Steven George Villanti v Coles Group Supply Chain Pty Limited; Steven George Villanti v All Staff Australia NSW Pty Ltd t/as Allstaff Australia

HER HONOUR: The plaintiff seeks damages for a crushing injury to his lower right leg sustained when a pallet mover collided with him in a warehouse owned by the Coles Group Supply Chain Pty Limited (Coles) on 24 April 2009.

There are two proceedings before the Court. In both proceedings the plaintiff is Steven George Villanti. In proceedings No 2012/104536 the defendant is Coles. In proceedings No 2015/39590 the defendant is Allstaff Australia NSW Pty Ltd t/as Allstaff Australia (“Allstaff”). On 19 May 2017, an order was made that the proceedings be heard together and that evidence in one proceeding is evidence in the other. On 22 June 2017, both Coles and Allstaff filed cross claims against each other.

The plaintiff also seeks damages for the same injury sustained on the same date from Allstaff. The plaintiff and the driver of the pallet mover that collided with the plaintiff, Mark Douglas, were both employed by Allstaff. Allstaff was responsible for the training and instruction of their employees placed at the Coles warehouse in the safe operation of pallet mover machines. The plaintiff and Mark Douglas were placed by Allstaff at the warehouse pursuant to a labour hire contract or agreement for service. However, Coles was the owner of the pallet mover.

At the commencement of the trial, counsel for Allstaff indicated that the pleadings were incorrect in that they referred to Mr Douglas driving a forklift. It was agreed by the parties that the vehicle driven by Mr Douglas was in fact a pallet mover. (T17.1-19).

The plaintiff and his wife, Nichola Corin, provided two evidentiary statements dated 8 August 2016 and 10 August 2016 respectively. (Ex A). Mark Douglas provided three evidentiary statements dated 23 July 2016, 20 October 2016 (Ex D2/4) and 22 June 2017. (Ex D2/5). The plaintiff and Mr Douglas gave evidence and were cross examined. The plaintiff’s wife gave short evidence. Drs Stephenson, Powell and Giblin, the orthopaedic surgeons, gave conclave evidence as they had not seen the video evidence when Dr Stephenson and Giblin wrote their joint report dated 18 April 2017. (Ex A). Dr Powell did not participate in the joint report.

It is convenient that I now record my findings concerning the plaintiff’s credibility. I observed the plaintiff carefully when he gave evidence and was cross examined. While the plaintiff agreed that he did not always provide accurate evidence to the medico legal experts and that he gave some inconsistent evidence as to his past accident and work history, it does not go to any significant issues raised in these proceedings. I have come to the conclusion that he gave truthful evidence in relation to the accident that occurred on 24 April 2009. During their conclave evidence, the orthopaedic surgeons viewed surveillance evidence of the plaintiff mowing his lawn and later carrying a gas bottle and other cooking equipment. (Ex D1/8). This surveillance evidence did not alter their medical opinions. Overall, I accept the plaintiff’s evidence where I say otherwise.

The plaintiff was born in 1977. He is currently 39 years old. In 1994, he completed year 10 at Patrician Brothers Liverpool and was awarded his school certificate. The plaintiff is presently unemployed and his wife is his carer.

After leaving school, the plaintiff undertook a 12 month course as a chef at a hospitality college in Sydney. From 1995 to 1997, the plaintiff was employed with P & O Catering as a chef.

From January 1997 to January 1999, the plaintiff was employed by the Holsworthy Army Barracks and East Hills Army Barracks. Following this, the plaintiff was employed as a chef at a number of restaurants, including Sizzler, McDonalds and Camden Valley Golf Club.

In 2008, during the course of his employment at Camden Valley Golf Club, the plaintiff almost severed his right index finger while using a knife. He underwent microsurgery at Westmead hospital to reattach his right index finger. The surgery was a success and the plaintiff made a full recovery.

In 2003, after obtaining a light rigid truck driver’s licence, the plaintiff worked as a truck driver for approximately five years with Alsco Linen and Benchmark Joinery. In 2007, he obtained a forklift driver’s licence and moved into warehousing work. The plaintiff registered for employment with Allstaff and was placed at the Bonds factory at Minto where he worked for just over one year.

While the plaintiff was at the Bonds factory he became aware that well paid work was available at the Coles warehouse at Smeaton Grange (“the warehouse”). The plaintiff successfully applied for that work. In June 2008, he commenced working at the warehouse. Coles was the occupier and manager of the warehouse where the accident occurred. The plaintiff was employed through Allstaff. Mr Douglas confirmed that he reported to an Allstaff employee named Karen Palazzo who was located at the warehouse. She would facilitate the shifts for Coles and if an employee needed to call in sick they would report to her. (T265.27- 49).

The plaintiff’s duties at the warehouse were to pick and pack groceries to fill orders placed by various supermarkets. On commencement of his work at the warehouse, the plaintiff received training in the use and operation of a pallet moving machine called a DPC machine (“the pallet mover”). That training was provided by a supervisor from Coles. He was also trained in the rules that applied to the use of the pallet mover at the warehouse.

Mr Douglas also discussed his induction in his supplementary statement, which was similar to that given to the plaintiff. Mr Douglas stated that on his first day of employment at the warehouse he was introduced to a Coles supervisor whose name he does not now recall. (Ex D2/5, [5]).

Mr Douglas recalled that the supervisor told the Allstaff employees that their duties would be that of a picker and packer. The supervisor teamed Mr Douglas up with a female Coles employee who would be his competence trainer. The trainer took Mr Douglas to a vehicle and told him it was a pallet mover. (Ex D2/5, [6]-[7]).

Once Mr Douglas had learned the operation of the pallet mover, he was taken through a number of aisles at the warehouse. He drove the pallet mover as the trainer walked beside him, explaining tasks and other matters at the same time. (Ex D2/5, [13]).

Mr Douglas recalled that Coles had a performance based system whereby bonuses were paid to pallet drivers if they completed their orders faster than the prescribed time limit. (Ex D2/4, [20]). Counsel for Allstaff submitted that such a system amounted to an instruction to work faster, take unnecessary risks and encourage a driver to keep driving where a picker was wrapping a stationary bundle in an aisle. However, Mr Douglas does not say that this incentive made him work faster and take unnecessary risks. I do not draw this inference.

The layout of the warehouse was described by the plaintiff and Mr Douglas in similar terms. The warehouse is huge with approximately 50 aisles. The aisles are around 80 metres long and divided at the halfway point by an aisle running at a right angle to all of the other aisles. This aisle is sometimes referred to as the cross aisle or breezeway.

There are three types of vehicles in use at the warehouse. Firstly, forklifts that are controlled by Coles employees only. Secondly, pallet movers that are controlled by Allstaff employees but owned by Coles. They are unregistered and not insured for the purpose of the Motor Accidents Compensation Act 1999 (NSW). Finally, truck loaders which are small and more manoeuvrable than the pallet movers.

The pallet mover has a platform at the front where the operator stands. The controls are in front of the operator. Behind the operator is a guard of approximately two metres in height. Behind the guard are two sets of tines extending back from the driver. Each tine is 28 centimetres with a gap in the middle. These tines are long enough to carry two chep pallets, one behind the other. When the pallet mover is moving, the operator stands at the front, facing forward, holding the steering bar which includes the throttle. Beneath the operator’s foot is a button. The pallet mover does not move unless the button is depressed.

There is racking on either side of the aisles with pallets loaded with boxes containing Coles’ products. The pallets are approximately one metre by one metre. (T44.31-32). The empty pallets are placed on the concrete floor. They are placed within the racking so that one edge of the pallet is horizontal and in line with the racking boundary on the aisle. Empty pallets at floor level are removed by the forklift operators and replaced with loaded pallets. Traffic in each aisle is one way and alternates from aisle to aisle. The rule is that the drivers were to keep to the left unless they were overtaking a stationary machine, similar to the everyday rules of an ordinary road.

At any one time, there are many pallet movers travelling up and down the aisles. The operators stop from time to time to pick up pallets from the floor level pallets in the pick bays on either side of the aisle.

The pallet movers travel at speeds of 10 to 15 kilometres per hour. They are battery powered and move very quietly. At each cross aisle pallet mover drivers are instructed to sound their horn. Once an order is complete, the operator moves the pallet mover to the left hand side of the aisle and brings it to a halt. The operator lowers the tines so that the completed pallets remain on the floor. The operator then gets down from the controls and wraps the completed order with plastic shrink wrap. The shrink wrap is wrapped around the load a number of times until it is securely covered. The roll of shrink wrap is carried on the platform of the pallet mover behind the driver. Also behind the driver on the pallet mover is a tray from which the driver has a pamphlet of stickers. The stickers comprise of an order and are removed and placed onto the boxes of product as they are picked up. The final stickers of every order contain the words “end of order”.

The plaintiff estimated that the aisles were three metres wide. Mr Douglas in his supplementary statement estimated that the aisles to be four to five metres wide. (Ex D2/5, [15]). In cross examination, Mr Douglas agreed that the aisles were roughly three metres wide. (T227.21-23). Therefore, I make a finding that the aisles were roughly three metres wide.

The plaintiff’s version of events is as follows. On 24 April 2009 at approximately 10:30 am, the plaintiff was working in the warehouse in aisle CK. He had completed picking an order of stock and had two fully laden pallets. One pallet had already been wrapped in cling film and was sitting on the tines of the pallet mover. The other pallet had been fully packed and was sitting on the floor of the warehouse in the aisle where the plaintiff had packed it with boxes of soft drink. The pallet had been placed by the plaintiff in the aisle 50 centimetres away from the pallet racking on the right hand side, allowing enough space for him to be able to walk around the pallet while another pallet mover proceeded past it. He was standing towards the centre of the aisle. (T52.23-25).

The accident occurred while the plaintiff was in the process of wrapping the second pallet in plastic wrap. The plaintiff’s evidence is that the plastic wrap comes in long rolls and, in order to fully carry out the task of wrapping, one needs to walk backwards around the pallet. As the plaintiff was wrapping the pallet on the side closest to the centre of the aisle, he heard a big bang and felt something strike him on his right hip. Almost simultaneously his right leg was caught between the pallet he was wrapping and a pallet on the forklift speeding past him. The plaintiff was squashed between the loaded pallets, dragged along for a distance of a few metres and then flung into the pallet racking. He remembers everything that happened up until he landed in the pallet racking and then he lost consciousness.

A photo of the pallets after the accident can be seen in Ex D1/3 (reproduced below). One pallet mover is not wholly visible as it had been moved prior to the photo being taken. The plaintiff also drew a rough sketch diagram of the point of impact between him and the loaded pallets. (Ex D2/6).

This diagram depicts both the rear and front of the pallet that the plaintiff was wrapping. The plaintiff indicated that where the word ‘front’ is, is where the red pallet and boxes closest to the photographer are in Ex D1/3. The pallet movers involved in the accident are pallet mover CN3582 and pallet mover CN3597. Exhibit D1/3 also shows the point of collision between the laden red and blue pallets. At the time of the accident, the plaintiff was wrapping the laden red pallet with cling wrap to secure the load. During cross examination, Mr Douglas stated that the corner of the blue pallet was struck. (Ex D1/7, photograph 3). The plaintiff marked on the photograph Ex D1/3 the pallet he was wrapping with an almost heart shaped outline in black, incorrectly described as white in the transcript. (T51.16-17). The photograph shows that the fully laden pallets dislodged in the accident were of a substantial height, length and size.

Mr Douglas’ version of events is as follows. His pallet mover came to a very sudden stop. Between the jerk and his pallet mover coming to a complete stop, it travelled no more than a metre. He heard the crashing sound of pallets and boxes falling. Mr Douglas jumped down from the platform and saw the plaintiff standing beside his rear pallet at the back of the tines of Mr Douglas’ pallet mover. The rear pallet had been dislodged and there was a mess. Soft drink bottles had broken out of their boxes. (Ex D2/5, [37]-[38]).

