Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Limited (t/as Plastamasta South Coast) (No. 5)

1. [1]

   JOHNSON J: This judgment relates to actions brought by the Plaintiff, Arthur Brent Fogg, against three Defendants for damages for personal injuries suffered by him in a fall on 13 October 2008. The fall occurred whilst he was delivering building materials to a worksite at Kiama Showground, Kiama, New South Wales.

2. [2]

   The head contractor at the site was Kane Constructions (NSW) Pty Limited ("Kane"), against whom Mr Fogg commenced proceedings in negligence in relation to his injuries by a Statement of Claim filed on 4 October 2011. Kane had been engaged by the local council to undertake alterations and additions to the Kiama Showground site.

3. [3]

   Prior to Mr Fogg's accident, Kane had contracted with a subcontractor, Hutchison Construction Services Pty Limited ("Hutchison"), for the external cladding and interior refurbishment of the buildings at the site. By an Amended Statement of Claim filed on 23 August 2012, Mr Fogg joined Hutchison as a Defendant to the proceedings brought against Kane.

4. [4]

   Hutchison had in turn contracted with Mr Fogg's employer, Les Quatre Musketeers Pty Limited (t/as Plastamasta South Coast) ("Plastamasta"), for the supply and delivery of various materials required for the job. Mr Fogg's accident occurred during one of these deliveries. He commenced proceedings against Plastamasta, also for negligence, by a Statement of Claim filed 2 August 2012.

History of Proceedings

1. [5]

   The hearing of these proceedings (which were heard together) commenced on 5 August 2013. The hearing had been given a five-day estimate, but it became apparent that the hearing would not proceed to finality in a single sitting. Amongst other things, experts had not met in conclave. The hearing proceeded on 5, 6, 7, 8, 12 and 13 August 2013. By that time, the Plaintiff had closed his case on factual matters; expert witnesses remained to be called. Two of the Defendants had opened their cases and called witnesses on liability.

2. [6]

   For the purpose of facilitating the resumed hearing, the proceedings were listed for directions before me on 13 August 2013 and 18 October 2013. The resumption of the hearing was listed to commence on 3 February 2014.

3. [7]

   On 3 February 2014, an application was made by the Plaintiff for leave to reopen his case and rely upon the evidence of a further witness, Robert Jason Cady. Not without misgivings, I granted leave to the Plaintiff to reopen his case to call Mr Cady: Fogg v Kane Constructions (NSW) Pty Limited and Ors (No. 2) [2014] NSWSC 1820.

4. [8]

   The following witnesses (other than health professionals) gave evidence in the Plaintiff’s case:

5. [9]

   Plastamasta called Paul George Farrugia, the managing director of Plastamasta, with respect to liability (T224-281).

6. [10]

   Hutchison called the following witnesses on liability:

7. [11]

   Kane adduced no oral evidence with respect to liability.

8. [12]

   Concurrent evidence was given by a number of medical practitioners (T650-677):

9. [13]

   Concurrent evidence was also given by two occupational therapists (T697-724):

10. [14]

    A substantial volume of documentary evidence was tendered on issues of liability and quantum.

11. [15]

    Detailed written submissions were exchanged between the parties and counsel spoke to those submissions at the hearing on 3, 4 and 5 March 2014.

Issues for Decision

1. [16]

   Although Mr Fogg's injuries occurred as the result of a fairly straightforward workplace accident, there are nevertheless a range of issues that fall to be decided. It is desirable to briefly outline those issues before moving to the precise circumstances in which Mr Fogg incurred his injuries.

2. [17]

   The principal issue to be considered is the liability in negligence, if any, of each of the Defendants for Mr Fogg's injuries.

3. [18]

   If it is the case that one or more than one of the Defendants is to be held liable, questions of contribution and indemnity may arise. The question of an indemnity is said, in particular, to arise between Kane and Hutchison in the event that one or both are liable for Mr Fogg's injuries.

4. [19]

   A finding of negligence on the part of any or all of the Defendants will also call for a determination as to the existence and extent of any contributory negligence on the part of Mr Fogg and an assessment of the quantum of any damages to which he is entitled. Both of those issues were the subject of considerable contest at the hearing.

5. [20]

   There is also an issue as between Hutchison and the Plaintiff in relation to whether or not Mr Fogg's claim against it is statute barred by the operation of s.50C Limitation Act 1969. Hutchison submits that Mr Fogg's claim was commenced after the expiration of the "3 year post discoverability limitation period" applicable to actions for personal injury. The validity or otherwise of this defence is a matter of some legal and factual complexity.

The Circumstances of Mr Fogg’s Accident

1. [21]

   There is no genuine dispute in this case that Mr Fogg was injured as the result of a fall at the Kiama Showground site on 13 October 2008. The precise events surrounding that fall have, on the other hand, been fiercely contested between the parties. The resolution of this issue will require analysis of the evidence presented at the hearing, including any contemporary documentary material, and will involve an assessment of the credit of a number of key witnesses and the accuracy of their recollections. The following preliminary facts, however, were not, at least by the conclusion of the hearing, in dispute.

2. [22]

   Mr Fogg (then aged 37 years) commenced employment with Plastamasta as a delivery driver on 26 August 2008, some six weeks before the accident. Plastamasta is a company that supplies materials including plasterboard and villaboard products to building sites. Mr Fogg's duties with Plastamasta involved the loading of building materials onto a truck, driving the loads to various building sites and unloading the materials at the other end. Mr Fogg had undergone a training and induction process, about which more will be said when considering his claim against Plastamasta.

3. [23]

   The Kiama Showground site where Mr Fogg was injured was constituted by a pavilion and grandstand that stood adjacent to a football field and were undergoing major renovation. The pavilion and grandstand ran roughly north-south beside the oval; with the large pavilion further to the north and the smaller grandstand to the south. Kane was the principal contractor retained by the local council to undertake the renovation work. Kane in turn had subcontracted the supply and fitout of all plastering work at the site to Hutchison.

4. [24]

   Hutchison did not manufacture or supply the materials required to fulfil the plastering subcontract. It therefore ordered the materials from Plastamasta, a company with whom it had had many previous dealings. Possibly as a result of this familiarity, the business relationship between Hutchison and Plastamasta was reasonably informal in nature. It seems that Hutchison would order the quantity of materials required and Plastamasta would prepare a delivery docket in response to the order. The materials would then be loaded onto a truck, delivered and unloaded by Plastamasta employees at the site.

5. [25]

   On the day of his injuries, the Plaintiff was delivering a load of building materials to the Kiama Showground site. As was the standard practice, Mr Fogg was accompanied on the delivery by an offsider, Robert Cady. The Plaintiff had made deliveries to the Kiama Showground site on two previous occasions. On 13 October 2008, as on each of the previous occasions Mr Fogg had attended the site, there was no representative of Kane or Hutchison on duty at the entrance to the site. The Plaintiff and Mr Cady drove up to the side of the pavilion and Mr Cady got out in order to seek instructions about where to unload the materials.

6. [26]

   It is at this point that the versions of events propounded by the parties diverge. In order to make findings as to the precise manner in which Mr Fogg sustained his injuries, it will be necessary, principally, to analyse the evidence of four witnesses. They are: Mr Fogg, Mr Cady, Gary Brownlee (Hutchison's site foreman) and Stephen Leighton (a Hutchison employee). It will also be necessary to have regard to various pieces of documentary evidence, predominantly statements prepared at various times by these four witnesses. The evidence of other witnesses also bears on this issue to a limited degree.

7. [27]

   Mr Fogg's version of his accident is to be found in his oral evidence at the hearing, his Amended Evidentiary Statement dated 30 July 2013, a statement dated 19 May 2010 and an undated handwritten statement emblazoned in the top left hand corner with the emblem of QBE Insurance. His evidence at the hearing, which was substantially consistent with his other accounts, was as follows.

8. [28]

   It was Mr Fogg's evidence that after he and Mr Cady had driven through the unattended site entrance and pulled up near the pavilion, Mr Cady got out to seek instructions about where to deliver the materials that day. This was at the beginning of the work day. Mr Cady returned with "the same gentleman that he's always come back with" (hereafter the “site foreman”), who directed them to take part of the load "down to the bottom" end of the pavilion and unload those materials that had been designated for delivery "downstairs". Those items were unloaded without incident and Mr Cady walked to the top end of the pavilion while Mr Fogg drove the truck around there.

9. [29]

   Once at the higher end of the pavilion, Mr Fogg was directed by Mr Cady and the site foreman where to park the truck in order to deliver the balance of the materials. They directed him to reverse the tray of his truck back over a recessed concrete step at the northern end of the pavilion in order that the remaining materials could be unloaded straight from the back of the truck onto the pavilion structure. The Plaintiff suggested to them that the use of a sturdy platform constructed of timber pallets further to the south of the pavilion would be a safer place to unload. The reason he gave for this suggestion was that the platform provided a level surface on which to unload the building materials, whereas the area to which he had been directed did not, and involved the additional difficulty of a step down from the truck of 25-30cm.

10. [30]

    Mr Fogg's evidence was that he had used this makeshift loading dock to unload on the two previous occasions he had been to the site. However, on the day of the accident, a glazier's truck was blocking access to the platform at the time of this delivery and he was told that the boards were required to be delivered in the vicinity of where Mr Cady and the site foreman had directed him to park. He said that the site foreman did not like the recess over which they had to step and so went and got two planks of wood to lay over the recess to prevent anyone stepping in it during the unloading.

11. [31]

    The Plaintiff and Mr Cady then commenced unloading the 3m x 1.2m sheets of 12mm villaboard, each weighing on average approximately 66 kg, from the back of the truck. The process of unloading involved the Plaintiff and Mr Cady carrying the sheets resting against their right shoulders with one man at each end of the sheet. They each had one hand underneath the edge of the board. Each lift involved Mr Cady stepping down 25-30cm from the back of the truck first, while Mr Fogg, who was positioned towards the cab of the truck, edged towards the step down.

12. [32]

    Mr Fogg's evidence was that he would then step down from the back of the truck at about the time when Mr Cady was himself stepping over a 15-20cm hob which was positioned several metres in front of the back of the truck. The hob was a raised structure into which the pavilion windows were to be placed at a later point in the renovations.

