Kendrick v Bluescope Steel (AIS) Pty Ltd & Ors

HIS HONOUR: The plaintiff was employed by the first defendant (“Bluescope Steel”) as an operator at No 6 Blast Furnace in the steelworks at Port Kembla. On the evening of 5 July 2000 he had completed a twelve-hour shift and was driving his Falcon sedan intending to go to his home in Oak Flats. Between 6.55pm and 7pm a collision took place between the plaintiff’s vehicle and a 47 tonne Komatsu dump truck. The accident occurred while he was travelling north along Kembla Road, one of the internal roads within the steelworks. The Komatsu truck was leased by the second defendant (“ASMS”) and driven by one of its employees, Mr Phelps. As a result of the collision the plaintiff was rendered a C5 quadriplegic.

The plaintiff has brought proceedings in negligence against Bluescope Steel as his employer and as the operator of a large industrial complex having responsibility for the roads within that complex. He has brought proceedings against ASMS alleging negligence on the part of the driver of the Komatsu truck and negligence in the way it conducted its haulage operations within the industrial complex. Factual background

In order to understand the nature of the plaintiff’s claim, it is necessary to set out in some detail the way in which Bluescope Steel conducted the industrial complex and the relationship between it and ASMS. It is also necessary to understand the circumstances surrounding the accident. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs.

Bluescope Steel under its former titles had for many years operated a steel manufacturing enterprise over 70 hectares at Port Kembla. Within the site numerous contractors were engaged in various commercial operations associated with the steelworks. Since approximately 1989 ASMS under a contract with Bluescope Steel was engaged in transporting slag from the blast furnaces to an operations area (Area 21) where the slag was processed for sale by ASMS.

Bluescope Steel operated the blast furnaces. At the blast furnaces the slag was poured into a large vessel called a pot. When the pot was full, a pot carrier vehicle picked it up and transported it to a slag pit adjacent to the blast furnace. The pot was then tipped so that its contents went into the pit. The slag was allowed to cool for a number of hours prior to water being poured into the pit. This had the effect of cracking the slag so that it could be more easily broken up by a front end loader and either stockpiled at the end of the pit or loaded for transportation. The slag was then taken to Area 21 which was within the steelworks and was controlled by ASMS. The slag was further processed in Area 21. Before the plaintiff’s accident vehicles known as Kress pallet carriers were used to transport the slag from the blast furnaces to Area 21. Caterpillar dump trucks had been used for this task before the Kress carriers. After the Kress carriers came on line, the Caterpillar dump trucks were used to supplement and as a back up for them.

The Caterpillars were large, unregistered dump trucks which were owned by ASMS. At the front, measured tyre to tyre, they were 4.040 metres in width and at the rear, measured tyre to tyre, they were 4.457 metres (exhibit 2D(32)). As will be seen they were not quite as wide as the Komatsu dump trucks. They were a left hand drive vehicle like the Komatsus.

There was no detailed evidence as to the dimensions of the Kress pallet carriers. It was accepted that they were narrower than the dump trucks. They appear to have been 4m in width. Mr Troughton, a manager employed by ASMS, said that he had seen them pass each other while travelling on Kembla Road. He described them as having “a small cab where the driver is centrally located” (T.505.33).

As part of its contract with Bluescope Steel, ASMS was required in 1990 -1992 to construct or strengthen roads within the steelworks which would be used by it for haulage purposes. It was necessary that the roads be of sufficient strength to take the mass of the vehicles used by ASMS for the haulage of slag. The design and plans for this construction/reconstruction were prepared by ASMS, submitted to Bluescope Steel for consultation and if appropriate, subsequent approval. Bluescope Steel paid for those works. After it had carried out the road-works ASMS had an ongoing contract with Bluescope Steel to maintain the roads, including the installation of signage.

While each of the contractors on site such as ASMS had considerable autonomy in how it ran its business, Bluescope Steel had the ultimate authority as to what happened in the steelworks. It provided a handbook of traffic rules to be complied with by all personnel working on site. Compliance with those rules was enforced by Bluescope Steel and penalties were imposed for breach. By way of illustration a speed limit of 50 kph was imposed on large unregistered vehicles such as dump trucks moving around the site. If ASMS wished to change its methods of haulage from using Kress pallet carriers to Komatsu dump trucks it required the approval of Bluescope Steel before it could do so. Bluescope Steel gave directions as to what signage it required on the internal roads. It could impose restrictions as to when and where vehicles could move on site.

In order to gain access to No 6 Blast Furnace from Area 21 it was necessary for vehicles to travel along Overpass Road into a roundabout and turn right into Kembla Road. They would then travel along Kembla Road and turn left into Caster Road which led to the blast furnace. When loaded with slag they would proceed in the opposite direction, ie down Caster Road, turn right into Kembla Road then left at the roundabout into Overpass Road heading towards Area 21. Workers from No 6 Blast Furnace seeking to leave the steelworks would follow a similar route down Caster Road and turn right into Kembla Road.

The accident took place on that part of Kembla Road between the intersection with Overpass Road (the roundabout) and the intersection with Caster Road. That stretch of road was rebuilt for 100 tonne capacity in September 1992. The road was constrained in width on one side (E) by a services easement containing an overhead coke ovens gas main, an underground saltwater main and high voltage electrical cables, and on the other side (W) by an open cut main drain. The width of the road was generally 10.1 metres but reduced to 9.1 metres where the collision occurred. This was to make room for a service duct entry on the Eastern side. The service duct intruded onto the road. There was no kerb or shoulder on the Western side and a flexbeam guardrail was installed at the road edge. There was a kerb on the Eastern side and short lengths of heavy duty steel sections on the kerb line were used as a guard rail at the location of the overhead gas main supports.

There was no centre line on Kembla Road. On each side of the narrow section (described in evidence as the “pinch point”) was a sign “Road Narrows”. A protocol existed between the ASMS truck drivers, including the drivers of oversize vehicles, of stopping if unladen to allow a loaded vehicle to pass the narrow section. Communication between drivers took place by way of radio or with the driver of the unladen vehicle flashing its lights. This protocol was known to ASMS management but does not appear to have had any official recognition. It had been informally worked out between the drivers.

At the time of the accident the plaintiff was working a 12 hour shift pattern. He had just completed his first 12 hour shift after a 5 day break. Before commencing to drive home he had showered and changed clothes. Wayne Phelps, the driver of the dump truck, was an employee of ASMS. He had just started his 12 hour night shift at 6pm after a 24 hour break following two day shifts. At the time of the collision he was approximately one hour into the shift. Accordingly fatigue did not play a part in this accident.

There was agreement between the parties as to the dimensions of the vehicles involved in the collision. With respect to the Komatsu dump truck the relevant measurements were: Overall vehicle length - 9.12 metres. Overall vehicle width (excluding mirrors) – 4.95 metres. Overall vehicle width (including mirrors) – 5.10 metres. Width of outer front tyres – 4.15 metres. Width of outer rear tyres – 4.55 metres. Height of headlamps – 1.80 metres. Driver eye height – 3.5 metres. The plaintiff’s vehicle was a white 1982 Ford Falcon sedan. Its relevant dimensions were: Overall vehicle length – 4.74 metres. Overall vehicle width (excluding mirrors) – 1.86 metres. Vehicle height – 1.37 metres.

There was no damage to the Komatsu dump truck. The damage to the plaintiff’s vehicle comprised off-set damage commencing at the front offside corner and extending across the vehicle with the impact overlap range agreed by the experts as being greater than 200mm but less than 400mm. The point of contact was with the rear offside tyre of the Komatsu. The two vehicles were at an angle between 0° and 5° relative to each other at the moment of initial impact.

At the time of the accident the Komatsu dump trucks were part of a trial being conducted by ASMS to assess whether dump trucks should replace the Kress pallet carriers in the transportation of slag. Maintenance costs and injuries associated with the Kress carriers were making their continued use unprofitable. Preliminary testing with computer models and a single dump truck had proved successful. In early July (probably 3 July) the trial commenced using three dump trucks, two Komatsus and one Caterpillar. An additional Komatsu was kept in reserve.

The person from ASMS in charge of the trial (and whose proposal it was to use dump trucks as an alternative) was Mr Bakasetas, the then Operations Manager for ASMS. Before the trial could commence, the approval of Bluescope Steel needed to be obtained. The use of dump trucks was considered by a Bluescope Steel committee (Load and Haul Study). Mr Bakasetas was a member of that committee.

The matters taken into account by ASMS and Bluescope Steel when commencing this trial are set out in exhibits 2D(22), 2D(24) and 2D(25). From a safety point of view these included the increase in the number of vehicle movements together with the size and speed of the dump trucks. Although specific reference was made in the minutes of meeting to “passing together on Kembla Road” this seems to be a reference to the inability of dump trucks to pass each other at the narrow part of Kembla Road. Restricting the movement of dump trucks during shift changeover was considered but not implemented.

Bluescope Steel approved the trial of the Komatsu dump trucks. As a result of the consultative process, the Komatsu dump trucks were to be fitted with a “strobe light” on the front bumper and with extra reversing lights. The speed of the dump trucks was to be limited to 50kph.

Unlike the Caterpillar dump trucks, the Komatsus were leased by ASMS from Cooks Constructions Pty Limited. It was appreciated that the drivers of the Komatsus participating in the trial would need to be trained in their operation. The method proposed was that a representative from Cooks would train some ASMS drivers in the operation of the Komatsus and those drivers would then train other ASMS drivers as required. The training took about half a day. A number of drivers gave evidence in the proceedings. The effect of that evidence was that driving the Komatsus was similar to driving the Caterpillars. As can be seen from the dimensions both were oversize, unregistered left-hand drive vehicles.

In August 1994 K F Williams & Associates, consulting surveyors, prepared at the request of Bluescope Steel, a traffic management study relating to the impact of the opening of No 6 Blast Furnace (exhibit 2D(15) document 22). The study identified as a deficiency the extensive utilisation and integration of domestic and heavy vehicles along Kembla Road between the roundabout and Caster Road. It identified a potential conflict between domestic traffic and oversize vehicles. It recommended that Kembla Road be widened between the roundabout and Caster Road. Its characterisation of drivers and the environment is instructive: “ The Driver The level of competency of drivers within the Steelworks varies from professional heavy vehicle drivers who are familiar with the Steelworks environment to outside visitors with a low degree of confidence in driving amongst oversized heavy vehicles. In a response to this situation a higher level of reaction time of 2.5 seconds has been adopted in the calculations within report. … The Environment The environment is likened to an urban situation with a high level of heavy vehicles and with low carriage definition (ie lack of kerbs and dim lighting at night). Small clearances to obstructions is common place, and this has been reflected in the adopted roadway capacity calculations.”

It was recognised that Kembla Road between the roundabout and Caster Road was very busy and was nearing its design capacity. In relation to carriageway widths, the report had this to say: “ Carriageway Widths Carriageway widths need to be considered when transport of material is by oversized vehicle. Oversized vehicles used within the Steelworks include: (a) Kress Scrap carriers and low loader. These scrap-handling vehicles are 4 to 5m wide. (b) Cat 773 Slag Dump trucks (or similar). These slag-handling vehicles are 4.1 to 4.7m wide. (c) Kress Pot Carriers. These vehicles are 8 to 9m wide. The present carriageway widths (restrictions) are shown on Figure 25. The recommended lane width for scrap and slag vehicles ((a) and (b) above) is 6 metres.”

The report described three options for the movement of slag from No 6 Blast Furnace: “All three proposals use Kembla Road between intersections 1 and 2 (roundabout and Caster Road) in both directions. The average width of this road is 9.9m. From Table 7.2 it can be seen that this road is on the limit of its capacity and it is therefore suggested to widen it to 12m. Alternatives to this would be to construct a 6m lane on the eastern side of the gas main. Refuge bays could also be considered but is not recommended given the volume of traffic. … It is also recommended that slag haulage be restricted during change of shift to reduce conflict with domestic traffic. No slag trucks should use Kembla Road and Caster Road during peak hours, which have been identified as between 7am and 8am and between 2.30pm and 3.30pm.”

The recommendations relating to Kembla Road between the roundabout and Caster Road were not implemented except that the road was slightly widened on the Eastern side. The content of this report and its recommendations were not communicated to ASMS at the time when it was assessing whether dump trucks should replace the Kress pallet carriers in the transportation of slag.

There were no eye witnesses to the actual collision between the dump truck and the Ford. The plaintiff has no present recollection of the accident. His earliest recollection following the accident is of being in hospital, but even that recollection is hazy.

The closest there is to an eyewitness is Mr Phelps, the driver of the dump truck. At the time of the accident Mr Phelps had been driving dump trucks, Kress carriers and loaders and heavy machinery for about 5 years. He could not recall whether he had driven a Komatsu dump truck before the night of the accident. There is no record of him having done so. This may well have been the first occasion that he drove a Komatsu dump truck. If not, it was only the second time that he had driven a Komatsu.

Before driving the Komatsu Mr Phelps had been taken through a somewhat informal familiarisation process by another employee of ASMS. This consisted of a Komatsu dump truck being driven over to No 6 Blast Furnace where Mr Phelps was working. He was then allowed to familiarise himself with the controls. The differences between a Komatsu and a Caterpillar dump truck were pointed out to Mr Phelps and the other operators by the person who had driven the Komatsu to No 6 Blast Furnace. Mr Phelps did not regard the differences as significant.

On the night of the accident Mr Phelps had already picked up a load from No 6 Blast Furnace and taken it to Area 21. He was on his way back to No 6 Blast Furnace for his second load when the accident occurred. At the roundabout he waited for two other trucks to exit Kembla Road through the roundabout and then he himself entered Kembla Road.

His evidence in chief as to his observations thereafter was: “A. Then I became aware of a vehicle travelling towards me heading north. … I did not actually see it turn on to the road I saw it coming – I became aware of it as it was travelling towards me. I continued down the road, there wasn’t any other vehicle on the road apart from myself and the vehicle travelling towards me. I paid attention to the car because it appeared to be a little off – what I’d call off the normal driving line. He, it seemed to be more towards the centre of the road than what a vehicle, well what a car would be driving on. I continued on. … I was on the left hand side of the road travelling along my normal line. Q. What’s your normal line? A. Well basically as close to the, to the side of the road, to the gutter as I can be. Q. And what’s your ability to make that observation of being close to the gutters? A. Well it’s a left hand drive vehicle so apart from being able to see the gutter I also have mirrors on the truck that can, using the mirrors, I can decide where I am. … I continued down the road, I was still watching the car that was coming towards me. At one stage I slowed down because I was aware that the car didn’t, wasn’t travelling on the normal, what I’d call the normal line of traffic. I continued on down the road then at another time I, I became aware of the car again for the second time, at that stage I slowed down using the footbrake, continued along then at a second stage, by this time the vehicle’s a lot closer to me, I slowed the second time and kept an eye on, sort of on the car and where I was in relation to the car. The car by then was reasonably close to me and I knew that shortly I’d lose sight of the car due to the - Q. That’s in the blind spot, yeah? A. Yeah there’s a certain point when you’re driving that, those trucks that when they’re beside you you lose sight of the car – of the vehicle that’s beside you. At that stage I decided the driver of the car would be, would be able to determine where he was. … At that stage I, I decided that he would, the driver of the car, would be better to judge where he was in relation to the guardrail and my truck, I decided at that stage that the driver would, being in control of his own vehicle he would be better to judge where he was in relation to me and the guardrail and such. I continued on. I thought I’d passed the vehicle, it was out of sight, I thought I’d passed the vehicle and there was a loud bang, if you like, a loud noise. My truck … Q. Coming from where? A. From beside, behind the truck, in the general area, I can’t be any more specific than that. The rear of the truck felt as if it had left the road, bounced up in the air, came down, the front of – at that stage my truck was no longer pointing down the road I was actually pointing towards what I believe they call Allan’s Creek.” (T.779-781)

Mr Phelps thought he was travelling at about 40kph when he first braked, which slowed him to 30kph and then after he braked the second time, he estimated that he would have been travelling at 20 to 25kph and that this was his approximate speed at the time of impact. He said it was his practice to drive as close to the gutter or to his side of the road as possible and in this case his estimate was that he was driving about 30cms away from the gutter. He said the brakes on the Komatsu dump trucks were very good.

In relation to how he drove around the service duct intrusion into Kembla Road, the evidence was: “Q. You have to actually steer out and around it, I suggest? A. I don’t make any sudden movements. I mean, I steer round whatever obstacle might be there, or on any road for that matter. Q. So is this right, as you were approaching the pinch point from say 50 metres or so away, you would already have been at that point lining yourself up to go around the intrusion into your side of the road? A. I, I couldn’t say. I, I can’t, can’t recall deliberately steering around anything. Obviously I have to manoeuvre around objects. … Q. What I’m suggesting to you is that the way that this road was configured at the time of this accident, with you going down Kembla Road in this oversized vehicle you were effectively forced to drive over the notional centre line in order to get round this intrusion on your side of the road? A. I have to get round yes. Q. And that involves you steering out and around this intrusion either by steering closely around it as you hug the Armco or lining yourself up perhaps a little bit further back so as to take it at a more gentle angle, do you agree? A. I agree, yes, with the gentle angle. Q. So would this be right, your usual practice in approaching this pinch point would be to set yourself up for the task of getting around the intrusion somewhat further back along Kembla Road so that you didn’t do any awkward steering around the intrusion? A. Correct.” (T.796-798) “Q. And then as you approached the narrower section, you would have to move to your right to avoid a collision wouldn’t you? A. With the pylon, I have to negotiate that yes. Q. And by moving to your right? A. Yes I, I would gradually negotiate that pylon. Q. So as you approached it, you would be occupying more of, increasingly more than half of the roadway? A. I would have to, to negotiate the pylon, yes. … Q. Isn’t this what happened, that as you approached the narrower section you caused your vehicle to go to the right, not suddenly but gradually, to get through the narrower section, is that right so far? A. I, I would gradually have to move over to negotiate that pylon, yes. Q. So as you approached the narrower section, you had to change your line somewhat? A. Travelling down that road to negotiate that pylon, at some stage I have to move over, yes. Q. You never observed the car to change its line, I think you said that many times yesterday? A. The car seemed to maintain the line that it was on. Q. So your vehicle changed its line but the car didn’t, is that right? A. I would have had to of changed my line at some point along that road to negotiate that pylon.” (T.865-866)

On the basis of that evidence I am satisfied that although Mr Phelps may have been driving as close to the eastern gutter as he could, when he was some distance to the north of the pinch point he commenced to gradually steer out to the right so as to be able to drive around the pinch point. This was done in a gentle and gradual fashion. In doing so the Komatsu would have crossed the notional centre line of Kembla Road.