Mr Douglas gave the following answers in cross examination (T255.36-50):

The plaintiff gave evidence that prior to the accident, he did not hear a horn sound or any other form of warning that Mr Douglas was driving down the aisle. Nor did he make eye contact with Mr Douglas. He first saw Mr Douglas on his pallet mover when Mr Douglas’ pallet mover crushed him in between the pallet and his (the plaintiff’s) pallet mover. (T56.50; T57.1-32).

Mr Douglas’ evidence is that he said to the plaintiff “are you okay, mate?” The plaintiff replied, “No I’m not.” Mr Douglas responded, “I’ll get someone.” Mr Douglas ran to the cross-aisle where he knew there was a phone. (Ex D2/5, [39]-[42]). He notified the cleaner and the cleaner contacted the first aid attendants to attend the scene. In cross examination, Mr Douglas denied that he ran away from the accident. (T224.36-37).

The next memory the plaintiff has is waking up in the pallet racking with boxes on top of him. Someone was cradling his head in their lap and the safety officer, Greg Alvisio, was there. There were also a number of other people around. The plaintiff was suffering excruciating pain in his right leg.

Police, police rescue and ambulance personnel arrived and the boxes were taken off the plaintiff’s legs and body. The steel capped boot on his right foot was cut off by the emergency workers. The plaintiff was taken by ambulance to Campbelltown hospital and then transferred to Liverpool hospital where he underwent emergency surgery performed by Dr Al Muderis, an orthopaedic surgeon.

On 27 April 2009 (three days after the accident), in a meeting between Radomire Manojlovic, Glenn Wilford and Karen Palazzol of Coles, and Mr Douglas, Mr Douglas stated that he did not see a pallet that was sticking out of the racking and claims that he clipped it. Mr Douglas also stated that he had not slowed down to the extent that he should have. The notes from that meeting of 27 April 2009 record (Ex D2/1, p 203):

Also three days after the accident a report called the Coles Incident Report and Investigation Form dated 27 April 2009 (“the incident report”) was prepared by Sharon Buik, team manager of Coles. It describes the accident as follows (Ex D2/1, p 13):

Mr Douglas gave evidence that he had a clear view of the plaintiff from about 60 metres. (T237.46-48). In respect as to whether the plaintiff and Mr Douglas made eye contact, Mr Douglas gave the following evidence (T261.15-28):

I do not accept Mr Douglas’ account that he and the plaintiff made eye contact because, if this was the case, Mr Douglas would, more likely than not, have brought his pallet mover to a complete stop. More importantly, had the plaintiff made eye contact with Mr Douglas, he would have seen Mr Douglas’ pallet mover travelling towards him so would not have continued to wrap his pallet in the path of the oncoming pallet mover. It is my view that Mr Douglas was going at a speed of 15km/h when it was not safe to do so.

Regarding his speed, Mr Douglas gave the following answers in cross examination (T238.11-15):

Mr Douglas agreed that he had made an error of judgment and that it would have been simple to stop and wait for the plaintiff to finish wrapping the pallet before continuing to drive around the (plaintiff’s) pallet. (T255.36-39).

However, Mr Douglas also reiterated the further explanation that he gave to Coles as to how the accident occurred. (T263.20-30). His explanation was that his load struck a pallet that was protruding from the racking causing his pallet mover to “ricochet” across the aisle and strike the plaintiff. He says that the load on his pallet moved to the right and the pallet moved to its left. Mr Douglas stated (Ex D2/4, Statement, 23 July 2016, [13] to [16]):

I do not accept Mr Douglas’s evidence and prefer the plaintiff’s evidence that he (the plaintiff) first saw Mr Douglas when his right leg was crushed in between the pallet and the pallet mover. Further, I make a finding that the plaintiff was not standing after the collision but was squashed between the loaded pallets, dragged along for a distance of a few metres and then flung into the pallet racking.

In relation to [16] of his statement extracted above, Mr Douglas gave the following evidence in cross examination (T253.16-19; T253.25-27; T255.30-32):

Coles had a traffic management plan in place at the warehouse (“the traffic management plan”). (D1/5). The management plan provided a number of rules for staff to follow regarding mobile plant equipment. It was signed by Mr Douglas, the site manager Lea Jones and Rod Croft, the OHS Chairperson. The plaintiff also signed a similar one.

The traffic management plan included the following relevant rules:

The plaintiff was mistaken when he said the rule was that one should sound their horn when approaching another vehicle. (Ex A, Statement, 8 August 2016, [15]). The actual instruction was that mobile plant operators do not need to use their horn when approaching/passing pedestrians on a marked walkway, unless they intend to cross the walkway nor when approaching other mobile equipment in operation. (Ex D1/5, [16]).

The incident report characterised the risk rating of the accident as medium. Coles’ formal investigation dated 28 April 2009 indicated that the following actions should be completed in order to control the factors that contributed towards the accident. The actions to be put in place were firstly, a requirement in the site traffic management plan to stop and sound a horn before passing someone who is wrapping their pallets; secondly, the site traffic management plan was to be updated to include the requirement that team members are not to remain between their pallets and passing machinery and mobile plant operators are to wait until a pedestrian has cleared that area before passing; thirdly, an inspection of pallets within aisles is to occur by team managers with offending pallets to be rectified and reach truck operators to be addressed; and finally, to have a team talk to all reach truck operators to ensure they check that they place pallets correctly into pick slots. (Ex D2/1, the incident report, p 21).

The formal investigation report provided relevant back information regarding the warehouse. The report stated that an informal review on 27 April 2009 at Smeaton Grange found a number of pallets protruding excessively from the pick slots. An administrative control of painting white lines to indicate where to place the pallets into the slot did not appear to make any difference to the overall correct placement of pallets in the slot. The site has had 5 incidents of mobile plants hitting fixtures or pallets in fixtures causing damage to upright legs since the start of period 8 of FY09. (Ex D2/1, p 18). While there was reported damage to fixtures and pallets, there was no report of personal injury.

The plaintiff claimed that Allstaff owed a non delegable duty of care to provide a reasonably safe system of work and owed a non delegable duty of care as his employer. The plaintiff also claimed that Allstaff is vicariously liable for the actions of Mark Douglas, also an employee. (ASC, 2 April 2015, [8]-[10]).

The plaintiff pleaded that Allstaff was negligent in firstly, the driving of the forklift by Mr Douglas at an excessive speed; secondly, the failure by Mr Douglas to keep a proper lookout; thirdly, the failure on the part of Mr Douglas to stop, swerve or otherwise manoeuvre the said pallet mover so as to avoid collision; fourthly, the failure on the part of Mr Douglas to heed the plaintiff’s presence on the floor of the premises; fifthly the failure on the part of Mr Douglas to avoid colliding with the plaintiff; sixthly, driving by Mr Douglas in too close a proximity to the plaintiff; seventhly, failing to devise, institute and maintain a safe system of work; eighthly, failing to instruct, or adequately instruct the operators of pallet mover machines in the safe use and operation of those machines and finally, permitting pallet mover operators to pass workers in the aisles. (ASC, p 3).

Allstaff denied that it owed a non delegable duty to provide a reasonably safe system of work. However, Allstaff admitted that it owed the plaintiff a non delegable duty of care as his employer and that it is vicariously liable for the actions of Mark Douglas. (Def, 30 April 2015, [8]-[9]). Allstaff denied the particulars of negligence and pleaded contributory negligence. (Def, [11]-[12]).

As previously set out, Mr Douglas proffered an explanation for the incident which is expounded by both the plaintiff and Allstaff. He claimed that his pallet mover clipped a pallet that was protruding from the racking into the aisle, forcing his pallet mover to jolt, pushing his pallet into the plaintiff and jamming the plaintiff’s lower right leg between the pallet and the pallet mover. This explanation was also set out in the incident report. The report provides some support to this version of events as it notes that the racking of the right post was damaged. However, without expert evidence to support this ricochet proposition, I cannot draw inferences or conclusions as to how the pallet mover would have ricocheted after hitting an empty pallet that protruded from the racking into the aisle forcing the load on Mr Douglas’ pallet mover to collide with the plaintiff’s lower right leg. No evidence been provided to this court in respect of the actual width of the aisle, the speed of the vehicle, the size and weight of the loaded pallets, the measurements as to the distance that the pallet protruded beyond the racking where the plaintiff was located or any further expert evidence explaining the dynamics and the likelihood of this scenario being the cause of the accident. Hence, I am unable to determine whether Mr Douglas’ account of the accident is more probable than not on the balance of probabilities, given the paucity of the evidence before me. I therefore regard it as conjecture and reject it as the cause of the accident.

While Mr Douglas saw the plaintiff, the plaintiff did not see Mr Douglas. Nor did the plaintiff hear a horn being sounded (if it actually was) because he was busily engaged in wrapping his load on the pallet with shrink wrap. In my view, there a number of factors that caused the accident. These are firstly, that although Mr Douglas had a clear view of the plaintiff from about 50 to 60 metres back (T237.46-48), he was driving his pallet mover at excessive speed in the circumstances; secondly, Mr Douglas misjudged the clearance between the racking on the right, the pallets on the exit bay and the plaintiff and his load and hence, failed to manoeuvre the pallet so as to avoiding colliding with the plaintiff; and thirdly, Mr Douglas did not keep a proper lookout as he should have seen that the passageway was obstructed by the plaintiff wrapping his load, he then should have stopped and waited for the plaintiff to finish that task before he proceeded with driving his pallet mover.

Allstaff owed the plaintiff a non delegable duty of care as his employer and is vicariously liable for the actions of Mark Douglas driving the unregistered pallet mover. It was the fault of Mr Douglas, the driver of the pallet mover that caused the plaintiff’s injuries. Therefore, Allstaff breached its duty of care to the plaintiff and is negligent. Its negligence caused the injury to the plaintiff’s lower right leg.

Allstaff submitted that the plaintiff failed to take proper care for his own safety, having regard to his skill and experience; failed to perform his work in a safe and proper manner; and failed to move away from the pallet mover. (Def, [12]).

In considering the question of apportionment, the court is required to reduce the damages recoverable to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. The inquiry is not concerned with the cause of the accident but with the cause of damage: see Froom v Butcher [1976] QB 286 at 292-293. Contributory negligence is measured by the failure of the plaintiff to take reasonable care for his own safety: see Gunning v Fellows (1997) 25 MVR 97 at 99. It is the degree of departure from the standard of care of the reasonable man: see Pennington v Norris (1956) 96 CLR 10 at 16. Therefore, it is an objective not subjective test as applied to someone such as the plaintiff. The standard of care is to be measured against that of ordinary prudence: Sungravure Pty Limited v Meani (1964) 110 CLR 24 at 36.

As the plaintiff was wrapping the load on the pallet with shrink wrap, he did not see Mr Douglas’ pallet mover approaching. Nor did he hear a horn being sounded or hear the approach of Mr Douglas’ pallet mover as the pallet movers are battery powered and very quiet. The plaintiff first saw Mr Douglas on his pallet mover when Mr Douglas’ pallet mover crushed him between the pallet and the plaintiff’s pallet mover. In these circumstances, the plaintiff took care of his own safety as he was performing his work in the manner he had been trained to. He did not move away from the pallet mover being driven by Mr Douglas because he did not hear or see it. Hence, I do not attribute any contributory negligence to the plaintiff.

The Civil Liability Act 2002 (NSW) governs the liability of Coles.

By further amended statement of claim dated 8 April 2015 (“FASC”), the plaintiff pleaded that Coles owed a duty of care to the plaintiff “commensurate with that of an employer”. (FASC, [5]). The plaintiff alleged that Coles was aware of the risk of injury to workers as a result of pallet mover drivers not giving way to workers who were undertaking packing work. The plaintiff pleaded that prior to his accident, Coles did not have any system in place to monitor the activities of pallet mover operators in relation to the safe use of pallet movers and in particular, the giving way of operators to other users within the aisles. (FASC, [12]-[13]).