13. [33]

    The area into which the original step down was taken by Mr Cady and then the Plaintiff from the back of the truck was also uneven. There was a small lip (around 5cm high) near the edge of the concrete verandah where it was intended that pavers would be laid. It was as a result of stepping onto this lip that the Plaintiff said his accident occurred.

14. [34]

    The Plaintiff's accident occurred, on his evidence, on about the twentieth lift performed by him and Mr Cady. He described the accident as follows during examination-in-chief (T37.40-48):

15. [35]

    Mr Fogg then described what happened next. Immediately upon the accident happening, he felt significant pain, mainly in his left ankle. He sat down and the site foreman approached him and asked him what had happened. Mr Fogg told him and also asked whether there was any ice, to which the answer was no. Mr Fogg remained seated for between 10 and 15 minutes before finishing the unloading with Mr Cady.

16. [36]

    After finishing the unloading, Mr Fogg returned to the Plastamasta depot. He found the drive back difficult due to the pain. Upon reaching the depot he had a conversation with his employer, Paul Farrugia, in which he told Mr Farrugia about the accident. Mr Farrugia asked him to continue working that day and the Plaintiff agreed. He continued making deliveries until his normal finishing time, which he said was 4.00 pm or 4.30 pm.

17. [37]

    When the Plaintiff finished the deliveries he again returned to the Plastamasta depot, where he was called into Mr Farrugia's office. Mr Fogg told Mr Farrugia that his ankle was still hurting and when he removed his boot it was very swollen and had turned black. He also had a graze on his left knee. Mr Farrugia soaked the Plaintiff's foot in methylated spirits and bandaged it before sending him home. The Plaintiff's evidence was that he then drove himself home.

18. [38]

    Mr Cady was the Plaintiff's offsider on the day of the accident. In the circumstances outlined above (at [7]), he gave oral evidence at the hearing, having also provided an evidentiary statement dated 3 February 2014, a brief incident report dated 17 October 2008 and a statement to an insurance investigator dated 22 August 2012.

19. [39]

    Mr Cady's evidence-in-chief at the hearing consisted, in the main, in the adoption of his evidentiary statement of 3 February 2014. It should be noted at the outset that that statement was taken around five and a half years after the relevant events took place. The statement to the insurance investigator upon which he was cross examined by Mr Polin, counsel for Hutchison, was dated nearly four years after Mr Fogg's accident.

20. [40]

    His evidence was that he and Mr Fogg had driven to the Kiama Showground site on 13 October 2008 in order to deliver plasterboard products. He had attended the site on a number of occasions before the accident. He recalled that there was no gate at the entrance to the site, nor was there any guard at that entrance on 13 October 2008. He also could not recall ever speaking with any representative of Kane at the site on any of his trips there.

21. [41]

    Mr Cady gave evidence that his practice when arriving at the site was to find out where the plasterers were and ask them where they wanted the materials to be delivered. He would then return to the truck and advise the driver how to proceed. He also gave evidence that any paperwork to be dealt with in relation to deliveries he made with Mr Fogg was undertaken by him as Mr Fogg had difficulties reading and writing. Mr Cady was shown Exhibit C (the docket recording Plastamasta's delivery to Hutchison on 13 October 2008) and confirmed that the items contained in that docket were those that were delivered on the day of Mr Fogg's accident.

22. [42]

    The matters referred to in the immediately preceding paragraphs are entirely corroborative of the Plaintiff's evidence; they were also not in dispute as between the parties. The issues in dispute were as to where the makeshift loading dock was positioned, where the plasterboard items designated for delivery “upstairs” were unloaded, who decided where and by what method the items were unloaded, and the precise mechanics of Mr Fogg's accident.

23. [43]

    In relation to each of those issues, Mr Cady gave a number of divergent and conflicting accounts. The account provided to the insurance investigator on 22 August 2012 was broadly supportive of the version of events propounded by Hutchison. His evidentiary statement of 3 February 2014 and his evidence-in-chief at the hearing were consistent with the Plaintiff's version. Serious doubts as to the accuracy of his recollection were cast in cross examination.

24. [44]

    With no disrespect to Mr Cady, I have difficulty accepting his evidence one way or the other on issues other than his usual practice in the making of deliveries to the Kiama Showground site and a number of elementary factual issues. He struck me as a witness doing his best to recall events that had long since passed from his memory. This is unsurprising given the fairly innocuous happenings of the day in question and the apparent lack of severity of Mr Fogg's accident.

25. [45]

    I accept his evidence that, upon arrival at the site, he would seek instructions as to where the load was to be dropped off. I accept his evidence that on the day in question, the loading dock was not used to deliver the “upstairs” materials. I also accept his evidence that Mr Fogg injured his ankle while unloading materials.

26. [46]

    I am unable to make any further use of Mr Cady's evidence. In particular, I have not had regard to it in determining where the loading dock was positioned and where and how Mr Fogg's accident occurred.

27. [47]

    Mr Brownlee was Hutchison's site foreman at the time of the Plaintiff's accident. It was his responsibility to order building materials on behalf of Hutchison, and it was his evidence that he would have placed the order for the goods delivered on 13 October 2008. It was also his job to determine where and in what order the goods should be unloaded. His evidence in relation to Mr Fogg's accident is contained in his evidence at the hearing as well as a number of statements, in particular a statement made on 24 May 2013 for the purposes of these proceedings and a statement made on 14 August 2012 in relation to Mr Fogg's worker's compensation claim. Mr Brownlee's accounts of the accident as contained in these statements and his oral testimony are diametrically opposed to that proffered by Mr Fogg.

28. [48]

    Mr Brownlee’s evidence was that Mr Fogg and his offsider parked the delivery truck around six metres from the eastern side of the building and then proceeded to unload the plasterboard sheets off the side of the truck. The sheets were then walked up a ramp on the northeast corner of the pavilion verandah. Mr Brownlee said that he placed a piece of timber at the base of the ramp to assist Mr Fogg and his offsider in this process.

29. [49]

    On Mr Brownlee’s evidence, Mr Fogg removed the timber saying words to the effect of “I don’t need that”. Mr Brownlee said he then provided directions as to where precisely the boards needed to be delivered in the pavilion and then left Mr Fogg and his offsider to undertake that task.

30. [50]

    After two or three lifts, Mr Brownlee said that he heard the Plaintiff make a noise and turned to see Mr Fogg at the driver’s side of the truck and not near the ramp. Mr Brownlee walked over and was informed by Mr Fogg that he had twisted his ankle. Mr Brownlee told Mr Fogg that he should enter the injury in the site injury logbook, but Mr Fogg refused to do so. He unloaded the rest of the truck and then left. Mr Brownlee noticed he had a slight limp.

31. [51]

    Importantly, Mr Brownlee denied the existence of a loading dock of the type that Mr Fogg said was being blocked by a glazier’s truck at the time of his injury and also the presence of the glazier’s truck itself. The inconsistencies between Mr Brownlee’s account of the manner in which the delivery occurred and the happening of Mr Fogg’s injury and Mr Fogg’s account are manifold.

32. [52]

    Mr Leighton was an employee of Hutchison working at the Kiama Showground site at the time of Mr Fogg's accident. He made a statement for the purposes of these proceedings on 6 June 2013. His evidence is also in stark contrast to the Plaintiff's version of events.

33. [53]

    Mr Leighton's evidence was that Mr Fogg arrived at the site with an offsider at around 8.00 am on 13 October 2008. After arriving, Mr Fogg and his offsider commenced to unload sheets of plasterboard from the truck. While this was occurring, Mr Leighton was working on the pavilion verandah.

34. [54]

    Mr Leighton's evidence was that Mr Fogg and his offsider were unloading the plasterboard sheets from the side of the truck onto the ground and then using a ramp to walk the sheets up onto the pavilion and placing them inside. Mr Leighton stated that this ramp was in the north-east corner of the pavilion and was used frequently by him and various other tradesmen to deliver materials to the pavilion. He said that Mr Fogg was in the leading position while these lifts were being undertaken.

35. [55]

    Mr Leighton did not see Mr Fogg's accident and the first he heard of it was when Mr Fogg informed him and Mr Brownlee that he had just rolled his ankle. On Mr Leighton's evidence, Mr Fogg declined to report the incident in the site injury logbook, continued unloading the sheets and then left the site.

36. [56]

    The principal witnesses concerning liability have been referred to above. However, evidence was given by two other witnesses which attracted submissions on behalf of the Plaintiff and Hutchison on liability. These witnesses were Ms DeSouza and Ms X.

37. [57]

    I have considered the submissions made for the Plaintiff and Hutchison with respect to the evidence of these persons on liability. I do not accept the submission for Hutchison that aspects of this evidence operate against the Plaintiff on liability. It is not necessary to expand in great detail on this issue for the purpose of this judgment.

38. [58]

    Ms X, a family member of the Plaintiff, gave evidence that the Plaintiff and Ms DeSouza prepared a statement a couple of days after the accident, with a conversation allegedly occurring between those persons that they should change the story as to how the accident happened by indicating that the injury occurred as a result of falling on a piece of wood and the Plaintiff twisting his ankle. The reason for the change in account, Ms X alleged, was to make it easier for the Plaintiff to sue someone. Both the Plaintiff and Ms DeSouza agreed that a statement had been made (Exhibit Q), which was provided to the Plaintiff’s employer for use in relation to a worker’s compensation claim. Both the Plaintiff and Ms DeSouza denied that any false account was given in that statement and that any conversation took place between them in which it was suggested that a false account ought be given.

39. [59]

    I am satisfied that Ms DeSouza gave false evidence on one aspect. Under cross examination, she claimed that the Plaintiff had told her that Mr Farrugia had told him that he would not be eligible for worker’s compensation. Evidence to this effect was not given by the Plaintiff or Mr Farrugia. I have considered the evidence of Ms DeSouza on all issues with particular care given to this aspect of her evidence. I will say more about this when considering her evidence in support of the past and future care claim. However, I accept the evidence of the Plaintiff and Ms DeSouza that no discussion took place, in the presence of Ms X, concerning a false account and that the statement (Exhibit Q) did not itself contain any false account.

40. [60]

    Most important in this regard is the existence of independent contemporaneous evidence emanating from Mr Brownlee which provides support for the account of the Plaintiff given in Exhibit Q and, in particular, the provision of timber prior to the fall in a manner consistent with the Plaintiff’s account. Further reference will be made to this evidence shortly. For present purposes, it is sufficient to state that the existence of this independent and contemporaneous evidence referring to a piece of wood undermines entirely any suggestion of recent invention on the part of the Plaintiff emanating from the evidence of Ms X.

