (or on behalf of) an employer, to which an injured worker is entitled without the need to establish fault on the part of the employer. Mr Scott has already successfully pursued such payments against his employer Epona.

3. [174]

   Mr Scott having proven Epona’s fault, its damages have to be assessed under the Workers Compensation Act, unless he is entitled to damages in accordance with Ch 5 of the MAC Act: s 151E Workers Compensation Act. Section 122(1) of the MAC Act providing for damages which “which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”.

4. [175]

   As explained in Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11, if the Workers Compensation Act applies, in some cases the requirements of s 151Z apply, it modifying the quantum of damages in certain ways, including to prevent double recovery of damages: at [15]-[29].

5. [176]

   Mr Scott claimed he had been injured in a “motor accident”, with the result that Chapters 3-6 of the MAC Act apply to his claims. That term is defined in s 3 to mean “an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—

6. [177]

   On the evidence the accident in which Mr Scott was injured fell within the definition, it having been caused by Mr Smith’s driving of the forklift and the dangerous situation it caused, which resulted in the injuries which Mr Scott suffered when struck by the falling stillage.

7. [178]

   While I am satisfied that the evidence established that Mr Scott’s injuries had been caused by the driving of the forklift, Epona’s case that the MAC Act still did not apply to it, it not having been either the owner of the forklift, nor vicariously liable for Mr Smith, still has to be considered. On its case that having the result that there had been no relevant fault on its part in the use or operation of the forklift, as s 3A of that Act required.

8. [179]

   With the result that it was the Workers Compensation Act which applied to Mr Scott’s claim against it, that also being relevant because a defence of failure to mitigate under s 151L of that Act then arose to be considered. It having served a s 78 notice in December 2020 which identified the failure to be “to seek suitable alternative employment despite having the capacity to perform suitable work”.

9. [180]

   But there was no issue that if the MAC Act did apply, s 136 of that Act also imposed a duty to mitigate on an injured person, it including pursuit of reasonable steps in respect of “alternative employment opportunities”: s 136(3)(c).

10. [181]

    The onus falling on those who allege failure to mitigate to prove it.

11. [182]

    It is settled that there is no bright line between the two legislative schemes: TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149 at [24]. That case was also concerned with the driving of a forklift with an unsafe load: at [25]. But it arose to be considered under predecessor legislation, where injury was defined to mean “personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:

12. [183]

    In the current Act injury is defined to mean “personal or bodily injury and includes—

13. [184]

    The MAC Act now also, however, contains ss 3A and 3B. The former provides:

14. [185]

    In Toll Pty Ltd v Harradine [2016] NSWCA 374 another forklift driver had negligently failed to secure a stillage to the tines of the forklift. There the difficulty of the construction of s 3A(1) of the MAC Act was noted: at [42]. Its application to a case involving a labour hire company, does not previously seem to have arisen.

15. [186]

    In Toll it was common ground that an injury does not fall within s 3A(1) “unless the injury was sustained during one of the events specified in the sub-section, that being the so-called “temporal criterion””, following earlier authority there referred to: at [43].

16. [187]

    It was also explained that what the evidence must establish is that the injuries in question were “sustained within the period during which the driving of the vehicle was taking place. It is not enough for the injured person to establish that his or her injuries were caused by the fault of the owner or driver in the use or operation of the vehicle.”: Toll at [43]. The issue in that case turning on whether the injuries had been sustained in the case of a vehicle which had both locomotion and non-locomotion functions.

17. [188]

    That problem does not arise in this case, the footage establishing that Mr Scott’s injuries were caused before Mr Smith stopped the forklift. The general principle being “that a forklift is being driven when it is subject to actual control and management while it is in locomotion”: Toll at [44]-[45]. What is required being that the injury be sustained during the driving of the vehicle and as a consequence of that driving: at [84]-[88].

18. [189]

    That was here established. That Mr Scott’s injuries were sustained while the forklift was being driven while it was under Mr Smith’s control and management not here being in issue.

19. [190]

    Like in TVH the evidence also establishes that Mr Smith’s injuries were “a result of and were caused during ... the driving of the vehicle": at [25]. That brought the accident within s 3A(1)(a) of the MAC Act.

20. [191]

    The way in which Mr Smith drove the forklift also brought it within s 3A(1)(d), given the dangerous situation his driving created. It requiring both a temporal and causal connection between the driving and the injury. The question of causation having to be determined in light of the subject, scope and objects of the Act: Allianz Australia v GSF (2005) 221 CLR 568; [2005] HCA 26 at [41] and Whitfield v Melenewycz at [23].

21. [192]

    Still, much can turn on the characterisation of the cause of an accident. In TVH it being explained by way of example that there is “no bright line to be drawn between a cause which is predominant and immediate, rather than one which is ‘more removed’”. Further, that it does not follow that “because one can characterise a fault in terms which appear to be detached from and antecedent to the actual use or operation of the vehicle, the definition is not engaged.”: at [26].

22. [193]

    The example there given being an employer who “allows a heavy vehicle to be used in the course of the business and injury is caused by the driver losing control of the vehicle, it is appropriate to characterise the fault of the owner as permitting the use of the vehicle by a driver without proper training and thus a fault ‘in the use or operation of the vehicle’. This conclusion is not undermined because the fault can also be characterised as the failure to provide training, which appears to be removed from the use or operation of the vehicle.”: TVH at [26].

23. [194]

    In Toll it was also explained that there can be more than one proximate cause of an accident: at [97]. That does not preclude the MAC Act applying, what has to be considered being whether there is a causal relationship between the injury and the particular fault of the defendant: Adlawan v Recochem Inc [2021] NSWSC 223 at [170].

24. [195]

    In that case, in the course of his employment Mr Adlawan had been struck by a forklift which he had himself been operating shortly before he was hit by the forklift, after he had parked it and alighted. He believing that he had pulled the handbrake on. Cavanagh J concluding that it was likely that the handbrake had not been applied properly, Mr Adlawan not having realised that he had not pulled it on fully, with the result that it released as he alighted, or moments later, but the forklift remained stationary, until the vibrations from the tines caused it to roll: at [49].

25. [196]

    His Honour concluded that this satisfied the causal and temporal requirements of s 3A, with the fault not lying in the earlier failure to give the driver proper instruction, but in the use and operation of the forklift: at [190]. It was also concluded that like in TVH, there had been a fault in the use or operation of the forklift which was not undermined because the fault could also be characterised as an earlier failure to provide instruction: at [192].

26. [197]

    Likewise in Mr Scott’s case, it was Mr Smith’s driving which satisfied the causal and temporal requirements of s 3A. Epona was not vicariously liable for that negligent driving, Usinch was. But even though its negligence also contributed to the materialisation of the risk which Mr Smith’s driving posed, it was not responsible for his negligent driving.

27. [198]

    I consider that it must be accepted that this was not sufficient to establish the required connection between Epona and Mr Smith’s negligent driving.

28. [199]

    Section 3B must also be considered. It provides:

29. [200]

    There was no issue that the forklift was not insured, with the result that the claim against Usinch could not be pressed under the MAC Act. Or that the accident did give rise to a work injury claim which Mr Smith pursued against Epona.

30. [201]

    “Injury” is relevantly defined in s 4(a) of the Workers Compensation Act to mean “personal injury arising out of or in the course of employment”. Mr Smith’s injury did arise out of and in the course of his employment, even though Epona had hired his labour to Usinch. The result was that he successfully pursued a workers compensation claim under that Act against Epona.

31. [202]

    But as explained in Adlawan at [124], s 3A must be satisfied even in the case of a work injury claim to which s 3B applies.

32. [203]

    It is s 9(1) of the Workers Compensation Act which specifies that workers “shall receive compensation from the worker’s employer in accordance with this Act”. Further, that such compensation “is payable whether the injury was received by the worker at or away from the worker’s place of employment”: s 9(2).