The plaintiff pleaded that the particulars of Coles’ negligence are firstly, travelling at an excessive speed; secondly, failing to keep a proper lookout; thirdly, failing to stop, swerve or otherwise manoeuvre so as to avoid collision; fourthly, failing to heed the plaintiff’s presence on the floor of the premises; fifthly, failing to avoid colliding with the plaintiff; sixthly, driving in too close a proximity to the plaintiff; seventhly, failing to devise, institute and maintain a safe system of work; eighthly, failing to instruct, or adequately instruct the operators of forklift machines in the safe use and operation of those machines; and finally, permitting the pallet mover operators to pass workers in the aisles.

Coles denied these pleadings and denied that it was negligent. (Def, 10 September 2015, [2] and [6]). Coles did not plead contributory negligence.

Sections 5, 5B, 5C and 5D of the Civil Liability Act are relevant. I will set these out in turn below.

Section 5 reads:

Section 5B reads:

Section 5C reads:

And finally, s 5D relevantly provides:

I will now set out and deal with the submissions made by the parties in relation to each provision of the Civil Liability Act.

In relation to s 5B(1)(a), senior counsel for Coles submitted that s 5B(1)(a) of the Civil Liability Act is not satisfied for the following reasons. The risk of injury alleged by the plaintiff against Coles is that Coles was aware of the risk of injury to workers as a result of pallet mover drivers not giving way to workers who were packing stationary pallets. Framed in this manner, the allegation does not correctly identify the risk to the plaintiff. The risk of injury to the plaintiff was that Mr Douglas would not obey the various traffic management rules, particularly the rule requiring operators to give way to pedestrians, and that Mr Douglas would fail to drive and manage the pallet mover while keeping a proper lookout so appropriately alter the pallet mover’s course and avoid any collision with the plaintiff or objects in the plaintiff’s proximity. Senior counsel for Coles also submitted that the risk of injury correctly delineated was not foreseeable to Coles. It is debatable whether the plaintiff, when wrapping his full pallet, is considered a pedestrian.

It is my view that it was not foreseeable Mr Douglas would ignore the direction to to keep a proper look out for the plaintiff or any other obstacle that may have been present; drive at a dangerous speed in the circumstances; or that Mr Douglas would decide to proceed, having misjudged the necessary clearance between his load and the plaintiff, the load the plaintiff was wrapping and/or any other obstruction. For these reasons, s 5B(1)(a) has not been satisfied.

In relation to s 5B(1)(b), there was a clear risk of significant injury within the meaning of s 5B(1)(b).

However, so far as s 5B(1)(c) is concerned, Coles claimed that it took reasonable precautions against the risk of injury. Coles submitted that it had a detailed system of work in place that, if correctly observed by Mr Douglas, would have avoided the injury to the plaintiff. The system comprised the following:

Coles also submitted that, for the following reasons, the system of work was safe had it been properly implemented by Mr Douglas:

I have already made a finding that the operator of the pallet mover, Mr Douglas, saw the plaintiff from 50 to 60 metres away, was travelling too fast and failed to keep a proper lookout for hazards and the plaintiff. I have also already set out the training that the plaintiff and Mr Douglas received from Coles and the instructions contained in Coles’ traffic management plan. It is my view that there is no evidence that the accident was caused as a consequence of the lack of instruction or training given to the plaintiff and Mr Douglas.

Senior counsel for Coles further submitted that reasonable care on the part of a driver in the position of Mr Douglas required the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events. Senior counsel for Coles relied upon Manley v Alexander [2005] HCA 79 (“Manley”) and Evans v Lindsay [2006] NSWCA 354 (“Evans”).

In Manley, the High Court overviewed the appellant’s evidence at [22] as follows. The appellant said that he was driving his truck along Middleton Beach Road when he saw a man standing on the side of the road (Mr Turner). Because the man was moving around a fair bit like he had been drinking, the appellant kept an eye on him. The appellant did not slow down and he maintained his speed of about 55 to 60 kilometres per hour. The appellant also started to veer to the centre of the road. When he looked back at the roadway ahead of his truck, he saw something lying on the road. He said that he went to brake and thought “I shouldn’t brake, so I lifted my foot, then I felt that I ran over something.”

On appeal, the appellant contended to the High Court that it was not open to the Full Court of the Supreme Court of Western Australia to find from the facts that they had failed to take reasonable care. The High Court dismissed the appeal by a 3-2 majority, holding that it was open to the Full Court to make such a finding because the driver, Manley, was guilty of negligence. In the majority judgment of Gummow, Kirby and Hayne JJ, the conditions on the road that lead to this conclusion were noted at [13]:

In the Court of Appeal’s decision in Evans, the respondent was walking down the middle of Kangaloon Road, Bowral in an inebriated condition. The accident occurred in the early hours of 27 February 2000 in conditions that were dark, wet but illuminated by streetlights and the vehicle’s low beam headlights. The driver had not previously driven along the road that was in a built-up area and had been driving within the speed limit of 60 kilometres per hour. The trial judge found the driver was negligent as he was driving too fast for the conditions and was not keeping a proper look out, and that the respondent was 15% contributorily negligent.

The Court of Appeal also cited with approval the content of the duty of a driver at night as expressed by Gummow, Kirby and Hayne JJ in Manley at [12] and [13]. The Court went on to state at [39]:

Although the Court of Appeal found error in certain respects in Evans, it upheld the verdict against the driver on the basis that the driver had failed to keep a proper lookout. The Court did, however, increase the allowance for contributory negligence. ([71], [72] and [74]).

The Court observed at [71] that where a driver is confronted with a situation where there is a risk of injury, there may be a range of steps that may be taken by way of a reasonable response:

In line with the above authorities and as I have previously stated, it is my view that the injuries to the plaintiff were caused by Mr Douglas’ negligent driving and not from any failure of Coles to take appropriate precautions under s 5B(1)(c). This conclusion is supported by the following factors:

Coles further submitted that the final particular of negligence set out in paragraph [60] above, permitting pallet mover operators to pass workers in the aisles, has not been shown to be a reasonable precaution as required by s 5B(1)(c) Civil Liability Act. This was challenged by counsel for Allstaff, who alleged that the investigation report provides evidence of circumstances to which a reasonable person in Coles’ position would have responded by taking precautions, namely, implementing a system to prevent accidents. As I have already mentioned, the investigation report provides that there were five reported incidents involving mobile plants hitting fixtures or pallets in fixtures and causing damage to upright legs since the start of the period 8 for the financial year ending 2009..

Senior counsel for Coles also alleged that the “actions not yet completed” section of the investigation report is not relevant to the current dispute for the following reasons:

The five incidents dealt with in the investigation report concern property damage caused to fixtures or pallets in fixtures not personal injury. I do not consider that a reasonable person in Coles’ position would have taken the precautions suggested by Allstaff in response to the investigation report. Nor do the actions contained in the “actions to be completed” section of the investigation report support a finding that Coles failed to take the precautions a reasonable person would have done in its position.

I also consider it relevant that the accident was not caused by Mr Douglas attempting to drive his pallet mover past the plaintiff in the aisle when there was insufficient room in the aisle. To the contrary, there was ample room for two pallet movers to pass each other in the aisle and both the plaintiff and Mr Douglas agreed there was sufficient room for Mr Douglas to pass the plaintiff. The injury to the plaintiff was caused by the negligent attempt by Mr Douglas to carry out the passing manoeuvre and driving too fast and not keeping a proper lookout.

In considering the operation of s 5B(1)(c), it is necessary that I consider the factors set out in s 5B(2) which guide the determination of whether a reasonable person would have taken precautions against the risk of harm. In relation to s 5B(2), senior counsel for Coles submitted in the hearing that no evidence had been provided by either Allstaff or the plaintiff to support a favourable finding of the matters in (a)-(d). (T.375.38-50). I agree with this submission. This Court has not been provided with any evidence as to the probability that harm would occur if care had not been taken or the burden of such precautions. While I consider that the likely seriousness of the harm is clear on the facts pursuant to s 5B(1)(b), this alone is not sufficient. In my view, there has been insufficient evidence provided in respect of the factors set out in s 5B(2) to support a finding that s 5B(1)(c) is satisfied.

In my view, the plaintiff and Allstaff have not satisfied the provisions within s 5B of the Civil Liability Act. Accordingly, the claim against Coles fails. In case I am wrong, however, I will now consider the other provisions in the Civil Liability Act.

No written or oral submissions were made in relation to s 5C of the Act. Nor was any evidence adduced to this Court in relation to the matters set out in s 5C(a)-(c).

Senior counsel for Coles submitted that the injury to the plaintiff is fully explained as a consequence of a casual act of negligence on the part of Mr Douglas. Mr Douglas simply drove the pallet mover carelessly and there was nothing more that Coles was required to do to take reasonable care. Consequently, there was no factual causation as required under section 5D(1)(a) and therefore no negligence on the part of Coles.

The particulars against Coles, however, alleged that it failed to devise, institute and maintain a safe system of work, failed to instruct the operators of the forklift machines in the safe use and operation of those machines and that it permitted forklift operators to pass workers in the aisles (FASC, p 3). In response, Coles submitted that even if the relevant particulars of negligence relied upon were made out, namely (g), (h) and (i), these were not a cause of the injury to the plaintiff and are causally irrelevant to the circumstances of the plaintiff’s injury. These matters were not a necessary condition of the occurrence of the harm to the plaintiff. The system of work was safe had it been correctly followed by Mr Douglas. According to Coles, the plaintiff and Mr Douglas were properly instructed as to the operation of their pallet movers and were both experienced operators. Mr Douglas does not say the accident occurred because of his inability to operate the pallet mover. There is also no reason why two pallet movers could not pass each other in the aisle. Mr Douglas and the plaintiff both agreed that their pallet movers could have passed on this occasion had Mr Douglas exercised the appropriate care. Indeed, such interactions between pedestrians and mobile transport would be inevitable given that the warehouse was a major distribution centre.

It is my view that the accident occurred because of Mr Douglas’ casual act of negligence and not because of any systemic failure by Coles. As previously discussed, there had been no expert evidence of the protruding pallet causing the ricochet of Mr Douglas’ pallets so as to collide with the plaintiff.

It follows that none of the particulars were a necessary condition of the occurrence of the harm to the plaintiff as required by s 5D(1)(a). To the contrary, I consider that the system of work devised by Coles was safe but Mr Douglas did not adhere to it.

It is my view that the relevant provisions in the Civil Liability Act have not been satisfied. Hence, Coles is not liable in negligence for the plaintiff’s injury.

On 22 June 2017 (during the hearing), Coles and Allstaff filed cross claims against each other. Allstaff sought indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) and contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The relief sought by Coles is for contribution and/or indemnity pursuant to Clause 4 of the Law Reform Miscellaneous Provisions Act, damages for breach of contract, indemnity pursuant to contract, costs, costs of defending the plaintiff’s claim and costs of the cross claim.

Apportionment requires an assessment of the causal potency and culpability of each party.

Coles submitted that it was the actions of Mr Douglas that were entirely responsible for the injury to the plaintiff. At its highest, the case against Coles involves an unspecified intrusion of an empty pallet into the aisle in circumstances where Mr Douglas admits he should have seen it.

For the reasons previously given and in light of the fact that Allstaff is vicariously liable for the actions of Mr Douglas, Coles is not required to indemnify Allstaff at all. Nor is Coles required to make any contribution.

Before I deal with damages, Allstaff has raised a legal argument with which the plaintiff agrees that, by virtue of the interaction between the Motor Accidents Compensation Act and the Workers Compensation Act, Coles is liable for the negligence of Mr Douglas.

It is first necessary to set out the relevant provisions of the Motor Accidents Compensation Act, the Workplace Injury Management and Workers Compensation Act 1998 (NSW) , the Workers Compensation Act and the Employees Liability Act 1991 (NSW).