Mr Phelps was extensively cross-examined as to the position of the plaintiff’s car: “Q. To your recollection was there ever a point as you drive towards the plaintiff when as you saw him he was ever on his wrong side of a notional centre line? A. From the time I first braked I was concerned about him driving off what I believed to be normal line that you would drive on in a vehicle of that size. Q. Why were you concerned? A. I was concerned because he didn’t appear to be driving on the line that I would think a driver of that size vehicle would be driving on. Q. And what is that line? A. Well to me it would be as close to the guard rail there as possible. Q. So is this what you’re saying, at no stage to your observation did the plaintiff cross over the notional centre line your concern was that he simply wasn’t over as far as possible to his left hand side? A. I thought he was using more of the road that his size of vehicle needed to take up to drive along that road. Q. Was that concern formed in your mind because you knew that you would be taking up more than half of the road at the point when you reached the pinch point? A. No it’s not, the pinch point, the so called pinch point wasn’t a point of focus for me. It wasn’t the only point of focus if you understand what I’m saying. I had concerns about the car from the time I saw it not driving on what I thought would be the normal line of traffic. Q. But why was that of concern to you? A. It wasn’t just the pinch point. Q. But why was that of concern to you? A. It was of concern I suppose because it was out of the ordinary. Q. What you mean it was just some sort of curiosity rather than a safety problem? A. Well you could say that, I was wondering why the vehicle would be travelling along that particular line. Q. But Mr Phelps if you’re only … A. When I first braked from that point obviously I became sort of more concerned. Q. I can’t understand why you needed to brake at all if your only concern was that he wasn’t all the way to the left? A. Because I was concerned. Q. But why? A. Because he wasn’t driving on that line that I thought he should have been driving on. Q. In other words you had no safety concern in your mind at all? A. Of course I have a safety factor somewhere in the back of my mind but when I first became aware of the car I was wondering why it wasn’t – why it was so far over. Q. And when you drove on a bit further and then slowed down for a second time had anything changed, so far as the plaintiff’s driving was concerned? A. He appeared to be on the same line, he didn’t seem to veer from one side or the other, he seemed to maintain that line of travel. … Q. But you say you slowed down for a second time? A. Because I was concerned. Q. And you can’t remember why you were concerned? A. I was concerned because he wasn’t driving on that line that I thought he should have been on. So there was concern there because he wasn’t travelling on the line that I thought he should have been on. Q. Could it have been that the basis for your concern was that if kept going in the direction that you were going and he kept going on the line that he was going there was a very real risk that you would come into collision in the middle of the pinch point? A. No. Q. Do you say that you didn’t have actually any concern about a risk of collision at all? A. I never thought at any stage that I was going to be involved in a collision with the car. Q. But you say you slowed down twice? A. That’s right. Q. But why if you had no concern about any risk of collision, would you slow down twice? A. Because I found it strange that he wasn’t driving on that line, the normal what I would call the normal line that a car would travel on which would be as close to that left hand side as reasonably possible. Q. When you first entered Kembla Road as a matter of courtesy, you stopped to allow the two trucks to pass, correct? A. Correct. Q. As you approached the pinch point and had these concerns was there any reason why you didn’t extend the same courtesy to Mr Kendrick’s car? A. Well it was a car, it wasn’t a truck and the car doesn’t need the amount of space as two trucks passing. I suppose what I’m saying I considered there was plenty of room if the car was travelling on its normal line that a car would travel on. Q. But it wasn’t travelling on its normal line you’ve told us. A. That’s what I said, that’s what I believe I said. Q. Is this right as part of your perception at the time you expected the smaller domestic vehicle to give way to the larger industrial plant? A. No. I didn’t expect him to give way. … Q. What I’d like to suggest to you Mr Phelps is that the concern that you actually had and which caused you to slow down on these two occasions was that there was a risk of collision between your oversized vehicle and Mr Kendrick’s car? A. No, I don’t believe so. Q. So your recollection is that he was always on his half of the road? A. No, I don’t believe he was on his half side of the road. I’ve said all along he was, I believed he was off the normal line of traffic for the car, off the normal line that a car would travel on. Q. But this normal I thought, forgive me if I’ve misconstrued it again, but this normal line you had described, hadn’t you, as over as far as possible to his left? A. That’s what I would imagine. Most cars travelling on that road or most vehicle on any road, would stay to the side of the road as, as possibly you could. Q. Sir are you saying that he was in fact over a notional centre line travelling in your half or are you not? A. Yeah, the notional centre line, I would say he was over that at that, where I saw him. Q. Which point’s that? When you first braked or when you second braked for the second time? A. The second time I suppose. Q. So the second time you braked you actually perceived him to be on his incorrect side of the notional centre line? A. I, I can’t say centre line, because the road obviously varies in width at different points, so I can’t, it’s impossible to imagine a centre line. Q. Without the centre line you were in some difficulty were you, knowing just how to safely negotiate this pinch point with the plaintiff coming in the opposite direction? A. I, I, I knew where I was on the road. I presumed that he knew where he was on the road in relation to the two vehicles. Q. See, what I’d like to suggest to you is that what was actually going through your mind at this point as you braked for the second time was that here you were in a situation of potential collision with the plaintiff’s car? A. At no time did I think that I was going to be involved in a collision with the car. Q. Are you sure did brake on these two occasions? A. I’m positive I braked twice. Q. But your reason for braking, you say, had absolutely nothing to do with any concern about a risk of a collision? A. I at no time thought I was going to be involved in a collision with the car. I presumed that the driver was aware of where he was and where I was in relation to the road. … Q. Well why did you brake at all if you weren’t concerned about a risk of a collision? A. Because I was concerned that the driver was not driving on that normal line of traffic. Q. And that there was therefore a risk of collision I suggest? A. And I was wondering why, I was wondering why the car was driving on that particular line. … Q. Isn’t this right, you braked twice because you were concerned that the plaintiff’s vehicle was in a position which meant that the two vehicles were at risk of collision in this pinch point? A. I can only say again that I didn’t consider at any time that I would be involved in a collision and the pinch point wasn’t, didn’t come into the situation. Q. What I’d like to suggest to you is that in the circumstances where you saw the plaintiff’s car in the positions you’ve described and you had already braked once, the reasonable thing for you to have done when you saw that he was still in this line would be to stop? A. If at any time I thought that I was going to be involved in a collision – hindsight’s a wonderful thing. I would have reacted differently of course. But at no time did I believe that I was going to be involved in an accident with the car. … Q. What I’d like to suggest to you is that the reason you stopped to let two trucks go by when you were at the top of Kembla Road was to minimise a risk of collision on a narrow road? A. It was my practice to stop at the beginning of that road if there was a vehicle that was just about to exit that road, bearing in mind that that is also classed, I believe, as a crossing, a foot crossing so, and I’ve just negotiated a roundabout. So all these factors come into me stopping at the start of that road. I’ve just come round the roundabout so I was going slow anyway so to stop for 30 seconds to let two trucks leave the road is common sense. Q. And so too would have been to stop instead of merely braking for the second time, to stop so as to let Mr Kendrick go through this pinch point? A. Well as I said at no time did I believe I was going to be involved in a collision. If I had have I would have reacted possibly differently. Q. Isn’t the simple fact of the matter that you saw the plaintiff’s car at a position which created in your perception a thought of danger and for that reason you braked not once but twice? A. No. Q. And isn’t it the position that really instead of braking down to 20 kilometres an hour on the second occasion the reasonable thing to do would have been to stop and afford Mr Kendrick the same courtesy that you had extended to the trucks earlier on the same road? A. I hadn’t, I was three-quarters of the way down the road. When I stopped to afford the courtesy to the other two trucks I hadn’t started on that road. So for me to pull up in the middle of, in the – half way down or three quarters of the way down that road doesn’t make sense to me unless I had have known that I was going to be involved in an accident which I didn’t.” (T.801-807)

When cross-examined on the same topic by other counsel, the evidence of Mr Phelps was: “Q. And at some stage whilst approaching that sedan you noticed that it was on, that is, the sedan was on an alignment that you would not have expected for a vehicle travelling in the opposite direction? A. It didn’t appear to be on the normal line that the majority of the traffic takes, including the semi trailers. Q. Would it be true to say that as you got further down Kembla Road you noticed that the car was not being driven entirely on his side of the road? A. That’d be, that’d be correct. Q. Was it your observation that it was in the centre of the road still mainly on its correct side, but off the normal line for traffic coming down the road? A. It was off the line of, off the normal line of traffic. I wouldn’t say it was in the centre of the road. Q. Are you sure about that? A. I can only say what I, what I think. I wouldn’t think that it was travelling in the middle of the road. It was off the normal line, but I wouldn’t say it was travelling in the middle of the road. Q. I thought you just agreed with me that when you noticed the car it was not being driven entirely on his side of the road? A. It comes back to the, his side or my side. There’s no his or my side on that, at that stage on that road. … Q. Would it be true to say that the car was being driven approximately towards the centre of the roadway? A. Yes. Q. So would it be correct to say it was towards the centre of the road, but mainly on its correct side? A. Yes. Q. You see, cars travelling in the opposite direction generally stay well over to their side of the roadway, don’t they? A. That’s correct. Q. Closer to the western side Armco railing? A. Correct. Q. So there’s a fair bit of distance between the offside of the car and the side of our vehicle? A. Correct. Q. Similarly in relation to trucks or any other vehicle proceeding in the opposite direction, that’s correct, isn’t it? A. Correct. Q. This was unusual, wasn’t it, because the car coming in the opposite direction, rather than being close near the western side of the Armco railing was up towards the centre of the roadway? A. It’s unusual. Q. Well, that raised alarm bells with you, didn’t it? A. I was wondering why it wasn’t travelling on the, on that, the line that most of the traffic travel on. Q. And didn’t it raise alarm bells that first of all this is unusual? You’ve got to answer? A. Unusual. Q. And if this car keeps coming in the same direction it’s going to come awfully close to the side of my vehicle? A. I, it was going to come closer to my vehicle than what other traffic would be if he maintained that line. Q. Well, what line was the vehicle travelling on? Was it straight or was it angled or what was the situation? A. It appeared to be travelling straight. It didn’t, didn’t want to stop. Q. So it was travelling straight? A. Appeared to be travelling in a, in a straight line. Q. And were you travelling in a straight line? A. I believe so, yes. Q. You, of course, the operational controls of your vehicles on the nearside, the left hand side? A. Correct. Q. So to that extent you have to make an estimation as to where the off side of your vehicle is? A. That’s correct. Q. Including the rear tyres which you did know at that time overhang, or came out further than the front section of your vehicle? A. I, I was aware that the back of the vehicle is larger than the front, yes. Q. Well, you slowed down when you noticed this vehicle coming towards you, towards the centre of the road, to about 30 kilometres per hour you said? A. Approximately. Q. Why did you slow down? A. Because I was curious as to why the vehicle, the car, wasn’t travelling on its normal line and the fact that 50 metres or so down the road I had to leave that road to go to 6. Q. Did you slow down because you were concerned that if this … A. I was concerned. Q. … vehicle kept on its same alignment that it could come very close to the offside of your vehicle? A. I was concerned that it would come close to the vehicle, the truck. Q. You in fact, expected the car to veer away from you, didn’t you, veer to the left, back towards the western side of the Armco railing as it came close towards you? A. I suppose it would be natural to think that. Whenever you come close to another vehicle, if you’re on a highway outside and you pass a semi trailer you tend to go to the left. It’s a natural instinct I suppose. Q. Well particularly as this vehicle was so close to you towards the centre of the roadway. You expected it to go back to its, what you expected as the normal alignment? A. I, I presumed he, he knew where he was on the road and that he had room to pass me safely. Q. But he kept coming at the same line, didn’t he, after you’d slowed down to 30? A. He didn’t seem to veer, yeah. Q. So when he didn’t veer away from you, you slowed down again to 20 kilometres per hour, didn’t you? A. I slowed twice. Q. Well, why did you slow even further a second time? A. I slowed the second time because I was concerned about the line that he was driving on and the fact that I had to turn left to go to 6 shortly. Q. At that stage he still kept coming towards you partly on its incorrect side of the roadway? A. I agree. Q. Were the Komatsus fitted with a horn? A. Yes. Q. At that stage had it crossed your mind thinking “hello, this vehicle’s coming very close to me and I have slowed down twice. He doesn’t appear to be changing his line”, to give him a blast on the horn? A. I didn’t, I didn’t believe it was necessary, because I didn’t consider the fact that I might be involved in an accident. I presumed that he knew where he was in relation to me. Q. And I presume that’s the reason you didn’t stop? A. Exactly. Q. I mean, you appreciate you’re in charge of a very large vehicle at the time? A. Correct. Q. And you were travelling very slowly at 20 kilometres per hour? A. Correct. Q. If you had have applied your brakes to stop you would have been able to bring that vehicle to a halt in a short distance? A. Correct. Q. And in fact, after the accident you were able to do so? A. Correct. Q. And that the only reason you didn’t sound your horn or stop was because you thought that that vehicle, or the driver, or that vehicle was in a better position to judge where he was relative to you? A. Correct. Q. That’s because where he was driving would have been closer to your, the offside of your vehicle than where you were to the offside of your vehicle? A. Correct. Q. Because you were on the left hand side? A. Correct. … Q. You would have expected him to have changed his alignment wouldn’t you? A. Not if he knew where he was on the road. Q. So you took a punt on him knowing precisely where he was in relation to the offside of your vehicle? A. It would be a fair comment. Q. And you took a punt on the fact that he was not distracted? A. Well… HIS HONOUR: I think putting a punt on it is probably putting it a little bit highly but he made an assessment. COUNSEL: Q. Yes made an election or assessment as his Honour referred? A. At that stage I knew I would lose sight of the car and I made a judgment that he was better to determine exactly where he was in relation to me and for me to make that call, he would have had a better view of the all round situation than what I had being that I was on the left hand side of the vehicle. Q. When coming very close to the oncoming car you knew that it would be travelling in an area that would be blind to you? A. That’s correct. Q. So you at that stage would not have the opportunity of determining whether or not he was sufficiently safely away from the offside of your vehicle? A. It would be right, that’d be correct. Q. Your evidence is as I understand it, you don’t know where this accident occurred in relation to what has been described as the pinch point of the roadway? A. No, I’m not … Q. Please answer Mr Phelps? A. I don’t know exactly on that road where the accident occurred, I, I can’t recall exactly where the accident happened on that road, whether it was just after the pinch point or at the pinch point or before, I don’t know exactly. Q. Yes that’s what I thought your evidence was in chief, you don’t know where the accident happened? A. No. Q. In relation to the pinch point? A. Exactly. Q. Did you change your line at any point after seeing the oncoming vehicle? A. No.” (T.814-819)

The last piece of evidence that Mr Phelps gave on this topic was: “Q. You never observed the car to change its line, I think you said that many times yesterday? A. The car seemed to maintain the line that it was on. Q. So your vehicle changed its line but the car didn’t is that right? A. I would have had to of changed my line at some point along the road to negotiate that pylon. Q. Your belief was that if each of you had maintained your line then you would have missed each other? A. That’s right, that’s what I believed. Q. You said yesterday that you realised that even maintaining the line that each of you were following that you and the car would pass very close to each other, that’s right isn’t it? A. I, I believe that we, we would pass each other closely. … Q. So even if you kept your line, you expected for safety’s sake that the car would veer to its left away from your line, didn’t you? A. I didn’t expect the car to do anything, I suppose I can only go on my own experience when I’m passing a larger vehicle out on the highway, I automatically give it a little extra room if possible. What I’m saying if I’m travelling down a highway and I pass a semi trailer and there’s a, say for instance a narrow bridge, it’s only natural that you move to the left as far as you can to give that truck a little bit more space. I believe we all do that. Q. And I suggest a second reason why you thought it would be natural that the car would veer away from you and that it is because you had changed your line so that if you continued your line as changed and if he continued his line there would be a collision, that’s the other reason why you thought it would be natural for the car to veer to its left, isn’t it? A. I don’t agree with that. … Q. Mr Phelps isn’t this the case that you actually swung to the left before the impact? A. I don’t believe that. Q. You say that you were pointing in a straight line south along Kembla Road when you heard the bang? A. I believe that to be correct.” (T.866-868)

Mr Billington was a Process Controller on No 6 Blast Furnace in July 2000. As he was getting into his car he observed the plaintiff driving out of the car-park. Mr Billington then drove along Caster Road, approximately 150-200 metres behind the plaintiff’s vehicle. When he looked to the right as he was turning from Caster Road into Kembla Road he noticed the headlights of a large truck moving on Kembla Road approximately 150-200 metres to the North of his position at the intersection. The lights caught his attention because there was dust and the beams were bouncing up and down. He then drove to the scene of the accident.

The only other witness who made any direct observation of the accident was Mr Whitely. Mr Whitely was a contractor who was driving an Isuzu truck north in Kembla Road shortly before the accident. He drove past the Komatsu without incident. His truck was 2.4 metres in width. He had already driven past the pinch point at the time when he passed the Komatsu dump truck. His evidence as to what he saw was: “Q. Would you just tell his Honour, take it slowly, to the best you recollect what you heard, saw and did? A. Well I, I was driving down Kembla Road when I passed the dump truck and just after I passed the dump truck, I realised I’d left something behind so I swung into the limestone stockpile there to make a … Q. That’s doing a right hand … A. To do a u-turn, made a right hand turn into there to do a u-turn to go back, when I heard this noise, an almighty bang and I looked out the window and I seen what had happened. Q. What did you see? A. I saw a white car there and a dump truck, sort of wobbled a bit and stop.” (T.739-40)

Although Mr Whitely saw the headlights of the plaintiff’s car in his rear vision mirror, he was unable to say how far behind his truck the plaintiff’s vehicle was. He was also unable to say where in relation to the pinch point the collision occurred. In relation to the position of the plaintiff’s vehicle on Kembla Road, Mr Whitely’s evidence was: “Q. And in relation to the lights and their position on the Kembla Road, what do you say about your observation in the rear vision mirror? A. Well they seemed to be on the correct side of the road.” (T.755)

There was an issue in the hearing as to how the evidence of Mr Phelps was to be interpreted. In relation to the position of the plaintiff’s car, Mr Phelps consistently said that it maintained a straight line and did not swerve either towards or away from him until he lost sight of it when it entered the blind spot on the offside of the dump truck. That evidence was not challenged.

His evidence as to the position of the plaintiff’s car, laterally, on Kembla Road was less clear. His initial description did not suggest that the plaintiff’s car had crossed the notional centre line of the road. What attracted his attention was that the plaintiff’s vehicle had not moved to the western edge of the road, but was maintaining a line more towards the centre of the road. He did not regard this as the line normally followed by cars.

On two occasions Mr Phelps agreed in cross-examination that the plaintiff’s vehicle was over the notional centre line in the road but on other occasions resisted that proposition. It is significant that his evidence in chief was not to that effect.

In my opinion a fair reading of the evidence of Mr Phelps is that he did not at any time observe the plaintiff’s vehicle to have crossed the notional centre line of Kembla Road. I have reached that conclusion for a number of reasons. It is consistent with the evidence of Mr Phelps that at no time did he consider that if he and the plaintiff’s vehicle continued on the same line they would come in contact with each other. It is consistent with the observation of Mr Whitely. It is consistent with the width of the dump truck and the fact that no contact was made between the front wheels of the dump truck and the plaintiff’s vehicle. It is consistent with Mr Phelps’ evidence of how the dump truck moved gradually to the West as it approached the pinch point.

The final position of the two vehicles following impact is shown in a number of photographs taken on the night of the accident. Security personnel employed by Bluescope Steel made measurements of various aspects of the accident site. Those measurements were transposed onto a plan which was attached to the joint experts’ report (exhibit 1D(6)). Whilst the authorship of that plan was never established, the experts agreed that the “indicative” positions of the vehicles following the collision on that plan appeared to be reasonably accurate.

The position of the plaintiff’s vehicle was approximately one and a half metres to the south of the point of impact in a north-easterly orientation. Mr Phelps had momentarily lost control of the dump truck following impact so that its final position was approximately 20m south of the point of impact in a south-westerly orientation. While there was general agreement between the experts as to the location of the point of impact from a north-south perspective there was considerable disagreement as to its location laterally, ie from an east-west perspective. The point of impact was approximately 5m North of the pinch point.

The general sequence of events can be reconstructed from the first defendant’s records. Mr Phelps reported the accident on his two-way radio as soon as it occurred. That message was relayed verbally to Mr Flannery, an ASMS supervisor, who telephoned the Bluescope Steel ambulance centre at 7.03pm. Security personnel from Bluescope Steel arrived at 7.06pm and commenced to secure the area. The Bluescope Steel ambulances arrived at 7.08 and 7.10pm. The NSW Ambulance and Rescue Service arrived at the north gate of the steelworks at 7.17 and 7.19pm respectively and were escorted to the accident scene, a drive of 2-3 minutes. The NSW Fire Brigade and Police Rescue were escorted to the scene at 7.24pm. The plaintiff was released from the car and taken to Wollongong Hospital at 8.09pm. Various marks on the road were marked with paint and the car was removed from the collision scene and taken to the Works Garage. The Komatsu was driven back to the ASMS workshop and parked. The road was cleared of debris, swept and hosed down and re-opened at 11.15pm.

It was submitted by ASMS that the collision occurred because the plaintiff did not see the dump truck. This submission and its legal consequences were based on statements allegedly made by the plaintiff at the scene of the accident.

Although the first person at the accident site was Mr Phelps, I am satisfied that he did not speak to the plaintiff before the arrival of Mr Billington. When Mr Billington arrived he observed the driver standing on the landing of the truck (T.269). Given his proximity to the accident and what he observed I am satisfied that Mr Billington was the next person to arrive at the accident scene.

It was Mr Billington’s evidence that Mr Phelps did not look very well and was a bit shaky. He observed Mr Phelps to sit on the ground with his back resting against the Armco guardrail. Mr Billington then spoke to the plaintiff. Mr Billington’s evidence was: “Q. Then a little further on, you said that when you reached him, that meaning Alan “he was conscious, he recognised me and the first thing I remember him saying is ‘what happened, what happened?” is that correct? A. Yes. Q. Did you answer that question? A. I didn’t know what happened, I may have told him the truck – he’d been hit by a truck. I assume I would have told him that at some time, that he was hit by a truck … Q. On more than one occasion that you went back to Alan he asked you what happened, what happened? A. He was uncertain what happened, I had several conversations with Alan, yes. Q. But on each of those conversations, he asked you more than once, did he not, what happened, what happened? A. Yes, he was confused about what had happened, yes.” (T.306-7)

It was also the evidence of Mr Billington that the plaintiff told him that he could not feel his legs and that he thought he was going to die. On a number of occasions he gave him messages to pass on to his wife and children telling them that he loved them. Mr Billington said that apart from the Bluescope Steel ambulance personnel he did not observe anyone else speaking to the plaintiff. There was, however, one occasion before the Bluescope Steel ambulance personnel arrived when Mr Billington was away from the plaintiff for about three minutes.

The next persons to arrive at the scene of the accident were Phillip Kent and Gerard Tedeschi. They were the drivers of the other two dump trucks which were following Mr Phelps to No 6 Blast Furnace. It was the evidence of Mr Phelps that before the Bluescope Steel ambulance arrived, he in the presence of Messrs Kent and Tedeschi, spoke to the plaintiff. The evidence of Mr Phelps was: “Q. Tell us what he said and you said? A. The driver said to me “What happened?” and I responded by saying “You’ve hit a truck”. And I also said “What, didn’t you see me?” and he said “No” and I said “What, you didn’t see me at all?” and he said “No”. Then I recall Phil Kent by this time more people had gathered and I was a wobbly on my feet and I believe it was Phil Kent, Phil Kent or Gerard put their arm around me to sort of, to hold me up basically and I moved to the side of the road and sat down”. (T.783)

Under cross-examination the evidence of Mr Phelps was: “Q. And you say he then replied to you, what did he say? A. He asked me what had happened. I said “You’ve hit a truck” and I said, he seemed maybe bewildered and I said, “Didn’t you see me?” He said “No” and I said “What, you never saw me at all?” and he said “No”, end of conversation.” (T.840)

Mr Phelps said that the plaintiff appeared to be relaxed, that he didn’t make any complaints of pain, nor did he ask that any message be passed on to his children or his wife. The police notebook entry made on the night of the accident recorded Mr Phelps saying: “driver of car stated that he did not see truck coming”.

