Sivonen v Smith

1. [1]

   This judgment concerns a personal injury suffered by the plaintiff as a result of an accident when he was hit by a large log attached to the claw of an excavator.

2. [2]

   The plaintiff is Kari Mikael Sivonen ('Mr Sivonen'). The first defendant is Peter Samuel Smith ('Mr Smith'). The second defendant is RJ & PS Smith Pty Ltd. The first defendant is the director and controlling mind of the second defendant. The plaintiff was represented by D Hooke SC and S Tzouganatos of counsel. The defendants were represented by D Higgs SC of counsel. The parties relied on a Court Book ('Ex A'). I shall refer to Mr Smith as the defendant, and this should be read to include the second defendant.

3. [3]

   On 2 March 2019, the accident occurred at a property at Hancocks Creek Road, Wandandian, New South Wales (‘the property’). The owner of the property was PWRK Group Pty Ltd, who contracted the second defendant, RJ and & PS Smith Pty Ltd, to carry out works to subdivide the property, including the clearing of trees.

The evidence

1. [4]

   Mr Sivonen, the plaintiff, made two evidentiary statements dated 27 October 2021 and 16 November 2022. He gave evidence and was cross-examined at length. Eric Sivonen (‘Eric’), the plaintiff’s son, made one evidentiary statement dated 26 November 2021. Eric was cross-examined.

2. [5]

   Mr Smith, the first defendant, made two evidentiary statements dated 31 May 2022 and 24 February 2023. Mr Smith was cross-examined at length. Eyvonne Stewart, Mr Smith’s partner, made one evidentiary statement dated 31 May 2022. She was cross-examined.

3. [6]

   Dr George Rechnitzer prepared an expert liability report dated 11 November 2020 for the plaintiff. He was not cross-examined.

4. [7]

   Kain Elsmore prepared an expert financial liability report dated 3 June 2021 on behalf of the plaintiff. He was not required for cross-examination. Andrew Clifford prepared an expert financial liability report dated 25 November 2021 for the defendants. Likewise, he was he was not required for cross-examination. Mr Elsmore and Mr Clifford prepared a joint report dated 13 January 2023

5. [8]

   The plaintiff relied upon the following medicolegal expert evidence reports. Report dated 9 February 2021 prepared by Dr James Bodel, orthopaedic surgeon; supplementary report dated 20 October 2022 prepared by Dr James Bodel; report dated 23 March 2021 prepared by Dr Julian Parmegiani, psychiatrist; report dated 24 February 2021 prepared by Dr Vaidya Bala, consultant physician in rehabilitation medicine; finally, a supplementary report dated 4 October 2022 prepared by Dr Vaidya Bala.

6. [9]

   The occupational therapist, Ms Joanne Heathcoate, prepared an expert occupational therapy report dated 17 May 2021 on behalf of the plaintiff. Ms Susan Dinley prepared an expert occupational therapy report dated 22 August 2021 on behalf of the defendants. They prepared a joint report dated 24 January 2023 and gave brief conclave evidence.

The pleading framework

1. [10]

   It is common ground that:

   1. (1)

      Mr Smith was an occupier of the property, and that Mr Smith is the director of the second defendant, also an occupier of the property. For convenience, as Mr Smith is the controlling mind of the second defendant, I shall refer to Mr Smith as the defendant.

   2. (2)

      The second defendant was contracted by the owners of the land, PWRK Group Pty Ltd, to carry out works in the course of subdividing the property, including the clearing of trees.

   3. (3)

      On 2 March 2019, the plaintiff attended the defendant’s property to pick up felled logs that the defendant had cleared from the property.

2. [11]

   On 10 September 2021, by way of an amended statement of claim, the plaintiff relevantly pleads:

3. [12]

   In the amended defence to the amended statement of claim filed on 7 October 2021, the defendant pleads:

4. [13]

   Contributory negligence is pleaded. I shall refer to this topic later in this judgment in more detail.

5. [14]

   These proceedings are governed by the Civil Liability Act 2002 (NSW) (“the CLA”). First, I shall summarise the plaintiff’s background and evidence of the parties and witnesses so as to make findings in relation to the accident. I will then consider obvious risk, ss 5B, 5C and 5D of the CLA and the contributory negligence, medical evidence and finally damages.

Background

1. [15]

   The plaintiff attended Richland Highschool until Year 10. Although he was not a very good student, he was always good with his hands. He left home at 16 and got a job on a farm.

2. [16]

   Upon leaving school in 1986, the plaintiff began working on a pig farm in Warwick, Queensland. The plaintiff was essentially a maintenance worker, performing all duties concerning the upkeep of the property, as well as assisting in preparing the food for the pigs and feeding them. The plaintiff had to leave this job in 1987 as the prices of lysine, (pig feed), went up and the plaintiff’s employer decided to cut costs by letting workers go. The plaintiff was the last person hired and the first to be let go. Some months later, the employer asked the plaintiff to work on his farm but by that time the plaintiff had started another job.

3. [17]

   In 1987, the plaintiff was working on a cotton farm in Goondiwindi. The plaintiff’s duties involved all general farming roles, including planting, irrigating, pumping water from the river into the dam and collecting cotton. The plaintiff worked 7 days a week, 12 hours a day.

4. [18]

   In 1995, the plaintiff moved back to Nowra, New South Wales, where his parents had moved. The plaintiff’s partner had secured a job at Jervis Bay school.

5. [19]

   Upon moving to Nowra, the plaintiff started working as a truck driver for R.K. & P.S. Smith at South Nowra, New South Wales. He also did “welding” jobs. Shortly after the plaintiff started his job as a truck driver, he obtained his Class HC (Heaving Combination) Licence. The plaintiff operated heavy machinery including trucks, bobcats and excavators. The plaintiff also worked from time to time as a float driver moving machinery from site to site and loading and unloading machinery from the float at various sites. However, the plaintiff’s main job was to operate machinery. The plaintiff worked in this job for about 20 years.

6. [20]

   In 1997, the plaintiff got a job with Premier Pump Outs in Wandanian, New South Wales. The pay was better than that offered by R.J. & P.S. Smith. The plaintiff cleaned septic tanks while employed by Premier Pump Outs.