33. [204]

    The Workers Compensation Act does not alter that right in the case of an employee of a labour hire company who works away from the employer’s place of business, albeit in this case both Epona and Usinch operated at the same place, the abattoir.

34. [205]

    Section s 150 of the Worker’s Compensation Act is also relevant, it providing that a reference in Chapter 5 Common law remedies, “to a worker’s employer includes a reference to—

35. [206]

    It is pertinent that s 150 does not exclude employers who are not vicariously liable for the acts of their employees. It follows that Epona not being vicariously liable for Mr Smith’s negligence, does not affect how chapter 5 of the Workers Compensation Act operates in Mr Scott’s case.

36. [207]

    In TVH it was explained that where an employer allows a vehicle to be used in the course of the business and injury is caused by the driver losing control of the vehicle, it is appropriate to characterise the fault as permitting a driver without proper training to use the vehicle, that being a fault "in the use or operation of the vehicle". That conclusion not being undermined because the fault could also be characterised as the employer’s earlier failure to provide training, which is removed from the use or operation of the vehicle: at [26].

37. [208]

    In this case it was Usinch which gave Mr Smith, an unlicensed labourer Epona had supplied, who it did not train in its documented procedures, the work of driving the forklift, with the result that Epona was not vicariously liable for Mr Smith’s negligent driving. But the evidence also established that Epona’s own failures involved negligence for which it was liable because of the non-delegable duty which it owed Mr Scott and how he came to be injured. I am satisfied that the evidence also established that its failures were also effective causes of the accident in which he was injured.

38. [209]

    Mr Scott was undoubtedly injured as the result of Mr Smith’s driving, that establishing both a causal connection between his negligent driving and Mr Scott’s injuries. But it does not establish the necessary temporal connection with Epona’s earlier negligence.

39. [210]

    The result is, it seems to me that it must be accepted that the part of his damages for which Epona is liable must be assessed under the Workers Compensation Act.

40. [211]

    That is despite Epona’s own negligence having contributed as it did to the injuries which Mr Smith’s driving and the dangerous situation which it caused, that having been one of the effective causes of the accident in which he was injured. Still the damages he is awarded against Epona must be assessed under the Workers Compensation Act.

Requirements of the Civil Liability Act are satisfied

1. [212]

   On all that I have explained it must also be concluded that the onus which falls on Mr Scott under the Civil Liability Act has been met.

2. [213]

   There was no issue about the risk of harm which materialised when Mr Scott was injured, that is, the “true source of potential injury”. Namely, the risk of the heavy, unsecured stillage slipping off the tines of the forklift and striking someone working in the vicinity, as it fell while the forklift was being moved.

3. [214]

   That this was both a foreseeable and not insignificant risk was established by how much the stillage weighed, how it had to be moved by being lifted and carried on the tines of the forklift, that it was not secured to the forklift despite the risk of slippage when it was moved and that Usinch’s documented forklift procedures were not in practical operation: s 5B(1)(a) and (b) Civil Liability Act.

4. [215]

   Despite the structure, size and weight of the stillages which had to be moved at the abattoir, Usinch did not have its documented forklift procedure in practical operation and its system did not require, as it should have, that they be attached to the forklift when they were being moved. Even though the procedure required the tines to be lowered before the forklift was driven, that is not how Mr Smith operated the forklift.

5. [216]

   The evidence established that both were available precautions which a reasonable person would have taken: s 5B(1)(c).

6. [217]

   Negligence has to be determined in light of the matters specified in s 5B(2). The conclusions I have earlier explained about the negligence of Mr Smith, Usinch and Epona flow from a consideration of those matters.

7. [218]

   Namely, the significant probability that real harm would occur if care were not taken in the operation of the forklift while it was being used to move stillages at the abattoir. That reflecting:

8. [219]

   I have also taken into account the other principles specified in s 5C, which require consideration to be given to:

9. [220]

   There was no suggestion that the burden of taking precautions to avoid the risk which materialised was significant. There was an issue about the reasonable precautions which should have been taken, but the evidence established the obvious. Namely, that if the stillage had been lowered before the forklift was driven or if it had been secured to the forklift, it could not have slipped and fallen from height as it did. Unarguably they were simple, available and reasonable precautions which should have been taken, given what the forklift procedure envisaged and the likely seriousness of the harm resulting from falling stillage striking a worker in the vicinity, if the stillage fell while the forklift was moving.

10. [221]

    Those were available precautions which a reasonable person in the position of Usinch and Epona would have taken. If taken, they would have prevented the risk to which Mr Scott was exposed materialising.

11. [222]

    They would have resulted in the forklift procedures being in practical operation, Mr Smith being licensed and trained in them and safe forklift operation, the stillage not being lowered while the forklift was being moved and it being secured to the forklift whenever moved.

12. [223]

    The social utility of taking available precautions to address the risk of harm which the unsecured stillage posed was established by the serious and preventable injuries Mr Scott sustained when the 200kg stillage which fell from height struck him as it did.

13. [224]

    In cross examination Mr Scott agreed that in order for the stillage to slip as it did, Mr Smith must have placed the tines of the forklift under the stillage, rather than inside its first layer, as was the usual practice. But on his unchallenged evidence even that practice could not prevent the stillage slipping and falling off the front of the tines when the forklift moved. But that could also have been prevented by chaining the stillage to the mast of the forklift, as he explained.

14. [225]

    While Epona advanced submissions about the consequences of this aspect of his evidence not having been pleaded, the evidence emerged as the result of his cross examination about the system of work in operation at the abattoir and how it could have been arranged. That was relevant to the pleaded cases.

15. [226]

    Mr Scott bore the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E. Causation, on which Usinch’s case was explained to particularly focus, has to be considered in light of the requirements of s 5D, which has two aspects. Factual: that the negligence was a necessary condition of the occurrence of the harm: s 5D(1(a). Scope of liability: that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused: s 5B(1)(b).

16. [227]

    Section 5D(1)(b) reflecting the “starting proposition that a negligent person should be liable, within reason, for the consequences of his conduct”, with “the extent of liability to be found “by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it: but otherwise not.": Hudson Investment Group at [106].

17. [228]

    I am satisfied that Mr Scott met his onus, the evidence establishing both aspects of causation.

18. [229]

    It was Usinch’s failure to have a safety system of work in operation which established factual causation. A safe system would have been one in which it was licensed forklift drivers, trained in Usinch’s documented procedures which it had in practical operation, who undertook the work of moving stillages, the available precautions of securing a stillage to the forklift before it was moved and not lowering it while the forklift was being moved, being taken.

19. [230]

    The failure to have such a system having been a necessary condition of the harm which Mr Scott suffered, it is appropriate for Usinch’s liability to extend to the harm it caused, given the seriousness of the harm which resulted from its failures.

20. [231]

    That was well established by the injuries which Mr Smith suffered. Regrettably their consequences were not addressed as they should have been, by him being supported with counselling, treatment and rehabilitation while he was still receiving workers compensation. On the expert evidence, that having been the result of the way his potential rehabilitation was mismanaged.

21. [232]

    I do not accept that Mr Scott, having undergone the spinal surgery which he required very soon after he was injured which has left his spine misaligned as it is, was overstating the problems which he had been left to deal with, at the time he was disagreeing with Epona’s direction that he return to his former work, in accordance with Dr McGinty’s certificate.

22. [233]

    Given his ongoing pain and the psychological condition he was developing, which accorded with the Hospital’s certificate, as well as the treatment he was then pursuing, that cannot sensibly be accepted. That treatment having been abandoned because of his concern that he could not pay for it, because timely payment was not being made even for the little treatment he had pursued, to that point.

23. [234]

    Nor do I accept that Mr Scott was then understating his limited capacity to resume work, or exaggerating the consequences of his injuries, which the experts described.