The evidence of Mr Kent was: “Q. What did you do and what did you see? A. Well I just went over and grabbed Wayne and thought I’d try and get him away from it but he said he wanted to go back and see the person in the car. Q. Yes, so what happened? A. Wayne just went back there and was talking to him and the question was asked about “Didn’t you see me?” and then the answer was “No” … Q. So we’ll call him Alan then? A. Alan asked what happened. Wayne said “You’ve hit me … OBJECTION Q. Yes, you may proceed, Wayne said? A. Wayne said “Didn’t you see me?” and the reply was “No I didn’t see you”. (T.572-3) “Q. No, Mr Kent you tell us what you heard? A. What happened, when we got there, how long it took me to get to the car I don’t remember. But when I got there Alan said “What happened?” Wayne said “You hit my truck” or something like that. Wayne replied “Didn’t you see me?” and the reply was “No, I didn’t see you, I didn’t see you coming” and then that was it. Q. Was that the end of what you heard? A. That was the end of the conversation that I heard. The only other thing that was said is Wayne said “Did you hear that?” and I said “Yes mate I did” or somewhere along them lines.” (T.666)

It was Mr Kent’s recollection that Mr Tedeschi was not present at the time of that conversation. He agreed that the Bluescope Steel ambulance personnel had not arrived when the conversation took place. Initially Mr Kent thought he was the first person to arrive at the accident scene, apart from the plaintiff and Mr Phelps, but under cross-examination he was not so sure. Generally speaking his recollection as to the detail of what was happening at the accident scene was somewhat vague. He agreed that Mr Phelps was very distressed and “he’s walking around like he didn’t know what was happening”. (T.665)

In a statement signed by Mr Kent on 19 March 2001 the following is set out: “I went to the car with Wayne, as he wanted to go over there to see the driver. When we got there the guy in the car, who I later found was Alan Kendrick, asked Wayne what had happened. Wayne said “What, didn’t you see me?” and Alan Kendrick said “No, I didn’t even see you”. Wayne asked him this a couple of times and Alan Kendrick kept on saying that he had not seen Wayne coming. Wayne turned to me and asked me if I had heard this and I told him that I did.”

The evidence of Mr Tedeschi was: “Q. When you and Wayne went over to the car did you hear any words spoken? A. There was words spoken, yes. Q. What words did you hear spoken? A. The words I heard were “Didn’t you see me?”. Q. Did you hear any other words? A. No, I’m going to say no. Q. So the only words you heard were “Didn’t you see me?” A. “Didn’t you see me”. Q. Did you know who said that? A. No, Wayne, I would say Wayne said that, yes.”

It was Mr Tedeschi’s recollection that when those words were spoken only he, Mr Phelps and the plaintiff were present. His recollection was that Mr Kent arrived after him.

The next persons to arrive were the Bluescope Steel ambulances. Ambulance two arrived at about 7.08pm and ambulance four arrived at 7.10pm. Mr Hojlund drove ambulance two and Ms Austin drove ambulance four. It was their evidence that the plaintiff was responding to what they said to him but his words were somewhat rambling. He was saying that he was going to die and was asking the ambulance personnel to remember the names of his children and to tell his children that he loved them. The plaintiff insisted on the ambulance officers repeating the names of his children. The plaintiff continued to be distressed and agitated while they were treating him. They said that from the time of their arrival until they were relieved by the NSW Ambulance Service, they were treating the plaintiff and no-one else spoke to him (T.1943-1946, 2092-2093).

The next persons to arrive at the accident were Messrs Marsh and Flannery. At the time Mr Marsh was a truck driver employed by ASMS and Mr Flannery was his supervisor. Messrs Marsh and Flannery were at the BOS (Basic Oxygen Smelter) when the message from Mr Phelps about the accident came in. Having made arrangements for ambulance and rescue personnel to attend, they both drove to the accident site. When they arrived they observed that Messrs Phelps, Kent and Tedeschi were present together with the two ambulance officers from Bluescope Steel.

The evidence of Mr Marsh was: “Q. Did you hear any conversation? A. I heard him say “I didn’t see the truck”, a couple of times, and then he was saying “get me out of here”. Q. And who was present with you when you heard that conversation? A. Mick Flannery. Q. Yes? A. And I think Phil Kent might have been there, and Gerard might have been close by.” (T.534) “Q. Mr Marsh it is simply not true is it that you overheard the plaintiff saying anything to either Mr Kent or Mr Tedeschi, that is simply not true? A. What do you mean? Q. You did not overhear the plaintiff saying anything to Mr Tedeschi or to Mr Kent did you? A. I heard the plaintiff say he didn’t see the truck. Q. I suggest to you that you have made that up? A. No. Q. I suggest to you that Mr Kent and Mr Tedeschi could not have been with the plaintiff because by that time the ambulance officers were attending him. Is that true or false? A. I don’t recall the ambulance officers but I do recall seeing Mr Tedeschi and Mr Kent there. Q. If they were there, they must have been there at the same time as the ambulance officers, that is the BHP ambulance officers, mustn’t they? A. I don’t recall seeing the ambulance officers near the car.” (T.568)

Mr Marsh signed a statement on 15 March 2001 (exhibit 2D(7)). In the statement the following was set out: “Gerard and Phil were by the car and Wayne was wandering around, he looked a bit out of it from the shock. I went up to Gerard and Phil, Alan Kendrick the driver of the car was in the car and I heard him say a couple of times “I did not see the truck”, it seemed that he was talking to Gerard and Phil. Alan was moving his arms around and seemed to be trying to sit up in the car.”

The evidence of Mr Flannery was: “Q. Do you recall seeing or taking part or hearing any conversation that anyone had with Alan? A. Yes I went over to the car. I was at the car with Phil and Dave and Wayne and Wayne was pretty stressed out and I asked – I went down and I said to Alan, I said “Are you OK?” because everyone was in a panic. And he said “I didn’t see it, I didn’t see it” and that’s all he said to us. Then we sort of had Wayne and we tried to calm Wayne down because Wayne was pretty stressed at the moment”. (T.690)

As indicated I am satisfied that Mr Billington was the first person at the accident scene apart from the plaintiff and Mr Phelps. I found Mr Billington to be an impressive and accurate witness. His observations of the plaintiff accord closely with those of the Bluescope ambulance personnel. In particular I accept his evidence that the plaintiff’s initial query to him was: “What happened?” It also seems to me likely that Mr Billington responded either that he had hit a truck or that a truck had hit him.

I found the evidence of the ASMS personnel on this issue, particularly the truck drivers, to be somewhat unsatisfactory. The truck drivers appeared to be defensive in their demeanour when being questioned and to be very protective of Mr Phelps. While that is understandable it does affect the reliability of their evidence. The suggestion by Mr Marsh that the plaintiff was waving his arms and trying to sit up is fanciful.

It seems clear that Mr Phelps was most distressed. Accordingly his recollections of the detail of what happened following the accident are likely to be unreliable. There are a number of variations in the recollections of the drivers as to the words actually used by Mr Phelps and by the plaintiff and as to the surrounding circumstances. The evidence of Messrs Flannery and Marsh is inconsistent with the observations of the Bluescope Steel ambulance officers who were definite that once they commenced treating the plaintiff no-one else spoke to him. Mr Billington did not see anyone speak to the plaintiff other than himself and the ambulance officers, although there was a brief period when he left the plaintiff. Finally whilst the drivers appeared to have a clear recollection of the words that were said by Mr Phelps and the plaintiff, their recollection of other detail at the accident scene was extremely vague.

On that state of the evidence I am not prepared to find that the plaintiff had a genuine recollection at the accident scene of events leading up to the accident and of not having seen the dump truck. Given his distressed state at the time (clearly described by Mr Billington and the ambulance officers) if he did say something to the effect that he did not see the truck, such an assertion is consistent with him having no recollection at all of what happened and being influenced by what he was told had happened, ie he had been hit by a truck.

It is of significance that no question was ever put to the plaintiff to suggest that he continued to have or had had at any time a recollection of the accident. No medical evidence was tendered to explain how a person might have a recollection of an accident immediately following its occurrence but subsequently be unable to remember anything for a considerable period before the accident and for a considerable period thereafter.

There is also an inherent improbability in the plaintiff failing to see the dump truck. As the view revealed, it is an extremely large vehicle with bright headlights and a strobe light to its front. If a driver were looking ahead he could not fail to see the dump truck as it approached. Mr Billington was able to observe the dump truck at the time of, and immediately following the accident, from the intersection of Kembla Road with Caster Road – a distance in excess of 100 metres.

It follows that I reject the submission that a finding of fact should be made that the plaintiff did not see the truck, that this was the cause of the accident and that the only explanation for the plaintiff not seeing the truck was that he was distracted or was not otherwise paying attention to where he was driving.

Evidence was given by Mr Buchan who in July 2000 was the Superintendent of No 6 Blast Furnace. As of the date of the trial he had retired from Bluescope Steel. It was his evidence that meetings had taken place between Bluescope Steel and ASMS in which the timing of movements of oversize vehicles had been discussed. He said that by July 2000 there was an arrangement that oversize vehicles were not to move during shift changeover times. He gave evidence about a heated argument between himself and Mr Flannery on the night of the accident in which he was very critical of the fact that ASMS dump trucks had been on the road at the same time as private vehicles such as that of the plaintiff.

No-one else from Bluescope Steel supported the proposition that there was any restriction on the movement of oversize vehicles within the steelworks in July 2000. When it was put to Mr Cassar his response was that he could not be certain that such a restriction was in place before the accident.

A large number of witnesses were called by ASMS. Those witnesses comprised drivers, middle management such as Mr Flannery and senior executives such as Mr Troughton. They denied the existence of any restriction on the movement of oversize vehicles within the steelworks. That evidence is consistent with the internal investigation report prepared by Bluescope Steel following the accident. No mention was made in that report of any such restriction existing at the time of the accident. On the contrary one of the remedial steps taken by Bluescope Steel following the accident was the prohibition of the operation of dump trucks during shift changes.

If the operation of oversize vehicles had been prohibited during shift change times it is inconceivable that the Bluescope Steel internal investigation into the accident would have made no mention of it. I have concluded that no such prohibition was in place in July 2000 and that Mr Buchan was mistaken on this issue.

A joint experts’ report (exhibit 1D(6)) was prepared. It was dated 23 October 2006 and contained opinions as to how the accident occurred. The joint report identified those issues on which the experts were agreed and those on which they disagreed. An issue on which there was a clear disagreement between those experts retained on behalf of the plaintiff and those retained on behalf of the defendants was the lateral position of the vehicles at the moment of initial impact (issue 3 in the joint report).

The experts were agreed that the various diagrams produced by Bluescope Steel purporting to depict the point of impact and the right side edge of the car were unreliable. This was because the authorship of these diagrams was unknown and it would be dangerous to attempt to interpret what the diagrams were seeking to represent.

The experts took as their starting point the three road scars surveyed by Mr George in his inspection of the collision site on 14 December 2000 and positioned on the plan annexed to his report of 13 February 2002. The experts agreed that the advantage of using Mr George’s site inspection information was that it had been professionally recorded. This was despite the fact that the inspection took place five months after the accident. Mr George was a traffic engineer qualified on behalf of the plaintiff.

In his evidence Mr George said that the road scars, which he measured, had originally been marked with yellow paint but most of that paint had worn off by the time of his inspection. There was an issue in the trial as to whether those road scars had anything to do with the accident. The Court’s attention was drawn to the heavy use of the road during the intervening five months and the absence of any mention of the scars in reports prepared at and about the time of the accident.

I have concluded that the three road scars are associated with the accident. My attention was drawn to the minutes of a meeting held on 25 July 2000 by representatives from ASMS and Bluescope Steel (exhibit 2D(37)). Attached to the minutes was a memorandum from the Security Services Department of Bluescope Steel prepared on the night of the accident. Included in that memorandum was the following: “I was also requested to attend pick up point 60 approximately 21:30 and meet an employee to get some aerosol paint which was delivered to Lima 1 and S/M at scene to use for marking the road at accident site”. In the minutes the following was recorded: “Alan visited site. Showed him the position of the car and truck where they came to rest and estimated impact point with gauge (sic) marks as shown to us by the Police crash investigations. … Take photos from the platform on the gas main - mark with paint the impact point and positions of vehicles (wide angle lens).”

It seems clear that there were road scars observed at the accident site within a short time of the accident having taken place and various paint markings were made at the accident site. I am prepared to infer that the yellow paint observed by Mr George on the road scars which he surveyed formed part of that process and that consequently the road scars were associated with the accident.

As well as the report of Mr George of 13 February 2002 the road scars are shown in a number of diagrams which were prepared by Mr Bailey, an expert qualified by ASMS (exhibits 2D(29), (30), (35)). It was the opinion of Mr Bailey and Mr Keramidas (an expert qualified by Bluescope Steel) that the longest scar (located 4 metres east of the western kerb) was made by the anchorage of the off-side radius arm of the car. The opposing opinion of Mr George and Mr Jamieson was that this mark had been made by the front off-side jack point and sill panel of the car.

The dispute between the experts on this issue is not definitive on the question of negligence. The distance between the two components in the car was variously assessed at 15cms, 25cms and 43.7cms, ie 6,10 and 17 inches in imperial measurement. If the opinions of the defendants’ experts were correct the plaintiff’s vehicle would be between 15cms – 43.7cms further to the east than the position suggested by the plaintiff’s experts. The car would also be partially across the notional centre line of the road. This scenario is set out in exhibit 2D(30).

Since the issue was vigorously debated among the experts and since its resolution does impact on the question of contributory negligence, it is necessary that I reach a conclusion as to which of the competing opinions is correct.

Both sets of experts relied on the damage to the undercarriage of the car as supporting their point of view. Mr George was of the opinion that the longest of the road scars was too narrow to have been caused by the radius arm but its width was consistent with it having been made by the front off-side jack point. In support of the defendants’ position, their experts referred to photographs of the undercarriage of the car which showed aggregate and road base in the vicinity of the radius arm which was consistent with it having made heavy contact with the roadway.

The difficulty with placing such weight on observations of the undercarriage of the car was that such observations did not take place until mid 2006. By that time not only had six years passed with inevitable deterioration by way of rust and otherwise but the remains of the car had been moved on a number of occasions. This inevitably complicated the identification of what damage had been caused in the accident as distinct from what damage may have been caused after the accident during one of these moves. In the case of Mr Keramidas he had not actually seen the damage to the car but was relying upon photographs.

Messrs George and Jamieson were of the opinion that the nucleus of the debris and water from the radiator provided assistance when considering the lateral location of the car at the moment of impact. On the basis of the photographs, the debris and water would place the car further to the west and further to the north of the position identified by the road scars. The defendants’ experts disagreed on the basis that the gouging should be regarded as the primary evidence and that the debris was not directly caused by the impact but was brought about by “induced” damage following impact. Induced damage in that context means the displacement of parts through the forces of impact where those parts have not been directly impacted.

I have concluded that the opinion of the plaintiff’s experts is to be preferred to that of the experts retained by the defendants.

On the defendants’ interpretation of the road scars, the offside of the plaintiff’s car would have been partially over the notional centre line. We know from the dimensions of the Komatsu and from the dimensions of the road at the collision site that the off-side of the Komatsu would also have been across the notional centreline. On that scenario the plaintiff’s car would have come into collision with the front of the Komatsu not its off-side rear tyre.

The diagram prepared by Mr Bailey (exhibit 2D(30)) vividly demonstrates the problem with the defendants’ approach to this issue. The only way to have the plaintiff’s car partially over the notional centreline so that it does not collide with the front of the Komatsu is to have the nearside front wheel of the Komatsu hard up against the safety fence. On that configuration the rear nearside wheels would have impacted the safety fence if the Komatsu kept on going.

This was one of the reasons why the plaintiff’s expert, Mr George, disagreed with Mr Bailey’s diagram: “I have already mentioned the reasons for my disagreement with Mr Bailey. There is one other reason that was borne out in his plan, that in my view would have the – for his scenario to be valid – it would mean that the dumper was – actually had no room to move going up through the pinch-point, in other words the left hand drive – the left hand steer would have been fairly much running along the side of the safety fence and if it continued it – the rear wheels would have struck the safety fence so, I mean, I wouldn’t have thought that a driver would – would drive a vehicle that – that close to a safety fence. It would mean that the actual vehicle was overhanging the safety fence on the left hand side, so that’s – that’s another reason why I would seem – that I would consider that would be an unrealistic scenario.” (T.1681)

Having the Komatsu in such a position is contrary to the evidence of Mr Phelps that some distance before the pinch point he commenced to gradually move to the west so as to clear the pinch point and that generally speaking he tried to maintain a distance between the nearside of the Komatsu and the safety fence of 30cms. It is also inconsistent with Mr Phelps’ evidence that at no time did he think that there would be a collision if the car continued on its line and he continued on his line. It is inconsistent with his evidence that the car was not across the notional centreline.

It seems to me inherently improbable, given the description by Mr Phelps of how he proposed to negotiate the pinch point, that at the point of impact the Komatsu would be positioned in a way similar to that depicted in exhibit 2D(30). Even when one uses exhibit 2D(35) to see whether other scenarios are possible, the same difficulties are encountered.

The above analysis is consistent with the photographs taken of the Komatsu when an attempt was made to create a daylight reconstruction of the relative positions of the vehicles before the collision. It can be clearly seen in exhibits 1D(2) and 2D(28) that the distance between the rear nearside wheels of the Komatsu and the safety fence just before the pinch point is at least 30cms. This is where one would expect the Komatsu to be if it were being driven as described by Mr Phelps in his evidence.

For those reasons, I find that at no time before the collision did the plaintiff’s vehicle cross the notional centreline in Kembla Road and that generally the position of the two vehicles was as depicted in the plan, appendix 2, in the report of Mr George of 13 February 2002.

The experts agreed that the damage observed to the car, along with the 20cms offset of the rear tyres of the Komatsu (by reference to the front tyre) indicated that the two vehicles were probably at an angle relative to each other at the moment of initial impact. They agreed that the relative angle between the car and Komatsu would be between zero degrees and five degrees. This could have been brought about by the car moving slightly to the right (east) and the Komatsu travelling south (south) or the Komatsu veering slightly to the left (east) and the car travelling straight (north). It was also accepted that the relative angle could have been created by a combination of those alternatives. The experts agreed that there was no physical evidence which would indicate a strong steering action by either vehicle. The experts agreed that both vehicles were travelling at a low to moderate speed at the moment of impact but they were unable to assess their actual speeds.

When the trial commenced, cross-claims had been brought against Cooks and against Webb Air Auto Electrics Pty Limited (Webb Air). The basis for those cross-claims was an assertion that the front offside headlight of the Komatsu had been improperly fitted so that it produced excessive disability glare and it was this glare which had made a contribution to the collision.

Those cross-claims were settled by way of judgment in favour of the cross-defendants on 29 November 2006. A significant factor in the resolution of those cross-claims was the view of the operation of a similar Komatsu dump truck which took place on 21 November 2006. That view made it clear that the video and still photographs of the night time reconstruction (exhibits 2D(27) and 2D(48)) were quite misleading. The video and photographs depicted a dazzling glare emanating from the offside headlight of the Komatsu. The view confirmed that what is recorded by a camera does not necessarily reflect the perception of the human eye. The camera significantly exaggerated the difference in glare between the outside offside light and the outside nearside light on the Komatsu.

Even though the cross-claims against Cooks and Webb Air were found to lack substance, that is not to say that the contribution of the headlights on the Komatsu to the accident should be disregarded. This topic was considered by the experts in the joint experts’ report.

The experts agreed that the outside offside headlight of the Komatsu would produce disability and discomfort glare for the driver of a northbound car. In that context disability glare is the effect of stray light on the eye whereby visibility and visual performance are reduced. Discomfort glare produces discomfort but does not necessarily interfere with visual performance or visibility.

The experts agreed that the effect of the glare on the plaintiff whilst driving towards the Komatsu could be as great as driving into a single high beam headlamp on a suburban street which was lit by street lights. The degree of disability glare from the outside offside headlight would have made it difficult for the plaintiff to see the outline of the Komatsu. These conclusions by the experts accord with my observations on the occasion of the view. (T.1441-2)

As of 2006 the street lighting on Kembla Road was described as high pressure sodium vapour lamps (400W) spaced at 50 metre intervals on the eastern side on 12 metre high masts and outreach arms. On the assumption that the lighting was the same in 2006 as in 2000 the experts agreed that the closest street lamp to the collision site was located approximately 5.82 metres to the south of the pinch point. On that same assumption they agreed that the shiny road surface of Kembla Road (whether wet or dry) made for a difficult visual environment. While the experts agreed that the street lighting was adequate for domestic light traffic only, there was disagreement as to whether it was adequate for use by a mixture of domestic and oversized vehicles. There was a substantial measure of agreement that although the street lighting was adequate for light vehicle traffic, an appropriate measure would have been to install additional lighting at the pinch point to increase its conspicuousness to a northbound driver, at the times when southbound large vehicles had to move closer to the western side of the road.

Immediately after the accident Bluescope Steel imposed a 50 kph speed limit for all vehicle movements within the steelworks and directed that an escort vehicle was to accompany all oversize vehicles moving on “non-standard” roads within the steelworks. Those restrictions were still in place at the time of this hearing. On the day after the accident flashing light message signs were installed at the accident site stating, “Keep to Left” and “Beware Large Trucks”. Oversize vehicles were prohibited from operating during shift change-over times.

As a result of its internal investigation into the accident, the following action was subsequently taken by Bluescope Steel: (i) Kembla Road was widened at the site of the accident. That work was completed in early 2001. (ii) Traffic lights were set up at a narrow section of Iron Ore Road. (iii) The number of people permitted to park their private vehicles within the steelworks was reduced. This required the building of new carparks and achieved a reduction of approximately 50% in the number of private cars interacting with oversize vehicles within the steelworks. Case against Bluescope Steel

In the third amended statement of claim the plaintiff alleged liability on the part of Bluescope Steel as his employer and also on the basis of a separate and distinct liability as occupier of the steelworks. It was alleged that as occupier of the steelworks, it had authorised the operation by ASMS of Komatsu dump trucks in circumstances which were inherently dangerous.