7. [21]

   On or around the date of 9 December 1997, the plaintiff was injured in a work-related accident whilst working for Premier Pump Outs. The plaintiff was driving a tanker truck which had no baffles (angled dividers with holes that keep liquid cargos from sloshing front to back) along Bendalong Road, Bendalong, New South Wales, when the tanker truck tipped over. The plaintiff suffered injury to his back and was scalped in the accident. The plaintiff also developed psychological symptoms. The plaintiff made a claim for compensation. He was unable to work for several years after the accident. The plaintiff had a financial manager to manage his financial affairs, a requirement that was subsequently lifted after he went overseas and married his wife, Anu, in 2002.

8. [22]

   By about 2003, the plaintiff’s physical and psychological symptoms had mostly resolved, and he was ready to re-enter the workforce.

9. [23]

   In 2003, the plaintiff worked for Bennett’s at South Nowra. The plaintiff’s duties involved assisting in making concrete septic tanks and installing them. The plaintiff worked at Bennett’s for approximately one year.

10. [24]

    On or around the 1 April 2004, the plaintiff obtained a ‘Safework NSW Health and Safety General Construction Induction’ ticket.

11. [25]

    In 2004, the plaintiff got a job working for Shoalhaven Underground in North Nowra, New South Wales. The plaintiff’s duties involved earthmoving, including operating machinery and driving a truck and bobcat. The plaintiff left this employment in 2005, as he acquired his own truck and decided to seek work as a contractor elsewhere.

12. [26]

    In 2005, the plaintiff started working as a truck driver, plant operator and earthmover with Smith’s Plant Hire. In this course of employment, the plaintiff’s obligations pertained to operating earthmoving machinery, mostly on construction sites.

13. [27]

    In 2007, the plaintiff’s wife was homesick, so he and his wife moved to Finland. The plaintiff got a job working for Uutela company for approximately 12 months and was offered full-time employment. However, the plaintiff and his wife had concluded that they were better off in Australia.

14. [28]

    When they returned to Australia in 2007, the plaintiff returned to work full-time as a plant operator with Smith’s Plant Hire.

15. [29]

    Before the plaintiff returned to work, around August 2008, the plaintiff was involved in a motor vehicle accident through no fault of his own. The plaintiff suffered an injury to his neck with associated pain in his upper limbs, as well as psychological injuries such as depression and anxiety. The plaintiff lodged a CTP Claim against CIC Allianz Insurance Ltd and received compensation.

16. [30]

    The plaintiff returned to work with Smith’s Plant Hire in 2009. The plaintiff worked as a Plant/Float Operator.

17. [31]

    The plaintiff left Smiths plant hire in 2011. A friend of the plaintiff had just started his own company, South Coast Asphalt, and invited the plaintiff to work with him. The plaintiff accepted the invitation and worked full time as a Float Driver, transporting machinery. In 2013, the company went into liquidation and the plaintiff was forced to seek other employment.

18. [32]

    After working at South Coast Asphalt, the plaintiff returned to work for Smith’s Plant Hire for a short period of time using his own truck. However, the plaintiff was not being compensated for all the work he was performing, and he decided to leave this employment once again.

19. [33]

    The plaintiff then went to Mackay, Queensland, where he performed sub-contracting work using his own truck. The plaintiff spent approximately one year in Queensland but returned home to the South Coast as he was missing his family.

20. [34]

    When the plaintiff came back, he returned to Smith’s Plant Hire as an employee. The plaintiff was told he would have a role as a contractor, but this did not eventuate, so he left the company once again.

21. [35]

    In about 2017, the plaintiff got a full-time job with Jade’s Plant Hire in St Georges Basin, New South Wales. The plaintiff continued working in the same type of roles, driving trucks, bobcats and excavators and performing machinery work. The plaintiff worked for a few more years at Jade’s Plant Hire until the job opportunities dwindled.

22. [36]

    In 2018, the plaintiff got work as a truck driver, and plant operator with Shoalhaven Recycling in Bomaderry, New South Wales. The plaintiff worked with this business until approximately the latter part of 2018.

23. [37]

    Then, in early 2019, the plaintiff commenced work as a plant operator on a sub-contract basis for Tym Lynch. The plaintiff maintained this position full time until he was injured in the accident which is the subject of these proceedings.

24. [38]

    The plaintiff’s prior injuries are as follows:

    1. (1)

       The 1997 truck accident (the first accident) left Mr Sivonen with ongoing back problems.

    2. (2)

       The 2008 accident (the second accident) mainly affected his neck.

    3. (3)

       Each accident caused psychological disabilities like the disabilities claimed in these proceedings (T 86.49-87.3, 141, 142.23-143.11, 146.27-147). Mr Sivonen had trouble recalling the details of the problems which had manifested after the second accident in 2008, although he did recall he had problems with his neck, which he largely overcame (T146.25). Consequently, Mr Sivonen was able to manage the physical restrictions caused by the previous accidents.

    4. (4)

       After the first accident, the plaintiff was told his spine had been stretched and he would not be able to walk (T142.28-36). As a result, he sensibly avoided manual labour. He found that it aggravated the problems in his lower back (T146.11-20). Likewise, after the second accident in 2008 he ‘understood’ that it was important for him to avoid heavy labouring and did not partake in any (T148.43-149.2).

    5. (5)

       After the 2008 accident he took medication for an extended period, though he was unable to recall the name of the medication, which was OxyContin (T147.24 - 148.36).

The day of the accident

1. [39]

   I have briefly set out the plaintiff’s version of events here.

2. [40]

   The plaintiff explained that he was contacted by Mr Smith “some months prior to the accident” who informed him that he was preparing a property for subdivision and asked him if he was interested in being financially involved (Ex A 63 [32]). The plaintiff elected to not be involved with the project, after conducting his own enquiries with the local council (Ex A 63 [33]).

3. [41]

   The plaintiff understood the defendant was to be clearing timber on his property for subdivision, and wanted to take some away for his son, Eric, to sell as firewood (Ex A 63-64 [34]).

4. [42]

   Eric planned to buy a car soon and the plaintiff wanted to teach his son the life lesson of working to achieve one’s goals (Ex A 63-63 [34]). The plaintiff recalled saying to the defendant: “Peter, let me know when you have started to clear the property, as Eric and I would like to collect any spare tree logs for firewood if that is ok to you” (Ex A 63-64 [34]). The defendant telephoned Mr Sivonen to confirm if he and Eric still wanted the felled tree logs located on the property, he invited them to come the following morning and collect some (Ex A 63-64 [35]). This evidence is corroborated by the plaintiff’s son, Eric Sivonen.