Section 3 of the Motor Accidents Compensation Act reads:

Sections 3A and 3B of the Motor Accidents Compensation Act relevantly read:

Section 112 is contained in Part 4 of the Motor Accidents Compensation Act. It reads:

Section 4 of the Workplace Injury Management and Workers Compensation Act relevantly reads:

Section 3 of the Employees Liability Act reads:

Section 150 of the Workers Compensation Act reads:

Coles submitted that although they are the owner of the pallet mover, s 3B of the Motor Accidents Compensation Act is a limiting provision that displaces the statutory presumption of agency between the owner and the driver in circumstances created by s 112 of the Motor Accidents Compensation Act.

Coles further submitted that in the present proceedings s 3B is engaged and, as a consequence, Chapters 3 to 6 of the Motor Accidents Compensation Act do not apply. As the statutory agency presumed by s 112 is contained within Part 4 of the Motor Accidents Compensation Act, it accordingly does not apply.

The purpose of s 3B is to limit the application of the Motor Accidents Compensation Act to specific motor accidents that cause death or injury where there is motor accident insurance coverage or that gives rise to work injury damages claim. It provides that Chapters 3 to 6 do not apply unless the accident is either a motor accident for which the motor vehicle has insurance cover within s 3B(1)(a) or is a death or injury giving rise to a work injury claim within s 3B(1)(b).

Senior counsel for Coles submitted that s 3B(1)(a) of the Motor Accidents Compensation Act does not apply because the pallet mover used by Mr Douglas does not fall within the corresponding provision of s 3B(2). It is not insured under a third party policy, it is not a vehicle owned by the Commonwealth and there is no right of action against the nominal defendant because the accident happened in a warehouse not on a road related area.

Coles also submitted that the injury to the plaintiff is not a ‘work injury claim’ against Coles within the meaning of s 3B(1)(b) of the Motor Accidents Compensation Act as s 3B(3) does not apply. This is because s 3B(3) expressly requires the injury to the worker to result from, or be caused by, the negligence or other tort of the ‘worker’s employer’. Allstaff, not Coles, is the plaintiff’s employer. Based on the statutory definition of a ‘work injury’ and a ‘claim’, the only claim the plaintiff can make for ‘work injury damages’ is against his employer, Allstaff.

It was also submitted by Coles that the agency between the owner and driver which arises at common law does not apply in the current circumstances. This is because the common law provides that a defendant who is the owner of a vehicle is only liable as the principal if he is in the vehicle or is otherwise able to assert immediate control over the driver: Soblusky v Egan (1960) 103 CLR 215 at 231 (Dixon C.J., Kitto and Windeyer JJ) (“Soblusky”); Scott v Davis (2000) 204 CLR 333 at [131], [257] (Gummow J) and [311] (Hayne J) (“Scott”).

In addition, senior counsel for Coles pleaded that the common law agency between the owner and the driver considered in Soblusky could not arise in the current context where the owner is a corporate entity. It was argued that Soblusky concerned circumstances where the owner is driving through the agency of the driver and is in a position to physically control the driver’s actions. That is to say, he is physically within the vehicle. Although in that case, the owner was in fact asleep in the car while the driver was driving. Coles submitted that a corporate owner, such as itself, cannot be held to be in that position.

Senior counsel for Coles also pleaded that even if s 3B is held not to be engaged or there is in common law to find agency, there is no principle of dual vicarious liability in Australia: Day v Ocean Beach Hotel Shellharbour Pty Ltd and Another [2013] NSWCA 250 at [23] and [25] (Leeming JA) (“Day”). I shall reproduce [23] when I refer to Day in Allstaff’s submissions.

In summary, Coles submitted that s 3B displaces s 112 of the Motor Accidents Compensation Act and that the common law agency for a motor vehicle owner that arose in Soblusky is not applicable to the current circumstances. Even if agency were to be found on either of these grounds, dual vicarious liability does not exist in Australian law. Allstaff should therefore be held as vicariously liable for the actions of Mr Douglas as his employer under general law. Such a conclusion is reinforced by s 3 of the Employees Liability Act, which

The plaintiff submitted that both Coles and Allstaff are liable. The accident was caused by the fault of the driver, for whom Allstaff is vicariously liable as the employer, in the use or operation of the vehicle while driving the pallet mover. It was further submitted that Coles is also liable as the owner of the vehicle because s 112 of the Motor Accidents Compensation Act renders a driver of a vehicle the statutory agent of the owner. The owner is liable as principal as a result.

According to the plaintiff, the effect of s 3B of the Motor Accidents Compensation Act is that the accident is one “which gives rise to a work injury claim” so that the provisions of the Motor Accidents Compensation Act, including s 112, apply.

Senior counsel for the plaintiff accepted the general position in Australia against dual vicarious liability. That is, that there is no recognition in Australian common law of the doctrine where two parties may both be vicariously liable for the actions of one individual at the same. However, the plaintiff asserted that the limiting statement of Leeming JA in Day in relation to a new and specific species of vicarious liability is created by the Motor Accidents Compensation Act where the owner of a motor vehicle becomes the deemed principal of the driver of that vehicle and causes an injury. The plaintiff contended that this exception to the general rule is expressly reserved in Day.

Allstaff submitted that the liability of Coles for any negligence of Mr Douglas causing injury to the plaintiff is seen from an interaction between the Motor Accidents Compensation Act and Workers Compensation Act.

In Ralston v Bell and Smith [2010] NSWSC 245, Hislop J at [31] said of s 112 of the Motor Accidents Compensation Act:

In this case, Allstaff’s counsel submitted that subs (1)(b) has no application and subs (1)(a) applies on the assumption that the Motor Accidents Compensation Act itself has application. In order to answer this, consideration must be given to s 3A and s 3B of the Motor Accidents Compensation Act. If the injury to the plaintiff was in whole or in part caused by the fault of Mr Douglas, then s 3A is satisfied. As previously stated, the injury was caused wholly by the fault of Mr Douglas. Hence, s 3A applies. Coles has asserted in its defence that s 3B protects it from the liability that would otherwise be imposed upon Coles. Allstaff alleges that s 3B does not have this effect.

Due to the words at the conclusion of s 3B(3)(b) of the Motor Accidents Compensation Act, it is necessary to refer to s 150 of the Workers Compensation Act in Part 5. Counsel for Allstaff submitted that s 3B(3) of the Motor Accidents Compensation Act is satisfied because its scope is extended through the operation of s 150(b) of the Workers Compensation Act. The hearing proceeded on the basis that Mr Douglas is a person for whose acts Allstaff is vicariously liable.

While Allstaff agreed that Coles was correct in its assertion that, as a proposition in general law, an employer is vicariously liable for the negligence of his employee, provided that the employee does not act outside of his or her employment duties. However, Allstaff’s counsel submitted that because the accident has given rise to a work injury claim within s 3B(3)(a) and s 112 falls within Part 4 of the Motor Accidents Compensation Act, s 112 has application. The submission made by Allstaff is that the consequence of the presumption contained in s 112 is that Mr Douglas, as the driver of the pallet mover, is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle. The consequence of this is that Coles is liable for the acts and any omissions of Mr Douglas.

It should be noted that the presumption of agency created by s 112(1) is a conclusive presumption: see Brown v Harding [2008] NSWCA 51 at [1] (Hodgson JA, Hidden and Hislop JJ). A question identified by Coles is whether the plaintiff could make out a case for dual vicarious liability.

The view of Allstaff is that the passages of Gibbs CJ, Wilson and Dawson JJ (Deane and Brennan JJ dissenting) in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 (quoted in Day) held the proposition of law that once one person was vicariously liable, no other person could be. These passages should lead this Court to the conclusion that the agency imposed upon Coles by statute in the present case excludes a liability that might otherwise be imposed on the employer, Allstaff.

Counsel for Allstaff submitted that the Motor Accidents Compensation Act only has application if the negligence on the part of Mr Douglas has had a causal role in the plaintiff’s injury. It was pleaded that Mr Douglas’s negligence did not have such a role. However, I have already made a finding that Mr Douglas’s negligence did cause the plaintiff’s injury.

Allstaff argued that if this submission was unsuccessful, the only other cause of the plaintiff’s injury, apart from the plaintiff’s own actions, was the unsafe system of work identified in the Coles’ investigation report. It was submitted that Coles bears the responsibility for its failure to take the measures identified in that report in order to guard against the plaintiff’s foreseeable injury. In support of this, counsel for Allstaff pleaded that there is no evidence to say that Allstaff had any say in, or control over, the system of work, nor that the remedies proposed by the committee for the shortcomings in that system were matters that could be addressed by Allstaff. Nor is there any evidence of a causal link between any breach by Allstaff of a duty of care owed to the plaintiff and the injury.

Alternatively, Allstaff submitted that if there is a causal role played by some negligence on the part of Mr Douglas, then the Motor Accidents Compensation Act is engaged. If Day, rather than Bon McArthur Transport Pty Limited v Caruana [2013] NSWCA 101 (“Caruana”) is a correct statement of the law in New South Wales, then s 112 imposes upon Coles a conclusive presumption of agency to the exclusion of Allstaff.

Before I turn to consider Day, I should first briefly mention the other cases that Coles referred to, namely Soblusky, Scott and Caruana.

Senior counsel for Coles referred to Soblusky, where the Dixon CJ, Kitto and Windeyer JJ stated at [6]:

Senior counsel for Coles referred to the High Court decision of Scott where Gummow J (with Gleeson CJ, Hayne and Callinan JJ agreeing, McHugh J dissenting) stated at [131], [225], [226], [227] and [263]:

Coles also referred to the statement of Hayne J at [311]:

The facts of the New South Wales Court of Appeal’s decision in Caruana were as follows. On 22 June 2006, the plaintiff, Mr Caruana, was seriously injured when a forklift driven by a Mr Brazel ran into him while he and Mr Brazel were working together at premises occupied by the first appellant, Bon McArthur Transport Pty Ltd (In liq) (“BMT”). Mr Caruana and the driver were both employed by a labour hire company which is now in liquidation. Mr Caruana obtained a judgment against the employer’s insurer, Worker Compensation Nominal Insurer, for the full amount of his loss. The liability of the nominal insurer derived from the liability of the employer, which in turn was vicariously liable for the negligent driving of the forklift which struck Mr Caruana. Mr Caruana claim against BMT was based upon its statutory liability as the owner of the forklift, the negligent operation of which caused Mr Caruana’s injury. The claim was brought pursuant to s 112 of the Motor Accidents Compensation Act, relying upon the statutory definition of “owner” which included “any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle”: s 4(1)(a)(iii) (in the case of a registered vehicle) or (b) (in the case of an unregistered vehicle).

The Court of Appeal per Meagher JA (with whom McColl and Basten JJA agreed) stated at [52]:

Coles submitted that Leeming JA (with whom Meagher and Emmett JJA agreed) in Day accepted at [25] that the rule against vicarious liability may be displaced where a new species of vicarious liability is created by statute. In so doing, Leeming JA had expressly left open the possibility that legislation could impose dual vicarious liability. Coles also asserted that the earlier decision of Caruana is consistent with Day because Caruana concerned an injury that occurred on 22 June 2006, prior to the commencement of s 3B of the Motor Accidents Compensation Act, and that it was not in dispute in Caruana that there may be two persons vicariously liable due to the deemed statutory agency created by s 112 of the Motor Accidents Compensation Act.

Leeming JA referred to the concept of dual vicarious liability within Australia. His Honour stated at [23]-[31] and [33]:

The injuries to the plaintiff were wholly caused by the negligence of Mr Douglas for which Allstaff is vicariously liable as his employer.

It is common ground between the parties that the accident is a motor accident within the meaning of s 3 of the Motor Accidents Compensation Act.

For s 112 of the Motor Accidents Compensation Act to be engaged, the threshold provisions of s 3A and s 3B must be satisfied. These provisions were introduced by the Motor Accidents Compensation Amendment Act 2006 (NSW) to limit the application of the Motor Accidents Compensation Act to specific injuries and motor vehicle accidents (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2006 at 21).