41. [61]

    No more needs to be said concerning the evidence of Ms DeSouza and Ms X on liability issues in these circumstances.

42. [62]

    The Plaintiff bears the onus of proof on the balance of probabilities with respect to factual matters foundational to a judgment in his favour. In determining the findings of fact which ought be made in this case, I have regard to the evidence given by all relevant witnesses and the demeanour of those witnesses whilst giving evidence. I have regard, as well, to documentary evidence and, in particular, any contemporary documentary evidence which sheds light upon the facts surrounding the Plaintiff’s accident.

43. [63]

    Evidence was given by witnesses at the hearing in August 2013 and the resumed hearing in February 2014. I have had regard to the transcript of evidence of the witnesses for the purpose of this judgment, together with notes made by me at the time of the evidence which reflected my tentative views concerning the evidence of those witnesses. Although some time has passed since evidence was given by witnesses, the process undertaken in preparation of this judgment has brought to mind again the evidence of the witnesses and the impression which they made at the time of giving evidence.

44. [64]

    I have already expressed views with respect to a number of witnesses. These expressions have touched upon aspects of the evidence of the Plaintiff, Mr Cady, Mr Brownlee, Mr Leighton, Ms DeSouza and Ms X.

45. [65]

    There is a broad consistency in the accounts given by the Plaintiff of his fall at various times. For reasons explained briefly above (at [56]-[61]), I have rejected the submission for Hutchison that there was a form of collusion between the Plaintiff and Ms DeSouza at the time when the statement (Exhibit Q) was prepared.

46. [66]

    The Plaintiff’s account of the accident was given at an early time close to the events and has been restated in consistent terms by him thereafter.

47. [67]

    The same may not be said concerning Mr Cady, Mr Brownlee and Mr Leighton. The evidence of these witnesses has fluctuated in significant respects in a manner that apparently depended on the time at which their various statements were made and to whom. The relevant events occurred on 13 October 2008 and it was not until August 2013 and February 2014 that these witnesses came to give evidence about the incident. Significantly, the incident was not particularly noteworthy to them.

48. [68]

    There is no doubt that the Plaintiff fell and injured his leg at the Kiama Showground site. The incident itself was not especially dramatic or memorable to persons other than the Plaintiff, who suffered injury and was required to deal with its consequences. The Plaintiff impressed as a relatively straightforward witness who gave his account of the accident in a manner which was not accompanied by undue elaboration or exaggeration.

49. [69]

    I have a great deal of difficulty in accepting much of the evidence of Messrs Cady, Brownlee and Leighton relating to Mr Fogg’s accident. This conclusion does not reflect adverse findings as to their honesty, simply as to their recollections. I believe that much, if not all, of their evidence is entirely reconstructed. I am buttressed in this finding by part of Exhibit 18, a handwritten document signed by Mr Brownlee on or about 17 October 2008 which provides powerful support for central aspects of the Plaintiff’s version. It is appropriate to set out the contents of that document, which appears to have been faxed to Mr Farrugia on 20 October 2008. In that document Mr Brownlee and Stephen Swane, a Kane employee, state:

50. [70]

    Whilst the purpose and provenance of that document is not entirely clear (see Exhibit AH, paragraph 21), the fact remains that the document provides a contemporaneous adoption by Mr Brownlee of a version of the accident which broadly accords with Mr Fogg’s own version.

51. [71]

    It is appropriate also to set out an extract from the statement made by the Plaintiff within days of the accident on 13 October 2008. In that statement (Exhibit Q), Mr Fogg described the precise circumstances of the accident in the following way:

52. [72]

    In making findings of fact, I have had regard, as well, to the evidence of Mr Farrugia. Of course, he was not present at the time of the Plaintiff’s fall. However, there is nothing in the evidence of Mr Farrugia concerning the events of 13 October 2008 and subsequent days, which undermines in any respect the Plaintiff’s account of the circumstances of his fall.

53. [73]

    In light of the foregoing, I am satisfied on the balance of probabilities that the Plaintiff’s account (at [27]-[37] above) concerning the circumstances of his fall on 13 October 2008 is accurate and should be accepted. In particular, I accept the existence of a makeshift loading dock of the type described by the Plaintiff and his account of where that loading dock was positioned on the day of his accident. I also accept the fact of the glazier’s truck blocking the loading dock and that Mr Brownlee, in combination with Mr Cady, directed the Plaintiff to park his truck with its tray over the recessed concrete step and that the Plaintiff suggested to them that use of the loading dock would be preferable.

54. [74]

    In reaching these findings, I have had regard to submissions made for Kane concerning the mechanism of the fall and for Hutchison concerning the location where, according to the Plaintiff, the truck was parked prior to the unloading process. I am satisfied of the accuracy of the Plaintiff’s account.

55. [75]

    I note the concurrent evidence of the medical practitioners that the injuries suffered to the Plaintiff’s left ankle (the unanimous view) were consistent with the biomechanics of the accident as described by the Plaintiff. Three out of four of the medical experts considered that the injuries to the left knee were consistent with the Plaintiff’s account of the biomechanics of the accident. This evidence has fortified my conclusion that the Plaintiff’s account of the accident should be accepted.

Hutchison’s Limitation Defence

1. [76]

   Before examining the question of the relationships between the Defendants and the liability of any or all of them, it is desirable to determine the question of Hutchison's limitation defence. As recorded above, Mr Fogg was injured on 13 October 2008 at the Kiama Showground site where Kane was the head contractor. Mr Fogg commenced negligence proceedings against Kane by a Statement of Claim filed on 4 October 2011.

2. [77]

   Kane had contracted with Hutchison for the supply and installation of the plasterboard in the buildings at the site. Hutchison had, in turn, contracted with Mr Fogg's employer, Plastamasta, for the supply and delivery of the plasterboard required for the job. Mr Fogg's accident occurred during one of these deliveries.

3. [78]

   By an Amended Statement of Claim filed on 23 August 2012, Mr Fogg joined Hutchison as a Defendant to the proceedings brought against Kane.

4. [79]

   As a defence to the whole of that Amended Statement of Claim, Hutchison raises s.50C Limitation Act 1969, arguing that Mr Fogg's claim against Hutchison is time barred by virtue of having been commenced after the expiration of the "3 year post discoverability limitation period" applicable to actions for personal injury.

5. [80]

   Given that three years from the date of Mr Fogg's accident was 13 October 2011, and that proceedings were not commenced against Hutchison until 23 August 2012, Mr Fogg's entitlement to maintain his claim against Hutchison is contingent upon the first date on which his cause of action against it was discoverable, being on or after 23 August 2009. Whether that is the case falls to be determined by reference to the terms of the Act and an assessment of the evidence on this issue, including the business arrangements between Kane and Hutchison, Mr Fogg's knowledge of those arrangements and the circumstances leading up to Hutchison being joined as a party to the proceedings.

6. [81]

   The sections of the Limitation Act 1969 upon which Hutchison's limitation defence turn are ss.50C and 50D, which relevantly provide:

7. [82]

   Thus, the date on which a cause of action is discoverable is the date on which the Plaintiff knows, or ought to know, each of the “facts” contained in s.50D(1)(a)-(c). The use of inverted commas around the word “fact” is a reference to the decision of Basten JA (Ipp and Macfarlan JJA agreeing) in Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454, where his Honour noted, at 461 [25], that, at least in relation to paragraphs (b) and (c), what the statute requires that the Plaintiff “know” is not a fact in the ordinary sense of something objectively observable. Instead, the word “fact” is there being used to describe a "composite of inferences or the result of an evaluation" of which the Plaintiff must have knowledge (at 461 [27]).

8. [83]

   There is no contest as to whether Mr Fogg knew of the facts contained in paragraphs (a) and (c) of s.50D(1) prior to 23 August 2009. In relation to paragraph (a), Mr Fogg's injury was the result of a workplace accident and was of a frank and instantaneous nature. Mr Fogg described the incident in his evidence-in-chief as involving "[i]mmediate pain that I've never ever felt before”.

9. [84]

   As regards paragraph (c), the fact of his injury being of sufficient seriousness to warrant the bringing of a cause of action was also known to Mr Fogg well before August 2009, some 10 months after his accident. That was an ample period within which to assess the seriousness of the injuries and, from October 2008, Mr Fogg asserts an inability to work and a need for costly and ongoing medical treatment. His precise prognosis may have retained elements of uncertainty in August 2009, but his lost earnings, his medical expenses and the asserted impact of his injuries on his earning capacity were well known to him.

10. [85]

    That being the position, the only real question in relation to the limitation question is whether, at some point prior to 23 August 2009, Mr Fogg knew of the fact contained in s.50D(1)(b). That fact describes a relationship between "two things, namely, the injury … on the one hand and the fault of the defendant on the other. The relevant connection is one of causation": Baker-Morrison v State of New South Wales at 462 [28] per Basten JA. "Fault" in this context does not refer to notions of moral blameworthiness but, rather, to fault of a type which engages legal liability. His Honour went on to state, at 464 [39], that knowledge of that causal relationship does not require "the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to give rise to legal liability which must be known”. This approach to the construction of s.50D(1)(b) was affirmed by Beazley JA (as her Honour then was) (McColl, Campbell, Young and Whealy JJA relevantly agreeing) in New South Wales v Gillett [2012] NSWCA 83 at [94].

11. [86]

    The circumstances in which Mr Fogg alleged that his injuries occurred, and the sources of that account, are recorded above. For present purposes, it is sufficient to have regard to the following aspects of his evidence.

12. [87]

    On 13 October 2008, Mr Fogg was directed by his employer, Plastamasta, to deliver a load of villaboard to a construction site at Kiama Showground. The villaboard was loaded onto a truck at Plastamasta's premises. Mr Fogg had made deliveries to the site previously and was accompanied on this occasion by a fellow worker, Mr Cady.

13. [88]

    What is then said to have occurred is set out in Mr Fogg's evidentiary statement (Exhibit A) at [10]-[12]:

14. [89]

    There are two key points to be made in relation to Mr Fogg's description of the accident in both his evidentiary statement and his oral testimony.

15. [90]

    The first is that Mr Fogg is clearly of the view that the manner in which he was instructed to unload the villaboard at the Kiama Showground site was unsafe.