5. [43]

   On the morning of 2 March 2019, the plaintiff drove himself and Eric to the property in a flatbed truck. He initially missed the entrance leading to the area where the defendant had arranged for them to meet (Ex A 64 [35]). The plaintiff telephoned the defendant, seeking directions from him as to where exactly on the property the defendant was waiting for them (Ex A 64 [36]). The plaintiff was told by the defendant to return to the entrance and drive down a bush track to an area that Mr Sivonen, during his oral evidence, clarified as being a “big area” where the logs would be lying on the ground.

6. [44]

   In his statement, the plaintiff deposed: “We did so and eventually found the area with felled logs. When we pulled up and parked the truck, Mr Smith was there in his excavator”. The plaintiff then got out of his vehicle with his son. He spoke to the defendant regarding which felled logs the defendant wanted the plaintiff and his son Eric to take away (Ex A 64 [36]). The plaintiff explained: “We measured the logs, and they were about fourteen metres in length. We decided they had to be cut into seven metre lengths to adequately fit onto my truck. Eric started to walk back to our truck in order to obtain the tools to sharpen our chain saw” (Ex A 64 [36]). The plaintiff clarified this evidence to reflect that he was the only one who measured and marked the logs (T31.23-31). The plaintiff’s evidence is that he went back to the truck with Eric to get his axe and the tape to measure and mark the logs while Eric serviced the chainsaw (T105.3-23). Eric’s evidence was that he went back to the truck alone (T162.21-23). On this topic, I prefer Eric’s evidence, that is, the plaintiff did not go back to the truck as there was no need to do so. This is the only evidence given by the plaintiff where I do not accept his evidence.

7. [45]

   The plaintiff began using a tape measure to measure the logs, and an axe to mark the logs at 7 metre lengths (Ex A 64 [37]).

8. [46]

   In his oral evidence, the plaintiff made it clear that no-one else was measuring the logs but him (T23.23-31). He explained that he measured the logs at 7m and 14m and put “x” marks for his son then to cut them up (T23.37-38).

9. [47]

   A short time after he began measuring logs, the plaintiff noticed that the defendant had used an excavator claw to pick up one of the logs that had been marked. He observed that the excavator had been equipped with this claw which was attached to its boom to facilitate picking up logs (Ex A 64 [38]).

10. [48]

    At this time, the plaintiff says he was about 20 metres away from the defendant. He gave the following account “I raised both of my arms above my head, waved them as high as possible making an “X” towards him, whilst also yelling at him to stop” (Ex A 64 [38]). The plaintiff confirmed in oral evidence that while performing the “X” and yelling at the defendant to stop, he was concerned with making eye contact before stepping forward. Once that contact had been made, the plaintiff reported that the defendant stopped operating the excavator. The plaintiff deposed: “Mr Smith acknowledged my signal, looked straight at me and stopped operating the excavator, lowering the boom so that the claw with the log was resting on the ground” (Ex A 64-65 [39]). He says that he saw the defendant remove his hands from the controls, although, he allowed the engine to run at an idle (Ex A 64-65 [39]).

11. [49]

    After witnessing the defendant do this, the plaintiff explained:

12. [50]

    The evidence as to whether this conversation took place is ardently disputed by the defendant.

13. [51]

    Upon resolving their exchange, the plaintiff’s evidence provides that he began walking away from the excavator in the same direction from which he had come. This being past the front of the excavator in the direction the defendant was facing, and past the arm of the excavator (Ex A 65 [40]). He then stepped over the log that had been placed down in the process (T113.49-50; Ex A p 65-66 [45]-[51] and p 142 (Fig 2) and p 155-156 (Figs 11-13)). The plaintiff is adamant that he did not walk behind the excavator, but in the same direction that Mr Smith was facing (Ex A p 65 [40]).

14. [52]

    The plaintiff deposed:

15. [53]

    The plaintiff’s legs were knocked out from under him, throwing him up in the air (Ex A 65 [41]) and shattering his left lower leg.

16. [54]

    The plaintiff describes lying on the ground after the impact, unable to move (Ex A 65 [42]). The plaintiff recalled that the defendant jumped off the excavator stood over him and suggested strapping the injured leg with some sticks to help him up (Ex A 65 [42]). The plaintiff, responded to that suggestion negatively, telling the defendant that he could not stand up and would prefer to remain lying on the ground (Ex A 65 [42]).

17. [55]

    In cross examination, the plaintiff confirmed his consistent description of the manner and sequence of events including his initial conversation with the defendant and the process by which he secured the defendant’s attention and eye contract prior to the second conversation (T107.34-43, 109.6-16, 113.37-50, 116.22-27, 117.41-45, 118.1-38, 135.3-28). In cross-examination, he denied Mr Smith’s version of events (T130.6-10, 136.10-28).

18. [56]

    When the first ambulance arrived, it became apparent that the ambulance officers did not have the required medication to address the plaintiffs pain. The plaintiff described waiting “in agony” before a second ambulance arrived (Ex A 65 [44]).

19. [57]

    The plaintiff was transported by ambulance to Shoalhaven District Memorial Hospital where he underwent investigative scans and emergency surgery the same day (Ex A 66 [52]-[55]).

20. [58]

    During cross examination, the plaintiff was asked by counsel for the defendant:

21. [59]

    A photo showing the position where the log hit the plaintiff’s leg is reproduced below (Ex A 153).

22. [60]

    Eric made an evidentiary statement on 26 November 2021. He gave evidence and was cross-examined.

23. [61]

    Eric confirmed that he wanted to make some money so he could save for a car of his own and wanted to collect some felled timber to sell (Ex A p 81 [7]). Eric deposed: “On Saturday 2 March 2019, Dad and I drove to Peter’s property in Wandandian. We drove down in a flatbed style of truck; not a semi-trailer type but big enough to fit 7-metre-long logs” (Ex A 81 [8]).

24. [62]

    He and his father had driven past the entrance to the property, so he had to call the defendant who gave them directions as to where to park the truck and meet him (Ex A 81 [9]). Eric described the plaintiff and him pulling up, parking the truck, seeing Mr Smith on his excavator, and speaking with him about which logs they would be able to take (Ex A 81 [13]).

25. [63]

    After meeting the defendant, the plaintiff continued to chat with him (the defendant), and Eric proceeded back to the truck to sharpen his chainsaw and fill it with petrol (Ex A 81 [14]). He was wearing his protective gear, including a helmet, earmuffs, leather chaps and a face guard (Ex A 81 [14]).