24. [235]

    That he then had no capacity to return to his former manual labour, as Epona directed before it dismissed him, must be accepted, given all of the objective medical evidence and the opinions which the experts expressed, including when giving their concurrent evidence.

25. [236]

    Given the nature and extent of those injuries, the conclusion that the consideration which s 5D(4) requires be given to whether or not and why responsibility for the harm should be imposed on Usinch, must result in the conclusion that responsibility for the harm Mr Scott was caused as the result of its failures, must be imposed on Usinch.

26. [237]

    Usinch having used an unlicensed, unsupervised forklift driver as it did to move heavy stillages in its tight load out area, while unsecured and thus at risk of slipping off the tines of the forklift, which put at risk of serious injury those working in the vicinity, even when standing behind the barrier in a place understood to be safe. That conclusion is reinforced by Usinch’s forklift procedures not even being in practical operation, with the result that its system of work was thus unarguably unsafe.

27. [238]

    Section 5Q of the Civil Liability Act provides that a defendant’s liability for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant, is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

28. [239]

    That does not arise to be considered in Usinch’s case. Were it relevant to the case advanced against Epona, I would be satisfied that Mr Scott met the onus which s 5Q imposes in respect of his case against it, given all that I have earlier explained.

Contributory negligence

1. [240]

   But I am not satisfied that contributory negligence, which Mr Scott denied, has been established.

2. [241]

   In the case of the Civil Liability Act, it is s 5R which specifies that the applicable principles are those which apply when determining whether a person has been negligent: s 5R(1).

3. [242]

   Epona’s case was that Mr Scott having been a licensed and experienced forklift operator who was aware of the dangers of working in close proximity to Mr Smith’s forklift operation, his contributory negligence had to be assessed at 50%. It contending that he had not been standing behind the barrier as he claimed, as Usinch also argued.

4. [243]

   Usinch relying on Mr Scott being a licensed forklift driver and therefore having an awareness of the risk involved in standing near where the forklift was being operated. He having failed to put himself in a position of safety, establishing his contributory negligence.

5. [244]

   I have explained why that cannot be accepted, notwithstanding the reliance on his motor accident claim form and the report resulting from Usinch’s investigation into the accident. In short, because he believed that to be a designated safe workplace, where office work was undertaken during the course of the day. I have also explained why that evidence must be accepted.

6. [245]

   Still, it must be accepted, it is undoubtedly relevant that Mr Scott was a licensed forklift driver who had operated the forklift at the abattoir and undoubtedly understood the risk of working in the vicinity of the forklift while Mr Smith was moving the stillages stacked in the load out area.

7. [246]

   The defendants’ failure to call any evidence from those who witnessed the accident, supervised Mr Smith and Mr Scott in their day to day work, prepared Usinch’s report, or provided the information on which it was based, despite the onus which fell on them to establish contributory negligence, must also be taken into account.

8. [247]

   In the result I am unable to conclude that contributory negligence on Mr Scott’s part has been established.

9. [248]

   Not only did Mr Scott explain why he could not have stood on the other side of the barrier, where the motor vehicle accident sketch and Usinch’s report indicated he had been standing when he was hit by the stillage, namely because of the confined area in which the forklift there had to be turned. But consideration also has to be given to its vicinity to the cold store area where forklifts had to stop before entering and the limited room there for the forklift to move around, which is supported by Mr Cauduro’s unchallenged report.

10. [249]

    The defendants also led no evidence about the configuration of this area to explain why Mr Scott’s evidence could not be accepted.

11. [250]

    Both defendants operated at the abattoir. Usinch was certainly in a position to lead evidence about its loading area and whether it would have been possible for Mr Scott to stand where it contended, given how the footage established the forklift had been reversed and turned by Mr Smith.

12. [251]

    There were others present who witnessed the accident and came to Mr Scott’s assistance who could also have given relevant evidence. The defendants called no such evidence and did not explain why. The inference that this evidence could not have assisted their case, must thus again be drawn. The explanation also not lying in the pleaded cases.

13. [252]

    The second further amended statement of claim pleads that Usinch owed Mr Scott a duty of care as the host employer which it breached and that Epona owed him a non-delegable duty of care to provide him with a safe workplace and that it was vicariously liable for the actions of its employees, including Mr Smith.

14. [253]

    Mr Scott also pleaded alleged material facts, risk, foreseeability and precautions and breach of the duties he was owed. He also gave particulars of the claimed negligence, including failures to devise a safe system of work, adequately supervise and train workers, ensure stillages were moved away at the end of a shift, and to provide adequate plant and equipment and ensure stillages were adequately secured to the forklift tines, so that they did not slip or become unstable. Causation was also pleaded.

15. [254]

    Usinch did not admit what was alleged against it. It denied negligence, failing to take precautions and causing any injury, loss or damage by its acts or omissions. It also pleaded that the risk which materialised was an obvious one of which Mr Scott was aware, so obvious that it had to take no further precautions than those it undertook.

16. [255]

    It also pleaded contributory negligence as well as negligence by Epona as the employer, as well as relying on s 151Z(2) of the Workers Compensation Act. The limitation defence pleaded was not pressed.

17. [256]

    What Epona had pleaded included a denial of the claimed scope of the duty which it owed Mr Scott and its breach; that it was Usinch which was vicariously liable for the driver of the forklift; denial of the pleaded risk, foreseeability and precautions Mr Scott advanced; his contributory negligence; as well as its reliance on provisions of the Workers Compensation Act.

18. [257]

    Before submissions in reply were addressed at the adjourned hearing, having seen the reliance placed on its failure to have pleaded Mr Scott’s failure to mitigate, which Epona had pleaded, Usinch was granted leave to amend its defence to raise this.

19. [258]

    That leave was granted over Mr Scott’s objection because I was satisfied that he would not thereby be prejudiced, given his cross examination and the submissions Usinch had advanced, which went to mitigation. That establishing that there was no ambush or surprise involved in the amendment. I also accepting the view that the leave sought accorded with what had been decided in ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 at [34]–[36], where mitigation had also not been pleaded.

20. [259]

    This explains how the matters I have dealt with came to be in issue.

21. [260]

    It follows that if the defendants wished to make out Mr Smith’s claimed contributory negligence, they had the opportunity to call evidence from those with knowledge relevant to the case they advanced, the onus falling on them to establish such negligence. Evidence which might have provided a basis for the rejection of Mr Scott’s evidence about where he was standing.

22. [261]

    That they did not lead such evidence and did not explain why, again supports the conclusion that such evidence would not have assisted the defence cases.

23. [262]

    That Mr Smith would not have been in Epona’s camp, as Epona submitted at one point, was not established. There was no suggestion that his employment came to an end as the result of the accident. That he was at fault for how Mr Smith had come to be injured was not suggested by Usinch’s investigation.

24. [263]

    While Mr Smith was later disciplined by Epona for his work performance and his employment eventually came to an end, it re-employed him. He took up work at the abattoir again, it undoubtedly being aware of his forklift driving when he was earlier employed at the abattoir and still it employed him again.

25. [264]

    On all the evidence I have explained, I am satisfied that contributory negligence was not established.

Claimed failure to mitigate

1. [265]

   Section 151L of the Workers Compensation Act is relevant. In ACN 096 712 337 Pty Ltd v Javor [2013] NSWCA 352 it was explained at [39] that s 151L(3) provides that the worker does not have the onus of establishing that the steps referred to in paragraphs (b) to (d) of subsection 151L(2) have been taken, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that he was required to take those steps.

2. [266]

   In December 2020 Epona sent Mr Scott a notice that he had failed to seek suitable employment as s 151L required, despite having the capacity to perform it. It did not allege a failure to pursue suitable treatment or appropriate rehabilitation training.