Before dealing with these threshold provisions, I should first consider the Court of Appeal’s decision in Caruana. Caruana concerned the application of s 112. On 22 June 2006, Mr Caruana suffered serious injuries in a work accident, when he was struck by an unregistered forklift being driven by a fellow employee, Mr Brazel. The Court held that s 112 was engaged to create a presumption of agency between the plaintiff, the victim of the accident, and the defendant, the statutory “owner” of the forklift. Critically, the accident occurred prior to the commencement of the Motor Accidents Compensation Amendment Act on 1 October 2006. Therefore the Court was not required to deal with the newly inserted limiting provisions of s 3A and s 3B. In particular, the Court was not required to consider s 3B which now operates to restrict the application of s 112 to insured or work injury claim accidents. I therefore consider that Caruana was correctly decided on the Motor Accidents Compensation Act as it then stood and that it is consistent with the later authority of Day.

Section 3A limits the operation of the Motor Accidents Compensation Act to an injury that is caused by the fault of the owner or driver of a motor vehicle while it is in use or operation and relevant to these present proceedings, where it occurs during the driving of the vehicle per s 3A(1)(a). There is not dispute that a pallet mover is a motor vehicle. This provision therefore applies as the injury was wholly caused by the negligence of Mr Douglas, the driver of the pallet mover, while it was in operation and he was driving the vehicle.

Section 3B operates to restrict the claims provisions in Chapters 3 to 6 of the Motor Accidents Compensation Act, inclusive of s 112 in Part 4, to death or injury that is caused by a motor vehicle accident where the vehicle has motor accident insurance cover under (1)(a) or where it gives rise to a work injury claim under (1)(b). This section was inserted through Schedule 1[5] of the Motor Accidents Compensation Amendment Act. Some guidance is provided by the explanatory note which states that s 3B was inserted into the Motor Accidents Compensation Act to limit its application to motor accident injuries for which a motor accident insurer (or the nominal defendant) is “on risk” or that give rise to a work injury claim. This is said to effectively limit the application of the Act to on road motor accidents, off road motor accidents where the vehicle is registered (and so has third party insurance), and off road motor accidents that give rise to a workers compensation work injury claim (except a claim by a coal miner). This changed the previous position under which the Act applied to motor accidents, namely that it applied regardless of where they occurred and whether or not the vehicle was registered or insured or was registrable or insurable.

Minister John Watkins confirmed in his second reading speech in the Legislative Assembly on 9 March 2006 that s 3B limits application of the Act to motor vehicle accidents where there is coverage under a third party policy of motor vehicle insurance or the nominal defendant scheme is on risk. It also preserves the operation of amendments made by the Motor Accidents Legislation Amendment Act 2004 (NSW) in relation to certain work injury claims under workers compensation legislation”. (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2006 at 25).

With respect to s 3B(1)(a), it is my view that the corresponding provision of s 3B(2) does not apply. This is because the pallet mover was uninsured at the time of the accident, was not owned by the Commonwealth or by any person or body of persons representing the Commonwealth, and there is no right of action against the nominal defendant. Therefore, as none of these circumstances in s 3B(2) are satisfied, s 3B(1)(a) is rendered inoperable.

Section 3B(1)(b) may apply where the accident gives rise to a “work injury claim”. In determining this, s 3B(3) provides that a work injury claim will arise if an injury from an accident resulted in or caused the death of the worker under subs (3)(a), or alternatively, the injury was caused by the negligence or other tort of the worker’s employer under subs (3)(b). As the accident did not result in or cause death, subs (3)(a) does not apply. Section 3B(3)(b) may apply, however, depending upon the meaning of “worker’s employer”. I note here for completeness that the plaintiff’s injury does fall within the definition of “work injury” in s 4 of the Workplace Injury Management and Workers Compensation Act as an injury that is compensable.

Allstaff submitted that the definition of “worker’s employer” in subs (3)(b) may be grounded with reference to s 150 of the Workers Compensation Act. Section 150 of the Workers Compensation Act provides that a reference to a “worker’s employer” includes a reference to a person who is vicariously liable for the acts of the employee and a person for whose acts the employer is vicariously liable. In doing so, Allstaff appears to be arguing that “worker’s employer” under s 3B(3)(b) should include a reference to a person who is vicariously liable so as to permit the application of a presumed statutory agency under s 112 to thereby create vicarious liability. In my view, the interaction between the Motor Accident Compensation Act and the Workers Compensation Act cannot be read in such a circular way. Allstaff admits that it is Mr Douglas’ employer. Allstaff also admits that it is the plaintiff’s employer. As s 3B(3)(b) does not to apply, the claim does not give rise to a “work injury claim” as required by s 3B(1)(b) and therefore s 3B does not apply.

As s 3B does not apply, it follows that s 112 of the Motor Accidents Compensation Act also cannot apply. This is because section 112 cannot extend its operation to create a relationship of statutory agency between Coles and the plaintiff where Coles is not independently liable in negligence as the employer. The plaintiff’s submission that Coles owed a duty of care to the plaintiff commensurate with that of an employer should therefore also be rejected. (FASC [5]).

If I am wrong and Coles may be regarded as the “worker’s employer” within the aforementioned provisions, then s 112 would operate to create a relationship of statutory agency between Coles and the plaintiff and thereby give rise to vicarious liability. As Allstaff is already vicariously liable for the plaintiff’s injury as his employer, it becomes necessary to consider the legal authorities on the topic of dual vicarious liability.

Coles has submitted that there is no principle of dual vicarious liability, where more than one entity is vicariously liable for the actions of one entity at law in Australia other than where a new species of vicarious liability is created by statute. Coles cited Day in support of this argument. However, the plaintiff argued that this is a situation envisaged by Leeming JA as a new and specific species of vicarious liability where the owner of a motor vehicle is the deemed principal of the driver of the vehicle that causes injury. (Day at [25]).

However, in Day Leeming JA gave s 917C of the Corporations Act 2001 (Cth) as an example of a new and specific species of vicarious liability. That provision expressly provides certain circumstances where authorising licensees may be jointly and severally responsible for a representative’s conduct. By contrast, the Motor Accidents Compensation Act is not as specific or explicit in its allocation of responsibility. Section 112 only provides that any person who is the driver of the vehicle at the time, whether with or without the owner’s authority, is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle. A proper reading of this section does not suggest that it imposes vicarious liability upon two or more parties so as to form a new and specific species referred to by Leeming JA in Day. Such a reading of s 112 would also, in the absence of further connections between Coles and Mr Douglas as the driver, create implications for the provision that were not intended.

It is my conclusion that the failure to satisfy s 3B necessarily means that s 112 does not operate to impose a relationship of statutory agency between the plaintiff and Coles. Even if I am wrong, s 112 cannot be read so as to remove the longstanding principle in Australia against dual vicarious liability as set out in Laugher v Pointer (1826) 5 B & C547 at 558; 108 ER 204 at 208, and adopted recently in Day, namely that he is a servant of one or the other, but not the servant of one and the other. The law does not recognise a several liability in two principals who are unconnected. Hence, Coles is not a presumed agent of Allstaff.

The parties agree that the damages to be awarded to the plaintiff against Allstaff are to be assessed pursuant to the Motor Accidents Compensation Act. The plaintiff is entitled to an award of non economic loss as against Allstaff on the basis that his whole person impairment has exceeded the 10% threshold required by s 131 of the Act.

On 24 April 2009, Dr Al Muderis, an orthopaedic surgeon, performed a fasciotomy on the plaintiff’s right leg and exploration of superficial peroneal nerve. On 26 April 2009, Dr Al Muderis performed a closure of the fasciotomy wounds. (Ex A, p 11-12).

In September 2009, the plaintiff was referred to the Sydney Pain Management Centre for assessment due to the ongoing excruciating pain in his leg. (Ex A, p 17).

In November 2009, the plaintiff accompanied his father-in-law on a motorcycle trip from Sydney to Melbourne to board a boat to Tasmania for a funeral. The plaintiff’s father-in-law drove and the plaintiff rode as a pillion passenger. (T98.12-25). On 7 November 2009, the plaintiff stepped on a bottle and rolled his right ankle and was admitted to Launceston general hospital where a repeat fasciotomy was performed.

During cross examination, the plaintiff was asked about his hospital admission in Tasmania. He gave the following evidence (T62.39-48):

The Tasmanian Ambulance Service electronic patient care report (Ex D1/9, p 1) recorded:

The emergency department case notes of Launceston hospital record (Ex D1/9, p 6):

Later in this judgment when I refer to the medical conclave, I will refer to the doctors’ opinion as to whether the first injury contributed to this second injury.

On 8 March 2010, the plaintiff underwent further surgery because the toes on his right foot had become deformed due to tendon contractures and nerve damage. That surgery was undertaken by Dr O’Carrigan, an orthopaedic surgeon, at Campbelltown hospital due to ongoing complications with his injury. Throughout 2010, the plaintiff remained under the care of Dr O’Carrigan and was referred later that year to Dr Les Grujic, an orthopaedic surgeon who specialised in foot and ankle trauma and surgery. Also in 2010, the plaintiff sold his motorcycle as he had not ridden it since the accident.

On 12 May 2010, Dr O’Carrigan referred the plaintiff to Dr Etherington, a spinal surgeon. The plaintiff saw Dr Etherington where he claimed that he could not wear shoes because of the swelling and therefore could not work. (Ex A, p 37).

On 24 June 2010, Dr O’Carrigan received a history from the plaintiff that he had fallen 15 times during the last four weeks. Dr O’Carrigan opined that the plaintiff did not require any further surgical intervention as it would have negative long term consequences for the plaintiff’s leg. He was of the view that the plaintiff had a full blown complex regional pain syndrome. Dr O’Carrigan encouraged the plaintiff to once again make an appointment with Dr Manohar so he (the plaintiff) could continue treatment. Dr Manohar suggested that this, combined with physiotherapy, was the best chance that the plaintiff had to get back to any sort of level of functionality. (Ex A, pp 39-40).

Dr Davé, an orthopaedic surgeon, provided five reports dated 7 July 2010, 16 February 2011, 17 February 2011, 1 March 2011 and 20 April 2011. (Ex A).

On 7 July 2010, Dr Davé recorded (Ex A, p 75):

On 17 August 2010, the plaintiff was seen by an orthopaedic surgeon, Dr Sameer Viswanathan. Dr Viswanathan reported that the plaintiff had an intact extensor mechanism but could only flex his right knee to 90 degrees before the pain seemed to take over. The plaintiff was then referred to see a pain specialist but he did not keep these appointments. Dr Viswanathan noted that he was unsure whether the plaintiff’s lateral meniscal tear was the cause of knee pain. (Ex A, p 87).

On 31 January 2011, Dr Davé recorded in a further consultation (Ex A, p 77):

On 1 March 2011, Dr Davé performed an arthroscopy and lateral meniscectomy on the plaintiff’s right knee. This indicated that there was minimal degeneration of the right knee and no effusion or synovitis. (Ex A, p 79).

On 20 April 2011, the plaintiff made a complaint to Dr Davé that ankle swelling was the main impediment to him returning to work. Dr Davé told the plaintiff that there was no connection between the tenotomies that he had done earlier and the ankle swelling. Dr Davé expressed the view that further surgical procedures to his right leg were unlikely to help his condition. Dr Davé opined that the plaintiff’s right knee showed no complications from his earlier arthroscopic meniscectomy. He also noted that the plaintiff has a full range of motion of the knee joint. Dr Davé commented that the plaintiff remained fit for selected sedentary work if it is available for him. (Ex A, p 80). I accept Dr Davé’s opinion that the plaintiff has full range of movement in his right knee joint.

During 2016, photographs were taken of the plaintiff’s right leg. (Ex B). During the hearing, the plaintiff’s scar was visually examined by the Court and the counsel for the parties. The scar measured 15 centimetres vertically, both on the inside and the outside of the leg. There was muscle delineation. The outside of the plaintiff’s leg was the more noticeable scar. It was also noted that due to a hernia, the plaintiff had a protruding lump on his leg located adjacent to his shinbone but a little toward the right.