26. [64]

    Eric could see clearly. His vision was not obstructed at this stage. He was approximately 20 metres away from his father (Ex A 82 [16]).

27. [65]

    Eric described not being able to hear anything at this point due to the earmuffs, but he saw the plaintiff “walking away from the excavator, further to the right and in the same general direction as Peter [the defendant] was facing while sitting on the excavator” (Ex A 82 [17]).

28. [66]

    Eric gave the following account: “Without warning while Dad was still walking away, the excavator moved forward, and I saw that a log which was already in the grabs of the excavator swung towards and hit Dad.” (Ex A 82 [18]). He recalled seeing his father being thrown up in the air (Ex A 82 [18]).

29. [67]

    At that time, Eric was no longer standing in a position where he could see what the log had ricocheted off, after the excavator had moved forward. He was an eyewitness of the log hitting the plaintiff and can account that it swung towards the plaintiff, moving quickly, knocking his father’s left leg out from under him (Ex A 82 [19]).

30. [68]

    Eric saw his father lying on the ground, he recounted that the defendant “initially tried to move the log, but was told not to by his wife, when she and her daughter arrived from where they were before” (Ex A 82 [20]). This evidence was not challenged. The defendant’s partner and her daughter were not present in the area when the accident happened (Ex A 82 [20]).

31. [69]

    Eric deposed that after being told not to move the log, the defendant left the excavator and ran over to the plaintiff. He does not recall what the defendant did with the log, but he thinks the defendant may have moved it to the side after he [Eric] had the chance to take photographs (Ex A 82 [21]). This evidence was also unchallenged. The defendants did not adduce any evidence from Ms Eyvonne Stewart, her daughter Roxanne, or Mrs Stubbs (shown holding the “green whistle” in the photographic evidence) to contradict Eric’s evidence regarding the fact that the log was not moved prior to the photographs being taken.

32. [70]

    Eric also recalled:

33. [71]

    Eric explained that after this exchange, “Peter continued to work in the excavator before moving and parking it a bit further up.” (Ex A 82 [25]).

34. [72]

    Eric estimated that it took about 30 minutes for the ambulance to arrive at the scene (Ex A 82 [26]). He said that the ambulance that arrived was not “properly equipped enough to deal with Dad’s injuries, so a further ambulance crew needed to be called in” (Ex A 82 [27]). They took an additional 10 to 20 minutes to arrive (Ex A 82 [27]).

35. [73]

    Eric gave oral evidence and was cross-examined. He did not depart from his description of events set out in the evidentiary statement. It is my view that he had the clearest recollection from all those who gave evidence. The only time he did not have a full view of the accident was when he could not see what the other end of the log had hit before it swung towards his father. Therefore, I have no hesitation in accepting his evidence. Eric made it clear that when his father was struck by the log, he was walking away from the excavator in the direction of him (T168.11-30, 172.1-45, 174.1-14). He confirmed that he took the photographs of his own volition and not at his father’s direction (T175.16-20). He gave evidence that after his father was hit, “the log got put down and then the excavator was tracked away” and that the log was in the same position as shown in the photograph he took (T186.45-50, 177.47-50, 178.1-3).

36. [74]

    The defendant made two evidentiary statements (the last one prepared a few days before this hearing). Both his statements were prepared several months after he had been in possession of the plaintiff’s evidence including the report, photographs and diagrams provided by the expert on liability, Dr Rechnitzer.

37. [75]

    The defendant’s version of events contained in his evidentiary statement dated 31 May 2022 is as follows:

38. [76]

    In the defendant’s second evidentiary statement, he refers to photographs (1), (2), (3) and (4) reproduced here. In order to better understand his evidence, I have reproduced his photographs here.

39. [80]

    In the defendant’s second evidentiary statement dated 24 February 2023, he deposed:

40. [81]

    When being cross-examined, the defendant agreed that he did not look behind him as he was moving the excavator (T223.20-24). He admitted that if he had turned around and looked out the back of the cabin before or as he was moving the excavator, he would have seen the plaintiff (T227.32-48). Furthermore, if he had been watching where he was going with this heavy machinery he would have seen the plaintiff (T227.48-T228.1-4). The defendant then said that he could have and would have stopped the excavator and “all of this unhappiness would have been avoided” (T228.1-10).

41. [82]

    The defendant gave several different versions of how the accident occurred.

42. [83]

    In his defence, the defendant asserted that he never got out of the excavator. He makes no mention of “slewing”. He described clearing one tree, glancing another and then hitting a final tree so hard that the log recoiled behind the excavator.

43. [84]

    However, in both his evidentiary statements and oral testimony, the defendant gave numerous and irreconcilable descriptions of how the accident occurred.

44. [85]

    Ms Stewart made an evidentiary statement dated 31 May 2022. Ms Stewart is the defendant’s partner. She also gave oral evidence and was cross-examined.

45. [86]

    In cross-examination, Ms Stewart’s answers were inconsistent and unimpressive. She testified that it took her 10 to 15 minutes after the so-called “toolbox meeting” to walk 50 metres (T318.20-25). When her account was challenged, she dismissively answered “whatever” (T218.44). When she was asked whether she agreed that it only took a minute or two, she inexpiably replied “Not entirely, no” (T319.134). Ms Stewart also took it upon herself to cast aspersions as to the plaintiff’s motivations regarding insurance and the taking of photos while he was lying on the ground; that evidence was unprompted and telling (T322.16-20).

46. [87]

    No evidence was called from Ms Stewart to contradict or cast any doubt on Eric’s evidence at [20]-[21] of his evidentiary statement regarding the location of the log in figures 8 and 9 (Ex A 82).

47. [88]

    The plaintiff relied on an expert liability report of Dr George Rechnitzer, engineer, dated 11 November 2020. He was not cross-examined. Dr Rechnitzer prepared a reconstruction of the incident from various points of view at pages 20 and 21 of his report (Ex A 155-156). Dr Rechnitzer opined: “Because of the length of the log of around 14m, its flexibility over such a length and that it is being held by the grab at mid length, there is a geometric multiplier effect where the free left end of the log would move/rotate at a greater speed and distance to the excavator."

48. [89]

    Dr Rechnitzer responded to the following questions as follows (Ex A 161):

49. [90]

    At Ex A 162, Dr Rechnitzer stated:

50. [91]

    At Ex A 165, Dr Rechnitzer opined:

51. [92]

    I accept Dr Rechnitzer’s opinion to be consistent with my view as to how the accident occurred.