3. [267]

   Before its notice was sent in December 2020:

4. [268]

   Section 151L(2)(b) required the Court to consider “whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment”. Still I am satisfied that it cannot be concluded that the defendants established any failure to mitigate, notwithstanding that Mr Scott has not pursued either other employment, or treatment which he requires.

5. [269]

   While I have concluded that Mr Scott has exaggerated, to an extent, the consequences of his injuries and was not frank about his employment record, which affected opinions experts formed about relevant matters, I am satisfied that the nature and extent of his injuries have still precluded him pursuing or obtaining alternative employment, as I will further explain.

6. [270]

   Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998 is also relevant. It is concerned with achieving optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries. It imposes obligations on employers and workers.

7. [271]

   Pertinently in this case, requiring Epona to participate and co-operate in the establishment of an injury management plan for Mr Scott and to comply with the obligations it imposes: s 46. And in Mr Scott’s case, imposing similar obligations as well as nominating a treating doctor to provide relevant information and be involved in the development of the plan: s 47.

8. [272]

   Mr Scott nominated such a doctor with whom there was communication, but as the result of failures on the part of both Epona and Mr Scott, the required plan was not developed or pursued.

9. [273]

   There was also a requirement imposed on Mr Scott, in co-operation with Epona, to make reasonable efforts to return to work in suitable employment or pre-injury employment at the abattoir or at another place of employment: s 78. I am satisfied that the evidence does not permit the conclusion that it was as the result of Mr Scott’s failures that such efforts were not made. The experts having explained what should have occurred.

10. [274]

    On the evidence Mr Scott is still not in a position where even if he pursued other work, it would be available to him. The approach Epona adopted, as I have explained, insisting on his return to manual labour only months after his spinal surgery while the Hospital’s certificate that he remained unfit to resume work was current, plainly contributed to this result. Despite the psychological injury with which Mr Scott was also suffering, it terminated his employment claiming that he was in breach of s 44A of the Workers Compensation Act.

11. [275]

    The basis of this assertion is not apparent, but it explains the result, how Mr Scott was ‘lost to rehabilitation’ as it was described by the experts. His frustration about his injuries and the pain he was experiencing and the lack of support he had received from his employer, seeming entirely understandable in his circumstances.

12. [276]

    As Epona accepted, payment records also supported Mr Scott’s evidence that he became concerned about how he could make payment for treatment which he required. Even the psychologist he started seeing in 2019 not having been paid, with the result he did not pursue that treatment, or dental treatment or physiotherapy which he required. Payment for the psychologist’s treatment was not made for a considerable time afterwards, in 2020.

13. [277]

    I am thus satisfied that the evidence also precludes acceptance of the case advanced for Usinch, that Mr Scott had failed to mitigate, pretending to have a disability and having put his life on hold until this case was resolved, intending then to pursue rehabilitation and work in some capacity.

14. [278]

    Mr Scott’s failure to pursue treatment, on his case reflects a misunderstanding of advice he has received. That was also disputed but accords with the psychological condition which he suffers. That it is possible that if he had pursued treatment, including for his damaged teeth, his position may have improved, may be accepted. But it appears that his difficult position is the result of various problems he encountered after his accident, likely together with ongoing consequences of the psychological injury he sustained in his first accident, which had also not been treated, as well as the lack of support which he ought to have received from Epona.

15. [279]

    In the result I am not persuaded that a failure to mitigate has been established.

Apportionment

1. [280]

   Usinch contended that it would be concluded that it and Epona were 50/50% at fault and Epona that it had to be accepted that the proximate cause of the accident was Usinch’s unsafe system of work and that its many failures had had a significant causal potency. With the result that it had to bear the primary liability and the apportionment would be 75/25%.

2. [281]

   Contributions to a damages award by concurrent tortfeasors is an evaluative exercise: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34. Such a finding does not depend on questions of principle of fact or law, but of proportion, balance and relative emphasis. That requiring the weighing of different considerations and involving an individual choice or discretion, as to which minds may differ.

3. [282]

   I am satisfied on the evidence I have explained and the conclusions I have arrived at that it must be found that it was Usinch which had primary responsibility for Mr Scott’s injuries and must make a greater contribution to his damages.

4. [283]

   Still Epona should not have permitted Mr Scott to work as he had to under the unsafe system of work which it was aware Usinch had in operation, given the forklift work it was having Mr Smith perform.

5. [284]

   In all of the circumstances I have explained, I have concluded that Epona’s contribution must be assessed to be 30%.

Damages

1. [285]

   Mr Scott provided an amended schedule of the damages he pressed: MFI 2. The parties resolved aspects of this, including for loss of superannuation, but competing calculations were explained in MFI 10.

2. [286]

   Some matters were finally agreed, including:

   1. (1)

      That Mr Scott requires future commercial assistance, if it was found that he would pay for such assistance into the future, he should have an allowance of three hours per week at a rate of $65;

   2. (2)

      That was reflected in MFI 2, which had been calculated by reference to his expected life expectancy and a 15% reduction for vicissitudes; and

   3. (3)

      There would be no damages for past gratuitous domestic assistance.

3. [287]

   Given the conclusions which I have reached the parties also need to confer about the final calculation of the damages, before final orders can be made.

4. [288]

   Mr Scott’s case was that while he had not been entirely frank with those who had examined him about his history to 2017, the evidence established the significant injury he had then suffered to his thoracic spine, the surgery which had been required to stabilise his spine and their ongoing consequences, including the pain and psychiatric injury which he suffered, which had the result that he was unable to return to work to the life he had enjoyed to that point. None of the evidence the defendants relied on established that there was some issue other than his accident related injuries which caused his unemployment and other ongoing problems.

5. [289]

   Usinch’s case was that his medical records established that Mr Scott’s claimed level of incapacity had to be treated with scepticism. Further, that they established that he had effectively put his life on hold until the claims he was pursuing in these proceedings were over, he focusing on them and their outcome, before he attempted the pursuit of treatment, rehabilitation or getting back into the workforce in some capacity.

6. [290]

   The reality being that Mr Scott was claiming a disability which he did not have. That being established by Ms Bevan’s functional capacity assessment, which showed that his claimed pain and limited tolerance, including for sitting and standing, were inconsistent with objective testing and photographs in evidence. That according with Dr Buckley’s description in oral evidence of his behavioural interference in the assessment conducted, as opposed to a failure to cooperate. Such inconsistencies also having been identified by Dr Farag and Ms Smith.

7. [291]

   On Usinch’s case this established that he was overstating his symptoms in order to maximise his damages, that according with how he had been less than frank with the experts about his limited employment history. The medical records showed that from when his claim in relation to the 2001 accident was settled in 2005, he pursued no medical treatment until 2013, although he had continued to receive Centrelink benefits between 2010 and 2017. His son was born in 2012 and in 2013 he commenced receiving carer benefits.

8. [292]

   Epona’s case supported that of Usinch.

9. [293]

   The defendants relied on Mr Scott’s failure to call evidence from his wife to resist his claims, it having to be inferred that her evidence would not have assisted his case.

10. [294]

    Given Mr Scott’s case, which depended in part on his account of decisions which he had made with his wife, these submissions must be accepted, there having been no explanation for his failure to lead such evidence.