On 7 December 2011, the plaintiff injured his back during the course of employment at De Longhi. The plaintiff made no reference to this accident in his evidentiary statement. During cross examination, the plaintiff gave the following evidence (T78.15-40):

Later in this judgment when I refer to the medical conclave’s evidence, I will address the doctors’ opinion as to whether this back injury was a significant one.

Coles tendered three hours of video surveillance footage video that the Court and the parties viewed. The footage was of the plaintiff and was filmed in May 2012, September 2014, October 2014, December 2014, January 2015, November 2016 and April 2017. (Ex D1/8).

The surveillance footage showed the plaintiff smoking, mowing the lawn, filling the car with petrol, washing the windows of his car, driving, carrying bags and items from the car such as a gas bottle, cooking items and bags of clothes. The video showed that the plaintiff regularly went to a coffee shop with his friends, where he sat outside and smoked a lot of cigarettes. In the surveillance footage, the plaintiff did not have his walking stick nor was he wearing a moon boot. In 2012, while the plaintiff complained to Dr Etherington that he could not wear shoes because of the swelling and could not work (Ex A, p 39), this was no longer the position from September 2014 as the surveillance footage shows the plaintiff wearing either joggers or thongs.

After watching the video surveillance, the plaintiff was asked a number of question during cross examination (T116.21-47):

Once again, the doctors were asked about the significance of the plaintiff mowing the lawn when they gave conclave evidence. I shall refer to it later in this judgment.

The plaintiff tendered a joint expert report of Dr Peter Klug and Dr Leonard Lee dated 23 March 2017. (Ex A). Dr Lee noted that while the plaintiff may have suffered from an adjustment disorder with anxiety and depression as a consequence of the accident, when he saw the plaintiff on 9 November 2015, the plaintiff indicated that he no longer had significant psychological problems. Dr Klug opined that the plaintiff suffered from chronic adjustment disorder with mixed features of anxiety and depression as a response to the accident on 24 April 2009.

Both doctors were of the view that the plaintiff was not incapacitated for work as a result of a psychiatric injury. Dr Lee did not believe the plaintiff would require further treatment for any future psychiatric injury. Dr Klug opined that the plaintiff would benefit from 6 to 12 sessions with a psychologist. Dr Klug stated that there is a risk the plaintiff may develop a more severe psychiatric depression given the nature of the plaintiff’s chronic pain syndrome. (Ex A).

Associate Professor Myers, a general and vascular surgeon, provided medical reports dated 12 September 2014 and 17 August 2015. (Ex D1/2). In his report dated 12 September 2014 (Ex D1/2, p 60), Associate Professor Myers stated that the plaintiff’s right leg had swelling and that this was quite common after fasciotomies and compartment syndrome due to a degree of lymphatic obstruction. Associate Professor Myers opined that the plaintiff had clearly had a significant injury to the leg and while compartment syndrome can be a limb threatening condition that often leaves people with nerve and muscle damage, there is no evidence that the plaintiff had any impaired circulation to the right leg. (Ex D1/2, p 63).

In his supplementary report dated 17 August 2015, Associate Professor Myers commented on whether the injuries from the incident of November 2009 (the second injury) are independent from the accident of April 2009 (the first injury). He was of the view that the second injury was a new incident and stated that the plaintiff was more likely to develop a compartment syndrome with the second injury because the plaintiff had already had compartment syndrome. Thus, while the injury of November 2009 was new, the compartment syndrome which developed from it was more likely to have developed because of his previous compartment syndrome. Associate Professor Myers also noted that other than the swelling, which had never been adequately treated according to the history given by the plaintiff, he could see little clinical reason why the plaintiff should have other symptoms such as pins and needles. (Ex D1/2, p 67).

Dr Powell provided reports dated 31 August 2009, 8 July 2015, 16 May 2016, 27 May 2016 and 26 May 2017. (Ex D2/2). He did not participate in compiling the joint report but did participate in the conclave evidence.

In his first report dated 31 August 2009, Dr Powell confirmed the plaintiff’s diagnosis was a crush injury to the right calf from a workplace accident on 24 April 2009 and that the plaintiff required surgical decompression which was performed by Dr Almuderis at Liverpool hospital. The plaintiff’s recovery was complicated by a wound infection and the development of a chronic pain syndrome. (Ex D2/2).

In his second report dated 8 July 2015, Dr Powell opined that the plaintiff should have permanently modified duties with instructions to avoid periods of prolonged standing, or walking. Dr Powell stated that the plaintiff’s overall prognosis is guarded and that despite the extensive management programme, the plaintiff remains symptomatic in relation to the right leg. (Ex D2/2, p 1-7).

In his third report dated 16 May 2016, Dr Powell formed the conclusion that the plaintiff remained symptomatic in relation to his right leg with persisting knee, calf, ankle and foot symptoms. His condition remained largely unchanged from his earlier report dated 8 July 2015. Nor did Dr Powell believe there had been any change to the plaintiff’s capacity to work since his last assessment. (Ex D2/2, p 11).

In his fourth report dated 27 May 2016, Dr Powell confirmed his opinion that the plaintiff had suffered compartment syndrome in his right leg after he stepped on a bottle on 8 November 2009. He opined that while the mechanism of injury described for the plaintiff is quite common, it would be very rare for that type of injury to have given rise to compartment syndrome in the plaintiff’s right leg. Dr Powell explained that one would have to assume the plaintiff was predisposed to the development of a recurrent compartment syndrome as a result of a significant pre-existing pathology. He concluded that the second injury on 8 November 2009 could therefore not be considered as independent of the first injury on 24 April 2009 as the second injury resulted in the aggravation of the first. Dr Powell also considered that the majority of the plaintiff’s symptoms were a result of the first injury with any contribution from the second injury being minor despite the fact it required surgery. (Ex D2/2, p 20).

In his fifth report dated 26 May 2017, Dr Powell addressed the opinions expressed by Drs Stephenson and Giblin in their joint report. Dr Powell agreed with their diagnosis; agreed with their comments in relation to the plaintiff’s disability; agreed with their opinions regarding the plaintiff’s fitness to work; agreed with their conclusion that the plaintiff would not be able to undertake more physically demanding domestic duties; and agreed with their opinions regarding the plaintiff’s future medical treatment, including the continued use of medication to treat symptoms and the increased risk of the plaintiff’s suffering mechanical problems with his knee as he ages. (Ex D2/2, p 22).

Both Drs Stephenson and Giblin prepared a joint report dated 11 April 2017 (Ex A). As I stated above, Dr Powell agreed with the views expressed by Drs Stephenson and Giblin in their joint report in relation to the plaintiff’s diagnosis, capacity to work, domestic duties and future medical treatment. (Ex D2/2, p 23).

Drs Stephenson and Giblin’s agreed upon the diagnosis that the plaintiff was suffering from a syndrome of muscular swelling and that it required fasciotomies with linear incisions over the muscles to allow the damaged muscle to expand. They also agreed that the vascular structures, the neurological structures, the muscles and tendons were all damaged, as were the articular joints involving the ankle, foot and knee on the right side. There was also a fixation of the fracture of the tibia. (Ex A).

So far as the plaintiff’s capacity to work was concerned, Drs Stephenson and Giblin opined that the nature of the plaintiff’s injury would prevent work which involved prolonged standing, walking, climbing, squatting, twisting or bending activities which would therefore confine the plaintiff to light to moderate work such as office based duties. As to the future, Drs Stephenson and Giblin agreed that the plaintiff will cruise along quite comfortably in his current state until he hits middle age. This will be associated with the premature onset of medical comorbidities and all the costs of diagnoses and treatments. (Ex A).

Drs Stephenson, Giblin and Powell gave conclave evidence in the hearing. The purpose of the conclave evidence was to show the orthopaedic surgeons the surveillance footage of the plaintiff (D1/8) to ascertain whether their medical opinions about the plaintiff’s injuries and disabilities had altered.

Drs Powell, Stephenson and Giblin were shown approximately 30 minutes of the surveillance footage of the plaintiff mowing the lawn. (T274.35-40). When asked if the footage altered their opinions in the joint report, all doctors stated that their views had not changed. (T275.8-24).

Dr Powell expressed the opinion that they all agreed that the injury the plaintiff has is a very significant injury and that there is a difference between his ability to mow the lawn for 20 or 30 minutes versus doing more prolonged activity for a more prolonged period of time. He opined that the issues for the plaintiff are going to be the level of fatigue and strength and that this is going to be more apparent over time due to the irreversible damage to the muscles. (T275.38-44).

The doctors were also informed about the incident on 7 December 2011, when the plaintiff sustained a back injury from manipulating a dishwasher weighing 65 kilograms (referred to earlier in this judgment). They did not think it was inconsistent with the disabilities to his right leg. Dr Giblin posited that the plaintiff’s right leg is capable of weight bearing but not impact or twisting activities and as such, he would be subconsciously favouring his leg. (T290.11-20). I accept their evidence and do not attach any significance to this back injury.

The defendants submitted that the first injury did not cause the second injury and that the second injury was a separate event independent of the effects of the first injury. Senior Counsel for Coles submitted that the effects of the 24 April 2009 compartment syndrome injury have been subsumed into the effects of the 7 November 2009 injury that, if it had not been for the events of 7 November 2009, which were not caused by the accident of 29 April 2009, the plaintiff would have made a full recovery.

The plaintiff submitted that as all three doctors opined, it is unlikely that “stepping on a bottle” would result in compartment syndrome in an otherwise healthy person. The doctors each provided a view as to the relative contributions of each incident to the plaintiff’s present disability. The contributions proffered by Drs Giblin, Powell and Stephenson were 50/50, 80/20 and 60/40 respectively. (T82.20-50; T83.1-12).

Coles referred to Faulkner v Keffalinas (1970) 45 ALJR 80 (“Faulkner”). In Faulkner, the plaintiff was injured in a motor vehicle accident in 1968 and then later in another car accident. The Court interfered with the damages award. Windeyer J stated at [86]:

In Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396, the Court of Appeal examined the principles where a second accident causes greater damage due to the result of a previous accident. Mason P (with whom Meagher JA and Barr J agreed) at [22] stated:

It was Associate Professor Myers’ view that it was a new incident but that the plaintiff was more likely to develop a compartment syndrome with the second injury because he had already had compartment syndrome. Thus, while the injury of November 2009 was new, the compartment syndrome which developed from it was more likely to have developed because of his previous compartment syndrome.

During the conclave evidence, the doctors were asked to comment on the injury the plaintiff suffered in Tasmania in November 2009. All the doctors were of the view that while it was a separate incident, it was a material aggravation. (T277-278). They also accepted that the consequence of the first injury did not inevitably lead to the second injury. (T283.26-38).

Despite some mixed opinions, it is my view that Dr Powell was correct when he opined that the mechanism of the injury (to the right foot) that the plaintiff described would rarely be sufficient to result in a primary compartmental syndrome. During the conclave, Dr Powell elaborated (T283.50; T284.1-11):

It is my view that the second injury to the plaintiff’s right ankle, which resulted in the plaintiff having an operation due to compartment syndrome, would not have occurred had the plaintiff’s left leg not been in the physical condition caused by the defendants’ negligence. Therefore, the added damage should be treated as having been caused by the defendant’s negligence.

Damages are to be assessed under the Motor Accidents Compensation Act. Allstaff has adopted Coles’ submissions in relation to damages.

The plaintiff seeks general damages in the sum of $300,000. Allstaff submitted that the plaintiff’s general damages should be assessed at $39,000. It is common ground that the degree of permanent impairment of the plaintiff as a result of the motor accident injury is greater than 10% in satisfaction of s 131 of the Motor Accidents Compensation Act.

The plaintiff and his wife were both engaged in full time work prior to the accident. The plaintiff has always been a tidy person and from early on in their relationship he took the responsibility for doing all the laundry and most of the cooking throughout the week. He would spend around two hours after work each evening preparing dinner, doing the laundry, and cleaning and tidying the house. On the weekends while his wife did the house cleaning, he did the outside work. He maintained the lawns and gardens, washed the cars and his motorcycle, and did any other outdoor work that was required. He estimated that he spent at least 4 to 5 hours each weekend gardening and washing the vehicles. The plaintiff also stated in his evidentiary statement that both he and his wife generally went shopping together. (Ex A, [46]-[47]).