Credibility of the parties

1. [93]

   Under cross examination, the plaintiff confirmed his consistent description of the manner and sequence of events including his initial conversation with Mr Smith and the process by which he secured Mr Smith’s attention and eye contact prior to the second conversation (T107.34-43, 109.6-16, 113.37-50, 116.22-27, 117.41-45, 118.1-38, 135.3-28). The plaintiff disagreed with the defendant’s version of events (T130.6-10, 136.10-28). Both the plaintiff and the defendant are experienced in the safety protocols required when using heavy machinery, including making eye contact with the driver of the excavator before approaching it.

2. [94]

   As previously stated, I carefully observed Eric when giving evidence and being cross-examined. Eric had the best and clear recollection of events leading up to and after the accident. He also answered questions carefully. I prefer his evidence and accept Eric as a witness of truth.

3. [95]

   When being cross-examined, the defendant was argumentative. Some of the defendant’s answers were evasive and irreconcilable with answers he had provided moments earlier. The defendant conceded that he had given three different accounts of the same event, the last of which was provided in the witness box (T210.1-7). Towards the end of his cross-examination, he produced a further undated statement (Ex H), which contained another different version of events.

4. [96]

   The defendant’s evidentiary statements contain discrepancies that are incompatible. The defendant could not sufficiently explain these discrepancies. The inconsistencies increased through the course of his oral testimony and were especially evident when he produced and relied upon the undated statement.

5. [97]

   The undated statement that had been produced by the defendant referred to a “ricochet” mechanism which was absent from any other versions. Importantly, in the undated statement, the defendant made it clear that he only “assumed” the plaintiff had left the area where the excavator was operating. This account contradicts the defendant’s oral testimony that “I was clearly watching them walk up the track together” (T207.1).

6. [98]

   In the defendant’s first evidentiary statement, he stated that when the plaintiff and his son arrived, he was working with Eyvonne and Roxanne removing old fence posts. When he saw the plaintiff and his son walking towards him, he drove the excavator about 45 metres away from where he had been clearing posts. He parked it about 5 metres away from a large area of trees, some standing, some felled. According to his account a “toolbox” meeting then took place between the plaintiff, the defendant, Eric, Eyvonne and Roxanne. While conducting the meeting the defendant, maintained that he was not sitting in the excavator. The defendant stated that upon the completion of their meeting he observed the plaintiff and Eric walk back up the track and in the direction of their truck. Only after he observed them walking off did he also return to his excavator which was in the defendant’s estimate 4-6 meters away. Subsequently, after surveying his surroundings and looking through the trees to make sure that the plaintiff and eric were still on their way back to the truck, did he climb into the cabin of the excavator. He says it took about 10 minutes after the “toolbox” meeting to assess the site, start the machine and be ready to remove the first log.

7. [99]

   Further, contrary to the defence in which there is no mention of slewing, changing direction or moving in any direction other than “forward”, the defendant describes driving the “excavator forward about 5 meters” to where the felled trees were laying on the ground in his first evidentiary statement. He deposed that when he was stationary with the engine still running, facing towards the felled logs in front of him, Eyvonne and Roxanne were working at about his 1 to 2 o’clock (inconsistent with the orientation of the track down which they were walking, shown in Ex A 153) and the plaintiff’s truck was behind him. The defendant then says that he began to manoeuvre the machine so he could remove the first log which was about 8 or 10 metres long and lying between the trees. The defendant then says that it took him about “15 minutes to reposition the excavator and drag out the Log from between the trees”. He says that when the excavator was stationary, he started “slewing (rotating the cabin and boom around an axis) to the left with the Log in the grabs when the very right end of the front clipped one of the standing trees. There was only minimal resistance and with a small jolt it released.” He was able to continue slewing left. This is in contrast with paragraphs 12 and 16 respectively of the defences which provide that the log “glanced” one tree, kept going then “hit another” tree, which caused the piece of timber to be “recoiled behind the excavator”.

8. [100]

   The same account in his defence is repeated in the defendant’s supplementary evidentiary statement. Here, he describes slewing the “cabin and claw of the excavator 90 degrees to my right”, “retrieving the first log because it was the easiest log to access”, grabbing the log with the claw, then reversing “back through the two trees I had entered through”, manoeuvring “the excavator so that its tracks, cabin and claw were all perpendicular to where the middle of this log was located”, and “slowly revers[ing] backwards to my right in a “C” shaped curve”. The defendant says he then “started slewing the cabin and claw holding the log, independently of the tracks, to my left. The right end of the log was travelling forward, and the left end of the log was travelling backwards. Shortly after I started this movement, the very tip of the right end of the log hit a small/thin tree…There was very little resistance and the right end of the log quickly pushed passed the tree. I continued slewing the cabin and the log to my left.” The defendant continued, “I then glimpsed the plaintiff was immediately hit in the leg by the left end of the log”. There is no mention in the supplementary evidentiary statement, consistent with the defence, of “the end of the piece of timber clear[ing] one of the trees and then glanc[ing] in an arc over a distance of approximately four metres and hit[ting] another tree.” Nor is there any mention of “the piece of timber recoil[ing] behind the excavator.”

9. [101]

   Finally, the defendant says that a period of about 20 to 25 minutes elapsed between the end of the “toolbox meeting” and him being able to drag out the log from between the trees so that he could pick it up. This is at odds with Eric’s evidence which is that on returning to the truck it took him about five minutes to sharpen the chainsaw (T165.30-32) and less than a minute to don his protective gear before returning to the clearing and witnessing the accident (T165.34-37).

10. [102]

    It is also at odds with the defendant’s first evidentiary statement, in which he states a period of 10 minutes elapsed between the “toolbox” meeting and moving the first log. The defendant’s evidence does not accord with Ms Stewart’s evidence that she and Roxanne walked 50 metres back to their work site, and that the accident occurred before or at the time they reached the fence. The plaintiff’s consistent account, on the other hand, aligns with the timelines that follow both Eric’s and Eyvonne’s evidence. Eyvonne was not an eyewitness to the accident.

Findings of fact

1. [103]

   I prefer and accept the evidence of the plaintiff and his son, Eric, to that of the defendant. That is, while the plaintiff was walking away from the excavator, the first defendant moved the excavator carrying the log in the direction that the plaintiff was walking and struck the plaintiff from behind. The plaintiff submitted that the argument that Mr Sivonen would walk behind a working and moving excavator is baseless, particularly as he was experienced in the operation of heavy machinery. I agree with these submissions.