Those inherently dangerous circumstances were particularised as follows: (a) The vehicle’s size; (b) The fact that it was left-hand drive. (c) The headlamps were 1.8 above ground level with a tendency to create excessive disability glare. (d) There was an absence of side marker lamps on the truck. (e) There was a difference in width between the front wheels and the rear wheels, with the rear wheels being wider. (f) Such dump trucks were not designed for nor intended to be used on road with domestic vehicles. (g) The operation of such dump trucks at night. (h) The fact that lighting was inadequate on internal roads for the use of such dump trucks with domestic vehicles. (i) The fact that such dump trucks were used on a two-way, narrow traffic corridor.

The plaintiff alleged that Bluescope Steel was negligent in the following respects: (a) Failing to implement the recommendations of the Traffic Management Study by KF Williams & Associates Pty Limited in 1994 which identified deficiencies in the road where the accident occurred. (b) Failing to implement other recommendations by KF Williams & Associates in their 1994 report relating to the interaction between oversized vehicles such as the dump trucks and domestic vehicles. (c) Failing to prohibit the operation of oversize vehicles during shift changeover times. (d) Failing to require that oversize vehicles be accompanied by an escort vehicle. (e) Failing to ensure that the drivers of such oversize vehicles were properly trained in relation to the limitations in the operations of such oversize vehicles on the internal roads of the steelworks. (f) Failing to institute, devise or maintain a safe system for allowing oversize vehicles such as the dump trucks to operate in the steelworks without presenting a danger to the drivers of domestic vehicles. (g) Failing to institute, devise and enforce a proper and safe system for the operation of oversize vehicles such as the dump trucks within the steelworks. (h) Failing to provide adequate lighting in the area where the accident occurred. (i) Failing to regulate traffic flow by lights or other means so that vehicles did not have to pass each other in narrow road sections. (j) Failing to ensure that the dump truck was properly and adequately lit up at night. (k) Failing to provide a road which was wide enough to allow an oversize dump truck and other vehicles to pass each other with safety. (l) Failing to provide and maintain a proper and safe traffic control system on a piece of road which was known to be narrow and hazardous. (m) Failing to provide any or any adequate road markings in the location of the accident. (n) Failing to undertake any or any adequate risk management analysis with respect to the use of the oversize dump trucks on the internal roads of the steelworks. (o) Failing to widen the section of road where the collision occurred.

The plaintiff submitted that because his accident did not occur in the course of his employment, but while he was travelling home from work, Bluescope Steel was not liable as his employer but as the occupier of the steelworks. The reason for this submission was that the plaintiff wished to avoid the limiting provisions of the Workers Compensation Act 1987 (the Act) as they affected damages in common law claims. If the submission were successful any award of damages in his favour against Bluescope Steel would be assessed according to common law principles unrestricted by statutory constraints.

The thrust of the plaintiff’s submission was that given the circumstances of the accident the plaintiff’s employment was only incidental to what had occurred. A member of the public driving in Kembla Road at that time would have been exposed to the same risks.

The plaintiff’s submission should be rejected. If Bluescope Steel is liable to the plaintiff, it is liable as his employer or not at all.

The circumstances of the plaintiff’s accident come within the provisions of the Act. Section 151E provides: “151E(1) This Division applies to an award of damages in respect of: (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker’s employer. (2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies. (3) This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker’s employer even though the damages are recovered in an action for breach of contract or in any other action. (4) Subsection (3) is enacted for the avoidance of doubt and has effect in respect of actions brought before as well as after the commencement of that subsection.”

A similar submission was considered by the Court of Appeal in Manufacturers Mutual Insurance Limited v St Lukes Hospital & Anor (CA unreported 14 August 1991); (1991) 6 ANZ Ins Cas 61-068. The facts of that case involved a nurse employed by the hospital who suffered injury when she fell in premises provided by the hospital for staff accommodation. She was not working at the time but was on her way to work. The workers compensation insurer argued that its policy did not cover the hospital in respect of its common law liability to the plaintiff as an occupier.

The court resolved the question by reference to the common law extension in the statutory workers compensation policy. In that regard Handley JA (with whom Kirby P and Clarke JA agreed) said: “In my judgment the language of the extension “to pay an unlimited amount in respect of his liability independently of the Act for any injury to such person” applies without any doubt to the hospital’s common law liability (if any) to the plaintiff. Since the extension refers in terms to liability independently of the Act there is no reason whatever for reading the word “injury” there as having its artificial statutory meaning. The only question therefore is whether the plaintiff is “any such person” for the purposes of the extension. This is a reference back to the person identified in the earlier part of the cover clause. This part of the clause, so far as relevant, applies to the employer’s liability “to pay compensation under the Act to … any person who is … a worker of such employer”. The hospital as employer was liable to pay compensation under the Act to the plaintiff as its worker. The plaintiff was therefore “any such person” within the common law extension. In other words if an injury to a worker is compensable and within the basic cover, any liability of the employer in respect of the same injury to that worker which arises independently of the Act will be within the extension. It follows in my judgment that the appeal fails in substance and should be dismissed.”

The language of the common law extension in the workers compensation policy current at the time when the plaintiff was injured, while differently worded retains the significant wording and structure referred to by Handley JA in the St Lukes Hospital case. Specifically the policy provided: “The Insurer will indemnify the Employer against all of the following sums for which the Employer becomes liable during or in respect of the period of insurance: … (b) Any other amount that the Employer becomes liable to pay independently of the Act … for any injury to any such person …” There is no reason why these words should have any different meaning to that given by Handley JA.

A similar approach was followed by Rogers CJ Comm D in Young Harness Racing Club Incorporated v The New Zealand Insurance Co Ltd (NSW SC unreported, 28 February 1991); (1991) 6 ANZ Ins Cas 61-047. There the plaintiff was a “deemed worker”. In finding that the common law extension in the statutory workers compensation policy applied to the facts of the case, his Honour used the same approach as in the St Lukes Hospital case. A similar approach was followed by Perdriau J in Beale v The Union Steamship Co of New Zealand Ltd (1940) WCR 147 and in Weaver v Tredegar Iron and Coal Company Ltd (1940) AC 955.

It follows that if Bluescope Steel is liable to the plaintiff as his employer the claim is governed by Part 5 of the Act, which is relevant not only to the manner of the assessment of common law damages within Div 3, but also has application in relation to contributory negligence (s151N) and contribution between tortfeasors (s151Z).

The obligations of an employer to its employee are well known. The most recent statement of principle by the High Court is in Czatyrko v Edith Cowan University [2005] HCA 14; [2005] 79 ALJR 839 at [12]: “An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”

In the context of an employer also being the occupier of premises where the injury took place, the Court said: “[14] Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of the risk. It was a question of creating a risk by failing to adopt a safe system of work. [15] There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent. It did no more than require that the appellant and Mr Fendick load the truck. That proper account of these matters was not taken was overlooked or disregarded by the Full Court.”

On the facts of this case Bluescope Steel should have had in place a system of work designed to avoid the risk of exposing employees such as the plaintiff to an unnecessary risk of injury. In that regard I would see the system of work encompassing not only duties performed by the plaintiff at No 6 Blast Furnace but also access to and from the blast furnace when using the internal roadways of the steelworks.

In my opinion there was not in place at the time of the accident a safe system of work. On the contrary, Bluescope Steel had created a risk of injury by failing to adopt a safe system of work in that it had failed to provide safe access by road to and from No 6 Blast Furnace.

The risk of injury to the plaintiff if he encountered an oversize dump truck while travelling along Kembla Road was clearly foreseeable. The KF Williams & Associates report of August 1994 specifically identified as a risk factor the integration of domestic and heavy vehicles along Kembla Road between the roundabout and Caster Road. Bluescope Steel had actual knowledge of the risk.

Leaving that consideration aside, the sheer size of the Komatsu dump truck when compared with that of an ordinary domestic vehicle made such an accident reasonably foreseeable. One thing which the view made clear was the massive size of these dump trucks in that even a small contact between one of them and a domestic vehicle would produce catastrophic results for the driver of the domestic vehicle.

The likelihood of such an accident was increased when regard was had to the fact that these oversize dump trucks would be required to cross the notional centre line in order to negotiate the narrow part of Kembla Road. The prospect of such an accident was not far-fetched or fanciful.

Having regard to the considerations in Wyong Shire Council v Shirt (1980) 146 CLR 40 what, if any, should have been the response of Bluescope Steel to this foreseeable risk of injury? What had to be considered was the magnitude of the risk and the degree of probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which Bluescope Steel might have had.

As indicated, the magnitude of the risk was obvious and significant. Even a relatively minor contact between one of these over size dump trucks and a domestic vehicle, given the enormous difference in their dimensions, would be likely to result in catastrophic injuries to the driver of the domestic vehicle.

What was the degree of probability of such an accident occurring? It was pointed out by Bluescope Steel that although Kress carriers and Caterpillar dump trucks had been operating within the steelworks since 1989 no such accidents had occurred. On that basis it was submitted that the likelihood of such an accident occurring was extremely low.

That submission does not accurately represent what had been occurring at the steelworks. No 6 Blast Furnace had not come on line until 1996. It was that which led to the substantial use of Kembla Road for the transportation of slag by means of over size vehicles. At that time the vehicles used for the transportation of slag were the Kress pallet carriers. The Caterpillar dump trucks were only used to supplement the Kress carriers if additional lift capacity was required. The Komatsu dump trucks were wider, particularly at the rear, than were the Kress carriers and their use would involve an increase in the number of vehicle movements.

The other factor to be kept in mind was that apart from the general risk associated with the interaction of large over size vehicles with domestic vehicles, there was a particular hazard created by the configuration of Kembla Road in that there was a narrowing of the road or a “pinch point” where the road narrowed from 10.1m to 9.1m. It is not known to what extent, if at all, a circumstance had arisen whereby either a Kress carrier or a Caterpillar dump truck had passed in the opposite direction to a domestic vehicle in the vicinity of the pinch point in Kembla Road between 1996 and the date of the accident. It was the combination of those two factors, ie the operation of an oversize dump truck in proximity to a domestic vehicle and the narrowing of Kembla Road at a particular point which gave rise to the foreseeable risk of an accident.

While the absence of any prior accident involving an oversize dump truck and a domestic vehicle is a factor to be taken into account, it ought not be over emphasised given the particular facts of this case. In Francis v Lewis [2003] NSWCA 152, a case of a fall on stairs, it was said at [57] that the fact that there were no recorded falls did not of itself absolve from finding breach of a duty of care, so long as the circumstances would have alerted a reasonable person to the danger posed by the defect and so long as the court found it unreasonable to have ignored that danger. That statement of principle was endorsed in Fairfield City Council v Petro [2003] NSWCA 150.

Each case, of course, must turn on its own facts. In this case the particular risk was known by Bluescope Steel as a result of the KF Williams report in 1994. It was a risk which could come home particularly if there were some thoughtlessness or carelessness on the part of one or both drivers.

In the context of the employer/employee relationship which existed between Bluescope Steel and the plaintiff, if there was a real risk of injury to an employee in the performance of his work, the employer was obliged to take reasonable care to avoid that risk by devising a method for the performance of the task that eliminated the risk or by providing adequate safeguards. It follows that the risk in this case could not be ignored and I do not think that the accident free period between 1996 and 2000 shows that it was reasonable to have ignored it.

The sort of alleviating action which could have been taken, but which was not, is best illustrated by what was done following the accident. The most obvious alleviating action was to eliminate or reduce the interaction of over size vehicles and domestic vehicles at the pinch point in Kembla Road. This could be done by widening Kembla Road which would eliminate the pinch point entirely. Alternatively, restrictions could have been imposed as to the times during which over size vehicles could move along Kembla Road.

I appreciate that the cost of widening Kembla Road would have been substantial. It would have meant relocating the service easements on the east side of the road. Although this was done following the accident, it could be argued that it would have been an excessively expensive response in 1996. This is despite the fact that a recommendation substantially to that effect had been made by KF Williams in its 1994 report.

If that argument were upheld, a significantly cheaper alternative to eliminating the pinch point in Kembla Road would be to implement a variation of the unofficial protocol observed by the ASMS drivers. This would have involved over size vehicles not only giving way to other trucks and over size vehicles before entering Kembla Road, but also giving way to domestic vehicles. Another alternative would be the positioning of traffic lights in the vicinity of the pinch point in Kembla Road so as to eliminate two-way traffic at that point. Given the potential for severe injury, I am of the opinion that the above alternatives would have constituted reasonable alleviating action with minimal expense to Bluescope Steel. What was not a reasonable response was to do nothing.

In my opinion Bluescope Steel breached the duty which it owed to the plaintiff by failing to devise and implement a safe system of work so as to enable him to safely gain access to and depart from No 6 Blast Furnace. In that regard Bluescope Steel failed to eliminate or reduce the interaction between over size vehicles, such as the Komatsu dump truck, and domestic vehicles at the narrow or pinch point in Kembla Road.

In relation to causation Bluescope Steel submitted that the width of Kembla Road and the presence thereon of the Komatsu dump truck did not cause or otherwise make a material contribution to the occurrence of the accident. It submitted that the cause of the accident was the negligence of either or both of the drivers.

In support of that submission Bluescope Steel relied upon the fact that there was ample room for the plaintiff to have passed the Komatsu dump truck even at the pinch point in Kembla Road in that there was almost 2m of road space available to the west of the plaintiff’s vehicle which could have been utilised for that purpose. Mr Whiteley’s truck had had no difficulty some moments earlier passing the Komatsu.

Bluescope Steel submitted that there was no evidence of why the plaintiff was driving so far away from the western edge of Kembla Road at the time when the accident occurred. A possible explanation, it was submitted, was that the plaintiff was not looking to his front and had not seen the approach of the Komatsu. It was submitted that this was consistent with what the plaintiff was reported to have said to the ASMS drivers following the accident.

I do not accept that as a reasonable scenario. At the view the lighting on the Komatsu was significant and even a cursory glance by an oncoming driver would have revealed its presence. Mr Bailey measured the distance between the intersection with Caster Road and the approximate site of the accident at 113m. The presence of the Komatsu would have been obvious to a driver in the position of the plaintiff looking to his front at any point along that distance. It is significant that Mr Billington was able to see the Komatsu from the intersection of Caster Road and Kembla Road.

For that scenario to be correct, the plaintiff would have had to have negotiated approximately 100m of Kembla Road without looking to his front, perhaps distracted by a task either within the car or by something outside the vehicle, but not to his front. It is difficult to accept that the plaintiff’s vehicle would have maintained a straight line over such a distance had that scenario existed. One would expect the vehicle to have moved at an angle either to the west or east. The evidence of Mr Phelps is, however, that the plaintiff’s vehicle maintained its line until he lost sight of it when it entered the dump truck’s blind spot. As to what was reported by the ASMS drivers, I have already indicated why I do not accept that following the accident the plaintiff had any genuine recollection of what had occurred immediately before.

It seems to me that the more likely explanation is that the plaintiff was well aware of the presence of the Komatsu dump truck approaching him but did not move his vehicle as far to the west as he could because he believed he would safely pass it. It is not without significance that the plaintiff was almost successful in safely passing the Komatsu and it was only its rear offside wheel which made contact. Even then the extent of the contact was relatively small being greater than 200mm but less than 400mm with an angle of contact of between 0 and 5.

What appears to have occurred is that the plaintiff miscalculated the distance between his vehicle and the Komatsu. There are two likely explanations for how that came about. These could have operated separately or it could have been the combined effect of both which produced the contact between the vehicles. The first relates to the headlights on the Komatsu. It was common ground that as a domestic vehicle approached a Komatsu, ie within 10m or so from the front, the glare from the outside offset headlight became increasingly bright and intrusive. This and the absence of any sidelights on the Komatsu indicating the protrusion of the rear offside wheel beyond the chassis line, may account for why the plaintiff did not veer to his left.

The other explanation is that because of the protrusion of the service duct into Kembla Road, Mr Phelps gradually moved the Komatsu towards the west across the centre line of the road so as to clear it. The plaintiff may not have detected the gradual movement out from the eastern kerb line by the Komatsu. That on its own or in combination with the Komatsu’s headlights would account for the plaintiff miscalculating the distance between his vehicle and the Komatsu.

The test for causation at law is the common sense test set out in March v E & MH Stramare Pty Limited (1991) 171 CLR 506. It is not necessary that the breach of duty by Bluescope Steel be the sole or principal cause of the accident. It is sufficient if it made a material contribution to its occurrence.

In that regard the fact that there was sufficient room for the plaintiff to have safely passed the Komatsu dump truck in the vicinity of the pinch point does not mean that the protrusion of the service direct onto Kembla Road at the point where the accident occurred, was not causally related to it. It would seem to go well beyond a coincidence that the accident occurred at the narrowest point on Kembla Road.

Once it is accepted, as I think it must be, that the plaintiff was aware of the presence of the Komatsu as he was approaching it, the only logical explanation for what happened is that the plaintiff failed to adequately or at all, appreciate that it was necessary for the Komatsu to gradually move across the notional centre line of Kembla Road so as to negotiate the pinch point. This failure may or may not have been contributed to by the glare of the Komatsu’s right offside headlight. On either basis the combination of the pinch point and the Komatsu made a material contribution to the accident.

This is the very situation described by Spigelman CJ in Seltsam Pty Limited v McGuiness & Anor [2000] 49 NSWLR 262 at [119]: “There is a tension between the suggestion that any increased risk is sufficient to constitute a "material contribution", and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart and in the cases that suggest the former, the actual risk had materialised. The "possibility" or "risk" that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X.”

In my opinion the plaintiff has established liability on the part of his employer, Bluescope Steel, for the injuries which he suffered in the accident of 5 July 2000. Liability of ASMS

The claim against ASMS was put on two bases. The first relied upon vicarious liability for the actions of its driver, Mr Phelps. The second related to the system by which it operated its trucks within the steelworks and trained its drivers.

In relation to Mr Phelps it was alleged: (a) He failed to brake his vehicle to avoid the collision. (b) He failed to steer his vehicle to avoid the collision. (c) He failed to sound his horn as he approached the plaintiff’s vehicle. (d) In all the circumstances he continued to drive into the “pinch point” area as the plaintiff’s vehicle approached him. (e) He failed to bring the dump truck to a complete halt when he saw the plaintiff’s vehicle driving towards him. (f) He continued to drive the dump truck into a narrowing section of the road when he was aware of the presence of the plaintiff’s vehicle heading towards him. (g) He failed to adopt a sufficiently defensive driving style in the circumstances when he was driving an oversize vehicle on a road which he knew was being used by small domestic vehicles.

In relation to systemic failures, the particulars alleged against ASMS were: (a) It failed to properly train the driver of the Komatsu as to the proper and safe operation of the truck. (b) It failed to provide an escort for the dump truck. (c) It failed to properly and safely light up the dump truck. (d) It allowed the dump truck to be on a road which was too narrow given the dimensions of the dump truck. (e) It failed to install lights at the extremities or corners of the dump truck so as to provide proper markers for oncoming traffic to assess the width of the dump truck. (f) It failed to provide oncoming traffic with any adequate warnings or markers to indicate that there was a width differential between the width of the front wheels on the dump truck and the rear wheels. (g) It failed to undertake any or any adequate risk management analysis with respect to the use of the Komatsu dump truck at the steelworks. (h) It failed to institute and maintain an adequate traffic control plan. (i) It failed to restrict the operation of oversize vehicles to reduce the interaction between those vehicles and domestic vehicles. Liability of Mr Phelps

From the first time that Mr Phelps observed the plaintiff’s vehicle, it attracted his attention because it was driving “a little off, what I would call the normal driving line” (T.779.50). He thought the plaintiff’s vehicle was “more towards the centre of the road” than he expected it to be. Mr Phelps was so concerned at the behaviour of the plaintiff’s vehicle that he slowed down. Despite him slowing down the plaintiff’s vehicle maintained its original line.

While Mr Phelps was making these observations, he was gradually steering the Komatsu away from the eastern kerb, towards the west, across the notional centre line of Kembla Road so as to clear the protrusion into the road by the service duct. Mr Phelps was sufficiently concerned that the plaintiff’s car was maintaining its line that he slowed the Komatsu down again. As before, the plaintiff’s vehicle did not adjust its direction but continued on the same line.

It is apparent from the evidence of Mr Phelps that he was concerned that if the plaintiff’s car continued to maintain its line, it would pass very close to the Komatsu. It is also clear that he expected the driver of the car to turn away from him towards the western side of the road. When the car continued to maintain its line and did not veer away, Mr Phelps kept on going. His explanation was: “Made a judgment that he was better to determine exactly where he was in relation to me than for me to make that call, he would have had a better view of the all round situation than what I had being that I was on the left hand side of the vehicle”. Mr Phelps then lost sight of the plaintiff’s vehicle when it moved into the Komatsu’s blind spot.

In assessing the conduct of Mr Phelps, it is necessary to have regard to the difference in size between the two vehicles. The Komatsu dump truck even unloaded weighed 47 tonne and was significantly larger than the plaintiff’s vehicle. The comparative dimensions are set out in [14] above. Given the significant difference in the size of the vehicles, the relationship between the Komatsu and the plaintiff’s vehicle was analogous to that between a motor vehicle and a pedestrian. In other words, even a relatively minor contact between the two vehicles was likely to have catastrophic consequences for the driver of the domestic vehicle.

It seems to me that Mr Phelps, despite his evidence to the contrary, must have appreciated that if the two vehicles continued on their respective paths, particularly with the Komatsu gradually moving out across the notional centreline of the road, there was a risk of a collision between them. While he could see and appreciate the danger, it must have been apparent to him that the driver of the other vehicle could not or did not. If that were not his frame of mind, there seems no logical reason for why he slowed the Komatsu down on two occasions. Moreover his evidence that he did not think that a collision would occur is readily explicable by his belief that the driver of the other vehicle would take avoiding action if a collision seemed likely.