Prior to the accident, the plaintiff enjoyed playing golf, soccer and motorcycle riding. He owned a Yamaha V Start Cruiser 650 CC motorcycle that he loved to ride. The plaintiff rode this motorcycle on weekends with his family and frequently rode it to work during the working week. He also owned his own motor vehicle, a 2008 Holden VY Commodore. (Ex A, [20]).

So far as his future employment was concerned, the plaintiff had intended to secure well paid, long term employment.

The plaintiff is currently 39 years of age and is married with no dependants.

After the accident the plaintiff says that he stopped doing everything and it was not until a couple of years had passed that he was able to begin doing light housework. He could not mow the lawns and for a while the workers compensation insurer paid for someone to carry out this task. The plaintiff also received help with maintaining the lawns and garden from his friends. He can now mow the lawn. He began taking the cars to the car wash and could not use his motorcycle at all so he sold it in 2010. The plaintiff’s wife had to take over doing all the cooking and house cleaning and do the shopping on her own. (Statement [49] - [50]). Further, as a result of his physical problems, he has been unable to exercise and has become very depressed. He has put on 30 kilograms since the accident.

The plaintiff has undergone the following operations and treatment since the accident. On 24 April 2009, he underwent an emergency fasciotomy on his right leg. He underwent further surgery on 26 April 2009 to close the fasciotomy wounds. He then developed chronic pain syndrome. The plaintiff subsequently underwent a repeat fasciotomy after he rolled his ankle on 7 November 2009 in Tasmania. Finally on 8 March 2010, the plaintiff underwent further surgery to the toes on his right foot because they had become deformed as a result of tendon contractures and nerve damage.

I accept that the plaintiff has required significant personal assistance in the first few years following the accident. The plaintiff’s wife has been required to assist him in both getting in and out of the bath and getting dressed. She also has been required to check his dressings and attend to his wounds at various stages depending on the operations he was undergoing. The plaintiff’s evidence is that it is only in recent months that he has been able to hang out the washing. (T84.3-5). While he can now mow the lawn, doing so causes him to suffer pain afterwards. He is no longer capable of playing golf, soccer or riding a motorcycle.

On 31 January 2011, Dr Davé noted that the plaintiff had severe pain in his right knee. I accept that from the date of the accident to March 2011 the plaintiff experienced severe pain in his right knee particularly as he underwent a number of operations during that period. On 1 March 2011, after Dr Davé performed an arthroscopy and lateral meniscectomy on the plaintiff’s right knee, he reported that the plaintiff had a full range of motion in his right knee joint and that further surgical procedures were unlikely to improve his condition. In other words, the plaintiff’s right knee had stabilised. Overall, the plaintiff has made a good recovery. (T297.40). Having said that, the plaintiff’s injury to his right knee prevents him from engaging in work that involves prolonged standing, walking, climbing, squatting, twisting or bending activities which therefore confines the plaintiff to light to moderate work such as office based duties.

Since May 2013, the plaintiff has engaged in some minimal part time work and he agrees that he is capable of additional employment. The plaintiff is presently in receipt of a disability support pension and is working two shifts at a pizza shop earning $80 per week but would do extra work if it was offered to him. I have taken this into account, as well as his limitations as to the work he can perform, which are set out in some detail under the heading “Past economic loss”. It is not necessary that I repeat it here.

Taking the above factors into account, I assess the plaintiff’s general damages for non economic loss at $160,000.

The parties agree that the plaintiff is entitled to past out of pocket expenses in the sum of $91,996.56. (T320.1-2).

The plaintiff seeks $75,000 for future out of pocket expenses. Allstaff submitted that the plaintiff is entitled to the sum of $5,000.

The plaintiff submitted that he requires conservative treatment which involves rest and painkillers. He has also suffered a number of falls in the aftermath of the accident that have required specialist attention and he is likely to require more intensive treatment as he ages, including a possible right knee replacement. While Dr Davé, the plaintiff’s treating orthopaedic surgeon, says that further surgical procedures to his right leg are unlikely to help his condition, this evidence is at odds with that of the medico legal experts, Drs Stephenson and Giblin, who opine that the plaintiff may require further surgery as he ages.

As to whether any allowance should be made in relation to psychiatric consultations in the future, Dr Klug opined that it would be likely that the plaintiff would benefit from 6-12 sessions with a psychologist. He also stated that there is a risk given the nature of the plaintiff’s chronic pain syndrome that he may develop a more severe psychiatric depression.

Taking into account the possibilities that the plaintiff may benefit from sessions with a psychologist, may require further specialist treatment and perhaps further operations on his right knee as he ages, I allow the sum of $30,000: see Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.

Damages for past and future economic loss is government by s 125 of the Motor Accidents Compensation Act which relevantly reads:

The plaintiff provided a schedule showing that prior to the accident from 15 March 2009 until 26 April 2009, he earned a gross total of $9,867. The plaintiff and Allstaff agree that he was earning a net average of $705 per week at Coles as at the date of the accident. I accept that had he not had the accident he would have continued in permanent employment and earned $705 net per week whether it be with Coles or a different employer doing the same type of work until the retirement age of 67. His earnings would have increased with CPI.

Recently in Hornsby Shire Council v Oberlechner [2017] NSWCA 205, the Court of Appeal reiterated at [17]-[18] what was said in State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, that given the inevitable imprecision of the task and the way in which the trial was conducted, there was not an appellable error in taking the average male weekly earnings as a starting point and discounting it. I propose to adopt such an approach.

The plaintiff submitted that he is approximately losing the average weekly earnings (male). He argued that this is predicated on the basis that, prior to the accident, he was working full time hours, achieving bonuses from Coles and had been offered full time employment with Coles. The plaintiff was interested in securing well paying long term employment. He submitted that his earnings should be calculated with reference to the average of what he was earning before the accident with Allstaff while placed at Coles, subject to increases for CPI or in line with average weekly earnings.

In February 2009, the total average weekly earnings for full time males was $1,325. The plaintiff submitted that this is very close to his pre-accident wages. As there was little difference between the plaintiff’s wages at Coles and the average weekly earnings (male), I shall use the latter table to calculate the plaintiff’s loss of earning capacity.

The plaintiff makes a claim for the difference between comparable earnings and actual weekly earnings from the date of accident to the date of judgment. The claim for past economic loss is $491,192. In a schedule attached to his submissions, the plaintiff provided a table for this calculation of past economic loss on the basis of comparable employees:

The plaintiff also provided a table of average weekly earnings (male) from 2009 to 2016:

The plaintiff provided notices of assessment for the financial years ending 2008, 2009, 2010, 2011, 2012, 2013, 2014 and 2015. (Ex D, pp 14-21). The assessments of the plaintiff’s taxable income are as follows:

From the date of the accident until end of April 2011, the plaintiff was receiving workers compensation payments. (Ex D, pp 1-3).

The plaintiff and Allstaff could not agree as to the plaintiff’s past earnings despite there being documents that substantiated his earnings. This necessitated this court to go through the time consuming exercise of examining and checking all of the documentation. Although the plaintiff has given some inconsistent evidence as to his periods of work, it does not alter the general pattern of his employment after the accident.

The plaintiff’s evidence is that he did not return to work until his right knee stabilised in July 2011. In cross examination, the plaintiff gave evidence that in April 2011, despite his leg not being 100%, he forced himself to try and get work in order to pay both his mortgage and household bills. (T69.44-46). For the financial year ending 30 June 2012, the plaintiff earned $42,904 (equating to around $825 per week). For the financial year ending 30 June 2013, his taxable income fell to $16,811. In 2014, it further fell to $7,360. However, in 2015 it increased slightly to $9,920.

The plaintiff obtained casual employment at Square Waffle Restaurant in Leumeah as a chef in April 2011. However, the plaintiff resigned after about a week. The plaintiff gave evidence that this resignation was a result of his inability to cope with the standing as required by the job due his right leg becoming unbearably painful and swollen as each shift progressed. From June to August 2011, the plaintiff made another effort to continue in that employment but he could not cope. The plaintiff’s payment summary dated 1 July 2010 to 26 June 2011 shows that the he made gross earnings of $5,539.14 at Square Waffle Restaurant during this period. (Ex D, p 73).

From June 2011 to February 2012, the plaintiff was employed at Yardhouse Restaurant and Bar Pty Limited. The plaintiff’s PAYG payment summary dated 1 July 2011 to 8 February 2012 shows gross payments of $2,094. (Ex D, p 8).

From July 2011 to October 2011, the plaintiff was employed by Staff Australia to work as a forklift driver for BUNZL Australia Limited, a storeperson for PFD Food Services Pty Ltd, and a process worker at BAW Systems Australia (T70.21) where he did picking and packing work for a period of four months at 38 hours per week. (T70.45-T71.7). As evidence of this employment, the plaintiff tendered a PAYG payment summary dated 4 July 2011 to 16 October 2011 shows gross payments of $14,090 (Ex D, p 69), a corresponding payroll report from FastTrack Pty Ltd (Ex D, p 68), and a corresponding job orders list from FastTrack Pty Ltd. (Ex D, p 67). He also gave evidence that he was working full time when he saw Dr Giblin on 13 September 2011. (T90.45). This statement is correct.

From August 2012 until October 2012, the plaintiff was employed at YL Business Solutions Pty Limited. As evidence of this, he tendered a PAYG payment summary dated 28 August 2010 to 22 October 2012 with gross payments of $5,622.00 (Ex D, p 9), along with a letter dated 24 October 2012 from Joanne Reading of YL Business Solutions Pty Limited confirming the dates of employment (Ex D, p 9), and an email from Michael Minehan of Premier Personnel Services (PPS) Pty Ltd dated 16 November 2015 confirming that the plaintiff worked “on and off” from 28 October 2012 to 23 October 2012 (these dates are incorrectly written in Mr Minehan’s email). (Ex D, p 88).

From July 2012 to June 2013, the plaintiff was employed at Labourforce Impex Personnel Pty Ltd as a storeman and forklift driver on a full time basis (T91.46; T92.10), although his oral evidence was that the period of employment was between March 2012 and March 2013. The plaintiff tendered a PAYG payment summary indicating that he worked the period of 1 July 2012 to 30 June 2013 with gross payments of $2,280. (Ex D, p 10).

From December 2012 to April 2013, the plaintiff was first employed as a forklift driver at Foamco Industries Pty Limited and then as a storeperson at Shuffle Master Australasia Pty Limited. This employment was corroborated by a job orders list from FastTrack Pty Limited (Ex D, p 97), a corresponding payroll report with gross payments of $9,606.30 (Ex D, p 98), and a candidate activities report from Fast Track Pty Limited. (Ex D, p 99).

The plaintiff stated that he has not worked since April 2013 because he was unable to do any of the jobs he has been trained for on a full time basis. He also stated that he has not been able to find any suitable part time work and when he approached several people for work, he was told that he would be a liability.

The plaintiff’s employment records show that after May 2013, he has earned very little. From May 2013 to June 2013, the plaintiff was employed at Astar Personnel Pty Ltd. This employment was supported by the plaintiff’s timeslip dated 27 May 2013 to 2 June 2013 (Ex D, p 111), a corresponding weekly timesheet for the week ending 2 June 2013 displaying 7.5 hours of work performed (Ex D, p 113), and a corresponding PAYG payment summary for the payment period of 31 May 2013 to 30 June 2013 with gross payments of $165. (Ex D, p 5; p 112). The plaintiff’s internal employee file for Astar was also tendered, although the file does not indicate the dates of active work. (Ex D, p 110).

The medico legal experts agree (and I accept) that the nature of the plaintiff’s injury to his right knee would prevent work which involved prolonged standing, walking, climbing, squatting, twisting or bending activities. This would therefore confine the plaintiff to light to moderate work such as office based duties. However, as the plaintiff’s employment records show, he has been able to perform more active work in the roles of storeman, forklift driver and process worker on a part time basis up until May 2013.