16. [91]

    The second is that Mr Fogg is consistent throughout his evidentiary statement, his evidence-in-chief and in cross examination that, at the time of the accident and afterwards, he did not know the identity of the man who had directed him and Mr Cady where to unload the villaboard. At numerous times during his evidence, Mr Fogg referred to his belief or supposition that the man "was the foreman" at the site, but maintained his inability to identify him. Furthermore, and significantly, Mr Fogg also did not know who that man's employer was.

17. [92]

    In the event, it became clear at the hearing that the "foreman" who had directed Mr Fogg and Mr Cady was in fact Mr Brownlee, an employee of Hutchison. It was Mr Brownlee who was overseeing the supply and installation of the plasterboard in the buildings at the site.

Hutchison’s Arguments

1. [93]

   Mr Polin based the argument that Mr Fogg knew of the “facts” in s.50D(1) relevant to his cause of action against Hutchison prior to 23 August 2009 on a number of pieces of evidence, including evidence given orally and in affidavit form by Mr Fogg's solicitor, Mr Wells. As mentioned earlier, there is no controversy in relation to s.50D(1)(a) and (c). Regarding the question of when Mr Fogg knew that his injury was caused by the fault of Hutchison, Mr Polin made the following submissions.

2. [94]

   First, it was submitted that, on the day of the delivery, Mr Fogg knew that the villaboard was being delivered to the site for Hutchison. In part, that submission was based on a delivery docket (Exhibit C) issued by Plastamasta to Mr Fogg and Mr Cady that identified Hutchison as the entity to which the delivery was being made. Mr Fogg gave evidence that he had never seen the docket before and that, due to difficulties he had reading and writing, it was Mr Cady who dealt with any paperwork that needed to be done in relation to deliveries. However, in light of concessions made by Mr Fogg in cross examination (T180.18-31), it is clearly the case that he knew on the day of the accident that the villaboard was being delivered for use by Hutchison.

3. [95]

   Mr Fogg's knowledge on this issue is further substantiated by parts of the oral and affidavit evidence of Mr Wells. Mr Wells first met with, and obtained instructions from, Mr Fogg on 14 January 2009. On that day, he took a preliminary statement from him (Annexure A to Exhibit U) in which Mr Fogg confirmed that the delivery was being made to Hutchison.

4. [96]

   Secondly, Mr Polin sought to draw together various aspects of Mr Wells' evidence as the basis for a submission that Mr Fogg must have known, by at least March 2009, that Hutchison was at fault for his accident. The importance of that timeframe was said to be that, on 11 March 2009, Mr Fogg met with Mr Wells a second time and provided him with further instructions. Mr Wells recorded his discussion with Mr Fogg in a file note dated 15 March 2009 (Annexure C to Exhibit U). Mr Polin submitted that the following passage of that file note, in combination with other evidence, confirmed that Mr Fogg knew by that time that his accident was due to the fault of Hutchison:

5. [97]

   Mr Polin submitted that the reference to "the sub contractor" was a reference to Hutchison, and that therefore Mr Fogg knew at that time that Mr Wells' advice was that "most of the responsibility/liability" for his accident lay with Hutchison.

6. [98]

   As further evidence of Mr Fogg's state of knowledge, Mr Polin relied on parts of Mr Wells' oral testimony at the hearing. He placed particular reliance on the following passages of cross examination (beginning at T291.5 and T292.5 respectively):

7. [99]

   In Mr Polin's submission, these passages buttress the evidence contained in the file note by establishing the following:

8. [100]

   The proper approach to the statutory inquiry mandated by s.50D(1)(b) is set out above at [81]-[85]. The question whether Mr Fogg knew, prior to 23 August 2009, that his injury was caused by the fault of Hutchison will depend on whether he knew by then of the key factors necessary to give rise to a legal liability on the part of Hutchison.

9. [101]

   Mr Fogg's claim against Hutchison is framed in terms of a failure to take reasonable care to avoid a foreseeable risk of injury to him. In broad terms, that duty is said to arise by virtue of Kane having subcontracted the supply and installation of plasterboard at the site to Hutchison, and Hutchison's capacity and obligation to exercise control over that aspect of the construction operation. The breach of that duty is said to arise out of the manner in which Mr Fogg was directed to unload the plasterboard by Mr Brownlee.

10. [102]

    Therefore, the key factors necessary to give rise to liability on the part of Hutchison of which Mr Fogg had to know for his cause of action to be discoverable include:

11. [103]

    At the time of his accident, Mr Fogg knew that he was making a delivery to an entity named Hutchison. Upon arriving at the Kiama Showground site, Mr Fogg maintains (and I accept) that Mr Cady spoke with a person who directed them where to unload the first part of the villaboard delivery. It was this same person, according to Mr Fogg, who later directed him and Mr Cady where to park the truck and where to unload the remainder of the villaboard; during such unloading, Mr Fogg's injury occurred. It was Mr Fogg's clear and consistent evidence that, at that time and afterwards, Mr Fogg did not know who the man was or what company he worked for. The fact that Mr Fogg knew that the delivery was being made to Hutchison cannot, without more, support a finding that Mr Fogg knew that Hutchison was at fault for his injury.

12. [104]

    It was the evidence of Mr Wells that it was not until 2012 that he, and by extension Mr Fogg, came to know of Hutchison's potential liability. On 6 February 2012 and 26 June 2012, Mr Wells received correspondence from Kane's solicitors advising of Kane's contractual relationship with Hutchison. According to his affidavit evidence, prior to that Mr Wells believed that "[g]iven that Kane Constructions had been identified as the head contractor, I believed that they had a responsibility for the overall safety of the site by way of direction and co-ordination of activities”.

13. [105]

    For the following reasons, nothing in the evidence pointed to by Mr Polin on behalf of Hutchison can, when viewed in its proper context, dissuade me of the fact that it was not until the receipt of the 2012 correspondence that Mr Fogg came to know of Hutchison's fault (for the purposes of s.50D(1)(b)) in relation to his injury.

14. [106]

    First, in relation to the file note, I am not convinced that the reference to "the sub-contractor" was a reference to Hutchison. Rather, Mr Wells was stating the view that, having heard Mr Fogg's version of events, it was the party that had directed the unloading process that would bear the lion's share of the liability as between it and Mr Fogg's employer. The phrase "the sub-contractor" was being used to denote a party other than Plastamasta, but not any party in particular.

15. [107]

    Secondly, the following may be said in relation to propositions (a)-(d) at [99] above. The highest that Mr Wells' evidence in cross examination takes the matter, from Hutchison's perspective, is that Mr Fogg was aware at the time of his accident that Hutchison was a tradesperson or contractor on the site and that it was involved in the installation of plasterboard in the buildings at the site. It also establishes that Mr Fogg knew, prior to August 2009, that he had been directed where to unload the truck by the employee of a contractor at the site and that, in Mr Wells' view, that person's employer would incur a greater liability for the accident than Plastamasta. Nothing in Mr Wells' testimony contradicts Mr Fogg's evidence that he did not know the identity of the person who had directed him or the identity of that person's employer. Absent such knowledge, and knowledge of the practical and contractual relations between Kane and Hutchison, Mr Fogg could not have known, prior to 23 August 2009, all of the factors necessary to give rise to a legal liability on the part of Hutchison. Accordingly, Mr Fogg's cause of action against Hutchison was not discoverable, on the basis of actual knowledge, within the range of dates that would see his claim time barred by the operation of s.50C(1)(a) of the Act.

16. [108]

    In the alternative, Hutchison submits that if Mr Fogg's action is not statute barred by virtue of him knowing each of the facts contained in s.50D(1) by 23 August 2009, then it is barred because he ought to have known them by that date. It is said that the fact that his injuries were caused by the fault of Hutchison would have been ascertained by him prior to August 2009, had he taken all reasonable steps before that time to ascertain that fact: s.50D(2).

17. [109]

    The difficulty faced by Hutchison in raising this argument is similar to that faced by the respondent in Baggs v University of Sydney Union [2013] NSWCA 451, namely that of identifying, in a case where a prospective Plaintiff has sought and received legal advice in part as to the identity of prospective defendants, what additional steps it is said ought reasonably have been taken: see the judgment of Meagher JA at [31]-[36].

18. [110]

    As outlined above, Mr Fogg sought legal advice from Mr Wells within three months of being injured, that is, in January 2009. He gave further instructions to Mr Wells on 14 March 2009. Mr Wells' evidence was that prior to the receipt of correspondence from Kane's solicitors in 2012, it was his view that Kane was likely to be the party liable for Mr Fogg's injuries as Kane was the head contractor, and he believed that Kane "had a responsibility for the overall safety of the site by way of direction and co-ordination of activities”. This (possibly mistaken) view was no doubt communicated to Mr Fogg.

19. [111]

    In these circumstances, it is not clear what Mr Fogg, acting reasonably, could have done to ascertain that Hutchison may have been the party at fault for his injuries. It is not suggested by Hutchison that Mr Fogg was aware, or had any basis for suspecting, that the advice he had received from his solicitor was not given carefully or that it was not correct. That being the position, from his perspective there is no reason as to why, acting reasonably, he should have, for example, sought a further opinion or made further investigations.

20. [112]

    It has therefore not been demonstrated that Mr Fogg's claim against Hutchison is time barred by the operation of s.50C(1)(a) of the Act. That being the case, I turn now to examine the relationships between the various Defendants and the question of which, if any, of the Defendants is liable for Mr Fogg's injuries.

The Relationship Between the Defendants

1. [113]

   As stated at [2], Kane had been engaged by the local council as the head contractor at the Kiama Showground site. Kane had in turn contracted with Hutchison, by a “Sub Contract Agreement” dated 7 July 2008, for, inter alia, the supply and installation of all plasterboard at the site.

2. [114]

   That contractual arrangement, in addition to providing for the supply and installation of plasterboard, further stipulated that Hutchison would have responsibility in relation to "all project and safety requirements", "all coordination with other trades", "all lifting and hoisting" and "all access requirements (except external perimeter scaffold to be supplied by Kane)".

3. [115]

   Evidence of the day-to-day workings of this contractual arrangement was provided by Mr Brownlee. His evidence was that the responsibilities listed in the last paragraph were understood by him to be within the scope of Hutchison's obligations at the site (T553.38). He gave evidence that his responsibilities as Hutchison's site foreman comprised the ordering of materials from suppliers, including Plastamasta, the direction as to where those materials were to be delivered and the overseeing of the subsequent use of those deliveries by Hutchison employees in relation to their contractual obligations with Kane.