11. [295]

    Mr Scott’s real history was relevant to conclusions which the experts who assessed him arrived at. It was established in part by his medical and financial records, as well as by concessions which he made in cross examination, when he readily agreed with matters put to him about that history. Pertinently, it includes that:

    1. (1)

       Mr Scott successfully pursued a compensation claim for the physical and psychological injuries which he suffered as the result of his 2001 accident, when he suffered an injury to his clavicle in a car accident, when he was aged about 21 or 22. His best friend was killed in that accident and the driver of the car, an acquaintance, was very seriously injured;

    2. (2)

       For a period after this accident Mr Scott obtained support from Centrelink, without having to pursue or obtain any work, having repeatedly obtained medical certificates from his GP to establish his incapacity to work;

    3. (3)

       Afterwards the settlement he did not pursue further treatment and did not seek work until 2009;

    4. (4)

       He obtained work in 2010 but lost that employment after a short time, that having been the only paid work Mr Scott had performed since 2001,

    5. (5)

       Mr Scott told Dr Zeman in 2025 that he had made a conscious decision at the time of the settlement of his claims not to alter his course until he was aged 35. He explained in cross examination that what he meant by this was that he had then decided not to prioritise work;

    6. (6)

       Mr Scott claimed that he did pursue various volunteer work for the SES and at a local cricket club, but there is limited supportive evidence of this;

    7. (7)

       It was when his son was born in 2012 when Mr Scott was aged 30, that he decided to alter his course. But still he did not seek work until his son began school. That having been what he and his partner agreed and his son having been diagnosed to be suffering with autism when he was aged two and a half;

    8. (8)

       It was not until 2017 that Mr Scott obtained other paid employment. He was dismissed from the first position he obtained at a chicken farm after only some 7 weeks, for reasons which he did not consider he was responsible for;

    9. (9)

       That resulted in his successful pursuit of other work, which he obtained when he went in person to the abattoir, where he worked for less than three weeks before he was seriously injured;

    10. (10)

        He has not worked again;

    11. (11)

        After his release from hospital after the 2017 accident Mr Scott pursued but little further treatment, reducing his pain medication but resuming his former longstanding use of marihuana, which he had abandoned when his son was born. Although he has given differing accounts about the level of his usage, which he said in cross examination has varied from time to time;

    12. (12)

        Mr Scott did not even pursue treatments which his GP referred him for, including dental, physio and psychological counselling, which would have been paid for by the insurer under the workers compensation regime; and

    13. (13)

        Mr Scott’s wife is and has during their longstanding relationship always been in full time employment.

12. [296]

    By his evidence Mr Scott also claimed that:

13. [297]

    There is no issue that severe chronic pain can negatively impact mental health and that there is no objective way in which actual pain suffered can be measured.

14. [298]

    Ongoing pain accords with descriptions in various reports of Mr Scott being tearful and crying during examinations because of his pain. But on the defence case consideration has to be given to whether his pain behaviour has been manufactured, given what has been identified in various of the reports about Mr Scott’s testing.

15. [299]

    The physiotherapists Mr Smith and Dr Farag, for example, agreed that Mr Scott’s complaints of ongoing incapacity and symptoms did exceed the expected consequences of his injuries. They could not quantify to what degree, but did not expect to see Mr Scott’s physical incapacity make him avoid extensive movement. While they expected some limitations in his movement, they considered that the way he presented was predominantly due to his fear avoidant and pain behaviour.

16. [300]

    Such limitations could accord with Mr Scott deliberately exaggerating his ongoing pain and symptoms and not being frank about the extent of his physical recovery, as was the defence case.

17. [301]

    The occupational therapist Ms Bevan explained the results of functional testing undertaken in 2024 of Mr Scott’s then capacity. He was then observed to have high levels of pain after all major functional tasks after only short periods of undertaking them, that requiring lengthy periods for recovery. Further, that frequency of tasks such as walking decreased, because Mr Scott’s pain reached high levels after shorter durations.

18. [302]

    Examples given included Mr Scott having to sit after 8 minutes standing, when he became distressed and reported back pain at 7/10 and shoulder pain at 5/10. After four minutes of rest his back pain had not decreased, with the result that he wanted to recline to ease the pain. While sitting for 10 minutes he was constantly shifting and adjusting his posture and also had to regularly recline to ease his pain.

19. [303]

    Ms Bevan concluded that Mr Scott was still “a genuine client”, who before his accident had been a motivated man who would have remained highly active and energetic and that his injuries, chronic pain and mental health problems had had a major effect on his functionality. She also considered that there was a connection between the severe deterioration in his mental health and the ongoing pain levels he was suffering, evidenced by his functional testing.

20. [304]

    Also necessary to take into account is Mr Scott’s acceptance in cross examination that he had worked but very little since 2001 and that there is no objective evidence which establishes the level of the volunteer work he claims to have pursued over that time. I thus am not able to conclude that before his 2017 accident he was highly active and energetic, there being no evidence which establishes this.

21. [305]

    Ms Gosling’s testing resulted in the conclusion that Mr Scott required pain management intervention, but he has never pursued this.

22. [306]

    The views of the physiotherapists, who agreed, included that Mr Scott:

    1. (1)

       Would have ongoing limitations with spinal mobility and performing weighted manual tasks, as well as maintaining awkward postures such as reaching overhead, forward or sustained flexion in sitting or standing and in sustaining a forward flexed position of his arms for prolonged periods;

    2. (2)

       Would be suited to employment which provides him the opportunity to vary work postures, including by alternating between sitting, standing and walking;

    3. (3)

       Would not be suited to heavy manual work as his past employment had involved and would best be placed in sedentary employment which did not require him to be involved in more demanding physical work, so that he would be suited to part time employment of up to 20 hours per week;

    4. (4)

       Had received initial treatment in hospital after surgery which continued after his discharge, resulting in a graduated upgrading of his physical activity levels based on feedback from him, his orthopaedic specialist, scan results. Physiotherapy and health practitioners involved in his rehabilitation with ongoing support from the insurer, would have assisted this;

    5. (5)

       Will be impacted by extraneous variables which might affect his capacity to seek employment, including his psychological issues, family dynamics and medical management;

    6. (6)

       Optimally would have sought employment within 6 to 9 months post-accident;

    7. (7)

       Was focused on his pain and avoided almost all movement in response to his perception of pain, which they described as fear avoidant behaviour, which had led to increased stiffness and exacerbation of his pain levels over time. His behaviour no longer correlating to the degree of his underlying pathology, “But is more a psychological manifestation of his experiences and condition”; and

    8. (8)

       Should immediately commence physiotherapy, a supervised exercise program, including walking with the aim of increasing his functional capacity, assisted by psychological or counselling involvement, with pain management not being recommended, but noted as possible.

23. [307]

    But the psychiatrists considered that the major limitations in regard to Mr Scott’s return to work appeared to stem from his physical injuries, particularly his chronic pain. There being no evidence of his future work capacity being affected by prior or subsequent psychological injury.

24. [308]

    But given his true work and medical history, that is difficult to accept.

25. [309]

    Also relevant is that while giving his evidence over more than a day, Mr Scott was able mostly to sit, standing and moving only at times. The way in which he sat, which he did for the most part, did not accord with someone experiencing the high level of discomfort that he was found to be suffering in 2024 on testing. Nor did he seek any breaks or indicate any need to recline, as he did during functional testing. Even though when his evidence began, I had invited him to indicate, if he needed a break.

26. [310]

    If he was not exaggerating in 2024, this accords with Mr Scott having achieved some improvement since then.

27. [311]

    The parties agreed about the calculation of this head of damage, but there was an issue about whether it could be concluded that he would actually use such assistance, given the challenge to the truthfulness of aspects of Mr Scott’s evidence, albeit this aspect was only challenged by Usinch, not Epona.

28. [312]

    Mr Scott was cross examined about his use of commercial assistance in future. Given his evidence about his need for assistance with domestic work, gardening and lawn mowing and despite Mr Scott’s failure to call supporting evidence from his wife, given all that he suffers and his family circumstances, I am persuaded that it must be accepted that he would make use of the limited assistance the parties have agreed, if the agreed damages were awarded. His evidence being consistent with the nature and extent of his injuries, their ongoing consequences and the position of his wife and child.

29. [313]

    In the result he must be awarded the agreed amount for such assistance.

30. [314]

    “Non-economic loss” is defined in s 3 of the Civil Liability Act to mean “any one or more of the following—

31. [315]

    No damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case: s 16. There was no issue about this.