2. [104]

   The defendant submitted that the defendant’s version of events at Ex A 89 [36]-[44] should be preferred.

3. [105]

   Even if one the defendant’s version of events was accepted, the plaintiff submitted that the defendant would still be liable for the plaintiff’s injuries. This is because of the first defendant’s failure to check the whereabouts of any persons (including the plaintiff) who may have been in the general area, before commencing to move or slew the machine. This illustrates that the defendant had failed to maintain a safe exclusion zone and through his own omission had failed to pay adequate attention on his driving and slewing. The plaintiff also submitted that Mr Smith failed to accurately control the excavator to avoid collision with any surrounding trees. A collision that would cause such force as to cause the log to “recoil”, “ricochet” or “glance through an arch of 4m” at high speed.

4. [106]

   During cross-examination, the plaintiff says he saw first the excavator before signalling in the top right-hand corner of Ex A 153 (T110.42-45­). The plaintiff also says that he was uncertain how the excavator was being manoeuvred but recalled that the defendant broke the top of the tree with the claw of the excavator (T114.3-7, T115.6-21 & 116.14-32). When the plaintiff approached the excavator, the plaintiff did so slowly, in a careful manner, making sure that the defendant clearly observed him (Ex A 65).

5. [107]

   The defendant however, denied that before the accident there was any communication by way of discussion or signalling as the plaintiff alleges. As previously set out in this judgment, I prefer the plaintiff’s evidence over that of the defendant.

Summary of my findings

1. [108]

   Considering the evidence before me, my findings are that the following events occurred on the morning of 2 March 2019:

   1. (1)

      It is not in dispute that on the morning of 2 March 2019, the plaintiff and Eric drove in a flatbed truck to the property located at Hancocks Creek Road, Wandandian. Mr Sivonen and Eric drove to the property to collect timber logs in accordance with an arrangement made with Mr Smith. The logs were to be sold by Eric.

   2. (2)

      It is also common ground that the plaintiff parked his truck a fair distance away from the spot where the plaintiff was shown lying on the ground after the accident in photos at Ex A 153-4.

   3. (3)

      Upon arriving at the area with the felled logs, the plaintiff engaged in a conversation with the defendant about which felled logs were to be taken. The defendant was in a Yanma 5-tonne “mini” excavator with a “grab” attachment to pick up and move the logs. The plaintiff then measured the logs to be about fourteen metres in length. To fit the plaintiff’s truck, the logs had to be cut down to seven metres in length. The plaintiff measured the logs using a tape measure and used his axe to mark the logs at 7 metre lengths.

   4. (4)

      According to all the evidence presented there is no logical reason why the plaintiff would go back to his truck. I prefer Eric’s account over that of the plaintiff. The plaintiff did not go back to his truck.

   5. (5)

      Mr Smith then picked up a log using the excavator’s claw attachment. This log had been marked by the plaintiff. Consequently, the plaintiff signalled to the defendant, who was 20 metres away from the plaintiff, that the log did not need to be picked up. The plaintiff raised both of his arms, waved them high making an “X” and importantly made eye contact with the defendant. The plaintiff was also yelling at the defendant to stop.

   6. (6)

      The defendant then acknowledged the plaintiff’s signal, looked straight at him, and lowered the claw with the log to the ground. The defendant removed his hands from the control but allowed the engine to run on idle. The plaintiff signalled, directly looked at and spoke to the defendant.

   7. (7)

      The plaintiff then approached Mr Smith, who was still in the excavator. The plaintiff was standing 1 metre to the left of the excavator’s side door. The plaintiff told the defendant in a loud voice, words to the following effect: “Do not move that log, Eric needs to cut it into two seven metre lengths” (Ex A 64-65). The defendant acknowledged the plaintiff by nodding and stating: “No worries” 9 (Ex A 65).

   8. (8)

      After the exchange, the plaintiff walked away from the excavator in the same direction from which he had come, that is, past the front of the excavator in the direction the defendant was facing, and past the arms and the claw attachment holding the log. The plaintiff did not walk behind the excavator.

   9. (9)

      As the plaintiff was walking away from the excavator, the defendant drove the excavator forward while the grab (claw) was still holding the log. As the excavator moved forward, the right end of the log struck a tree trunk with enough force to cause the log to recoil and ricochet. The subsequent impact sent the free left end of the log swinging forwards towards the plaintiff.

   10. (10)

       The log struck the plaintiff’s left leg resulting in serious injuries. The impact threw the plaintiff forward some distance. His son witnessed the event, watching his father get thrown up in the air and then seeing him lying down on the ground afterwards.

   11. (11)

       The defendant admitted that if he had taken the time to look around the area and had better observed where he was moving the machinery, the accident could have been avoided. Before commencing to move or slew the machine the defendant failed to check the locations of each person at the site, including the plaintiff who was in the vicinity. He did not maintain a safe exclusion zone. The defendant failed in adequately controlling the excavator in a way as to avoid any potential collisions, such as the log colliding with any surrounding trees with such force as to cause it to “recoil”, “ricochet” or “glance through an arch of 4m” at high speed.

Liability

1. [109]

   Sections 5B and 5C of the CLA read:

2. [110]

   The question whether the defendant breached his duty of care turns firstly on determining whether the risk in question is one of which it knew or ought to have known: s 5B(1)(a) of the CLA. This means risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the defendant owed to the plaintiff.

3. [111]

   The scope of the defendant’s duty is delimited by the expectation that people like the plaintiff will exercise reasonable care for their own safety. The expectation that a potential plaintiff will exercise reasonable care goes not merely to the assessment of breach, but it is a “specific element contained, as a matter of law, in the scope of the duty of care”: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 per Leeming JA at [53]; see also Council of City of Sydney v Hunter [2014] NSWCA 449 per Emmett JA at [33] and Blakemore v Moore and Clements [2015] NSWDC 9.

4. [112]

   Ultimately, the duty owed by the defendant to the plaintiff was no more than a duty to take reasonable care to prevent injury to him on the assumption that he was exercising reasonable care for his own safety: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 (‘Dederer’).

5. [113]

   Such a duty to take reasonable care would have involved avoiding a “not insignificant” risk that could reasonably be foreseen and avoided. The measure of the discharge of such a duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to foreseeable risk: Hackshaw v Shaw (1984) 155 CLR 614. This measure is now prescribed by s 5B of the CLA.