4. [116]

   It was also Mr Brownlee's evidence that it was his obligation, in relation to the work being carried out by Hutchison, to ensure that a site safety plan prepared by Kane was followed (T556.49-557.02). In particular, Mr Brownlee agreed with the proposition, put to him by Mr Cheney SC, counsel for Kane, that it was his responsibility to "assess whether any particular unloading activity carried any unacceptable risks" and, if in his view it did, he was to redesign the lifting activity (T563.38-42). He further testified that he had the authority to prevent Hutchison suppliers from doing anything that he regarded as unsafe, and that he would have done so in Mr Fogg's case had he perceived any such need (T567.32-40).

5. [117]

   Finally, Mr Brownlee gave evidence that no representative from Kane had overseen the unloading operation on the day of Mr Fogg's accident and that Kane's supervision of the unloading of materials generally was neither necessary nor sought. Mr Brownlee explained pithily why this was a matter for Hutchison (himself) and not Kane (Mr Swane) (T568.3-5):

6. [118]

   The contractual relationship between Hutchison and Plastamasta was a straightforward and fairly informal one. Hutchison would order plasterboard and villaboard items from Plastamasta and Plastamasta's employees would deliver and unload them. Such as it was, the evidence of how this relationship worked came from Mr Farrugia and Mr Brownlee.

7. [119]

   Mr Farrugia stated that it would be for Hutchison's foreman to direct Plastamasta's delivery drivers where it was that goods should be unloaded (T263.42-45). He gave evidence that he was in daily contact with Mr Brownlee and that Mr Brownlee would nominate where he wanted items delivered (T274.13-35).

8. [120]

   Mr Farrugia also gave evidence that it would be for the particular delivery driver, by reference to training provided by Plastamasta and appropriate qualifications and experience, to undertake an assessment of whether any particular lifting or unloading exercise involved an unacceptable risk of injury. If it did, it was then for the driver to contact an appropriate person at the site to have the risk removed. If that could not be done, the driver was to fill in a form and bring the load back to the Plastamasta depot (T227.19-228.10).

9. [121]

   Mr Brownlee's evidence was that he would inform Plastamasta's delivery drivers where the items needed to be unloaded. According to his evidence, he would not generally instruct as to the precise manner and location of unloading (T568.42-46). However, Mr Brownlee made clear his preparedness to direct suppliers who were on site (T567.32-40):

Liability of the Defendants

1. [122]

   Having accepted the Plaintiff's version of the events surrounding his accident (see [73] above), the question then becomes which, if any, of the three Defendants is liable for his injuries.

2. [123]

   The issue of liability on the part of Kane falls to be determined according to ordinary principles of negligence. While the Civil Liability Act 2002 governs questions of breach of duty and causation, the question of the identification of the duty of care owed by Kane is to be determined according to common law principles: Mamo v Surace [2014] NSWCA 58; 86 NSWLR 275 at 283 [48] per McColl JA (Ward JA and Tobias AJA agreeing).

3. [124]

   Kane was the head contractor at the Kiama Showground site. The general duty owed by a head contractor at a building site to those (other than its own employees) engaged in work on the site, is neatly encapsulated in the statement of Brennan J (as his Honour then was) in Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; 160 CLR 16 at 47-48 (citations omitted):

4. [125]

   Further condensed, the duty can be expressed as one to take reasonable care, in relation to individuals working at the site, to avoid or minimise foreseeable risks of injury that are incidents of the activities being undertaken on the site. The duty owed to employees (and, indeed, suppliers) of independent contractors is less stringent than that of an employer to an employee in that it is not a duty to ensure that reasonable care is taken; the duty is not one of a non-delegable nature.

5. [126]

   That being so, discrete aspects of the construction work may validly be devolved to independent contractors. Provided that the head contractor is (a) not negligent in its choice of subcontractor and (b) not subsequently presented with a reasonable basis for knowing or suspecting that a subcontractor is not competent to control its own processes, any failure by that subcontractor to adhere to a safe system of work will not found liability on the part of the head contractor. To those two preconditions for successful delegation should be added the observations of the Court (Allsop P, Beazley and Giles JJA) in Pacific Steel Constructions Pty Limited v Barahona [2009] NSWCA 406 at [122] to the effect that a principal contractor that has engaged the services of an independent contractor may nevertheless owe a duty to an employee (and, by extension, a supplier) of the independent contractor, to exercise reasonable care in the supervision of that employee's work where there has been an assumption of responsibility for that supervision by the principal contractor.

6. [127]

   The duty to engage competent contractors is not, of course, an exhaustive demarcation of the scope of a head contractor's duty of care. As Brennan J makes clear (see [124] above), the circumstances prevailing on a given site may be such as to impose a residual duty in relation to the supervision or co-ordination of activities on that site. The nature of the site, the type of work being carried out, or a combination of those factors may render it necessary for the head contractor "to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of the independent contractor if confusion about those areas involves a risk of injury". The inquiry as to whether such a duty arises in a given case will depend largely on matters of fact, and is governed at all times by overarching considerations of reasonableness.

7. [128]

   In his written and oral submissions, Mr Marshall SC, counsel for the Plaintiff, puts forward a number of bases upon which it is said Kane has breached its obligations as head contractor at the site. In the main, the Plaintiff's allegations against Kane relate to breaches of what I have termed a “residual” duty of care it was said was owed; that is, a failure of supervision or co-ordination.

8. [129]

   Mr Fogg, rightly in my view, does not seek to impugn the process of Kane's engagement of Hutchison as its plastering subcontractor, nor is it suggested that there is evidence that Kane knew, or ought to have known, that Hutchison was not competent to control its own processes in relation to its fulfilment of the plastering subcontract.

9. [130]

   Mr Marshall SC does argue, though, that liability may be sheeted home to Kane on the further basis that it assumed control of its subcontractor's system of work, as distinct from merely having general control of the premises, and as such owed the Plaintiff a duty of care akin to the non-delegable duty owed by an employer to an employee.

10. [131]

    I have concluded that both of the bases upon which the Plaintiff contends that Kane was negligent fall at the first hurdle. Kane did not owe the Plaintiff a duty of care of either of the types contended for.

11. [132]

    In relation to the existence of a residual duty of care, the Plaintiff contended that Kane owed the Plaintiff a duty to regulate the flow of vehicles onto the site. The presence of the glazier's vehicle in front of the loading dock at the time of the Plaintiff's accident was said to be a breach of this duty that was causative of his injuries. In my view, the nature of the site and the work being conducted was not such as to call for the retention of such a supervisory function on Kane's part. This was a relatively small and unsophisticated site and Kane's contract with Hutchison stipulated that any co-ordination with other trades was Hutchison's responsibility. Mr Brownlee knew this. Kane explicitly defined its contractors' respective areas of responsibility and, in the circumstances, did not have an obligation to do more.

12. [133]

    I also reject the Plaintiff's suggestion that Kane owed him a non-delegable duty of care on the basis that it had assumed control of its subcontractor's system of work. The limited evidence on this issue comes entirely from Mr Brownlee, who strongly disagreed with the proposition that any representative from Kane had any involvement, by way of oversight or otherwise, in the unloading of materials on 13 October 2008 or at any other time (see [117] above).

13. [134]

    In assessing the liability of Hutchison, there can be little doubt that Hutchison owed Mr Fogg a duty of care. The duty it owed is, in my view, similar to that found by the High Court to be owed by the respondent to the appellant in Thompson v Woolworths (Q’land) Pty Limited [2005] HCA 19; 221 CLR 234. In that case, Mrs Thompson was injured while moving large industrial bins that were blocking access to a loading dock designated by Woolworths for use in the delivery of bread.

14. [135]

    At 244 [26]-[27], the Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) made the following observations which, despite some factual differences from the present case, are apposite:

15. [136]

    In this case, Mr Fogg’s duties involved the delivery of goods on behalf of Plastamasta, for the use of Hutchison. Hutchison had a large degree of control over the timing, location and method by which those deliveries were made. Although Mr Fogg and his offsider (like Mrs Thompson) retained some independent discretion as to how precisely the goods were unloaded from the truck, that discretion was hemmed in, in important respects, by the instructions received from Hutchison’s site foreman, in particular as to where deliveries were to be made. The degree of control exercised by Hutchison over the delivery process carried with it an obligation to take reasonable care to prevent foreseeable risks of injury to those engaged in that process. Put another way, Hutchison’s duty was to take reasonable care to ensure that deliveries were made at a location on the site and in a manner that did not carry an unreasonable risk of injury.

16. [137]

    By s.5B(1) Civil Liability Act 2002, a breach of duty will have occurred where a defendant has failed to take a step or steps that a reasonable person in the defendant’s position would have taken, in response to a risk of injury that was both foreseeable and not insignificant. The relevant risk in this case was the risk that the Plaintiff would suffer injury by virtue of losing his footing on the uneven surface on which he was directed to unload the heavy and unwieldy plasterboard products. In instructing the Plaintiff to back his vehicle over the recessed concrete step, Mr Brownlee was in my view directing, or at the very least knowingly permitting, exposure to that risk. Even in the unlikely event that Mr Brownlee was unaware of the risk posed by the combination of the uneven surface and the carrying of the plasterboard, it was a risk of which he ought to have been aware; the risk of injury was both plainly foreseeable and not insignificant.

17. [138]

    Furthermore, it was a risk that could have been easily obviated. Having accepted Mr Fogg’s evidence as to the existence of the makeshift loading dock and of the presence of the glazier’s truck on the day in question, it seems to me there were two courses of action open to Mr Brownlee that a reasonable person in his position would have taken. If it be the case that Mr Brownlee directed the Plaintiff and Mr Cady to unload where they did as a consequence of the presence of the glazier’s truck, the reasonable step he ought to have taken was to wait until the loading dock was available for use.

18. [139]

    If it be the case that Mr Brownlee directed the unloading where he did for the sake of convenience, unconnected with the presence of the glazier’s truck, then he ought not to have done so. The loading dock or some other less risky means of delivery ought to have been used, even if this meant that the plasterboard was delivered to a location less convenient for Hutchison’s purposes. While I do not propose to speculate as to what alternative means (other than the loading dock) might have been available to facilitate the unloading, in my view it cannot have been beyond the wit of those involved to have devised a safer method with relative simplicity and speed.