32. [316]

    Mr Scott claimed damages of $342,500, that representing 45% of a most extreme case and $563,342.86 for work injury damages. He relying on the extent of the injuries which he suffered and their ongoing consequences on his life, which include that he will never work again.

33. [317]

    The defendants contended that he would be awarded $175,000, that representing 30% under the Civil Liability Act and that no damages for non-economic loss could be awarded for his workplace injury.

34. [318]

    I have concluded that this loss must be assessed to be 38%.

35. [319]

    That assessment not involving the exercise of a discretion, but requiring an assessment involving matters of opinion, impression, speculation and estimation, in order to arrive at a figure which falls within a reasonable range: White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [57]-[78] per Gleeson JA and at [79]-[100] discussed in Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219 at [99]-[100]. There reference is also made to the consideration which may be given to having seen a plaintiff over a number of days in court and in the witness box: at [105].

36. [320]

    I have had such an opportunity in this case, which I have taken into account, accepting also that account has to be taken of the unexplained failure to call evidence from Mr Scott’s wife, who it might reasonably be expected would have supported his case.

37. [321]

    Mr Scott’s case was that it would be accepted that when he re-engaged in the workforce in 2017 after his son went to school, he had cause to believe that he could achieve his ambitions at the abattoir, having had positive feedback. Including from the owner who had told him there was an opening as a supervisor on the nightshift, which he had not yet pursued, because he was still getting his head around the loadout operation.

38. [322]

    It could not be accepted that he had any disorder, or other difficulty which could preclude him from achieving his ambitions. None of the evidence establishing that his current circumstances were anything other than the result of the injuries he had suffered in the accident, which had taken from him the course he had set out to pursue, which he had the capacity to achieve.

39. [323]

    The defence case was that this could not be accepted.

40. [324]

    They relied on the unrealised expectation in 2017 that Mr Scott would recover and be able to resume work and that his unexpected pain behaviours may or may not either be real or the result of exaggeration.

41. [325]

    It was accepted that there had been pre-existing Scheuermann’s disease and that the surgery has left him with a misaligned spine, that being consistent with the surgery which affected six of his vertebrae and resulted in the fusion of five discs, that explaining why he continued to suffer pain. That reflected the reports of Dr Kuru, Dr Dan, Dr Stenning and Dr Bentivoglio, which all help explain his injuries and their ongoing consequences.

42. [326]

    But the defendants also relied on Mr Scott having ceased seeing his then GP in August 2017 and not seeing another until 2019, despite having legal representatives who could have advised him about his entitlement to pursue the treatment he required.

43. [327]

    In issue was whether his problems were manageable with rehabilitation and pain treatment, which had not been pursued.

44. [328]

    The evidence established that there were a number of contributors to Mr Scott’s current situation, including his untreated psychological injury in the first accident and the failure to pursue the rehabilitation which would have assisted him. But it must be found that the result of the injuries he sustained in the 2017 accident is that despite the exaggeration about which I am satisfied, Mr Scott does have physical limitations which preclude heavy work, lifting, repetitive bending and only permit him to engage in light semi-sedentary activities.

45. [329]

    The experts agreed that his complaints of thoracic pain were likely to continue permanently and that he required physiotherapy and psychotherapy. On the evidence if it is attempted, it will be of assistance to Mr Scott but will not remove the consequences of the injuries which he suffered, or the Kyphosis which resulted.

46. [330]

    There is no question that not only were the histories Mr Scott has given not always complete, they were inconsistent. The experts who gave concurrent evidence accepted that the further aspects of his history which emerged from his cross examination were relevant and impacted opinions they had formed.

47. [331]

    Dr Zeman, for example, also considered that Mr Scott’s chronic marihuana use complicated his position, but he having seen the treating surgeon’s report, still concluded that he did suffer ongoing pain as a likely consequence of his injuries. That involving low level constant pain with periods of intermittent severity. He also considered that Mr Scott’s position in relation to work might have been different, had he pursued a rehabilitation program 6 months after his injury.

48. [332]

    Dr Buckley agreed, but said that while some with his injury might succeed with rehabilitation, others would not, whether because of ongoing pain or because they lacked sufficient motivation.

49. [333]

    The rehabilitation providers, Dr Farag and Mr Smith, explained what a normal rehabilitation process would have involved, with the pursuit of suitable treatment to assist Mr Scott’s return to work. Normally this would involve identifying suitable duties and necessary restrictions, in consultation with those treating the worker. That did not occur.

50. [334]

    Account also has to be taken of when they each assessed Mr Scott, they had both encountered resistance. In Dr Farag’s case functional testing ceased. In Mr Smith’s case it was able to be completed, but he noted inconsistencies in reported issues, with the result that he didn’t accept some of what Mr Scott told him to be real. For example that he no longer wore shoes and socks because he was unable to bend to reach his feet.

51. [335]

    The psychiatrists Dr Teoh and Dr Samuels agreed that they had not received Mr Scott’s actual history and that it did alter their thinking somewhat.

52. [336]

    In Dr Samuels case, this history caused him to wonder whether Mr Scott was suffering depressive anxiety symptoms even before the 2017 accident, he having concluded that the severe injuries Mr Scott then suffered had resulted in the development of chronic pain and related depression and anxiety, as well as a greater dependence on marihuana. That might have altered his diagnosis to an exacerbation of an underlying condition from the accident having produced a de novo adjustment disorder, given his patchy employment history, which suggested that he had not been functioning well before his work at the abattoir.

53. [337]

    In Dr Teoh’s case, he took the view that there having been no documented psychiatric history after 2005, Mr Scott’s unemployment was not indicated to have been due to mental health issues. Nor did his cannabis use explain his reported significant anxiety and depression. His 2017 injuries definitely exacerbated those conditions. His unemployment could be explained by other social or interpersonal problems, which his injuries had exacerbated. He accepted that his current incapacity to work might also be partly explained by his prolonged unemployment and a predisposition to psychiatric condition, before he was injured in 2017. But Dr Teoh was firmly of the view that the accident had resulted in Mr Scott suffering a significant psychiatric condition.

54. [338]

    Dr Samuels also considered that Mr Scott’s chronic pain was the major limiting factor for employment. He and Dr Teoh agreed that pain medication did not necessarily lead to any improvement; that people could not successfully be forced into psychological therapy; and that it was not uncommon for patients with such problems to resist psychological therapy. They also agreed that Mr Scott could have minimised his symptoms after his 2001 accident, consistent with not having sought any treatment after 2005.

55. [339]

    I am satisfied that Mr Scott’s unreliability as a historian, his inconsistent performance on physical examination and his observed movement in court over some days is consistent with the consequences of his physical injuries not being as significant as he still claims, The result is that despite the psychological injury and ongoing pain which he it must be found he also suffers, the assessment of his non-economic loss must be somewhat reduced.

56. [340]

    Still, that his injuries led him to self-medicate his pain by a resumption of marihuana and resulted in him having lost the path he had begun to pursue in 2017, of returning to work to support his child after he started school, which I accept he intended, must also be taken into account.

57. [341]

    Mr Scott told the psychologist Dr Groth in 2019 that he had let his forklift licence lapse, despite having maintained fit or many years while not working, because he could not face a forklift again. He still has not worked and because of his physical restrictions, pain and psychological injury now has even less capacity and prospect of doing so than he had before the accident.

58. [342]

    Nor is he any longer even able to pursue activities which he formerly enjoyed. They including boating and fishing and volunteer work which he used to pursue, when not working.

59. [343]

    It is all of these considerations which have led me to the conclusion that Mr Scott’s non-economic loss must be assessed to be 38%.

60. [344]

    Both past and future economic loss were pressed on the basis that Mr Scott could not work again in the course of his expected working life because of the injuries which he suffered in the 2017 accident.