It seems to me that Mr Phelps was confronted with a potentially dangerous situation, particular for the driver of the other vehicle. The dangerous situation was that if the vehicles kept travelling as they were there was a risk of a collision between them. In those circumstances the question raised is what was a reasonable response on the part of Mr Phelps to the risk with which he was confronted?

The standard of care of a driver was recently restated by the High Court in Manley v Alexander [2005] 80 ALJR 413 at [12] where the majority, Gummow, Kirby and Hayne JJ said: “It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that 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.”

What Mr Phelps was confronted with was an ongoing dynamic situation which called for a response from the beginning. His initial response of slowing the Komatsu down was entirely appropriate. Thereafter, it seems to me, in the circumstances with which he was confronted he was required to do more than he did.

Having identified the potential risk of collision it was necessary in accordance with Manley v Alexander, for Mr Phelps as to take such steps as were reasonably necessary to react to that danger. Those steps would include not only slowing down the second time but if the situation remained unchanged, ie the other vehicle maintained its line, then it was necessary for Mr Phelps to bring the Komatsu to a halt. It was not sufficient for him to simply slow down a second time and then continue driving on the basis that the driver of the other vehicle was in the best position to make an assessment of the situation and would take avoidance action if necessary. The potential risk to the other driver from a collision was so great that more was required on the part of Mr Phelps.

In my opinion the appropriate response on the part of Mr Phelps was to either bring the Komatsu to a halt rather than to slow it down on the second occasion or having slowed down for the second time without there being any change in direction by the other car, to then bring the Komatsu to a halt.

There seems little doubt that if Mr Phelps had brought the Komatsu to a stop on either of those occasions, the collision would have been avoided.

There is no suggestion that Mr Phelps would not have been able to bring the Komatsu rapidly to a halt. After he slowed down on the second occasion the Komatsu was travelling at 20kph. His evidence was that had he applied the brakes again, he could have brought the Komatsu to a halt in a short distance (T.817.24).

Accordingly the plaintiff has established negligence on the part of ASMS because of the actions of its driver Mr Phelps.

In relation to the second element of the claim against ASMS, it needs to be appreciated that the relationship between ASMS and the plaintiff was quite different to that between the plaintiff and Bluescope Steel. ASMS was not his employer nor was it the occupier of the steelworks. It was a contractor which was responsible for the transportation of slag within and from the steelworks. It also had a responsibility for road maintenance within the steelworks. Those last two activities, however, were carried out under the close supervision of Bluescope Steel.

In those circumstances it seems to me that the duty owed by ASMS to other drivers, particularly domestic drivers within the steelworks, was to conduct the operation of its trucks so as to not unreasonably expose those other drivers to a risk of injury.

In accordance with the test laid down in Shirt’s case, the possibility of a collision between an oversize vehicle of ASMS and a domestic vehicle within the steelworks was foreseeable. The more difficult question is what was a reasonable response on the part of ASMS to that foreseeable risk?

ASMS did not have the same knowledge as Bluescope Steel concerning vehicle movements within the steelworks. Specifically it had no knowledge of the contents of the 1994 KF Williams report into the effect of the opening of No 6 Blast Furnace on vehicle movements along Kembla Road.

ASMS was aware of the problem created by the protrusion of the services duct onto Kembla Road. ASMS management was aware of the unofficial protocol observed by the drivers of its oversize vehicles in allowing loaded vehicles right of way through Kembla Road. It is not clear whether ASMS management were aware that from time to time drivers of its oversize vehicles also gave way to trucks on Kembla Road such as Mr Phelps did on the night of the accident.

This difference in the positions of ASMS and Bluescope Steel is important when considering the reasonableness of the response by ASMS to the foreseeable risk of a collision between one of its oversize vehicle and a domestic vehicle when it decided to trial a change from the Kress carriers to Komatsu dump trucks for the movement of slag within the steelworks.

Given that its level of knowledge was less than that of Bluescope Steel, it could place reliance on the fact that there had been no collisions between any of its oversize vehicles and domestic vehicles within the steelworks between 1989 and the commencement of the Komatsu trial. ASMS submitted its plans for the trial to the Load and Haul Committee for its approval. That committee recommended modifications to the Komatsu dump trucks to achieve greater safety. ASMS implemented those modifications.

It is also not without significance that the systemic changes which I have found should have been implemented so as to prevent the accident, did not relate to the operation of the Komatsu dump trucks per se but rather to how their movement along Kembla Road should be controlled and to modifications of Kembla Road. These were matters essentially within the control of Bluescope Steel not ASMS.

Another matter raised by the plaintiff when considering the reasonableness of the response by ASMS to the foreseeable risk, was the training of the drivers of the Komatsu dump trucks. Mr Phelps gave evidence as to the training which he received. On one view the training appeared to be somewhat cursory and to have focused substantially on familiarising him with differences in the controls on the Komatsu. That training, however, needs to be looked at against the background of Mr Phelps and the other drivers already being experienced in the driving of Caterpillar dump trucks, a vehicle similar in size and configuration to the Komatsu. Mr Phelps thought there was little difference in the operation of the two vehicles.

In hindsight it could be argued that more attention should have been given when training the drivers, to the fact that the rear wheels on the Komatsu dump truck protruded more than those on the Caterpillar. It may well have been for this reason that Mr Phelps failed to adequately appreciate the risk of a collision when the plaintiff’s vehicle was approaching on a line towards the middle of the road. That having been said courts have to be wary of engaging in such hindsight reasoning.

In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [61] and [126] Gummow J and Hayne J forcefully pointed out the dangers associated with hindsight reasoning: “[61] In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover, an assessment of what ought to have been done, but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue.” (Gummow J) “[162] When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.” (Hayne J)

Taking into account the considerations in Shirt’s case I am not persuaded that a reasonable person in the position of ASMS would have conducted the trial of the Komatsu dump trucks in a way different to that which it did. It follows that I am not persuaded that the plaintiff has established the systemic failure part of his case against ASMS.

A matter raised by ASMS in resisting the plaintiff’s claim was that a reasonably careful driver is not required to anticipate irrational or dangerous conduct. A number of cases were cited where the behaviour of plaintiffs was characterised in that way. This submission misconceives the factual basis for the breach of duty found against Mr Phelps. Even if the plaintiff’s driving could be so characterised (which in my opinion it could not) Mr Phelps had ample time to react to it and by so doing would have avoided the accident.

It was also submitted by ASMS that the Civil Liability Act 2002 as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 (CLA(PR) Act) applies to the proceedings brought by the plaintiff against ASMS. I agree. The filing of the amended statement of claim joining ASMS occurred on 10 April 2003, ie after the date of the commencement of the CLA(PR) Act.

Applying the provisions of the Act, it was submitted that the approaching Komatsu dump truck constituted an “obvious risk” as defined by s5F insofar as the plaintiff was concerned. That being so it was submitted that in accordance with s5G and 5H the plaintiff was presumed to be aware of the obvious danger and no warning of same was required. While those propositions are correct, I do not see how they assist ASMS.

The case against ASMS based on the conduct of Mr Phelps was not a “failure to warn” case. It involved a failure on the part of Mr Phelps to exercise reasonable care in the control of the dump truck. I do not see how the application of the Act assists ASMS in this matter. Contributory negligence

Two separate regimes apply in relation to contributory negligence. As between Bluescope Steel and the plaintiff s151N of the Workers Compensation Act applies. As between ASMS and the plaintiff s5R of the Civil Liability Act 2002 applies. Fortunately there is no inconsistency in the operation of the `two sections and the common law principles as to contributory negligence underpin both legislative provisions.

Applying the objective test set out in Joslyn v Berryman (2003) 214 CLR 552 the standard of care required of the plaintiff was that of a reasonable person in his position with the knowledge that he had or ought to have had. In accordance with that standard of care, there must be a finding of contributory negligence against him.

It is clear that there were almost 2 metres of road available to the west of his vehicle. The exercise of reasonable care on his part would have led to him giving as wide a berth as possible to an oversize vehicle such as the Komatsu dump truck. He did not do so. His failure to do so materially contributed to the occurrence of the accident.

It will never be known why the plaintiff drove close to the centre of Kembla Road rather than towards its western edge. It may have been, as was suggested in the submissions of Bluescope Steel, that the plaintiff wished to avoid getting his car dirty since the road had been made wet by the previous passage of trucks. It may have been that his familiarity with such over size vehicles made him careless. That, of course, is simply speculation at this stage. What is clear is that a decision to drive close to the centre of the road rather than to its western edge cannot be excused as mere inadvertence. Given the dimensions of the Komatsu dump truck it involved a failure to take reasonable care for his own safety.

It is then necessary to apply the principles in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 in order to calculate the plaintiff’s contribution to the accident. One has to take into account the causal potency of his conduct and also his moral culpability.

There is nothing to suggest that the plaintiff deliberately courted danger by driving close to the Komatsu dump truck. For whatever reason the plaintiff decided to drive close to the middle of the road and in doing so miscalculated the position of the Komatsu dump truck. Driving close to the centre of the road constituted his failure to take reasonable care not the fact of him coming into contact with the Komatsu. It was Bluescope Steel’s system of work which placed him at that location at that particular time. It was Mr Phelps’ decision to keep on driving even though he was conscious of a very dangerous situation developing. Taking all those matters into consideration I would assess the plaintiff’s contributory negligence at 20%. Apportionment between ASMS and Bluescope Steel

The final apportionment of damages between Bluescope Steel and ASMS will depend upon the application of s151Z of the Workers Compensation Act . Before that section can be applied, however, it is necessary to apportion in percentage terms liability between those parties.

Looking purely at questions of causation, it would seem to me that the conduct of Mr Phelps made a greater contribution to the accident than did the conduct of Bluescope Steel. On the other hand from the point of view of moral culpability, it seems to me that greater responsibility should be borne by Bluescope Steel because of its position of control and knowledge. Taking both those matters into account I would apportion liability equally between Bluescope Steel and ASMS. Damages

Submissions as to damages concluded on 26 March 2007. At that time agreement as to some heads of damage had been reached by the parties. In order to maintain the integrity of that agreement, I propose to make my assessment of damages as of that date. I will allow consequential amendments to be made to those heads of damage if the parties so desire before entering judgment.

The plaintiff was born on 28 November 1966 and is now almost 41. His parents are still alive but are separated. His mother is 67 and lives in Oak Flats, not far from where the plaintiff resides at 95 The Boulevard.

The plaintiff’s mother is in good health apart from some arthritis and a bad hip. The plaintiff has two brothers who live in Oak Flats and Albion Park. Both of his brothers work for Bluescope Steel.

At the time of his injury the plaintiff was in a long-term de facto relationship with Kathy. That relationship commenced in 1991. The plaintiff and Kathy had three children, Liam born 15 December 1995, Kristen born 23 May 1988 and Mikayla born 20 July 2000. As of March 2007 those children were aged 11, 8 and 6. Kathy had a daughter, Emma, from an earlier relationship. At the time of the accident she was living as part of the family. She was born on 15 April 1991 and was almost 16 in March 2007.

The plaintiff’s family migrated to Australia from England in 1970 when he was 3 years of age. He has many relatives in England. He also has some relatives in Canada. His family moved to Oak Flats in 1972 and the plaintiff has lived there ever since. The plaintiff went to Oak Flats Primary School and Oak Flats High School. The plaintiff was a good sportsman at school.

The plaintiff started playing the guitar when he was 13. He developed a great love of music and playing the guitar. In 1987 he formed a band called “Short Notice” which was together for about two years and which played on a semi-professional basis at a number of venues in the Wollongong area. In 1991 he joined a band called “Ebony Rose” and played with that band for about two years on a semi-professional basis. The plaintiff had intentions of becoming a professional musician until he and Kathy settled down to have children.

The plaintiff left school in 1983 after completing half of year 11. After being unemployed for about 6 months he got his first job as a jackeroo in Tamworth. He worked as a jackeroo until about 1985 when he returned to Oak Flats and got a job on the railways. He thereafter worked as a station assistant for the railways for about two years. In 1987 the plaintiff worked as a machinery operator for eighteen months with Tubemakers at Kembla Grange. He then went to South-East Asia, England and parts of Europe for about a year, returning to Australia at the end of 1990. In early 1991 the plaintiff commenced working for BHP as an operator at a blast furnace.

He originally intended to only work long enough to obtain money for a further overseas trip but after meeting Kathy, the work at the steelworks became his career. At the time of the accident the plaintiff had been working as a Blast Furnace Operator for almost 10 years. He was a Level 2b Operator by that time and was studying at TAFE to become a Level 3 Operator. He also held qualifications to drive a bobcat and an excavator. While working at the steelworks the plaintiff was very active in the Health Awareness Committee.

At the time of the accident the plaintiff and his family were living at Parkes Street in Oaks Flat. The plaintiff at that time did work around the house but did not wash clothes, the dishes or make the beds. He used to do about 60% of the cooking; he did all of the outside work including basic repairs around the house and oil and water changes on the cars. He used to wash and vacuum both the cars. When he was home he helped Kathy with the children.

Following his accident the plaintiff was transported to the Wollongong Hospital. There his injuries were evaluated and he was found to have a fracture and dislocation of the 5th and 6th cervical vertebrae, lacerations to the right elbow and right foot, a fracture of the nose and soft tissue damage to the scalp. Traumatic brain injury was suspected. Because of the severity of his injuries, he was evacuated to Prince of Wales Hospital by air ambulance.

At the Prince of Wales Hospital the plaintiff underwent surgery to stabilise his cervical fractures. Following surgery an MRI scan of the brain revealed an area of infarction in the left occipital lobe which extended into the temporal lobe and thalamus. That area of the brain is strongly associated with memory impairment and concentration. This brain injury was suspected to have occurred as a result of emboli from damaged blood vessels either at the time of the accident or during surgery.

The plaintiff remained in the Prince of Wales intensive care unit until 23 August 2000. He was then taken to the spinal care unit. He remained in the spinal care unit until 28 November 2000 when he was transferred to the rehabilitation unit at Prince Henry Hospital. He remained in that rehabilitation unit until 7 June 2001 when he was transferred to the Lawrence Hargrave Private Hospital for further rehabilitation. He was discharged from the Lawrence Hargrave Private Hospital on 31 October 2001. He had been in hospital for 16 months.

While he was hospitalised the plaintiff in addition to the injuries already referred to developed a number of other disabling conditions: staphylococcal septicaemia, pneumonia, decubitus ulcers, deep vein thrombosis, urinary tract infections, gastric ulceration and tendonitis in both shoulders. He also gained significant weight during this time. Psychologically he had difficulty in accepting that he was a quadriplegic.

When the plaintiff was discharged from the Lawrence Hargrave Private Hospital, he was not able to return to his home in Parkes Street because it was unsuitable for a quadriplegic. Although a ramp had been constructed, the house was too small for wheelchairs, equipment and staff. Rented accommodation was provided for him and his family at Austinmer. Home nursing care was commenced when he moved into the house at Austinmer and was provided by All Parental Care Australia.

At the time of the plaintiff’s injury, Kathy was pregnant with the youngest child, Mikayla. That child was born two weeks after the accident. The other children were all quite young – Kristen was 2 years, Liam was 4 ½ years and Emma was about 9 years old.

The stay at Austinmer was very difficult. The plaintiff and Kathy had no friends or family in the area. There were significant tensions between Kathy and the carers. The care provided for the plaintiff was not particularly successful in that he developed serious pressure sores and in July 2002 was admitted to the Prince of Wales Hospital for treatment. When the pressure sores improved, he was transferred to the Port Kembla Hospital for further treatment and rehabilitation. On 5 December 2002 he was discharged to another rental property. This was the property where he currently resides at 95 The Boulevard, Oaks Flat. This property had been purpose built for a person in a wheelchair. The plaintiff wishes to continue to reside in the Oak Flats area. Liam and Emma attended the local school there, Kristen started school in 2004 and Mikayla started school in 2006.

Kathy and the plaintiff separated while he was in the Prince of Wales Hospital but she returned and moved back into the family home in early 2003. Despite this return relations between the plaintiff and Kathy remained turbulent. They frequently had arguments. This in turn upset the children. Kathy used also to argue with the carers. The sequence of reports from the psychologist, Dr Dragutinovich, for the years 2003 – 2005 vividly chronicles the deterioration in their relationship.

Sources of friction between them were the plaintiff’s inability to engage in sexual intercourse and his fears that Kathy would look elsewhere, his periods of depression and behavioural problems which were emerging with the children. The plaintiff’s feelings of frustration at his physical disabilities were often reflected in outbursts of anger. Kathy became severely depressed during this period and commenced receiving psychological treatment.

A particular source of anger and frustration for the plaintiff was his inability to be a father and in particular, discipline his children. His stepdaughter Emma and son Liam both routinely ignored his requests knowing he could not enforce them. Differences arose between the plaintiff and Kathy as to how best to control the children. The situation with the children became so bad that in early 2005 it was necessary for the plaintiff to defend proceedings brought by the Department of Community Services (DOCS) seeking to remove the children from the family home.

In April 2005 the plaintiff was admitted to the Wollongong Hospital with severe left sided pain secondary to an impacted bowel and bladder infection. He remained in hospital for some weeks. It was while he was in hospital that his relationship with Kathy finally broke down. She left the home in July 2005. She went to live at the old family home in Parkes Street. Emma went with her mother, but the three youngest children remained with the plaintiff.

The dispute with DOCS was resolved in late 2005 with the plaintiff’s mother being granted guardianship of the three youngest children. By her own choice, the contact between Kathy and those children has been very limited, averaging twice per year. The plaintiff and his mother make decisions as to how the children should be looked after.

During 2006 Emma returned to live with the plaintiff although in March 2007 when the matter resumed, Emma had returned to live with her mother.

As of the date of trial, the regime of care being provided for the plaintiff was set out in exhibit E. It was as follows: 7 am – 11am 2 Personal Care Assistants 11 am – 3 pm 1 Personal Care Assistant (Unless plaintiff is to be returned to bed or to get out of bed then 2 Personal Care Assistants) 3 pm – 11 pm 2 Personal Care Assistants 11 pm – 7 am 1 active and 1 inactive (sleeping) Personal Care Assistants Registered Nurse · On Standby 24 hours a day · 3 hours per day as the in house co-ordinator The cost of that regime of care is somewhere between $15,500 and $18,500 per week.

The reason why two carers are required to move the plaintiff in and out of bed is that since the accident he has put on a large amount of weight. He has been described by doctors as morbidly obese. His weight is in the order of 130 kilograms. He is over 6 feet in height.

The plaintiff’s mother started to actively act as “a nanny” for the children from about March 2005. As of the date of trial the children used to spend approximately one week with the plaintiff’s mother and one week with the plaintiff. During school holidays the children tend to spend more time with the plaintiff’s mother. As Mrs Kendrick put it “If they’re with me and they get fed up with being with me, with grandma laying down the law, they, they want to go home”.

In his evidence the plaintiff explained his difficulties in looking after the children. If the children do something particularly wrong he is unable to send them to their room or intervene physically. He needs to ask the carers to help to discipline his children, which he finds upsetting. He has to get a carer to tuck the children into bed. The children often ask him to tell them stories because telling stories is one of the few things which they can do together. If the children want to go up the street or to the park, a carer has to take them.

In 2004 and 2005 Liam exhibited significant behavioural problems. These frequently involved lack of anger control. He was often suspended from school. As of October 2006 there were still problems with Liam but his behaviour seemed to be improving. It was Mrs Kendrick, the plaintiff’s mother, who had to attend the school when problems arose.

The plaintiff’s mother is the person who takes the two girls dancing, to swimming lessons and on outings during school holidays. From time to time Mrs Kendrick helps with the children at the plaintiff’s home particularly bathing them and getting them ready for bed. It was Mrs Kendrick’s observation that the carers, although well intentioned, were not particularly good at looking after the children. On a percentage basis she thought that the children spent about two-thirds of their time at her house and one-third with the plaintiff.

Since the accident the plaintiff has noticed that he has difficulty with short-term memory and with concentrating. He has also been left with some damage to his long-term memory. Although he can remember events which happened long before the accident, his recollection is not as good for events which happened in the two years leading up to the accident.

In relation to his short-term memory, he finds that he forgets things shortly after he has been told. He needs to be reminded of appointments. He repeats himself and will often ask carers to do the same thing on more than one occasion, having forgotten that he has already given such a direction.

As a result of the accident the plaintiff has experienced considerable psychological and psychiatric difficulties. I will deal with this aspect of the plaintiff’s claim in more detail when I assess his claim for psychological treatment for the future.

Pressure sores have been a major problem for the plaintiff since his discharge from hospital. He was in hospital for almost six months between July and December 2002 because of pressure sores. He was in Fig Tree Hospital for eight weeks in December 2005 and January 2006 undergoing treatment for them. He was an inpatient of the Prince of Wales Hospital between 21 August 2006 and 17 October 2006 for pressure sores in relation to his right thigh. These were so serious that they required repair by way of a skin graft. The reason for these pressure sores is a combination of a failure by the carers to identify such sores at an early stage, and also the plaintiff not being compliant with his treatment regime.

The plaintiff has been left with limited movement in his shoulders and arms. He has some movement in the wrists, but is more limited on the left side. He has some limited movement in the right hand but his right arm is fixed in an extended position and he cannot bend it. The plaintiff was able to bend his left arm, but his less functional hand is on the left side.

He has limited feeling in his shoulders but below that he has almost no feeling at all. He has continuous pain in both shoulders and from time to time experiences periods of intense pain in his right arm. The pain is so intense that he requires powerful analgesia, such as Endone and morphine, to deal with it. From time to time the plaintiff experiences low back pain. Although the plaintiff has relatively full neck movements, from time to time the neck becomes locked and he has trouble turning his head. Urinary tract infections are a regular occurrence.