19. [140]

    Accordingly, Hutchison owed Mr Fogg a duty of care and was in breach of it. That breach was causative of Mr Fogg’s injuries and it is appropriate that the scope of its liability extend to the harm caused to him.

20. [141]

    As to Plastamasta’s liability, the fact of a duty of care is not in dispute. It is a long-established principle that an employer owes to an employee a non-delegable duty of care. An employer’s non-delegable duty is conventionally described as a duty not only to take reasonable care but also to ensure that reasonable care is taken in relation to, for example, the provision of safe premises or a safe system of work: Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 per Mason J (as his Honour then was) at 681.

21. [142]

    To my mind, two distinct issues arise for examination in determining whether Plastamasta has fulfilled its duty of care. The first is whether it took reasonable care in its training of and instructions to Mr Fogg regarding his employment duties, and took reasonable care to provide him with a safe system of work. The evidence in this respect is predominantly to be found in the testimony of Mr Farrugia.

22. [143]

    Mention should be made of the Plaintiff’s training and instructions relevant to the scenario which presented itself at the Kiama Showground site on 13 October 2008. Although the Plaintiff had only been working for Plastamasta for about six weeks at the time of the accident, he was an experienced worker. He had worked in a number of positions in the past, including employment as a supervisor/project officer supervising and co-ordinating other workers in the late 1990s and early 2000s. Mr Farrugia satisfied himself that the Plaintiff had both the formal qualifications and experience necessary for the job. The evidence of Mr Farrugia, which I accept, demonstrated that the Plaintiff:

23. [144]

    Accordingly, with respect to the first issue, the evidence of Mr Farrugia (T224-239) demonstrates that Plastamasta:

24. [145]

    The second issue is whether Plastamasta could properly be said to have delegated any of its functions to Mr Brownlee and that Mr Brownlee’s negligence thereby constituted breach of Plastamasta’s non-delegable duty. I do not consider this to be the case. Part of the delivery process invariably involved interaction with tradesmen at various sites. While the place where deliveries were to go was a matter for those tradesmen, Plastamasta prescribed the minimum safety standards required in the unloading process. In directing the unloading where he did, Mr Brownlee was not performing any function of supervision or instruction that was the province of Plastamasta. He was giving directions in his capacity as site foreman. While Mr Fogg obviously deferred to Mr Brownlee’s directions to some extent, Mr Fogg was not under his supervision or control.

25. [146]

    Finally, in answer to Mr Fogg’s suggestion that there ought to have been a site-specific induction by Plastamasta, a number of things may be said. First, failure to provide a specific induction does not give rise to a breach of duty - it would not be reasonable to require attendance at an individual site unless there was something peculiar about it. This was a conventional building site which does not appear to have posed any unusual risk of injury requiring special instruction. Secondly, causation would not be demonstrated in any event. Had such site-specific induction occurred, Plastamasta (presumably through Mr Farrugia) would have seen a perfectly safe and satisfactory loading dock in place, which (on Mr Fogg’s evidence) he had used on his two previous visits to the site. What purpose would a site-specific induction have served that might have prevented the injuries that occurred?

26. [147]

    The Plaintiff has not established liability against Plastamasta.

27. [148]

    The Plaintiff has succeeded in establishing liability against Hutchison, but not as against Kane or Plastamasta.

Contributory Negligence and Apportionment

1. [149]

   I have determined that the Plaintiff should succeed in his claim against Hutchison, but not against Kane or Plastamasta. As the Plaintiff has succeeded against a single Defendant only, the issue of apportionment as between the Defendants does not arise.

2. [150]

   Hutchison pleaded contributory negligence against the Plaintiff. The principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorally negligent in failing to take precautions against the risk of that harm: s.5R(1) Civil Liability Act 2002. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and the matter is to be determined on the basis of what that person knew or ought to have known at the time: s.5R(2).

3. [151]

   In approaching the issue of contributory negligence, I have regard to my findings of fact based upon an acceptance of the Plaintiff’s account of his fall (see [27]-[37], [73] above).

4. [152]

   The Plaintiff’s previous experience when delivering to this site had involved use of the loading dock, which was occupied on this occasion by the glazier’s vehicle. Compliance with the Plaintiff’s own training and instruction ought to have seen a delay in the delivery until the glazier’s truck had left so that the loading dock could be used or, if Mr Brownlee would not agree with that approach, a departure of the Plastamasta vehicle with the Plaintiff and Mr Cady on board with delivery to take place at a later time.

5. [153]

   Rather than taking this course, the Plaintiff, despite his misgivings, acceded to Mr Brownlee’s proposal to carry out the unloading at a different place at the site, with that location having an uneven surface which rendered it less safe for the delivery of heavy boards of the type which were to be unloaded.

6. [154]

   In these circumstances, I am satisfied that the Plaintiff failed to take reasonable care for his own safety, so that a finding of contributory negligence on his part ought be made.

7. [155]

   It is necessary to consider an appropriate apportionment as between Hutchison and the Plaintiff in light of this finding. For reasons expressed in this judgment, I am satisfied that the primary and substantial responsibility for the Plaintiff’s fall, and the injuries resulting from the fall, lies with Hutchison. It was Hutchison, through Mr Brownlee, which exercised control over the site with Mr Brownlee directing the Plastamasta truck to a point which was not the usual delivery point and which was accompanied by additional risks for the delivery of heavy items of the type to be unloaded.

8. [156]

   I am satisfied that the appropriate apportionment in the circumstances of the case, is 85% to Hutchison and 15% to the Plaintiff, arising from the finding of contributory negligence.

Kane’s Indemnity Claim Against Hutchison

1. [157]

   In the event that Kane was found liable, a submission was made that Hutchison should indemnify Kane arising from the contractual arrangement between those two entities.

2. [158]

   In circumstances where the Plaintiff’s claim against Kane has not succeeded, it is not necessary to determine Kane’s claim for indemnity against Hutchison.

The Plaintiff’s Claim for Damages

1. [159]

   A schedule of damages was provided for the Plaintiff. Kane furnished a schedule of damages which was adopted by Hutchison and Plastamasta. Submissions on damages were made by Mr Cheney SC with the submissions being adopted by counsel for Hutchison and P Rickard, counsel for Plastamasta. As liability has been found against Hutchison only, I will refer to submissions on damages as Hutchison’s submissions, upon the basis that Kane’s submissions were adopted in their entirety on that topic.

2. [160]

   The Plaintiff’s claim for damages involves claims under the following headings:

3. [161]

   Reference will be made to relevant provisions of the Civil Liability Act 2002 with respect to several of these heads of claim.

4. [162]

   The schedules of damages provided to the Court contained a number of actuarial factors which I will utilise:

5. [163]

   The calculations arising from my findings will require revision in the light of the actual (and not presumed) judgment date. The parties will have an opportunity to determine these calculations after the judgments has been handed down.

Some Evidence Relevant to Damages

1. [164]

   The Plaintiff left school at the beginning of Year 9 when aged 15 years. He has some difficulty with reading and this difficulty has increased since the accident due to problems with concentration.

2. [165]

   The Plaintiff was in regular employment for most of his adult life. At the beginning of 2008, for family reasons, he relocated from Canberra to the Illawarra region. He stated that it was his intention to return to Canberra and to return to work as a stressing operator, having worked previously in that position with earnings of about $800.00 net per week.

3. [166]

   At the time of his injury, the Plaintiff was working 37 hours per week, earning on average $580.00 net per week.

4. [167]

   It was the Plaintiff’s evidence, which I accept, that prior to 13 October 2008, he was an active person with activities including instruction in martial arts and assisting with the coaching of a junior football team. He was reasonably active in domestic activities and in various forms of exercise.

5. [168]

   As at 13 October 2008, the Plaintiff weighed about 85 kgs. At the time of the hearing, he weighed about 130 kg.

6. [169]

   There was no real controversy with respect to the medical and other treatment sought by the Plaintiff following the incident on 13 October 2008. Relevant events may be summarised concisely. They represent my findings unless otherwise stated.

7. [170]

   Medical examination and treatment over subsequent years confirmed the left ankle and knee injuries suffered by the Plaintiff in the fall on 13 October 2008 and its sequelae.

8. [171]

   By the end of the working day on 13 October 2008, the Plaintiff’s ankle was badly swollen and discoloured when he was taken by friends to Shellharbour Hospital where x-rays were taken.

9. [172]

   The next day, Ms DeSouza drove the Plaintiff to work, where he attempted to perform light duties in the form of packing plaster bags. He did so for half a day before the level of pain caused him to go home.

10. [173]

    The Plaintiff attended his general practitioner, Dr Perera, on 16 October 2008 and on 10 November 2008 attended upon Dr Aziz Bhamani, orthopaedic specialist. He was referred for an MRI scan, following which Dr Bhamani recommended that the Plaintiff have an aircast boot. The Plaintiff was referred for physiotherapy and to see Dr Steven Ng, rehabilitation specialist, which he did on 23 December 2008.

11. [174]

    Dr Bhamani noted that the MRI demonstrated a meniscal tear and also a ligament injury and bone bruises to the ankle. The Plaintiff complained of pain with numbness and Dr Bhamani expressed concern that he may have early complex regional pain syndrome (“CRPS”). Further reference will be made to CRPS shortly.

12. [175]

    In February-March 2009, the Plaintiff attended upon Dr Haider, general practitioner, who prescribed strong pain-killing medication.

13. [176]

    In March 2009, the Plaintiff commenced treatment from Mr Ross Backen, psychologist, for what was said to be CRPS and depression.

14. [177]

    The question whether the Plaintiff suffers from CRPS (or a condition close to CRPS) as a result of his fall was addressed in a number of reports and in evidence. Dr Bhamani expressed that view, as did Dr Ng in 2009. Dr Guy Bashford, specialist physician in rehabilitation and pain medicine, expressed that opinion as well in August 2009. Dr Charles Brooker, Director of Chronic and Cancer Pain Program, Royal North Short Hospital, confirmed the Plaintiff’s attendance at the Pain Management Program, noting CRPS in his report.