61. [345]

    Mr Scott pressed $563,342.68. This had regard, after some 2 years, to claimed earnings as a supervisor at the abattoir at a sum of $1,454.31 per week, $77,000 per annum, that being less than the average rate of earnings. But there was no evidence what such earnings were.

62. [346]

    Nor, am I satisfied, did the evidence establish that had he not been injured as he was, Mr Scott would have obtained or remained in such employment, or in comparable work elsewhere in the Hunter Valley where it was claimed significant employment opportunities exist, for example in mining, for both supervisory and unskilled work.

63. [347]

    Mr Scott has but limited work experience and none in supervisory work. That he had the capacity to perform such work was not established. His future economic loss thus cannot justly be calculated by reference to what he would earn in a supervisory position.

64. [348]

    The defendants urged $67,112.50, that representing his pre-accident earnings of $650 net in the time he had worked at the abattoir, for 25% of the past, as well as $7,382.37 for superannuation, that being calculated as 11% of $67,112.50. They contended that labouring was a low paid occupation and Mr Scott would be able to perform higher paid sedentary work, with appropriate rehabilitation.

65. [349]

    Given Mr Scott’s very limited employment record I am satisfied that his past economic loss can only be based on what he was actually earning in Epona’s employ, which it appears was not dissimilar to the other unskilled employment he shortly had and lost before he took up employment with it.

66. [350]

    But even though I am satisfied that Mr Scott has been unable to work since the accident, as was his evidence, it being largely supported by the expert evidence, I am not satisfied that on his record, it can be concluded that he would have maintained employment at Epona or other similar, regular employment, despite his ambitions.

67. [351]

    Much more likely, I am satisfied, is that his employment would have been intermittent as it has been in the past. Albeit likely not to the same limited extent, given that his son has started school and Mr Scott altered his course, having recognised the need to work to support him.

68. [352]

    It seems to me that this head of damage necessarily should be dealt with by way of a buffer. About which the parties should confer further.

69. [353]

    The calculation of Mr Scott’s future economic loss also remained in issue. Under the Civil Liability Act it depends on satisfaction about “the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.”: s 13. Section 14 specifies the prescribed discount rate of 5%.

70. [354]

    Mr Scott claimed $1,388,836.57. It had been calculated by reference to his anticipated retirement age, at a labourer’s rate for some 2 years and then at the rate of a supervisor at the abattoir, with a 5% discount rate. A calculation based on a labourer’s rates was advanced in the alternative, that amounting to some $697,475.56, based on rates presently paid for such work by Usinch.

71. [355]

    It appeared that while the mathematical calculation could be agreed, the claimed work as a supervisor was not. Nor was it agreed that Mr Scott would have continued in full time employment until retirement, had he not been injured as he was.

72. [356]

    I am satisfied that he has not established the necessary basis for either claim.

73. [357]

    The defendants proposed that these damages be dealt with by adoption of a buffer of $150,000, given Mr Scott’s very limited past employment record, with the result that likely ongoing weekly loss of the kind he claimed had not been established.

74. [358]

    This proposed buffer resting on an assumption that in future Mr Scott would have been in employment for similar limited periods as he had been in the past, given his contradictory evidence about his pursuit of employment after 2009, on which the evidence of Dr Zeman and Dr Samuels shed light.

75. [359]

    Epona urged assumptions that but for the injury Mr Scott:

76. [360]

    The assessment of these damages involves a consideration of capacity: Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48. It has been recognised that income earned before an accident may “be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned”: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24].

77. [361]

    It is also usually “necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future.”: at [24].

78. [362]

    Such an assessment of hypothetical events, requiring the assessment of “the degree of probability that an event would have occurred, or might occur” and adjusting the award of damages to reflect that degree of probability": Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20. That involving a “process of estimation of possibility”.

79. [363]

    It is also recognised that there is also a point “beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage”: Kerr at [30].

80. [364]

    In Mr Scott’s case this assessment was complicated by:

81. [365]

    Despite the cases the defendants advanced, on the expert evidence I am satisfied that Mr Scott has no future earning capacity.

82. [366]

    The defence case in relation to his prospects of future employment was not supported by some unchallenged evidence. In their joint report the neurosurgeons Dr Dan and Dr Bentivoglio, for example, having agreed that at the very best, Mr Scott could only do light duties on a part time basis. They were not required to give concurrent evidence.

83. [367]

    In the concurrent evidence Dr Zeman said that while he had previously concluded that Mr Scott would have been capable of doing light and sedentary work after 6 months, he had come to the view that he would only be capable of less activity in sedentary work, given the extent of his kyphosis. Dr Buckley remained of the view he would never again be fit for employment, given that he was not fit for work which required him either to stand or sit.

84. [368]

    Dr Zeman still considered that Mr Scott would benefit from a rehabilitation program which would establish whether he had any remaining fitness to work, which accorded with the care he had been providing for his son and volunteering with the SES. Dr Buckley agreed that such a program was generally of benefit, but considered that Mr Scott fell into that group whose injuries were so bad that they are unable to return to work.

85. [369]

    They also had somewhat different views about the truthfulness of what Mr Scott had told them. Dr Buckley not having formed the view that he was unreliable and Dr Zeman considering that some of his responses had not been truthful. That according with a background of him not being really motivated to work, irrespective of injury.

86. [370]

    Nor did the vocational reports of Ms Whitely and Ms Hartley entirely support the defence case. They had identified a number of types of work which Mr Scott would be capable of performing, his claimed level of disability having been accepted for the purpose of the report. Still no vacancies in the identified work had been located and they explained such employment would require the support of a sympathetic employer. There is no evidence on which it could be concluded such an employer exists or could be found by Mr Scott.

87. [371]

    They also noted Mr Scott had developed an ambition to work for himself, because he had found he enjoyed cooking, but he had not attempted to pursue this.

88. [372]

    It was accepted that it was not sufficient for the defendants to prove that Mr Scott had a theoretical capacity for future work, they also having to establish that he had a practical capacity to perform such work. That was argued to have been achieved by the reference in the reports to positions in rural towns and regions being typically filled by word of mouth referrals and informal job networks, which Mr Scott had been encouraged to pursue, in order to maximise the likelihood of his placement. That having been how he found work at the abattoir.

89. [373]

    I am unable to accept this.

90. [374]

    As explained in Smith v Alone [2017] NSWCA 287 at [46], it is necessary to make a practical assessment of the evidence about the likelihood of Mr Scott being able to obtain and retain the jobs that the defendants submitted would be suitable for him: Nominal Defendant v Livaja [2011] NSWCA 121 at [65]; Mead v Kerney [2012] NSWCA 215 at [24]-[25] and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74].

91. [375]

    The defendants bearing “the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity”: Kallouf v Middis [2008] NSWCA 61 at [52]; Mead at [26]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74].

92. [376]

    I am satisfied that this onus was not met.

93. [377]

    Like in Mead, in this case there was no evidence of any demand in the area where Mr Scott lives for people to perform the jobs identified in the reports, let alone for a person with his limitations: at [28]-[32].

94. [378]

    Unlike Mr Scott, Mr Mead had a long history of satisfactory work before the accident and was eager to obtain employment but had been unsuccessful. With his background, that Mr Scott’s limitations would be accommodated by a supportive employer seems unlikely. Nor was there any evidence which would permit the conclusion that he would in future obtain work of the kind for which the defendants contended.

95. [379]

    The calculation of his future economic loss thus cannot have regard to such possibilities. Still, Epona contended that like in Kallouff it would be accepted that Mr Scott had not established that he had no residual capacity whatsoever: at [81]. That conclusion resting on evidence that Mr Kallouff had himself sought to retrain and obtain light work, which an expert had concluded he could perform, that giving some insight into his capacity.

96. [380]

    But there have been no such efforts by Mr Scott, that according with Epona’s failure to provide the rehabilitation support which the experts concluded he should have received.