Since the accident the plaintiff believes that he is more noise sensitive. Things such as banging doors and flapping blinds seem really loud and are a source of irritation. His capacity to smell is limited. He has a reduced sense of taste. His sleep is very erratic; some nights he does not sleep at all which leaves him feeling ill in the morning. He often vomits during the night.

It is against that background that the plaintiff’s claim for damages needs to be considered.

It has been agreed between the parties that as a result of his injuries the plaintiff’s life expectancy has been reduced by 25%. This means that as of March 2007 the plaintiff had a life expectancy of approximately 33.6 years. The 5% multiplier for that period is 861.

The parties have agreed that the plaintiff is entitled to the maximum amount for non-economic loss under both the Workers Compensation Act and the Motor Accidents Compensation Act 1999. Under the Workers Compensation Act , that amount is $244,250 and under the Motor Accidents Compensation Act it is $381,000.

The parties have agreed loss of income as follows: Past loss of income $347,672.00. Future loss of income $730,742.00. Loss of superannuation $100,902.

Bluescope Steel was not able to provide a statement as to past workers compensation payments and accordingly it has not been possible for a Fox v Wood figure to be calculated, nor has it been possible to calculate interest on past economic loss in accordance with s151M of the Workers Compensation Act since the difference between payments of workers compensation and the amount awarded for past economic loss is not yet known. The applicability of s137 of the Motor Accidents Compensation Act (the section providing for interest on past economic loss) will not be known until the final damages figure is quantified.

Because the payment of out-of-pocket expenses is still continuing, Bluescope Steel has not been able to provide a final figure. The parties have agreed that this will be provided before final judgment.

The following heads of damage have been agreed between the parties: Indoor/outdoor maintenance including gardening service and car maintenance $ 47,814.00 Personal care and mobility equipment $ 589,000.00 Additional home/architectural claims including ongoing maintenance $ 750,000.00 Additional motor vehicle expenses $ 150,000.00 (a) Medication including weekly blood tests(b) Nursing Co-ordinator(c) General Practitioner(d) Skin treatment(e) Occupational therapist(f) Review by Spinal Clinic Nurse(g) Rehabilitation Specialist $ 100,000.00$ 50,000.00$ 30,000.00$ 28,660.00$ 19,122.00$ 19,122.00$ 15,000.00 Computer and Home Automation Expenses $ 175,000.00

The other heads of damage remain in dispute. Future physiotherapy costs

The plaintiff’s claim for future physiotherapy treatment is based on that which he is currently receiving, ie three home visits per week at the rate of $120 per visit. Using the 861 multiplier agreed by the parties, the claim is for $309,960.

In support of that regime, evidence was given by Ms O’Reilly, the physiotherapist who has been treating the plaintiff since 2002. The level of treatment which she has provided for him has varied between two and three attendances per week. She said that on occasions when the plaintiff was not able to have physiotherapy for a month or two she observed that the condition of his upper body had noticeably declined. It was necessary for her to visit the plaintiff at his home because she did not have facilities in her rooms which would enable her to treat the plaintiff, given his size and level of immobility.

The defendants relied upon the evidence of Mr Chee, a senior spinal physiotherapist at the Prince of Wales Hospital. Mr Chee had unchallenged expertise in providing physiotherapy for persons with serious spinal injuries. His assessment of the plaintiff’s physiotherapy needs was 12 sessions per annum. It was his opinion that the plaintiff’s physical condition had plateaued and that there was a requirement to carry out daily exercise to maintain his current capacity.

He agreed that daily exercises would need to be carried out by the plaintiff but that these could be supervised by his carers. All that was necessary was for an appropriately trained physiotherapist to train the carers in how those exercises should be carried out. Once that was done, the carers could ensure that the plaintiff carried out those exercises daily. It would then only be necessary for the physiotherapist to make an annual check to ensure that the exercises were being correctly carried out by the carers.

Mr Chee’s prescription for physiotherapy was supported by the evidence of Dr Bowers and Dr Henke. The cost of the future physiotherapy regime suggested by Mr Chee was $22,597.

The difference between the competing prescriptions is stark. One hundred and fifty six physiotherapy treatments per annum on one side and 12 on the other. The difference in monetary terms is also significant.

In his evidence Mr Chee explained the limitations in the sort of physiotherapy which could be provided for the plaintiff. The physiotherapy could only be delivered whilst the plaintiff was in bed. Accordingly, it was restricted to essentially stretching exercises to ensure some level of mobility was maintained in the upper limbs. When Mr Chee described the exercises which were appropriate for the plaintiff, it was clear that these were very simple exercises and that carers of ordinary intelligence should have little difficulty in learning how to apply such stretching exercises to the plaintiff. That was confirmed by my observation of the exercises performed by the plaintiff in the DVD. If this regime were adopted it would obviate the need for most of the visits by the physiotherapist which have been occurring over the years.

That having been said, however, there are certain contingencies which need to be taken into account. There is an inevitable turnover of carers. We are looking at a period of 33 years into the future. Each time a new carer commenced working with the plaintiff, that carer would have to be instructed in appropriate exercises. Instruction of new carers would increase the number of physiotherapy visits required.

One also needs to take into account periods when because of increased pain or other reasons, which were identified by the doctors, the plaintiff may require over a number of weeks or even months, intense physiotherapy treatment. Finally, a monthly visit by a physiotherapist is not sufficient to monitor the plaintiff’s condition from a physiotherapy point of view and it would be preferable for such visits to take place on a fortnightly basis, ie 26 per year.

Taking all of those considerations into account, an appropriate amount to be awarded to the plaintiff for future physiotherapy is one-third of that claimed, ie an average of one physiotherapy treatment at home per week. The cost of that is $103,320. Future psychological review and treatment

The plaintiff’s claim is that the status quo with Dr Dragutinovich be allowed to continue. Dr Dragutinovich is a psychologist. At the time of trial he was seeing the plaintiff at his home twice weekly at a cost of $350 per visit, ie $700 per week. Using the 861 multiplier the cost of future psychological treatment on that basis would be $602,700.

There is no doubt from the plaintiff’s evidence and from the serial reports of Dr Dragutinovich that the plaintiff had a genuine need for substantial psychological intervention during the years 2003 – 2005. At that time he was trying to come to grips with his physical disability and the limitations which that imposed. His family was disintegrating about him in that he was unable to control his children and his relationship with Kathy was inevitably breaking down. It is not surprising that he experienced periods of deep depression during which he seriously contemplated taking his own life.

This situation improved significantly during the last quarter of 2005. This was described by Dr Dragutinovich as the development of a mature psychological defence mechanism in the form of dark gallows humour in relation to his quadriplegia. The plaintiff was also better controlling his depression, although bouts of depression did recur particularly after episodes of pain.

In his report of March 2006 Dr Dragutinovich summarised the plaintiff’s position: “The management plan is to maintain twice weekly cognitive behavioural treatment consultations until such time that Alan’s clinical condition, with respect to depression, ameliorates to at least a moderate level, at which time consultations will reduce to once weekly and be maintained at this level if regressions do not jeopardise his progress.”

In his report of September 2006 Dr Dragutinovich did not consider that the plaintiff had reached that point and prescribed twice weekly consultations into the foreseeable future.

In oral evidence, Dr Dragutinovich described the “cognitive behavioural treatment” which he was providing to the plaintiff. The purpose of the treatment was to challenge irrational ways of thinking and to substitute a more logical pattern of thought. There were, he pointed out, real difficulties when providing such treatment to a person with substantial brain damage. The reason was that there was a fairly rapid decay of newly acquired information as a result of short-term memory problems. Accordingly the benefits of cognitive behavioural treatment had been largely limited and of symptomatic value only.

Although Dr Dragutinovich thought the plaintiff had made some gradual improvement over the preceding 18 months, the value of the cognitive behavioural treatment was limited in that much of its value was lost within a three or four day cycle after the treatment had been provided. Nevertheless, Dr Dragutinovich said that he regarded the twice-weekly consultations as the optimal treatment for the plaintiff’s depression and other psychological problems and that this regime of treatment should be maintained indefinitely.

The defendants submitted that there was no longer a need for twice weekly consultations with a psychologist. That submission was based on a number of propositions. From a psychological point of view, the plaintiff appeared to have turned the corner and for the nine months before trial his condition had been steady. The extraordinary turbulence in his personal life had ceased and there was some real stability in his affairs. The plaintiff had focused on his children and appeared to have accepted substantially the fact of his injuries and disabilities.

The defendants also referred to the limited value of cognitive behavioural treatment if its effects dissipated after three or four days. It was difficult to justify such expensive treatment if there were no permanent gains.

The defendants also challenged the assumption underlying the evidence of Dr Dragutinovich that the plaintiff because of his brain injury had such problems with his memory that things which were taught or explained in the early part of the week would be totally forgotten by the latter part. That appeared to be inconsistent with much of the plaintiff’s evidence as to how he organised his life and as to how he managed his financial affairs. It was also inconsistent with the observations of the plaintiff by others such as his mother.

The defendants relied upon the evidence of Doctors Henke and Milton to the effect that such gains as could be obtained by cognitive behavioural therapy had occurred at some time in the past and that such treatment had little benefit for the plaintiff in the future. The real benefit, which the plaintiff was gaining from the visits by Dr Dragutinovich, was the opportunity of talking to somebody whom he regarded as a friend. Dr Milton, a psychiatrist, did not consider that such a relationship would assist the plaintiff’s psychological adjustment because it would promote dependency. The purpose of psychological counselling should be to promote capabilities in the patient to enable him to deal with problems by himself.

I found the evidence and the approach of Dr Henke to this issue to be very helpful. It was clear that Dr Henke although qualified on behalf of the defendants, was making a genuine attempt to evaluate the psychological treatment which the plaintiff was receiving.

In cross-examination Dr Henke said: “Now the difficulty we are confronted with here is that if we go back and we look at this man having a long period of treatment we don’t see evidence of efficacy. In other words, that what we are seeing is that he has, I think on one day by the following consultation the efficacy of a previous treatment or so called efficacy of the previous treatment has now disappeared. That to me, if cognitive behaviour therapy is working it shouldn’t break down in three days. It means it’s not working. To me it says the whole treatment process has failed. Therefore to continue and perpetuate a treatment process that ostensibly has failed makes no sense.” (T.2026.15)

And later, still under cross-examination, Dr Henke said: “Cognitive behaviour therapy is about bringing around a change in behaviour. By bringing about a change in behaviour you therefore change the whole nature of the thing. If we are just trying to make him feel good but we are not giving the patient strategies that he can carry forward, he has to learn – cognitive behaviour therapy is based upon giving a patient strategies that he can use. If those strategies aren’t working, then nothing is happening. He has got to have strategy. In Mr Kendrick’s case he will talk about troubles, kids not going to school and things like that, that might be of concern to him. At the end of that session if it is really working you have got to have given him some strategies which he can use the next time the kids play up, so therefore if four days later the kids have played up and we are back, we haven’t gone anywhere, we haven’t learnt anything, so we are failing.” (T.2027.44)

Later Dr Henke gave the following evidence: “Q. Would that involve, for example, on your view weaning him off the frequency of psychological treatment by way of cognitive behaviour therapy? A. Yes it would. Q. What if anything would replace that as part of the strategy to make him less dependent? A. First of all you would have to really make it clear to him that there is an end point. You have to make it clear to him there is a consequence of that end point. You have to make it clear to him that should it all fall apart help can come back but it is not going to come back in the way that it was happening where it was two days a week, week in and week out every day, 52 weeks a year, and that therefore if somebody were to come back, if you have a problem we will deal with that problem but then it will be an in and out, deal with the problem, and then you take your life back again.” (T.2029.10)

The defendants also challenged the need for psychological treatment to be delivered by home visits rather than by the plaintiff attending a psychologist in his or her rooms. The reason for home visits by Dr Dragutinovich was because his rooms were up a flight of stairs which could not accommodate the plaintiff’s wheelchair. The defendants submitted that there would be other psychologists whose rooms would have wheelchair access and in any event it would be of benefit to the plaintiff to leave his house from time to time. There is considerable force in that submission.

There was a difference between Dr Milton and Dr Henke in how the plaintiff should be weaned off twice weekly attendances by Dr Dragutinovich. Dr Milton was of the opinion that it should be a gradual process whereas Dr Henke, in line with the evidence referred to, thought that there needed to be a relatively quick cessation of treatment.

On the basis of that evidence, the defendants submitted that an appropriate regime would be to continue twice weekly consultations for a further three months after judgment but with a different psychologist and thereafter, one session per month for nine months followed by annual consultations. The defendants submitted that the rate for those consultations should be that appropriate to an attendance by the plaintiff at the psychologist’s rooms rather than the rate for a home visit. The figure which the defendants submitted was appropriate for that level of psychiatric treatment for the future was $45,000.

I am persuaded by the evidence of Drs Milton and Henke that the current regime of twice-weekly visits by Dr Dragutinovich to the plaintiff is not assisting him from a medical point of view. There is also the real risk, which Dr Milton identified, of such visits being counter productive in that they might create a dependency on the part of the plaintiff. I am also of the opinion that a gradual cessation of the current regime, as suggested by Dr Milton, would be appropriate.

The question then arises as to what should be done by way of provision for future psychological/psychiatric treatment of the plaintiff. On that question regard has to be had to the reports of Dr Dragutinovich and the pattern of improvement and regression which they describe. It is true that during the period covered by the reports the plaintiff was at his lowest ebb both physically and mentally. Nevertheless it accords with my observation of the plaintiff over some time in the witness box and in court, that psychologically he is vulnerable and that he will inevitably suffer bouts of depression which will require treatment in the future. Proper provision has to be made for that eventuality.

The sort of treatment which I envisage would involve periods of intense psychological/psychiatric therapy on occasions in the future to deal with bouts of depression which the plaintiff might suffer. Taking into account the competing costs which have been put before me and their justification, an allowance of $150,000 for such future treatment would be appropriate. Hospitalisation

The extent to which the plaintiff will require hospitalisation in the future depends upon the extent to which the development of pressure sores will be prevented. This in turn depends upon the extent to which the plaintiff is prepared to comply with the directions of his treating doctors and carers. This includes weight reduction by improving his diet. In the past the plaintiff has been quite inconsistent in his compliance with medical advice.

Dr Lee, who supervised the plaintiff’s most recent period of hospitalisation in 2006, was of the opinion that an allowance should be made for four weeks of hospitalisation per year. Dr Bowers and Dr Henke gave evidence that if the plaintiff continues to be compliant with his medical advice and if he is able to be properly medically managed, the average for future hospitalisation for the remainder of his life would be one week per annum.

Based on his past performance, I am not confident that the plaintiff will necessarily comply with the directions of his treating doctors in the future. I have no doubt that he will genuinely try to be compliant but that episodes of depression and other set backs may lead to him failing in that endeavour. Given that pressure sores can develop in under an hour if they are not properly observed, I consider that periods of hospitalisation in the future are likely. An average of three weeks hospitalisation per annum should be provided for. The parties agreed that $750 per day was an appropriate amount to allow for hospitalisation.

Accordingly, I award to the plaintiff $87,000 under this head of damage. Additional holiday costs

The claim made by the plaintiff in his amended schedule of damages is $1,272,531. It is based on the costings in the report of Travelaw of 30 October 2006. It assumes the following matters: (i) The plaintiff will require five carers when travelling. (ii) For international travel; two first class, two business class and two economy class seats will be needed. (iii) Ground transportation will have to be undertaken either in two vehicles, one allowing for a wheelchair and carers and the other a support vehicle with luggage or a specifically adapted vehicle with a professional driver in addition to the five carers.

The claim assumes trips to Britain, USA, Canada, Thailand, Hong Kong as well as interstate travel to destinations such as Surfers Paradise and Adelaide. On the assumption that the plaintiff would take one holiday to a domestic destination every year and one holiday to an international destination every two years, the report sets out the average annual cost for domestic holidays at $35,418 and the average annual cost of international holidays at $81,152. The report averaged those extra holiday costs on an annual basis at $76,000.

The defendants do not challenge the basic analysis by Travelaw of extra expenses. For example, the requirement that for international travel the plaintiff have a first class seat and that at least one of his carers also have a first class seat is a direct product of his condition. He is unable to sit upright for periods greater than two hours so it would be necessary for him to lie down for much of the flight. He will also require closer attention than could be provided by a flight attendant, particularly if he requires drinks or other assistance.

The matters, which the defendants do challenge, are the need for five carers, the frequency of the holidays and the proposed destinations.

The defendants submit that in all the prescriptions for care the allowance for carers is two. The defendants say that they cannot see a basis for five carers unless an allowance is being made for someone to look after the children.

I agree with that criticism. I cannot see any justification in the medical evidence, or elsewhere, for a need for more than two carers, if one leaves aside the need to look after the children. It follows that the costs for each trip need to be significantly reduced to reflect the need for two carers not five.

In relation to the frequency of holidays, the defendants submit that the plaintiff’s level of disability is such that it would be quite beyond his ability to take an international holiday every second year and a domestic holiday every year. The Court’s attention was drawn to the only holiday which the plaintiff has attempted since his injury which was to the Blue Mountains. This on all the evidence, was an unsuccessful and unhappy experience for the plaintiff substantially because of his physical limitations.

I agree with the submissions of the defendants on this point. It is fanciful to suggest the frequency of holidays set out in the Travelaw report. One of the matters which the plaintiff stressed in evidence was the difficulty which he experienced in performing such comparatively simple tasks such as going to see a doctor or physiotherapist. As a result he prefers those persons to attend at his home. The DVD, which was tendered in the plaintiff’s case, vividly depicts the physical tasks which have to be performed to enable the plaintiff to get up in the morning, be bathed and be ready to face the day. During the course of the trial there were a number of occasions when the plaintiff was too ill to attend Court and on other occasions when he did attend court, such attendances were for a short period only and the plaintiff appeared unwell. He had difficulty attending court when the matter was moved from Wollongong to Sydney.

It is highly unlikely over the next 30 years that the plaintiff would be able to participate in any more than five international holidays and ten domestic holidays. Even that provision is somewhat optimistic in that it provides for a holiday every 2 years.

The plaintiff has relatives in the United Kingdom and some in Canada. Those are likely be the only international destinations to which he will travel. In evidence he indicated that his purpose in so doing would be to enable his relatives to meet his children and vice versa. That is a reasonable expectation on his part.

Accordingly, using the Travelaw data as a start point, I have done my best to calculate the plaintiff’s entitlement to extra costs for holidays on the basis that for the rest of his lifetime he is likely to participate in five international holidays and ten domestic holidays. I have based my figures on two carers accompanying the plaintiff not five. Using that approach the amount which I award to the plaintiff by way of extra costs for holidays is $285,000. Care

In relation to past care, this has been paid by Bluescope Steel pursuant to its workers compensation liability. The amount for care will be included in the amount for past out-of-pocket expenses when this is placed before the Court before final judgment is entered. Although there is a claim for gratuitous services provided by the plaintiff’s mother, that relates to childcare services provided by Mrs Kendrick and will be dealt with separately in this judgment.

In relation to future care the plaintiff submits that the present regime, which has been developed over a period of time and which is known to work, should be continued. The only adjustment which should be made to the cost of that regime would be a deduction of an amount to cover the GST payable for nursing and care services provided to the plaintiff. It is common ground that whereas Bluescope Steel has to pay GST on all expenditure, once the plaintiff recovers judgment, amounts which he spends for nursing and other care will be GST free.

The plaintiff’s care is currently provided by Nursing 24/7 Pty Limited (hereafter called 24/7). That company has been providing care since late 2004. The Court was referred to the report of Ms Deborah Kaparas, a director of 24/7, dated 15 November 2004. She is a registered nurse by qualification. That report sets out in detail her perception of the needs of the plaintiff and how the company has sought to meet those needs. It is clear from other evidence that adjustments were made to the provision of care from time to time until the current regime was worked out. The cost of the current regime was put on behalf of the plaintiff at $18,500 per week and by the defendants at $15,334.30 and $12,986.84 per week depending on which rates were used. The 24/7 rates are higher than those of Complete Domestic Care (CDC). CDC is a care providing agency retained by the defendants.

Matters which Ms Kaparas stressed in her report were that although the plaintiff preferred to spend each day in his motorised wheelchair, he was often too unwell to leave his bed and spent at least two days per week in bed. He weighed 130 kilograms which made moving him extremely difficult. He was often in pain and care had to be taken in administering analgesia and his other prescribed medication. His carers needed to be able to assist him in carrying out stretching exercises. They had to be alert to detect any breakdown in his skin integrity which might result in a pressure sore. On a weekly basis the plaintiff developed autonomic dysreflexia, which needed to be managed by a registered nurse. Because of his size, personal hygiene, dressing, grooming, toileting, eating and drinking and the administration of medication all presented problems for his carers. Two carers and a hydraulic lifter were needed to move the plaintiff in and out of bed and to chairs. To change his position in bed a slide sheet was used which also required at least two staff. When sitting in a chair the plaintiff’s position needed adjusting every 30 minutes to relieve pressure. The plaintiff had difficulty sleeping because of pain and spasms. He usually required re-positioning at least twice per night. On occasions he needed massages during the night to alleviate arm pain.

It was the opinion of Ms Kaparas that a registered nurse needed to be on call twenty-four hours a day in case the plaintiff developed autonomic dysreflexia or in case there was a need to administer Schedule 4 or Schedule 8 analgesia. She believed that a registered nurse was better able to detect skin breakdowns and pressure sores at an early point in time than lesser qualified personnel.

A difficulty with the report of Ms Kaparas is that it was prepared two years before the date of trial and the plaintiff’s personal situation and mental outlook have improved significantly since that date.

The defendants challenge the regime of care currently in place on the basis that it includes an element for childcare which has not been separated from the care required solely for the plaintiff. That is undoubtedly true and no attempt was made on behalf of the plaintiff to identify from the current regime of care that which related to the children.