15. [178]

    Dr Richard Crane, general surgeon, noted that the Plaintiff had some features of CRPS, but not sufficient to comply with this diagnosis under the requirements of the AMA5 Guides. Dr Drew Dixon, orthopaedic surgeon, noted that the Plaintiff demonstrated some features consistent with CRPS. Dr Leanne May, consultant physician and rheumatologist, opined that the Plaintiff had “complex and chronic pain persisting after injury in 2008”.

16. [179]

    In advance of concurrent evidence, a joint report was prepared by Drs Dixon, Crane, May and Schutz.

17. [180]

    In relation to the injury to the Plaintiff’s left ankle and left knee, whilst they were not able to agree precisely on the Plaintiff’s diagnosis, Drs Dixon, May and Crane all agreed that the subject accident caused or materially contributed to his pathology, with Dr Schutz alone not accepting causation.

18. [181]

    I accept the opinions expressed by Drs May, Dixon and Crane. I find that the Plaintiff sustained, as a result of the fall on 13 October 2008, a meniscal injury and possible cruciate ligament injury to the left knee, together with a soft-tissue injury to the left ankle.

19. [182]

    In March 2009, the Plaintiff was admitted to Wollongong Hospital with discolouration in his left leg giving rise to concerns about deep vein thrombosis (“DVT”). Subsequent investigations confirmed this diagnosis and the Plaintiff was treated accordingly. Drs Dixon, May, Crane and Schutz were in agreement that the Plaintiff’s DVT had been caused by the accident. They were also in agreement that the DVT had recovered, although there was a small future risk of recurrent DVT or other complications.

20. [183]

    The conclave considered the issue of CRPS and the Plaintiff. The experts agreed that the Plaintiff’s condition had many of the features of CRPS, although not meeting the strict AMA5 Guide criteria. However, the experts agreed that the Plaintiff was appropriately treated in a manner used in treating CRPS.

21. [184]

    I accept the Plaintiff’s submission that a finding should be made that the Plaintiff has suffered, and continues to suffer, from symptoms consistent with CRPS. The experts were agreed that the Plaintiff’s prognosis in relation to this condition was poor.

22. [185]

    The expert witnesses addressed the question of the Plaintiff’s back pain. Drs Crane, Dixon and May accepted that the Plaintiff’s altered gait could lead to symptoms of discomfort in the back. Dr Schutz considered that there was very little, if any, clinical evidence that walking with a gait disturbance significantly affected the back. Having considered the evidence, I am satisfied that a finding should be made that the Plaintiff suffers from soft-tissue injury to his back as a result of altered gait due to the injury to his left leg.

23. [186]

    Psychiatric evidence was adduced at the hearing in the form of reports of Dr John Pickering (for the Plaintiff) and Dr Leonard Lee (for the Defendants), together with a joint report of Drs Pickering and Lee following a psychiatric conclave. In light of the reports of the psychiatrists, the parties did not consider it necessary to call oral evidence on these issues.

24. [187]

    Based on the nature of the Plaintiff’s complaints over an extended period of time, together with the report of Dr Pickering, I accept that the Plaintiff has in the past suffered from episodes of prolonged depression, although that has reduced to intermittent depressive symptoms which are likely to continue.

25. [188]

    As a result of the fall, the Plaintiff walks with the aid of crutches and has difficulty getting up and down stairs. He has gained significant weight since the accident. He has lost sexual function.

26. [189]

    The Plaintiff requires the use of a motorised scooter for long-distance travel.

27. [190]

    It will be necessary to refer to other parts of the evidence touching upon the Plaintiff’s residual earning capacity and past and future domestic assistance/care. As will be seen, there is particular controversy surrounding these topics and these issues are best addressed under those headings.

Claim for Non-Economic Loss

1. [191]

   The Plaintiff was aged 37.92 years at the time of his accident on 13 October 2008. The Plaintiff submitted, and I accept, that he has a life expectancy of almost 48 years from the time of the accident, during which he will have suffered the effects of his injuries and disabilities.

2. [192]

   The Plaintiff submits that his injuries and disabilities, both physical and psychological, have had a significant impact on his daily life. The Plaintiff submits that 50% of a most extreme case is an appropriate figure for non-economic loss, resulting in a sum of $276,000.00 under this heading.

3. [193]

   Hutchison submits that the appropriate conclusion is one of 30% of a most extreme case, being a sum of $127,000.00.

4. [194]

   The assessment of damages for non-economic loss is to be undertaken by reference to s.16 Civil Liability Act 2002.

5. [195]

   I have outlined a number of features of the Plaintiff’s injuries and disabilities, both physical and psychological (at [164]-[189] above). I accept that they have had a notable impact on his daily life. His injuries have given rise to significant and ongoing pain, restricted mobility, loss of sexual function and significant interference with enjoyment of life. The Plaintiff has suffered, and will continue to suffer, substantial pain and suffering and loss of amenities of life: s.3 Civil Liability Act 2002.

6. [196]

   Having regard to the evidence, I am satisfied that the relevant calculation should be made upon the basis of 40% of a most extreme case, being the sum of $220,500.00.

7. [197]

   Accordingly, the sum of $220,500.00 will be allowed for non-economic loss.

Claim for Past Out-of-Pocket Expenses

1. [198]

   The parties have agreed upon the sum of $110,806.39 for past out-of-pocket expenses. Accordingly, that sum will be included in the calculation of damages.

Claim for Future Out-of-Pocket Expenses

1. [199]

   The Plaintiff submits that the sum of $229,419.05 should be allowed for future out-of-pocket expenses, calculated in the following way:

2. [200]

   Hutchison submits that the sum of $63,561.00 should be allowed for future out-of-pocket expenses, allowing for:

3. [201]

   The Plaintiff has provided separately for equipment needs in his schedule of damages, claiming the sum of $24,608.30. This is calculated by reference to an initial cost of $7,797.00 and the sum of $16,811.30, calculated in the same way as this figure is reached in Hutchison’s calculations (at [200](a) above). I will address the claim for $7,797.00 under the next heading.

4. [202]

   At the outset, I accept the agreed position of $16,811.30 by reference to equipment costs. That sum will be included under this heading.

5. [203]

   I will also allow the $10,000.00 claimed for orthotics and boots and the $15,000.00 claim with respect to potential knee procedures.

6. [204]

   The major controversy under this heading is the Plaintiff’s claim for ongoing medical expenses ($204,419.05) as against Hutchison’s calculation ($46,750.00).

7. [205]

   Having considered the competing approaches on this issue, I am satisfied that a greater allowance should be made than that proposed by Hutchison. At the same time, I do not think that the evidence supports an allowance of the proportion contended for by the Plaintiff.

8. [206]

   I am satisfied that an appropriate allowance for future medical expenses is the sum of $74,800.00, calculated upon the basis of 935 x $80.00.

9. [207]

   Adding the sums of $16,811.30, $10,000.00, $15,000.00 and $74,800.00, an allowance will be made in the sum of $116,611.30 for future out-of-pocket expenses.

Past Equipment Needs

1. [208]

   The Plaintiff claims the sum of $7,797.00 for past equipment needs. This figure comprises $897.00 as the initial cost of outstanding equipment not already obtained by the Plaintiff. A claim is made for $6,900.00 for equipment already obtained by him (scooter and lifter).

2. [209]

   I will allow the sum of $7,797.00 under this heading.

Claim for Past Economic Loss

1. [210]

   The Plaintiff claims the sum of $223,180.00 for past economic loss. The Plaintiff was earning $580.00 net per week at the time of his accident.

2. [211]

   The Plaintiff has not worked since his accident. The Plaintiff points to evidence of his ankle and knee injuries and disabilities and, in particular, symptoms close to CRPS as having a significant adverse effect on his capacity to work. In addition, reference is made to the medical conclave experts, who agreed that had the left knee pathology occurred in isolation, there may be some restriction in heavy labouring, but not for most activities.

3. [212]

   Given the Plaintiff’s limited education and the fact that almost his entire work history has been in physical or manual positions, it was submitted that his prospects of obtaining sedentary work are minimal and that, in practical terms, he is totally incapacitated for employment.

4. [213]

   The Plaintiff submits that, but for his injuries, he would have relocated back to Canberra working as a stressing operator earning about $800.00 net per week from 1 January 2009.

5. [214]

   Upon this basis, the Plaintiff submits that the appropriate approach to past economic loss is to calculate the loss at $580.00 per week for an 11-week period from the date of the accident until 31 December 2008 ($6,380.00) and thereafter at $800.00 per week (about 271 weeks) - $216,800.00, giving a total of $223,180.00.

6. [215]

   Hutchison submitted that the appropriate figure to utilise for this purpose is $580.00 net per week, the Plaintiff’s earnings at the time of the accident. If this figure was used, Hutchison submits that a finding of total incapacity for work would translate into the sum of $163,560.00 for past economic loss (282 weeks x $580.00 net per week).

7. [216]

   However, it is submitted further that the Plaintiff has some residual, albeit untested, earning capacity including as a professional driver. Reference is made to the Plaintiff’s evidence that he is able to drive his 4WD vehicle without any difficulty (T60.30). The concurrent evidence of the medical experts canvassed the Plaintiff’s residual earning capacity that may involve professional driving with no physical lifting for the driver (T673ff).

8. [217]

   Upon this basis, Hutchison submits that a reasonable assessment for past economic loss is the sum of $100,000.00.

9. [218]

   The evidence establishes that the Plaintiff has a solid work history. He has worked in a variety of jobs involving physical exertion. This has included work as a foreman at construction sites in the late 1990s and as a supervisor/project officer supervising and co-ordinating other workers in the late 1990s and early 2000s. He worked in Canberra as a construction worker in about 2005-2007. He met Ms DeSouza in October 2005. He moved back to the South Coast for family reasons and was unemployed for a period. The Plaintiff’s taxable income for the year ending 30 June 2008 was $897.00 (Exhibit 23).

10. [219]

    The Plaintiff found work with Plastamasta with the assistance of Mission Australia in mid-2008.

11. [220]

    The evidence reveals that the Plaintiff has not been in employment since the accident. The Plaintiff submits that he has had no residual earning capacity. Hutchison submits that there is evidence of some residual earning capacity that the Plaintiff could have exploited with reasonable determination.

12. [221]

    The Plaintiff’s own evidence reveals a capacity to drive (and to get into and out of) a 4WD vehicle. He stated that he purchased the 4WD vehicle in about March 2011 to accommodate the mobility scooter which he had purchased at that time.