The plaintiff’s evidence is that he cannot work as a chef because he would have to be on his feet for 8, 9 or 10 hour shifts and he is unable to stand for that long. He is only able to stand conformably for about an hour to an hour and a half before he has to sit down. This evidence accords with that of the medico legal experts’ opinion and I accept it.

The plaintiff has a light rigid driver’s licence that enables him to drive small trucks such as a Pantech truck. He has previously tried to drive a truck but he only lasted half a day due to his difficulty in getting up and down the stairs of the truck. The plaintiff stated that he would be capable of driving a courier type van and that he would be able to do so full time. In the past, the most he has worked was for eight months before he had to take four months off.

The plaintiff gave evidence that, between 2011 and 2013, he applied for a number of courier type jobs but was never given the opportunity to work because of the injury to his right leg. He claimed that he was told by potential trucking employers that he would be a risk and a liability. This also applied to all the other jobs he applied for, including in warehousing, cheffing and forklift driving. The plaintiff claimed that they all knocked him back because of his accident and for being a high risk liability. In reality, however, there is little evidence to support this assertion. The plaintiff has performed some forklift driving and conceded that he would be able to work as a forklift driver. (T74.14-50; T75.1-38). In accordance with the medical evidence, I am of the view that the plaintiff could not maintain working as a forklift driver, storeman and process worker on a fulltime basis.

The plaintiff is currently in receipt of a disability support pension and is earning $80 per week doing two shifts of work in a pizza shop. He agreed that he is capable of doing more work.

As previously stated, Allstaff and the plaintiff agreed that the plaintiff’s pre-injury earnings were $705 net per week. Allstaff submitted, however, that the plaintiff should be awarded past economic loss for a closed period, namely from 29 April 2009 until 31 December 2009 (which equates to a period of 35 weeks). This amounts to the sum of $24,675. I allow the sum of $24,675 for past economic loss from 29 April 2009 to 31 December 2009.

From 1 January 2010 to 29 September 2017, I assess that had the plaintiff not been injured he would have earned the average weekly earnings (male) as per the schedule. However, I assess that he has suffered from an impairment in earning capacity of $550 net per week. As there are 404 weeks in this period, it equates to a sum of $222,200. From this figure, his actual earnings must be deducted. The evidence provided in respect of the plaintiff’s actual earnings was at times contradictory and unclear. However, relying upon the schedule of past economic loss provided by the plaintiff, I calculate his actual yearly earnings as follows. I have no evidence as to any earnings between 1 January 2010 to 30 June 2010. From 1 July 2010 to 30 June 2011, the plaintiff’s earnings were $106 per week, which at 52 weeks totals at $5,512. From 1 July 2011 to 30 June 2012, he earned $735 per week with a total of $38,220 for that year. From 1 June 2012 to 30 July 2013, he earned $322 per week resulting in yearly earnings of $16,744. There were no calculated earnings provided for the periods of 1 July 2013 to 30 June 2014, 1 July 2014 to 30 June 2015 and 1 July 2015 to 30 June 2016. Nor has any other evidence been tendered to this court in relation to earnings from these years. I therefore calculate the plaintiff’s actual earnings as $5512 + $38,220 + $16,744 + $4160 = $64,636. Accordingly, the figure is $222,200 - $64,636 = $157,564.

The amount of a Fox v Wood claim is to be calculated by the parties.

Future economic loss is governed by s 126 of the Motor Accidents Compensation Act which reads:

At the present time, the total average weekly earnings for full time males is approximately $1,720 gross per week or $1,275 net per week. The plaintiff submitted that since the accident, he has never achieved his pre accident earnings and has rarely earned more than an average of $500 or $600 net per week. He argued that if he was left with a residual earning capacity of $500 net per week, his current capacity to earn has been accordingly diminished by $750 net per week.

As previously stated, the plaintiff is currently earning $80 per week through part time work in a pizza shop but he is able to do a third shift if it is offered. The plaintiff submitted (and I agree) that he has a greater work capacity. The plaintiff says that he could at best perform some part time work as a courier driver. I assess the plaintiff’s impairment of earning capacity at $550 per week for a period of 11 years.

It is the plaintiff's case that based on the opinion of the doctors in conclave; he will be practically unemployable in 11 years’ time. Thus, the plaintiff claims future economic loss from age 50 to 67, being a period of 17 years, at $1,250 net per week deferred for 11 years. The defendant makes no allowance for future economic loss. However, this is not what the medico legal experts actually opined. The evidence the experts gave as to the plaintiff’s future capacity is that the deterioration of his injury will escalate once he reaches middle age, causing problems with his feet in terms of contractures and disabilities with footwear. He will also develop venous ulcers and his knee arthritis will progress. The plaintiff may also be a candidate for a knee replacement and that will further aggravate the vascular problems to his knee. Further, he will progressively lose his musculoskeletal independence and stamina.

From the plaintiff’s evidence I accept that from 50 (middle age) to 67, his ability to work will decrease markedly. I do not think, however, that he will be totally unemployable. For that period, I assess his impairment of earning capacity from 50 to 67 (17 years) as $1,000 net per week deferred for 11 years.

The parties are to calculate the amount of future economic loss using the 5% tables, deferred tables and deducting 15 % for vicissitudes.

The plaintiff seeks 11% of past economic loss for past loss of superannuation. I allow 11% of past economic loss for past loss of superannuation. The parties are to calculate that amount.

The plaintiff seeks future superannuation at the rate of 13%. I allow future loss of superannuation at 13%. The parties are to calculate that amount.

Attendant care is governed by s 141B of the Motor Accidents Compensation Act which reads:

The plaintiff seeks 2 years at 10 hours per week at $25 per hour for past gratuitous care: 2 x 10 x 52 x 25 = $26,000. The plaintiff’s past domestic assistance has been provided on a gratuitous basis in the past. Paid assistance for the plaintiff’s lawn mowing has been met by the workers compensation insurer. The defendants allow six hours per week for twenty six weeks at $25 per hour. This would equate to an amount of $3,900 for past domestic assistance.

The defendants acknowledge that the plaintiff may have required domestic assistance in connection with the immediate effects of the accident and in respect of the recuperative period following upon the various surgeries. This is supported by the evidence of Dr Stephenson, who opined that the nature of the injury and the history are consistent with domestic assistance being required, particularly after the various operative procedures and particularly in view of the nature of the plaintiff’s severe injury, history of infection and history of management for deep vein thrombosis. The defendants also submitted that there is no evidence from an occupational therapist regarding domestic assistance and orthopaedic specialists may not be appropriately qualified to offer opinions with respect to domestic assistance and care. However, there is the evidence of the plaintiff’s wife which was the subject of little cross examination.

Prior to the accident, the plaintiff took responsibility for doing all the laundry, most of the cooking and assisted in tidying the house during the week. He also did the outside work, such as mowing the lawns, gardening, washing the cars. The plaintiff’s wife, Nicola Corin, corroborates the plaintiff’s evidence on this topic. She stated that he would get home in the early afternoon while she worked until 6.00 pm and often arrived home tired. Each evening the plaintiff would spend about 1.5 to 2 hours preparing dinner, doing the laundry, doing the dishes and tidying the house. (Ex A, Statement, 10 August 2016, [13]-[14]).

The plaintiff fed and continues to feed the couple’s two Collie dogs. Prior to the accident, he would do everything for the dogs and together they would walk the dogs. After the accident, he no longer prepares chicken, rice and vegetable meals for the dogs. He only feeds them dry dog food because he finds it easier to scoop it out. He no longer walks the dogs and his wife walks them alone, much to her discontent. (Ex A, Statement, 10 August 2016, [25]).

For the first few years after the plaintiff’s accident, his wife helped him with his basic personal needs. This included helping the plaintiff in and out of the bath, helping him dress, getting in and out of bed and checking the dressing on his wounds, particularly after each surgical procedure. The amount of things he required assistance with and the amount of time his wife spent on these was greater in the periods following each of his surgeries. Ms Corin continues to take the plaintiff to his appointment when she is not working. (Ex A, Statement, 10 August 2016, [20] to [22]).

In November 2009, the plaintiff’s improved somewhat and he was able to travel to Tasmania. He claims for gratuitous domestic assistance up until at least the time that he returned to work in July 2011.

From mid 2011, the plaintiff conceded that he could do all of his domestic tasks, including his laundry (T130.4). However, he submitted that his condition fluctuated and he suffered the temporary effects of a back injury. The back injury is not related to this accident and so I do not award any attendant care for this injury.

Drs Stephenson and Giblin agreed that the plaintiff is not fit for activities that involve significant heavy lifting, bending or twisting. He is not fit for sport or garden work. He also requires some assistance in his home for heavier cleaning activities.

In August 2015, the plaintiff’s wife became his carer and now works two to three days per week. (T177.30-35). She previously applied for a carer’s pension as the plaintiff had a fall at home and ended up in Campbelltown hospital, resulting in his need for even greater assistance. (T178.17-42). She has been finding it difficult to keep up with the burden of the additional housework, caring for the plaintiff and working part time.

In spite of the video evidence showing the plaintiff mowing his lawn on one occasion, I agree with the plaintiff’s and doctors’ evidence that he was capable of mowing his lawn but suffered significant pain afterwards. From the date of the accident until 30 July 2011 (a period of 118 weeks), the plaintiff was incapable of carrying out this outside work and was unable to do most of the household duties he was accustomed to doing prior to the accident. It is my view for that the plaintiff required six hours of gratuitous attendant care per week at $25 per hour. The calculation is as follows: 118 weeks x 6 hours = 708 hours. 708 hours x $25 = $17,770. The plaintiff is therefore entitled to past attendant care in the sum of $17,770.

In respect of future attendant care, the plaintiff seeks 3 hours per week for life (42.67 years) at $40 per hour: 3 hours x 52 weeks = 156 hours. 156 hours x 42.67 = 6,656.52 hours. 6,656.52 hours x $40 = $266,260.80. The plaintiff submitted that it would be reasonable to award 10 hours per week for two years and three hours per week thereafter on a commercial basis for the future. Allstaff made no allowance for future domestic care as they submitted that the plaintiff is capable of attending to his own domestic needs. It was contended that this capacity was reflected by the surveillance material.

The plaintiff’s wife gave evidence that since the accident, the plaintiff can still put the laundry in the machine. However, because he has difficulty hanging the laundry on the clothes line, he now puts it into the dryer or on a low fold out clothes line (Ex A, Statement, 10 August 2016, [26]). If there are sheets, she attends to them. While the plaintiff can still do some cooking, peeling vegetables, and feeding the dogs hard food, she has to do the majority of work. (T182.40-45).

For the period following 1 August 2011, I allow 2 hours per week of gratuitous attendant care. However, as this falls below the threshold in s 141B(3) of the Motor Accidents Compensation Act, no amount for this gratuitous assistance can be awarded.

I have already commented on the plaintiff’s activities shown on surveillance and the doctors’ opinions. The plaintiff’s wife has never done the outside work. The lawn became overgrown so the plaintiff mowed it once. The plaintiff’s wife is now required to do extra household activities. The medical opinion is that the plaintiff is not capable of performing outside work and his condition will deteriorate after he reaches 50.

From today until the plaintiff reaches 50 years of age, I allow attendant care on a commercial basis for 1 hour per week at $40 per hour. This is a period of 527 weeks (rounded up by two days). It calculates as follows: $40 x 527 weeks = $21,080. From 50 to 82 years of age (rounded up) (Furzer Crestani Forensic Chartered Accountants, ‘Assessment Handbook: October 2016’, Life Expectancy tables: Australia 2013-2015), I allow future attendant care on a commercial basis for 2 hours per week at $40 per hour. This is a period of 1669 weeks (rounded up by two days) deferred for 11 years. The parties are to calculate this amount.

Costs are reserved.

Before I enter judgment, the parties are to check my calculations and make their calculations where required. Both parties must provide short minutes reflecting the amounts within 14 days. There may also be some workers compensation payback that needs to be recorded.