The defendants relied upon the joint experts’ report dated 16 August 2006. The experts who signed the report comprised: Dawn O’Reilly, an occupational therapist, Dr David Bowers and Dr Peter Henke, both rehabilitation specialists. These persons were qualified on behalf of the defendants. The plaintiff was represented by Lauren Alach, occupational therapist, Clarissa Munroe, registered nurse and Narelle Sohier, registered nurse.

The report set out three scenarios for care. Scenario 1 was based on the care required for a “normal” C5 quadriplegic and involved a total of 140 hours of care per week. It was agreed by the experts that the plaintiff’s quadriplegia was complicated and that a more intense regime of care was required.

On the assumption that 2 persons were required for all transfers, and that the plaintiff’s condition would remain comparatively stable for the future, Scenario 2 was approved by the experts. Scenario 2 provided for one carer 24 hours per day in three eight-hour shifts. This person would be assisted by a second carer who would attend for approximately 3 hours per day to assist the main carer with lunchtime and evening personal care and transfers at lunchtime, in the afternoon and evening. The scenario made allowance for attendance by a registered nurse for 3-4 hours per day. It also made allowance for one active night shift of 8 hours per fortnight to have regard to situations when due to medical complications, more care was required at night.

In the defendants’ case two reports were obtained from CDC dated 10 and 13 November 2006. Those reports set out costs of care provided by six agencies which operate in that field. The reports contained such matters as the hourly rate for a personal carer, rates for an 8-hour sleepover period and hourly rates for a registered nurse. The defendants provided in schedule form the hourly rates currently being charged by 24/7. It is clear that the hourly rates charged by 24/7 are higher than the average of the hourly rates set out in the two CDC reports.

When providing the cost of implementing Scenario 2, the defendants did so using both the CDC rates and the 24/7 rates. Using the CDC rates, the cost was $7,103.16 per week and using the 24/7 rates, the cost was $7,874.03 per week. As the experts point out, Scenario 2 provides for the presence of two carers for between 6-7 hours per day.

The experts were well aware of the fact that the plaintiff’s condition in the future may not remain stable but might deteriorate. In their report they expressed themselves in this way: “This is thought a possibility due to his long period of apparent sub-optimal management; frequent reported complications; his history of reluctance to follow recommendations; and the breakdown of relationships with treating professionals.” If his condition did deteriorate, the experts recommended the regime of care which they called Scenario 3.

In Scenario 3, the level of care was the same as in Scenario 2 plus 8 hours of “active” care per night and a registered nurse on-call for 24 hours with an allocation of two call-outs per week. The Scenario 3 level of care was costed by the defendants using 24/7 rates at $11,817 per week and using CDC rates at $10,146 per week.

The defendants submitted that the regime of care for the plaintiff for the future should be a combination of Scenario 2 and Scenario 3. They suggested 70% based on Scenario 2 and 30% based on Scenario 3 to allow for periods of deterioration.

The defendants submitted that apart from the report of Ms Kaparas, which was out of date, there was no medical support for the current regime. They submitted that, as well as including an unquantified component for childcare, the current regime seemed to be based primarily upon what the plaintiff considered as satisfactory rather than that which was assessed as appropriate by medical professionals.

I do not understand the legal advisers of the plaintiff to gainsay that proposition. In the course of submissions they were not able to point to any specific approval of the current regime by medical professionals. There were some broad recommendations made by Dr Lee but he did not go into specifics. Similarly, the report of the occupational therapist, Jenny Nichols, made a number of general statements in relation to the plaintiff’s care but did not deal with specific periods of time. She did, however, differ from the recommendation of the experts by saying that she thought the plaintiff needed the involvement of a registered nurse on a daily basis in the morning and for a significant number of hours at night. The report of Ms Nicholls was dated 8 February 2007.

The defendants relied upon the evidence of Drs Bowers and Henke, who were extensively cross-examined but did not resile from the recommendations for care in the joint experts’ report. The defendants pointed out that the recommendations in the joint experts’ report went beyond those which Dr Bowers and Dr Henke had made in their reports previously served. Under cross-examination Dr Henke said that he was prepared to err on the side of generosity in making recommendations for the plaintiff and that is why he had supported the recommendations in the joint experts report.

The defendants submitted that the CDC rates should be those used by the Court since they were the product of inquiries made of six care agencies and represented their average rate. The defendants pointed out that five of the six agencies from which inquiries had been made, operated in the Illawarra area and so were available to provide care to the plaintiff if required.

What is clear from the evidence is that some part of the current care regime relates to childcare. It is also clear that currently 24/7 is paying GST in respect of all services provided. According to the CDC report of 13 November 2006 “GST is generally exempt for nursing care, personal care, respite care, overnight care and 24 hour care”. Accordingly, the CDC rates do not include an amount for GST. This to some extent, but not completely, explains the difference in cost between the current regime and that proposed in the joint experts’ report.

The current regime does appear to have been implemented to suit the plaintiff’s wishes. Apart from Ms Kaparas co-ordinating the provision of care on behalf of 24/7, there is no evidence of any medical professional taking a holistic view of the current regime of care and assessing or otherwise justifying it. On the other hand, the joint experts’ report is precisely that – a distillation of the opinion of qualified experts in the field who seem (at least from those who gave evidence) to have adopted a realistic yet sympathetic approach to the plaintiff’s problems. I am of the opinion that the proposals for future care in the joint experts’ report should be adopted in preference to the current regime. This is despite the fact that the current regime has the advantage that it is already in place and appears to be working. The average rates provided by CDC which do not contain GST would seem to be a more accurate guide to future costs than those currently used by 24/7.

In relation to whether Scenario 2 and/or Scenario 3 should be adopted, I differ from the assessment of the defendants. Based on the plaintiff’s history of relapses and non-compliance with medical advice, I see a real likelihood of future problems for him during which he will require increased levels of care more in line with Scenario 3 than Scenario 2. I agree, however, that there will be periods of stability and compliance such as prevailed during the trial when the Scenario 2 level of care will be appropriate.

Following the approach prescribed by the High Court in Malec v JC Hutton Pty Limited (1990) 169 CLR 368, there is a greater chance of the plaintiff requiring Scenario 3 levels of care in the future than Scenario 2. The ratio I propose is a 70% likelihood of Scenario 3 being appropriate and a 30% likelihood for Scenario 2. That produces on the CDC figures a weekly cost of $9,233. Using the 861 multiplier, this produces a figure for future care of $7,949,700.

The defendants submitted that whatever allowance was made for hospitalisation should be offset against the allowance made for future care. The submission was that if a provision was made for an average of 3 weeks per year of hospitalisation, the allowance for future care should be reduced accordingly by using a formula such as allowing care for only 49 weeks out of 52. In this case this would involve a significant saving for the defendants since the cost of hospitalisation ($750 per day) is significantly less than the cost of paid weekly care.

While the submission has a certain plausibility, and it is necessary to avoid double compensation, care has to be taken not to disadvantage the plaintiff. The allowance for hospitalisation was made on an annual basis for calculation purposes. In reality the need for hospitalisation is likely to arise unexpectedly on an urgent basis for an unknown length of time. This means that to a large extent whatever care arrangements are then in place will have to be re-arranged at short notice and at some inevitable cost to the plaintiff. Accordingly an injustice would be done to the plaintiff by reducing his entitlement to future paid care by three weeks per annum to have regard to time which he might spend in hospital. Taking those matters into account and because of the provision which I have made for future hospitalisation, I propose to reduce the future care provision for the plaintiff by $200,000 to ensure that double compensation does not take place, I therefore find the plaintiff’s entitlement to damages for future care to be $7,749,700.00 Childcare

It was accepted by the parties that no claim could be brought for childcare against Bluescope Steel. There was no obligation for it to pay for such care under the common law ( CSR Limited v Eddy (2005) 226 CLR 1). There was no provision for such payments under Part 5 Division 3 of the Workers Compensation Act .

As against ASMS the plaintiff’s claim as originally formulated was based on the cost of a fulltime live-in nanny until the youngest child, Mikayla, turned 18, ie July 2018, a period of 11 years. The commercial cost of a live-in nanny was put at $2,533 per week.

ASMS challenged the need for a fulltime live-in nanny relying upon the fact that the children spent much of their time at school and that at night there would be little for such a person to do while the children were sleeping. Those submissions have considerable force and were it relevant, I would not be prepared to make provision for a fulltime live-in nanny. For reasons which will emerge, it is not necessary for me to decide that question.

In the course of submissions, the plaintiff’s legal advisers accepted that any entitlement which the plaintiff had to damages for his inability to look after his children had to be determined by s15B of the Civil Liability Act. As indicated, CSR v Eddy made it clear that the plaintiff had no entitlement to such damages at common law. Even a cursory reading of s15B makes it clear that the plaintiff’s claim for the commercial cost of a fulltime live-in nanny cannot be maintained.

The plaintiff’s claim was then reformulated. A calculation was made of how much time the plaintiff’s mother had spent looking after the three youngest children since she became directly involved in their upbringing in March 2005. Regard was had to her evidence that the children spent approximately two-thirds of their time at her home, that she frequently attended the plaintiff’s home when the children were there and that she drove the children to social and sporting events. A somewhat arbitrary calculation was made to the effect that when the children were staying with Mrs Kendrick on school days, she would spend approximately 90 hours providing care for them and on weekends 48 hours, ie a total of 138 hours per week. A similar arbitrary calculation was made for when the children were with the plaintiff to produce the figure of 21 hours of care per week. These figures were then averaged over a year to produce a claim based on a 100 hours of care per week provided by Mrs Kendrick for the children.

It was the plaintiff’s submission that sections 15B(4) and 15B(5) only provided a restriction as to the hourly rate payable for such services, but did not impose any limit on the number of hours in respect of which such damages could be claimed. Under that statutory formula the hourly rate varied from $20.90 in March 2005 to $22.64 in February 2007. The claim on behalf of the plaintiff was for 100 hours of childcare at those rates from March 2005 until 2007 and for 11 years of childcare at the same rate for the future.

ASMS agreed that s15B applied and submitted that unless the plaintiff could bring himself within its provisions, he had no entitlement for damages for childcare. It submitted that the section had no application where gratuitous services were provided by way of childcare, but only where paid services were provided. It submitted that the most important factor in determining the amount of damages payable under the section was the extent to which the services would have been provided by the plaintiff had he not been injured, not the extent to which such services had been provided by someone else after his injury. ASMS also disputed the plaintiff’s interpretation of s15B(4).

The relevant provisions of s15B are as follows:- “15B(2) Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the Court is satisfied that: (a) In the case of any dependants of the claimant of the kind referred to in para (a) of the definition of dependants in subsection (1) – the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) The claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) There is a reasonable expectation that but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) There will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. … 15B(4) The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by s15(5) regardless of the number of hours involved. 15B(5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, the Court: (a) may only award damages for that loss in accordance with the provisions of this section, and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. … 15B(11) In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the Court must take into account: (a) The extent of the claimant’s capacity to provide the services before the claimant sustained the injury, that is the subject of the claim, and (b) The extent to which the provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) The vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.”

The preconditions for the awarding of damages are set out in s15B(2). The plaintiff before injury must have provided services of the kind in respect of which damages are now being claimed. The plaintiff clearly satisfied that test with Liam and Kristen. His unchallenged evidence was that he did provide some childcare services in relation to Liam and Kristen. Clearly he could not have done so in respect of Mikayla since Mikayla was not then born.

This creates a potential problem for the plaintiff. The section makes no express provision for the situation where a child is born after the injury. Because the plaintiff did not provide any services for Mikayla before he was injured, a literal reading of the section would give him no entitlement to damages for services provided to Mikayla by somebody else after his injury.

I do not think the section should be read in that way. Section 15B(1) identifies various classes of dependants. That is why there is a reference in the preamble to subs(2)(a) of 15B to “dependants … of the kind”. Read in that way, it is only necessary that before injury the plaintiff provided services to that class of dependants in order for the precondition to be satisfied. As indicated, I am satisfied that he did provide such services although the services were limited in time and extent by his hours of work.

The next precondition is that the dependants were not capable of performing the services themselves. That is clearly true of the three children and will be true, in many respects, until each turns 17.

The third precondition is that had the plaintiff not been injured, there would have been a reasonable expectation that he would have spent at least 6 hours per week for at least 6 consecutive months providing childcare services for the children. There is ample evidence that the plaintiff did provide at least 6 hours per week of childcare assistance before he was injured. Uninjured he would undoubtedly have provided childcare to Liam and Kristen while Kathy was caring for the newly born Mikayla. The contrary was not submitted by ASMS. Accordingly the plaintiff has satisfied that precondition.

The final precondition is that there will be a continuing need for such services and that this need is reasonable. Given the ages of the children, I am of the opinion that this precondition has been satisfied for the period since March 2005 when Kathy left.

In summary, I am satisfied that all of the section 15B(2) preconditions have been met so that damages can be awarded in accordance with the section in respect of the plaintiff’s loss of capacity to provide domestic services for the three youngest children.

The preconditions specified for the operation of the section do not distinguish between gratuitous provision of the services referred to and paid provision of those services. What the section seems to be concerned with is the establishment of a real need for such services and that, absent injury, an injured plaintiff would have provided those services. The best indication that the dependants were not capable of performing the services and that there was a genuine need for them, is if those services had to be provided by someone other than the plaintiff after injury. Accordingly it matters not for the purposes of the section whether the provision of those services was gratuitous or paid.

The plaintiff’s focus on the amount of time actually spent by the plaintiff’s mother in providing childcare services as the measure of what can be claimed is misconceived. Nevertheless, if the plaintiff were able to establish that his mother was spending approximately 100 hours per week in providing childcare services, could damages based on that number of hours be claimed under the section?

After some hesitation I have concluded that s15B allows damages to be awarded for more than 40 hours per week, provided the other parts of the section are complied with. Section 15B(4) imposes a limit on the hourly rate which can be claimed in respect of domestic services, but not on the number of hours.

Section 15B(4) refers to s15(5). Section 15 deals with damages for gratuitous attendant care services, otherwise known as Griffiths v Kerkemeyer damages. Section 15(5) reads: “15(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one fortieth of the amount determined in accordance with subsection (4)(a) or (b) as the case requires.”

It seems an odd result that Griffiths v Kerkemeyer damages under s15 are capped at 40 hours per week but the damages for loss of capacity to provide domestic services under s15B are not. Yet that seems to be the inevitable effect of the wording of s15B(4). If the section had finished with the reference to s15(5) followed by a full stop, I would have interpreted the section in its context as being restricted to 40 hours per week just as s15. The section, however, concludes with the words “regardless of the number of hours involved”. That concluding phrase removes any cap or restriction on the number of hours which can be claimed for loss of capacity to provide domestic services in this case.

Against that background, how is a Court to apply s15B? There is a clear cap on the hourly rate for any damages awarded. As I have indicated, I do not believe there is a cap on the number of hours in respect of which damages can be awarded. Is there any other constraint provided by the section or does one look only at the need which has been created, and the extent to which that need has been met, post injury.

The submissions by the plaintiff implicitly involve that approach. In essence the plaintiff’s submission is that there is a clear need to look after the three youngest children. That has been met by the plaintiff’s mother who has spent approximately 100 hours per week doing so and she is likely to spend a similar amount of time in the future for as long as she is able. The submission then proceeds that damages should be awarded both for the past and future based on 100 hours per week at the hourly rate specified by the section.

As ASMS pointed out, that submission fails to have regard to the specific wording of the section. Section 15B(11) makes it clear that the Court must take into account the extent of the plaintiff’s capacity to provide the services before the plaintiff sustained the injury. This consideration is not the only matter which the Court has to take into account, but it is of sufficient significance that it is specifically referred to as a mandatory consideration.

Some assistance is also provided by the specific wording of the key sections. Both ss15B(2) and 15(4) refer to “loss of the claimant’s capacity to provide gratuitous domestic services”. It is this concept, it seems to me, which provides the control mechanism for determining the number of hours in respect of which damages under the section can be awarded. What one looks at is not the extent to which the plaintiff actually provided such services (although that is a relevant consideration) but his capacity to do so uninjured. It is that latter concept which has to be valued.

Some assistance is provided by identifying the need and the extent to which it has been met, in this case by his mother. While it is doubtful whether it could be established that she has been spending 100 hours per week in providing childcare, I have no doubt she has been spending a very substantial amount of time which would average well over 40 hours per week.

Had the plaintiff not been injured, and had something happened either by way of illness or relationship break-up, which meant that Kathy could not look after the children, the plaintiff had a capacity to provide childcare services and still maintain his employment with Bluescope Steel. The exercise of that childcare capacity would have taken place before he went to work, after he came home from work and on weekends. He would also have been available to provide childcare services during holiday periods. While he was at work, other arrangements would have been made for childcare either with his mother or on a paid basis. I am satisfied that if the injury had not occurred and Kathy was no longer available to provide childcare services, there was a considerable untapped capacity which the plaintiff could have utilised for that purpose even though he would also have been required to attend work in order to financially maintain the family. It is that lost capacity which has to be valued.

The evidence on this issue is unsatisfactory. This is not the fault of the parties. It would be fair to say that the complexities of s15B did not become apparent until addresses. No particular focus was given in evidence as to precisely what childcare services the plaintiff performed for each child or generally before his injury. Nevertheless, as I have indicated when dealing with s15B(2), there is sufficient evidence to establish pre-injury at least 6 hours per week of childcare services. This would inevitably have increased after the birth of Mikayla when most of Kathy’s attention would have been focused on the newborn child rather than the older children.

On that state of the evidence it would be speculative to assess anything more than 6 hours per week for loss of capacity to provide childcare services between the date of the accident and March 2005 when Kathy left the relationship. Up to that time Kathy had been providing almost all the childcare services needed.

Thereafter the situation is different. Had the plaintiff been uninjured and had Kathy withdrawn from the relationship, the plaintiff did have an additional capacity to devote to childcare services which I am confident he would have used to the extent that he was able. Taking into account the nature of the plaintiff’s work and his need for sleep in order to perform such work, I am still satisfied that on average particularly taking into account weekends, he would have had a capacity to spend at least 40 hours per week providing childcare services between March 2005 and March 2007 when submissions as to damages were made.

In relation to the past therefore I assess the plaintiff’s entitlement to damages for the past under s15B as follows: (i) Date of accident to 25.3.2005 (6 hours per week for 6.7 years at $19.09 per hour) $ 39,885.00 (ii) 31.3.05 – 31.3.07 (2 years at 40 hours per week at $21.77 per hour) $ 90,563.00 $130,448.00

From March 2007 the situation is different. As the children became older the amount of care which they would require would rapidly reduce. By way of illustration the need for childcare would have reduced to zero by the time each child reached 17. Taking that into account I assess as appropriate an average of 15 hours of childcare per week for the next 10 years. I see no reason to discount that figure for vicissitudes. On that approach, the figure for future childcare is 15 hours per week at $22.64 per hour for 10 years, ie $140,221.

Accordingly I find that the plaintiff is entitled to damages against ASMS for loss of capacity to provide domestic services by way of childcare in the amount of $270,669. Summary of damages

In accordance with the above findings, the damages to be awarded against Bluescope Steel are as follows: Non-economic loss $ 244,250.00 Loss of income Past Future $ 347,672.00$ 730,742.00 Superannuation $ 100,902.00 Interest $ TBA Fox v Wood $ TBA Past out-of-pocket expenses $ TBA Indoor/outdoor maintenance, gardening services and car maintenance $ 47,814.00 Personal care and mobility equipment $ 589,000.00 Additional home/architectural claims including ongoing maintenance $ 750,000.00 Additional motor vehicle expenses $ 150,000.00 Ongoing treatment and medication $ 261,904.00 Physiotherapy $ 103,320.00 Psychological review and treatment $ 150,000.00 Computer and home automation expenses $ 175,000.00 Hospitalisation $ 87,000.00 Additional holiday costs $ 285,000.00 Care $7,749,700.00

The damages to be awarded against ASMS are as follows: Non-economic loss $ 381,000.00 Loss of income Past Future $ 347,672.00$ 730,742.00 Superannuation $ 100,902.00 Interest $ TBA Fox v Wood $ TBA Past out-of-pocket expenses $ TBA Indoor/outdoor maintenance, gardening services and car maintenance $ 47,814.00 Personal care and mobility equipment $ 589,000.00 Additional home/architectural claims including ongoing maintenance $ 750,000.00 Additional motor vehicle expenses $ 150,000.00 Ongoing treatment and medication $ 261,904.00 Physiotherapy $ 103,320.00 Psychological review and treatment $ 150,000.00 Computer and home automation expenses $ 175,000.00 Hospitalisation $ 87,000.00 Additional holiday costs $ 285,000.00 Care $7,749,700.00 Childcare $ 270,669.00

The final damages to be awarded against Bluescope Steel and ASMS cannot be calculated nor can the s151Z adjustment under the Workers Compensation Act be made until the gaps in the schedule of damages in respect of each defendant have been filled and an amount has been calculated for fund management. Fund management

I have been asked by the parties not to determine a final figure for fund management but rather to make indicative findings which would enable the parties to reach agreement as to fund management. It is understood that in default of agreement between the parties it will be necessary for the Court to determine a figure for itself. In any event insufficient information is before the Court to enable such a finding to be made. Apart from anything else, the final figure for damages has not been calculated.

It is necessary to determine whether the Protective Estates Act 1983 applies to the plaintiff. Section 13(1) of the Act provides: “13(1) Where the court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act.”

A similar provision under the Mental Health Act 1958 was considered by Powell J in PY v RSJ (1982) 2 NSWLR 700 at 702 where his Honour said: “It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) That he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and (b) That, by reason of that lack of competence there is shown to be a real risk that either: (i) he or she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re: an Alleged Incapable Person ); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transaction in the most efficient manner; see In the matter of Case (1915) 214 NY 199 at p 203 per Cardozo J.”