13. [222]

    The capacity of the Plaintiff to undertake driving work or sedentary work was explored with the medical conclave witnesses (T673-675). It is fair to say that the difficulties which may confront the Plaintiff would arise from regular movement in and out of a vehicle and associated tasks which may involve use of his leg.

14. [223]

    As Mr Marshall SC emphasised, the Defendants had adduced no evidence of potential employment to support a claim of residual earning capacity.

15. [224]

    Notwithstanding the Plaintiff’s theoretical ability to perform certain jobs, there must be a practical assessment of the likelihood of the Plaintiff in fact obtaining such jobs: Nominal Defendant v Livaja [2011] NSWCA 121 at [65]; Mead v Kerney [2012] NSWCA 215 at [24]. The Defendants (including Hutchison) bear an evidentiary onus concerning the issue whether the Plaintiff has a residual earning capacity that he is practically capable of exercising: Mead v Kerney at [25].

16. [225]

    Having regard to the evidence, I do not think that the Plaintiff has a past residual earning capacity that he was practically capable of exercising. The evidence does not rise above a theoretical ability to perform certain work.

17. [226]

    However, I am not satisfied that this component should be calculated upon the basis asserted by the Plaintiff. The prospect of a change of employment to that of a pressing operator at $800.00 net per week is entirely speculative. The appropriate foundation for this calculation is the sum of $580.00 net per week for the period of 282 weeks (up to 31 March 2014).

18. [227]

    I will allow the sum of $163,560.00 for past economic loss.

Submissions

1. [228]

   The Plaintiff submits that an appropriate figure for future economic loss is $496,128.00, based upon a future loss of $800.00 per week for the balance of the Plaintiff’s working life until the age of 67 years, using the 5% multiplier, less 15% for vicissitudes.

2. [229]

   In advancing this submission, the Plaintiff repeats the submissions made with respect to past economic loss, inviting a conclusion that for all intents and purposes, the Plaintiff is essentially unemployable and will remain that way for the balance of his working life.

3. [230]

   Hutchison submits that the sum of $175,000.00 should be allowed for future economic loss. In support of this figure, it was submitted that the Plaintiff had an inconsistent pre-accident earning history. It was submitted further that, for the purpose of s.13(1) Civil Liability Act 2002, the assessment most favourable to the Plaintiff would take his Plastamasta earnings of $580.00 net per week at the date of the accident as a guide.

4. [231]

   Hutchison submitted that the Plaintiff retains a residual capacity to work in a sedentary role in the future, referring to the concurrent evidence of the medical experts concerning the Plaintiff’s capacity to work as a driver (T673-674).

5. [232]

   Assuming a modest residual earning capacity of $300.00 per week from net earnings of $580.00 per week, Hutchison submits that his loss will be $280.00 net per week into the future. Upon this basis, his future economic loss would be $173,645.00 ($280.00 x 729.6 x 85%).

Decision

1. [233]

   Section 13 Civil Liability Act 2002 governs the claim for future economic loss. The section provides:

2. [234]

   It is for the Plaintiff to satisfy the Court that the assumptions about future earning capacity, or other events upon which an award for future economic loss is to be based, accord with his most likely future circumstances, but for the injury: s.13(1). The Court is then required to carry out an adjustment in accordance with s.13(2) and to state the assumptions and relevant percentage for the purpose of s.13(3).

3. [235]

   The process to be undertaken was described in the following way by Tobias AJA (Meagher JA agreeing) in Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370 at [118]-[119]:

4. [236]

   The Court should proceed upon the following assumptions:

5. [237]

   Adopting this approach, I will allow the sum of $297,676.80 ($480.00 x 729.6 x 85%).

Superannuation

1. [238]

   The Plaintiff submitted that the sum of $24,549.80 should be allowed for past loss of superannuation, calculated at 11% of the net past loss (which the Plaintiff claimed as $223,180.00).

2. [239]

   The Plaintiff claimed the sum of $71,293.59 for future loss of superannuation, calculated at the rate of 14.37% of future loss (which the Plaintiff claimed to be $496,128.00).

3. [240]

   Hutchison submitted that an allowance in the sum of $30,250.00 should be made for superannuation relating to past and future economic loss calculated at the rate of 11% (of the total sum of $275,000.00 submitted by Hutchison as being appropriate for past and future economic loss).

4. [241]

   I have had regard to s.15C Civil Liability Act 2002. I am satisfied that the relevant calculation should be made using the figure of 11%: Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 at 734-736 [52]-[58].

5. [242]

   Applying this percentage to the sums which I have determined to allow for past economic loss and future economic loss, I propose to allow the sum of $50,736.00 for past and future loss of superannuation.

Past and Future Domestic Assistance and Care

1. [243]

   The Plaintiff claims the sum of $196,131.40 for past care for the period 13 October 2008 to 31 March 2014. This figure is calculated in the following way:

2. [244]

   The Plaintiff submits that this figure is appropriate upon the basis that the opinion of Ms Wall ought be accepted over that of Ms Beaver. The calculations are based upon a complete acceptance of Ms Wall on issues concerning transfers, self-care, meal preparation, cleaning, transport, car and vehicle care and home maintenance.

3. [245]

   With respect to future domestic assistance or care, the Plaintiff claims the sum of $55,165.00, calculated at $59.00 per week for commercial care over 935 weeks. The Plaintiff relies upon the joint expert report of Ms Wall and Ms Beaver, in which they agreed that the Plaintiff required 2.25 hours per week care into the future, with the commercial cost of such care being calculated at $59.00 per week. The Plaintiff noted that neither expert suggested that such care ought to be provided gratuitously. The Plaintiff submitted that the award for future assistance or care should be calculated upon the basis indicated by the occupational therapy experts.

4. [246]

   Hutchison submits that no figure ought be allowed for past domestic assistance and care. It was submitted that, having regard to Ms Beaver’s assessment, and the confused state of the evidence of the Plaintiff and Ms DeSouza as to what attendances were performed, the Court could not find that the Plaintiff meets the statutory threshold to be entitled to voluntary care pursuant to s.15 Civil Liability Act 2002.

5. [247]

   Hutchison submits that the Plaintiff’s claim for past gratuitous care is based on the evidence of Ms Wall and that she was a very unimpressive witness. It was submitted that the Court should not accept the evidence of Ms Wall, which was critical to a finding that the Plaintiff exceeds the six hours per week for six months’ threshold in s.15(3) of the Act.

6. [248]

   Hutchison noted that the occupational therapists had agreed upon an allowance of 2.25 hours per week for future domestic assistance and care. However, it was submitted that having regard to the evidence of Ms DeSouza (T355), the Court could not be satisfied that the Plaintiff would avail himself of commercial assistance. Having regard to the principles stated in Miller v Galderisi [2009] NSWCA 353, it was submitted that no damages should be awarded under this head.

7. [249]

   This aspect of the Plaintiff’s claim is attended by a number of difficulties. I did not find the evidence of Ms DeSouza impressive or persuasive in areas concerning care for the Plaintiff. I have mentioned earlier (at [59]) that Ms DeSouza’s evidence must be approached with an additional measure of care. Her evidence concerning past care, and the hours involved, fluctuated. I am not prepared to act on her evidence in this respect.

8. [250]

   The evidence of the Plaintiff himself on these topics was somewhat confused.

9. [251]

   I accept, in general terms, the Plaintiff’s evidence that he requires assistance from Ms DeSouza in a range of personal and domestic activities. The difficulty lies in quantifying this care so as to meet the statutory threshold.

10. [252]

    Having considered the evidence of Ms Wall and Ms Beaver, I am not satisfied that the calculations advanced by Ms Wall (which formed the past care claim) should be utilised. The evidence of Ms Beaver, and her analysis in the joint report of July 2013 (Exhibit Y, pages 192-202) provides a persuasive basis upon which to approach the past care claim.

11. [253]

    I accept Ms Beaver’s conclusions with respect to transfers, self-care, meal preparation, cleaning and laundry, transport, vehicle maintenance, shopping and home maintenance.

12. [254]

    Section 15(3) provides for a statutory threshold which the Plaintiff must satisfy that the services in question were provided for at least six hours per week and for a period of at least six consecutive months.

13. [255]

    Consideration of the evidence persuades me that the Plaintiff has satisfied the statutory threshold. However, I am not satisfied that the sums claimed by the Plaintiff should be allowed. Apart from anything else, I note the stark contrast between Ms Wall’s substantial calculations for past care and her agreement with Ms Beaver that future care should be calculated at 2.25 hours per week. Ms Wall was not impressive in her attempt to explain this difference (T711.1-712.40):

14. [256]

    By reference (in particular) to the evidence of the Plaintiff and Ms Beaver, I will allow the sum of $68,224.00 for past care, calculated as follows:

15. [257]

    Ms DeSouza agreed under cross examination that commercial care would not be sought for the relatively short periods involved each day to assist with dressing the Plaintiff, helping him around the home or in food preparation not otherwise carried out by the Plaintiff or Ms DeSouza (T355). I bear in mind, as well, the fact that Ms DeSouza has her own physical disabilities which may bear upon the use of commercial services in the future. I take into account, as well, the fact that the Plaintiff and Ms DeSouza have lived in recent years a type of semi-itinerant existence residing in caravans and caravan parks. That lifestyle may operate against the practical prospect of commercial care being actually sought in the future.

16. [258]

    It is for the Plaintiff to establish the claim for future assistance or care to be provided on a commercial basis: Miller v Galderisi at [16]ff. The small number of hours involved (2.25 hours per week), and the fragmented basis upon which care would be sought, operates against a finding that commercial assistance will be engaged for this purpose. This was the practical effect of Ms DeSouza’s evidence (T355).

17. [259]

    In these circumstances, I am not satisfied that an allowance should be made for future domestic assistance and care.

Fox v Wood

1. [260]

   The Plaintiff submitted that an allowance for the Fox v Wood component should be made in the sum of $14,689.19.

2. [261]

   Hutchison submitted that $12,992.60 was appropriate.

3. [262]

   I will allow for a Fox v Wood component with this figure to be included as part of the short minutes of order to be brought in after judgment.

Summary of Findings and Conclusion

1. [263]

   In summary, I have made the following findings:

2. [264]

   Upon publishing my reasons, I will stand the proceedings over so that short minutes may be prepared to give effect to the findings made in this judgment. If the parties cannot agree upon orders as to costs, I will receive submissions on the question of appropriate costs orders.