97. [381]

    Given all the evidence, I accept that it must be found that Mr Scott has established that he does not have the claimed residual capacity.

98. [382]

    Despite this, given all of the other evidence which has to be considered, I also accept that this head of damage cannot justly be calculated in the way for which Mr Scott contended, but must be calculated by way of a buffer. Its calculation being approached on the basis that had he not been injured as he was, Mr Scott in future would have undertaken labouring type work, but not on the full time basis that he claimed.

99. [383]

    That being entirely improbable, given his past record of employment, which I am satisfied cannot be ignored.

100. [384]

     On Mr Scott’s case, there had to be some finding of a reason, other than life choices, for him not being able to achieve his claimed ambitions, had he not been injured as he was. Those reasons lie in the losses of the other two labouring positions which he obtained in 2010 and in 2017, but held only for such very short periods and his evidence that despite having been seeking work since 2009, it was only once in 2010 and twice in 2017 that he was able to find any paid work.

101. [385]

     On his employment history and the expert evidence I have concluded that it cannot be accepted that Mr Scott’s future employment would not have been broken as it was in the past, despite his claimed decision to pursue the alteration of his life after his son started school.

102. [386]

     That since 2001 Mr Scott has worked in total for only about 6 months over some 22 years, having otherwise lived on unemployment or carer’s benefits, albeit not always diligently pursuing even those, is also not a reliable basis for the conclusion that, had he not been injured, he would have remained in full-time employment until retirement age.

103. [387]

     Dr Zeman described his work history as “patchy”, following the psychological injury which he suffered and was compensated for after his first accident, for which he did not pursue treatment. In the only two times he obtained employment afterwards, before he was employed by Epona, he was unable to maintain employment for long and on his third attempt, he only worked for some two weeks before he was injured.

104. [388]

     That without such injury he would have retained ongoing employment long term at the abattoir thus cannot be accepted as being probable. Nor that if he lost that employment, that he would either quickly pursue or find other employment, which he would then retain long term until retirement.

105. [389]

     That also does not seem probable, despite Mr Scott’s evidence about his need to support his son and his decision to revisit his decision not to prioritise work, after he was born.

106. [390]

     Still Mr Scott’s position was that his case about his future had to be accepted, given his unchallenged evidence that he had lost his 2017 employment at the chicken farm because he had to deal with someone who was an ice addict who worked there. A dispute having arisen about that person having taken drugs at work and his cross examination establishing that he was perceptive, clear thinking, intelligent and honest.

107. [391]

     I do not agree. Even if it be accepted that Mr Scott had the claimed capacity to maintain long term employment, which he has never demonstrated, that could not preclude a proper consideration of his past record. Given the contradictory explanations he has advanced for that record and its consistency with the ongoing untreated effects of his earlier psychological injury, that he has the capacity he claims cannot justly be accepted.

108. [392]

     It was also claimed to be relevant that while unemployed he had been active in volunteer work, at the cricket club and the SES. As was that the loss of the first paid position which he had obtained in 2017, not having been for reasons for which he was responsible. Still a significant problem for the case, so pursued, was that Mr Scott called no evidence to corroborate the accounts which he gave about these matters, not even from his wife.

109. [393]

     I am also satisfied that it cannot be concluded that but for the accident Mr Scott would have obtained a supervisory position after some 2 years working at Epona, let alone some comparable position elsewhere if he lost that work. Or that he would have worked in such a position to retirement.

110. [394]

     That is not only because Mr Scott led no evidence which established the existence of such claimed opportunities. But also because there was no evidence that he has the capacity to perform such work, he never having undertaken it to this point.

111. [395]

     Despite the defendants not having called any lay evidence, I am not satisfied that Mr Scott’s damages for future economic loss can be assessed on his hopes or aspirations about working for Epona. That such evidence would not have assisted the defence case does not prove all that Mr Scott claimed his future would hold.

112. [396]

     I am also satisfied, however, that while in these difficult circumstances adoption of a buffer is the only just way to calculate Mr Scott’s uncertain damages for future economic loss, it cannot result in the adoption of a buffer of only $150,000.

113. [397]

     Having considered all that I have explained, I have concluded that if justice is to be done the buffer must be $250,000. That accepting at least that had he not been injured Mr Scott is likely, at least, to have been more persistent and successful in obtaining and retaining further employment than he had been in the past, given the incentives which he now has, which he did not have in the past and the work experience which he would then have built.

114. [398]

     Mr Scott claimed $84,331.94, this reflecting payments which had been met by Medicare and the workers compensation insurer, as well as the cost for a mattress. On the defence calculation this was $79,085.04.

115. [399]

     The claimed sum reflected that while the 2020 agreement that his whole person impairment was 26% entitled Mr Scott under s 59A of the Workers Compensation Act to have the cost of his reasonable medical treatments, he did not pursue such treatment, not even to have his teeth repaired. There is no issue that this entitlement will cease when this litigation ends.

116. [400]

     On the evidence Mr Scott also requires treatment for other considerable damage to his teeth which was not caused by the accident, but by neglect, consistent with ongoing issues from the psychological injury he suffered after his first accident. It was Usinch’s case that he had been angry, uncooperative and difficult to deal with since 2017, but that was because of his frustration with the litigation, rather than his injury.

117. [401]

     I am not satisfied that this was established by the evidence. He appears to have been frustrated with both, understandably, given the serious injuries which he suffered and their results, not only his ongoing pain and inability to return to the work he had decided to pursue, but his dismissal, no support for rehabilitation and his failure to settle these claims, despite the settlement of his workers compensation claims.

118. [402]

     It was also Usinch’s case that Mr Scott’s evidence that he had understood that he was not entitled to have his expenses paid by the insurer would not be accepted, given that he had been legally represented by personal injury solicitors at the relevant times. The Medicare records establishing the little treatment which he had actually pursued.

119. [403]

     I am unable to accept this, given all the evidence I have explained. Including the untreated depressive type symptoms he seems to have been experiencing since his 2001 accident.

120. [404]

     I am satisfied that the claimed expenses must be awarded.

121. [405]

     Mr Scott claimed $68,306.00 reflecting consultations with psychiatrists, psychologists and General Practitioners as well as for teeth implants, rehabilitation and pain management, medication and travel expenses.

122. [406]

     Usinch proposed $5,000 to allow for the pain management program Dr Samuels and Dr Teoh recommended, given the limited treatment Mr Scott had pursued since his accident with his GP and that he had not pursued treatment she recommended, even though it would have been paid for under the workers compensation regime.

123. [407]

     On its case Mr Scott’s approach reflected his anger since 2017, his resulting uncooperative approach and a “kind of litigation neurosis” which he had developed, which had impacted his behaviour, including in relation to the pursuit of treatment, for which he did not have to pay.

124. [408]

     On his past history it was also unlikely that he would pursue the treatment or incur the expenses he pursued.

125. [409]

     I am satisfied that such damages must be awarded, albeit in respect of Mr Scott’s teeth, only for those front teeth broken or knocked out in the accident.

126. [410]

     I have explained the problems Mr Scott experienced when his rehabilitation was not supported as it ought to have been with the result that he has not had the treatment which he ought to have had. I accept that he was angry and frustrated as a result with all of those he dealt with, including his solicitors and did not understand that he could have treatment he needed paid for earlier.

127. [411]

     I do not accept that if he received damages for such expenses he still would not pursue such treatment.

128. [412]

     Epona advanced a calculation of these damages in its schedule, about which the parties should also confer in light of these conclusions.

Costs

1. [413]

   The usual costs order is that costs follow the event. In this case that is an order that the defendants bear Mr Scott’s costs.

2. [414]

   Unless the parties wish to be heard that will be the Court’s order.

Orders

1. [415]

   For the reasons given judgment will be entered for Mr Scott. The parties should confer and file proposed orders which reflect this judgment within 21 days, together with short written submissions about anything that remains in issue.