6. [114]

   The inquiry about whether the defendant ought to have taken the precautions for which the plaintiff contends turns on the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person’s position would have taken such precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council (2005) 223 CLR 422) but must be answered prospectively, before the incident occurred (Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420).

7. [115]

   As a starting point, the plaintiff is required to identify, and articulate clearly the “risk of harm” in respect of which, it is alleged, the defendant was obliged to take precautions. In Dederer, Gummow J at [59]-[61], stated that it is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made. The description should identify the “true source of the potential injury”: Dederer at [60].

8. [116]

   It is only if “unless the relevant risk is identified with sufficient precision one cannot determine what, if any, reasonable precautions ought to have been taken in order to avert it”: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106].

9. [117]

   In Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800, Campbell J considered the manner in which a relevant risk of harm needed to be identified. His Honour said at [44]:

10. [118]

    The risk of harm in the present scenario is as follows. That the operator of an excavator with a claw attachment holding a large log, could strike a tree or other obstruction becoming dislodged and hitting someone who was standing within an exclusion zone.

11. [119]

    The first element that the plaintiff needs to establish is that the risk of harm was foreseeable to the defendant. Foreseeability is described in the CLA differently from the traditional common law principle being something which is not far-fetched or fanciful; Wyong Shire Council v Shirt (1980) 146 CLR 40. For a risk of harm to be one that is foreseeable in accordance with the statute, the plaintiff must establish either actual knowledge of the defendant of the risk of harm, or constructive knowledge, being, that the defendant ought to have known of the risk of harm within the terms of s 5B(1)(a) of the CLA.

12. [120]

    The second step in the analysis required by s 5B(1)(b) is to determine whether the alleged risk of harm was “not insignificant”. This must be judged from the perspective of a person in the defendant’s position, and must be applied prospectively, and not retrospectively.

13. [121]

    In Shaw v Thomas [2010] NSWCA 169, Macfarlan JA concluded that the requirement in 5B(1)(b) that the risk of harm be “not significant” imposed a more demanding standard than the “not far-fetched or fanciful” test set at common law in Wyong Shire Council v Shirt (1980) 146 CLR 40, but, in his view, “not by very much”.

14. [122]

    In Vincent v Woolworths Ltd; Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 435, Campbell J said at [39]:

15. [123]

    On appeal in Vincent v Woolworths Ltd [2016] NSWCA 40 (‘Woolworths’), Macfarlan JA said at [35] to [37]:

16. [124]

    In Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2018] NSWCA 330, the Court of Appeal (Meagher, Leeming and White JJA) stated at [27]:

17. [125]

    Section 5B(1)(c) of the CLA requires an analysis of the conduct of a reasonable person, in all the circumstances of the case, when faced with the relevant risk of harm. Any consideration of this element requires attention to the provisions of s 5B(2) of the CLA. However, as the terms of the legislation make plain, s5B(2) is not an exhaustive list of factors that a court is required to take into account in deciding if s 5B(1)(c) of the CLA is made out.

18. [126]

    As I have stated earlier in this judgment, the inquiry on whether the defendant ought to have taken the precautions for which Mr Sivonen contends turns on the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person’s position would have taken such precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council (200) 223 CLR 422) but must be answered prospectively, before the incident occurred (Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420).

The plaintiff’s submissions

1. [127]

   The plaintiff submitted that the evidence of the plaintiff and his son Eric should be accepted by the court. This evidence provided that the defendant moved the excavator carrying the log forward in the same direction as the plaintiff was walking away and struck the plaintiff from behind. The plaintiff submitted that the contention made by the defendant that the plaintiff, (an experienced operator of machinery himself), would walk behind a working and moving excavator is baseless. I agree with these submissions.

2. [128]

   Even if one of the defendant’s contradicting versions of events was to be accepted, the plaintiff has submitted that the defendant would still be liable for the plaintiff’s injuries, firstly, because of the first defendant’s failure to establish an exclusion zone and to adequately check whether any persons were present in that exclusion zone, before proceeding to operate any machinery. Secondly through the defendant’s own omission of failure to watch where he was driving and slewing. The plaintiff also submitted that the defendant failed to control the excavator effectively to avoid the log colliding with any surrounding obstructions.

The defendant’s submissions

1. [129]

   The defendant submitted that if the defendant’s version of the accident is accepted, then it is likely that the plaintiff was not exercising reasonable care for his own safety. The plaintiff had many years of experience working in and around heavy equipment such as the excavator used by Mr Smith at the time. It was therefore submitted that the plaintiff would have known that he was required to keep well clear of the excavator until such a time as he had contacted the operator to let him know he wanted to approach. For the reasons set out earlier in this judgment, the defendant’s version of events has not been accepted.

Resolution

1. [130]

   As stated earlier, it is necessary to accurately identify the relevant risk of harm. The defendant had a duty of care towards the plaintiff and a duty not to operate the excavator when someone was within the exclusion zone. Incidental to this is a duty to ensure that no one was within the exclusion zone. Therefore, the risk of harm is as follows, that an operator of an excavator with a claw attachment holding a log would hit a tree or other obstruction causing the log to dislodge and hit someone who was standing within the exclusion zone.

2. [131]

   Whether the risk articulated above is foreseeable, that is, whether it was a risk of which the defendant knew or ought to have known, does not require actual knowledge of the risk of harm. Section 5B(1) reflects the position of the common law to inquire what a hypothetical person in the position of the actual defendant would have known.

3. [132]

   A reasonable person operating a heavy piece of machinery would have ensured that there were no persons within the exclusion zone. This is especially important if the excavator was holding a log in the claw attachment and manoeuvring around small trees and brush. The reasonable person would have known that if they did not take necessary precautions, there was a material risk that a person within the exclusion zone could be injured by the excavator.

4. [133]

   The defendant, who was operating an excavator holding a log in a claw attachment, with a person such as the plaintiff and trees in close proximity, should have known that there was a risk of injuring the plaintiff. The risk was therefore foreseeable.

5. [134]

   As stated by Garling J in Benic v State of New South Wales [2010] NSWSC 1039 at [101], “the phrase ‘not insignificant’ is intended to refer to the probability of the occurrence of the risk.” The risk, in circumstances in which the plaintiff was within the exclusion zone, was clearly not insignificant. The plaintiff had made his presence clear to the defendant by way of motioning an “X” with his arms and by yelling and making eye contact with the defendant. The defendant’s sustained operation of the excavator in these circumstances gave rise to a likely materialisation of the risk.