Dr Dragutinovich has seen the plaintiff more than any other medical practitioner. He did not express an opinion in his reports on this subject. In evidence the following exchange took place under cross-examination: “Q. It is not just a question of entitlement is it doctor he has expressed a view which would suggest him wanting to be in control of making the important decisions in his life? A. Well he may state that but the capability owing to his neuro-cognitive impairment for the reasons I have already stated in relation to his inability to attend to his financial affairs that incapability remains evident. Q. Well your view as to his incapability of handling his financial affairs is upon the basis of cognitive incapacity? A. That’s correct. Q. So in other words you are saying brain damage? A. Yes. Q. He has not exhibited behaviour in the last 12 months or thereabouts which would indicate him being vulnerable to manipulation by others? A. He is constantly exhibiting behaviours indicating vulnerability, particularly in the financial matters. Q. In what way doctor? A. Well in the way that he has not been able to keep track of the accounts, the way in which he fails to prioritise with respect to spending what he perceives as important as to what is less important. His inability to persist with any particular task for a long period of time. He also evidences impulsivity and rather spendthrift at times behaviour. Q. Well can you give us an example of impulsive spendthrift behaviour in the last six months? A. Well these are not the sorts of things that I have documented but – well one doesn’t come to mind at the moment. Q. Well can you give us an example of his failure to deal with his accounts? A. Well he has frequently commented to me that the way he just deals with accounts is to put them away and not deal with them until he gets repeated letters of inquiry. Q. Is that in the last 12 months? A. Yes well I think he has got assistance in relation to that now. Were it not for that I think that the old pattern would prevail. Q. Well do you know about Kelly? A. About - Q. Kelly? A. No I don’t. Q. He has never told you about a bookkeeper called Kelly that assists him? A. No we haven’t discussed that. Q. Has he ever told you that he has a financial adviser? A. Yes. He has. Q. These are all things that he has introduced in the last 12 months or thereabouts? A. Yes. Q. So the problems in relation to accounts, matters of that nature, relate to the period before the last 12 months? A. Largely but I think he is still at times rather profligate with respect to spending. Q. But you can’t give us any examples in the last six months? A. That’s right, no.” (T.1027/28)

When he was giving this evidence, it seemed to me that Dr Dragutinovich had formed a general impression of the plaintiff’s ability to manage his financial affairs, but had made no detailed examination of the subject. That general impression was based on his opinion that the plaintiff had suffered significant brain damage.

Dr Jungfer, a psychiatrist qualified on behalf of the plaintiff, expressed the opinion in her report of 23 January 2004 that the plaintiff’s psychiatric illness would not impact upon his capacity to manage his affairs, but that his cognitive decline brought about by his brain damage was such that he would require the appointment of a financial adviser. In her report of 8 December 2004 she said that: “It is the contribution of the mood disorder and vulnerabilities, his risk of exploitation, that lead me to conclude that even if his memory is normal that his financial affairs should be managed.”

In her report of September 2006 she thought his emotional disturbances caused him to be vulnerable with regard to exploitation and that he required his affairs to be managed under the Protected Estates Act .

Professor Mattick is a psychiatrist who was qualified on behalf of the defendants. In his report of 19 October 2006 he noted that the plaintiff had lost some memory efficiency but did not think that this was particularly marked or significantly disabling. He did not think that it was suggestive that the plaintiff would not be competent to manage his own affairs. He made the important qualification that the plaintiff would resist the appointment of the Protective Commissioner, or a trustee under the Protective Estates Act , if this was sought. Professor Mattick thought the plaintiff was competent from a cognitive point of view to manage his affairs.

Dr Henke, the rehabilitation specialist, set out his conclusions in his report of 8 March 2007. He appreciated that the plaintiff’s position insofar as financial management was concerned was complicated by his extreme physical disabilities. These of themselves would make it difficult for him to properly manage large sums of money. Doctor Henke said: “In my opinion, it would be difficult for Mr Kendrick to carry out management of these activities. This would necessitate the appointment of a manager who handles payments and investment matters. In my opinion, any person managing these issues should not be one of the persons involved in the provision of his care as it may result in a conflict between careful management of funds and monetary gain. In my opinion, several hours per month assistance would probably be necessary as part of this management regime. This requirement arrises due to the complexity of the financial matters and not specifically because of any perceived cognitive impairment.” That opinion was not challenged in cross-examination.

Dr Milton, psychiatrist, as well as providing a report gave evidence in the proceedings. In his report of 30 March 2004 he said: “I would not like to see him deprived of this aspect of his life if possible. To be bereft of all control of his own affairs when he already feels impotent and useless would be a humiliating experience. The preferable alternative is for him to accept a reputable financial adviser and be guided by that person or organisation.”

When Dr Milton re-assessed the plaintiff in October 2006 he did not change that opinion. On the contrary he thought the plaintiff was much more psychologically stable at that time. Dr Milton specifically disagreed with Dr Jungfer on this point. He did so because in his opinion Dr Jungfer failed to provide objective observation material to support her conclusion. When asked what objective observation material he was referring to, Dr Milton responded: “Immoderate spending, talking in an unrealistic fashion about what he is going to do for the children, how he is going to get another partner, what sort of elaborate house he is going to have. The sorts of things people talk about when they are not talking realistically about how they will spend their money.” (T.2059)

Dr Milton noted that there was no history of the plaintiff gambling, or of him trying to induce his former partner to stay by promising her money. There was no evidence of him trying to buy the affections of his children by providing them with expensive gifts. Dr Milton also noted that the plaintiff would vigorously oppose any attempt to take control of his affairs away from him although he was prepared to accept advice.

The sort of additional financial advice which the plaintiff would require was described by Dr Milton as: “In two areas, I think. One he would need more detailed direction, that is investigate in which particular shares or share company or that kind of thing. He would need more specific direction perhaps than the average person. And he would need to see his adviser more frequently. So some of us might see our superannuation advisers every three months, he might need to see his advisers say once a month something like that.” (T.2061)

Under cross-examination Dr Milton adhered to that opinion. He had recorded what the plaintiff told him about his intentions should he be successful in the proceedings: “When asked about financial matters he said his plan is to have an account used for everyday expenses and considers he is capable of managing the day to day payments. However, he intends to have the compensation award managed by a financial organisation and will arrange for this company to make regular deposits into his working account.” Dr Milton thought that was a reasonable plan.

The opinion of Dr Milton is more in accord with my observations of the plaintiff’s abilities than the opinions of Dr Dragutinovich and Dr Jungfer.

I had the opportunity of observing the plaintiff give his evidence over some days in October 2006 and in March 2007. He also spoke on a number of occasions in the DVD tendered on his behalf. I have concluded that the plaintiff would have little difficulty in managing a normal household budget, even one involving three children and the paying of a care providing service. He demonstrated a healthy distrust of persons who might seek to offer to him any “get rich quick” schemes. He was very conscious of the fact that whatever money he received out of this litigation was going to have to provide for him for the rest of his life.

Although the psychologists/psychiatrists to some extent played this down, one ought not disregard the plaintiff’s physical disabilities when assessing his capacity to manage the investment of a fund in excess of $10 million. The physical effort of keeping track of investments involving the fund and of giving instructions to stockbrokers and the like would, in my opinion, be beyond the capacity of someone such as the plaintiff, particularly somebody who becomes exhausted after a couple of hours of sitting up. That very real limitation needs to be taken into account with his memory and concentration difficulties which are well documented.

In relation to his cognitive abilities generally, I have had regard to the various psychological reports and test results. What impressed me in relation to the plaintiff was his ability to competently and coherently answer questions put to him on a variety of subjects. At no time did I detect an inability to understand the purport and effect of those questions. Any difficulty which I observed the plaintiff to have when answering questions was due to the effect of tiredness and illness. It was apparent on at least one occasion when the plaintiff was giving evidence that he was feeling unwell. That was a physical problem, not a mental one. This is not to say that the plaintiff has not suffered brain damage, only that it is not as severe as described by Dr Dragutinovich.

In support of the submissions by the defendants, a report was tendered (exhibit 1D(13)) from Mr Watt, accountant, setting out the cost of fund management advice to the plaintiff if same was provided by the Perpetual Trustee Company Limited. The report indicated a range of costs depending upon the amount of the moneys being invested and depending upon the level of service provided. Mr Watt divided the management services into two categories – “advisory level” and – “discretionary level”.

The “advisory level” of service included the following: (i) An “administrative” platform through which investments are tracked, income and capital growth are reported on and performance is monitored, and (ii) Additional “advisory” services including: (a) The set-up of a portfolio, based on strategic and investment advice. (b) Access to portfolio and private institution research; (c) Regular client contact when opportunities arise for investment or if there has been a shift in the recommendations on assets held; (d) The client being able to place a call with Perpetual regarding any investment decision he wishes to know more about; (e) An annual strategic review; and (f) A six monthly investment review.”

It was pointed out that under the “advisory” level of service, the plaintiff is not bound by the advice given by Perpetual. The plaintiff is free to make his own choices.

In relation to the “discretionary level” of service, Perpetual has full discretionary control over the funds put under management in terms of where to invest them in order to meet the strategic investment goals of the plaintiff. Perpetual would provide to the plaintiff a regular income stream from the funds placed with them. This level of service is very similar to the service provided by the Office of the Protective Commissioner and entitles the plaintiff to meet with Perpetual to discuss his financial position, as with the “advisory level”.

In my opinion the “advisory level” would be insufficient to meet the additional need for fund management created by the plaintiff’s injuries. The “discretionary level” would be more appropriate. The advantage of the “discretionary level” is that day-to-day decisions as to the movement of funds are made by the manager with the plaintiff providing input as to the overall strategic management. It also has the advantage that it provides a regular income stream which the plaintiff can then manage himself once it is in his hands. The advantage from the plaintiff’s point of view is that at the end of the day he is still in control of the damages which have been awarded to him.

The Court was referred to the decision of Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 61-62 where the High Court made it clear that damages under this head are only to be awarded for financial expense or loss which is a direct product of the injury not because normal people would have difficulty in managing large sums of money. Relying on that decision, submissions were made to the Court concerning costs if the Court determined the “discretionary level” was appropriate for fund management.

The defendants’ submission proceeded as follows. The “discretionary level” of management consisted of the “advisory level” plus a closer and more detailed level of control. The “advisory level” would have been the level of management which the plaintiff would have needed for such a large sum of money even before injury. Accordingly, when awarding an amount for fund management the Court should only award the difference between the cost of the “discretionary level” of management and the “advisory level” of management.

I do not agree. The submission involves a degree of artificiality which has little regard to the practicalities of the plaintiff’s position. As a result of his injuries, he requires the close level of fund management described as the “discretionary level”. One of the building blocks in that level of management is the “advisory level” of management. One does not get to the “discretionary level” until the “advisory level” of management has been provided. I do not think it is fair to the plaintiff or logical to break up the “discretionary level” of management in that way. If the plaintiff is entitled to the “discretionary level” of management as I believe he is, then he is entitled to the whole of the cost for that level of management. Conclusion

At this stage I do not propose to make any formal orders. This is to enable the parties to agree on the outstanding elements of damages. It is also not possible to make final orders as to damages and on the cross-claims until the damages schedules have been completed. I propose to seek submissions from the parties as to when they believe they will be in a position to complete the damages schedules so I can appoint a date for the making of final orders. If no agreement can be reached, I will make final orders based on the evidence before the Court supplemented, if appropriate, by any additional material on the question of fund management. Friday, 21 December 2007

Following the handing down of my reasons on 30 November 2007, the parties were given the opportunity to discuss the implications of those reasons and to agree if possible on the outstanding heads of damage. Although evidence was given by Mr Watt on the question of funds management, it was not necessary to use that evidence since the parties agreed on the amount to be awarded to the plaintiff for funds management.

The agreements reached by the parties were as follows:

The Fox v Wood amount was agreed at $95,636.00. Past out-of-pocket expenses excluding weekly payments under the Workers Compensation Act 1987 were $6,964,087.00. Funds management costs were agreed at $1,457,963.00. Payments of weekly compensation amounted to $269,343.00.

This left two matters outstanding. The first matter was the question of interest on the difference between the amount awarded for past economic loss and the payment of weekly compensation. The difference was agreed by the parties at $80,000.00.

The liability of Bluescope Steel to pay interest on that amount was not seriously disputed. Section 151M of the Workers Compensation Act 1987 applies. The prescribed rate of interest under that section is three-quarters of the rate prescribed for the purposes of s 95 of the Supreme Court Act 1970. In this case that is a figure of 7.5% per annum. Applying that percentage over the 6.75 years that the plaintiff suffered past economic loss produced a figure of $20,250.00 for interest.

The obligation of ASMS to pay interest is governed by s 137 of the Motor Accidents Compensation Act 1999. The rate of interest payable under that section is three quarters of the rate prescribed under s 101 of the Civil Procedure Act 2005. That rate is the same as under the Workers Compensation Act 1987 and would produce the same amount of interest.

ASMS, however, resisted the payment of interest on the basis that the plaintiff’s claim was constantly being reformulated as the trial progressed. By way of illustration the plaintiff’s assessment of damages produced at the commencement of the trial had altered significantly by the end of trial. On that basis ASMS submitted that it did not have information which would enable a proper assessment of the plaintiff’s claim to be made and consequently it had no obligation to pay interest under the section.

I agree that the plaintiff’s claim for damages was something of a “work in progress” and its final formulation was not achieved until addresses. That having been said, it was always clear that the plaintiff’s case was going to be a large one. The only offer made in writing that was brought to the attention of the Court was in February 2007. The amount ultimately awarded to the plaintiff exceeded that offer by much more than the 20% provided for by the section.

Despite changes in detail, the fundamentals of the plaintiff’s case on damages remained constant throughout the trial. The evidence on which the plaintiff sought to rely was also available well before the trial commenced. I am not satisfied that ASMS was not able to make a proper assessment of the plaintiff’s claim so as to make an appropriate offer. Accordingly I find that ASMS is obliged to pay to the plaintiff interest under s 137 of the Motor Accident Compensation Act 1999. As with Bluescope Steel, the amount of that interest is $20,250.00.

ASMS raised a second matter. It did not dispute the out-of-pocket expenses incurred by Bluescope Steel up to 27 March 2007, the date at which damages were calculated. It submitted, however, that 38 weeks had past between that date and the date when reasons for judgment were handed down during which substantial additional out-of-pocket expenses had been paid by Bluescope Steel. It submitted that in view of the findings made by the Court as to the plaintiff’s entitlement to such matters as future physiotherapy costs, future psychological costs and future care, the out-of-pocket expenses paid by Bluescope Steel between 27 March and 21 December 2007 constituted a substantial overpayment in respect of which there should be no liability on the part of ASMS. It submitted that such overpayment was solely the responsibility of Bluescope Steel.

By way of illustration, ASMS pointed out that the Court had allowed $120.00 per week for future physiotherapy expenses from 27 March whereas Bluescope Steel had paid $402.00 per week. This resulted in an overpayment of $10,716.00. In relation to future care, the amount awarded by the Court was approximately $9,001.00 per week from 27 March whereas Bluescope Steel had actually paid an average of $20,000.00 per week up until 21 December 2007. It was submitted that this constituted an overpayment of $429,928.00. A similar submission was made in relation to future psychological costs.

The submission should be rejected. During the course of the trial ASMS did not dispute the reasonableness of the out-of-pocket expenses which had been paid and which continued to be paid by Bluescope Steel pursuant to its obligations under the Workers Compensation Act 1987. For practical reasons it was understood by the parties that a date should be nominated at which damages were to be calculated. Unless this was done agreement could not be reached between the parties as to specific heads of damages. The date agreed on was 27 March 2007.

Even though that was the agreed date, there was an inevitable delay between that date and the date when I handed down my reasons. The reasonableness or otherwise of the existing regime and therefore the payments being made by Bluescope Steel under the Workers Compensation Act , could not be known until those reasons were handed down.

It is incorrect to characterise the payments by Bluescope Steel between 27 March and 21 December 2007 as an overpayment. They were payments made pursuant to Bluescope Steel’s statutory obligation under the Workers Compensation Act in the same way as payments had been made from the date of the accident until 27 March. It would have been inhumane, not to mention contrary to the workers compensation legislation, for Bluescope Steel to have unilaterally altered the regime of care and treatment in place while judgment was reserved.

The point taken by ASMS, however, does raise a potential injustice from the defendants’ point of view. Thirty-eight weeks have now passed since judgment was reserved on 27 March 2007. The cost of the care and treatment received by the plaintiff during that period has been included in the agreed figure for past out-of-pocket expenses. Accordingly there needs to be an adjustment to the figures for future physiotherapy, future psychological treatment and future care. I do not propose to make any adjustment to the figures for childcare, since those figures are at best an estimate and lack the precision necessary to justify further adjustment to take account of the intervening 38 weeks.

The best way to prevent injustice to the defendants is to adjust the plaintiff’s life expectancy figure and the multiplier for that figure to have regard to the fact that 38 weeks have now passed (see [223] hereof). When the plaintiff’s life expectancy is reduced to 32.85 years, the 5% multiplier becomes 854 and I have used that figure to adjust downwards those heads of damages. After making that adjustment, the damages become: Future physiotherapy $ 102,480.00 Future psychological treatment $ 148,780.00 Future care $7,686,694.00

As a result of the further agreement between the parties as to heads of damages and the adjustments to which I have referred, the schedules of damages can now be completed. Bluescope Steel Non-economic loss $ 244,250.00 Loss of income Past Future $ 347,672.00$ 730,742.00 Superannuation $ 100,902.00 Interest $ 20,250.00 Fox v Wood $ 95,636.00 Past out-of-pocket expenses $ 6,964,087.00 Indoor/outdoor maintenance, gardening services and car maintenance $ 47,814.00 Personal care and mobility equipment $ 589,000.00 Additional home/architectural claims including ongoing maintenance $ 750,000.00 Additional motor vehicle expenses $ 150,000.00 Ongoing treatment and medication $ 261,904.00 Physiotherapy $ 102,480.00 Psychological review and treatment $ 148,780.00 Computer and home automation expenses $ 175,000.00 Hospitalisation $ 87,000.00 Additional holiday costs $ 285,000.00 Care $ 7,686,694.00 $ 18,787,211.00

After 20% for contributory negligence is conducted, the figure becomes $15,029,768.00.

To that figure the agreed amount for fund management needs to be added of $1,457,963.00. The final figure for Bluescope Steel is therefore $16,487,731.00. ASMS Non-economic loss $ 381,000.00 Loss of income Past Future $ 347,672.00$ 730,742.00 Superannuation $ 100,902.00 Interest $ 20,250.00 Fox v Wood $ 95,636.00 Past out-of-pocket expenses $ 6,964,087.00 Indoor/outdoor maintenance, gardening services and car maintenance $ 47,814.00 Personal care and mobility equipment $ 589,000.00 Additional home/architectural claims including ongoing maintenance $ 750,000.00 Additional motor vehicle expenses $ 150,000.00 Ongoing treatment and medication $ 261,904.00 Physiotherapy $ 102,480.00 Psychological review and treatment $ 148,780.00 Computer and home automation expenses $ 175,000.00 Hospitalisation $ 87,000.00 Additional holiday costs $ 285,000.00 Care $ 7,686,694.00 Childcare $ 270,669.00 $ 19,194,630.00

After reduction for contributory negligence, the figure becomes $15,355,704.00. After addition of the figure for funds management, the final amount is $16,813,667.00.

While the figure calculated in relation to Bluescope Steel will remain the same, the figure for ASMS requires further adjustment to have regard to s151Z(2) of the Workers Compensation Act 1987. That section sets out a formula to be applied when calculating the damages payable by a third party where both it and the employer are tortfeasors liable to an employee plaintiff. After applying the s151Z(2) formula, the amount payable by ASMS is $16,650,699.00.

In relation to the damages to be awarded against Bluescope Steel it needs to be noted that because Bluescope Steel have paid the out-of-pocket expenses $6,964,087.00 plus weekly compensation of $269,343.00 the plaintiff is liable to repay to Bluescope Steel from his verdict against it the compensation and other moneys which he has received. He is not, however, obliged to pay back all of it. Since his damages have been reduced by 20% for contributory negligence, the repayment to Bluescope Steel is also reduced by 20% pursuant to s10 of the Law Reform Miscellaneous Provisions Act 1965. Accordingly, the amount which the plaintiff has to repay to Bluescope Steel is $5,786,744.00.

There were cross-claims between Bluescope Steel and ASMS. I apportioned liability between them equally. In approaching the cross-claims I applied the approach of Bryson JA in Roads and Traffic Authority v Ryan [2005] NSWCA 34. In Bluescope Steel’s cross-claim against ASMS the verdict in its favour will be $8,243,866.00. In the cross-claim by ASMS against Bluescope Steel the verdict in its favour will be $8,325,350.00.

I propose to reserve the question of costs to allow the parties to make submissions if any special costs orders are sought. Orders

I make the following orders: (1) There will be judgment in favour of the plaintiff against Bluescope Steel in the sum of $16,487,731.00. It is noted that the plaintiff is liable to repay Bluescope Steel the amount of $5,786,744.00 on account of its payment of the out-of-pocket expenses and weekly compensation. (2) There will be verdict and judgment in favour of the plaintiff against ASMS in the sum of $16,650,699.00. (3) There will be judgment in favour of Bluescope Steel against ASMS on its cross-claim in the amount of $8,243,866.00. (4) There will be judgment in favour of ASMS against Bluescope Steel on its cross-claim in the amount of $8,325,350.00. (5) I reserve the question of costs and I grant the parties liberty to apply to the Court to fix a date for the hearing of any argument on that question.