6. [135]

   In these circumstances, a reasonable person in the position of the defendant would have taken the following precautions: checking the location of the plaintiff before commencing movement of the excavator, establishing a safe exclusion zone and being watchful and aware of his driving and slewing. The defendant’s failure to engage in these precautions increased the probability of a potential injury to the plaintiff, with serious consequences of harm given the size of the logs and force in which they could impact a bystander. The burden of taking such precautions to avoid the risk of injury to the plaintiff or other parties were not burdensome.

7. [136]

   It is my view that ss 5B and 5C of the CLA have been satisfied. The defendant has breached his duty of care.

Causation

1. [137]

   Section 5D of the CLA prescribes the relevant test for causation: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [41], [44].

2. [138]

   Section 5D of the CLA reads:

3. [139]

   Unlike duty and breach, the inquiry as to causation is “wholly retrospective [and]…seeks to identify what happened and why”: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94 at [61]. Causation is wholly factual and turns on the plaintiff’s proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14].

4. [140]

   Proof of the requisite causal link between those omissions and an occurrence requires consideration of the probable course of events had the omissions not occurred: Strong v Woolworths at [1320].

Resolution

1. [141]

   There is no real argument as to causation.

2. [142]

   But for the failure of the defendant moving the excavator forward causing the log in the claw attachment to hit a tree and swing towards the plaintiff, the plaintiff would not have been struck and injured. The defendant’s negligence in failing to take precautions and operating the excavator was a necessary condition for the occurrence of harm. Without the defendant’s course of action, the plaintiff would not have been injured by the log. Had the defendant exercised his duty of care properly, the excavator would not have been in operation while the plaintiff was within the exclusion zone. Factual causation as set out in s 5D(1)(a) is made out.

3. [143]

   Given the defendant was operating the excavator, it is appropriate for the scope of the defendant’s liability to extend to the harm caused. Section 5D(1)(b) is satisfied.

4. [144]

   The result is that the defendant is negligent. Section 5D of the CLA has been satisfied.

Obvious risk

1. [145]

   Sections 5F, 5G, 5H and 5I of the CLA concern obvious risk and are as follows:

The plaintiff’s submissions

1. [146]

   The plaintiff submitted that there was no obvious risk.

The defendant’s submissions

1. [147]

   The defendants submitted that the plaintiff’s injury was caused by the materialisation of obvious risk within the meaning of s 5F of the CLA. The risk of undertaking work near an operating excavator, particularly in circumstances where the operator is not aware of that person’s presence, would no doubt be an obvious risk.

2. [148]

   It was submitted that at that time, it should have been obvious to a reasonable person in the position of the plaintiff that the circumstances posed a risk pursuant to ss 5F(1) and (2) of the CLA. In those circumstances, it is alleged that the defendant would not have a duty to warn the plaintiff of risks associated with them. Such risks ought to have been obvious to the plaintiff at the time: s 5H(1) of the CLA. The defendant asserted that the plaintiff cannot establish on the balance of probabilities that he was not aware of these risks.

Resolution

1. [149]

   The plaintiff made an “X” with his hands crossed in the air and yelled at the defendant. More importantly, the plaintiff made eye contact with him. The defendant powered down the excavator and engaged in a conversation with the plaintiff. The plaintiff then proceeded to walk away in the direction in which the defendant was facing. In these circumstances, I do not consider the risk as an obvious one, because no one and certainly not the plaintiff would expect that the operator of an excavator with a claw attachment holding a long log of timber would start moving the excavator without ensuring that the plaintiff was outside the exclusion zone, more so because the defendant admitted that had he checked he would have seen the plaintiff.

2. [150]

   A reasonable person in the position of the plaintiff, after having done all that they could to secure the attention of the defendant, would not have entertained the risk that the defendant would proceed to operate the excavator while they were still within the exclusion zone. Nor would the plaintiff entertain the concept that the defendant would not ensure that the plaintiff was outside the exclusion without checking, something the defendant conceded he could have done.

3. [151]

   As I previously mentioned, both the plaintiff and the defendant were experienced operators of excavators. The experience of the plaintiff is a factor which the court may consider: see Doubleday & Anor v Kelly [2005] NSWCA 151 and Dederer. A person in the plaintiff’s position, knowing the defendant’s experience, would not have considered the risk to be obvious as the defendant would have been expected to take precautions consistent with industry practice.

4. [152]

   For these reasons, the defendant’s submission that the risk falls within sections 5F, 5G, 5H and 5K (obvious risk) of the CLA fails.

Contributory negligence

1. [153]

   Section 5S of the CLA reads:

2. [154]

   The particulars of contributory negligence are as follows: the plaintiff was an experienced plant operator who was aware of the danger associated with plant equipment and the precautions to be taken and failed to heed the danger associated with the operation of plant equipment; to take reasonable care for his own safety while working around plant equipment; to watch out for the excavator of the defendant; to assess any potential risk of injury; to rely on his skill and knowledge as an experienced plant operator to avoid the risk of injury in the circumstances; to listen to the operation of the excavator; to provide the defendant and excavator with a safe distance; and failed to take reasonable care for his own safety.

3. [155]

   The case of Woolworths concerned a challenge on a finding of no contributory negligence. In that case, and not on the topic, which was subject of appeal to the High Court, Campbell JA (with Handley AJA, Harrison J agreeing) stated at [38]:

4. [156]

   In Podbrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, the High Court determined at 532-533 that with regards to contributory negligence, the just and equitable apportionment of the liability ought to be examined as follows:

5. [157]

   The question is whether, in the circumstances giving rise to the accident, the plaintiff failed to exercise reasonable care for his own safety: T and X Company Pty Ltd v Chivas [2014] NSWCA 235 at [4]. This involves an objective test based on the facts and circumstances of the case, including what the plaintiff knew or ought to have known at the time: CLA s 5R(2)(b); Joslyn v Berryman (2003) 214 CLR 552 at 558-559 per McHugh J; Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 at [217] per Hoeben JA (Macfarlan and Ward JJA agreeing).

The defendant’s submissions

1. [158]

   If the Court were to be against the defendant’s arguments on primary liability, the defendant submitted that the Court should find contributory negligence, indeed as high as 100%. It is the defendant’s case that the plaintiff’s failure to keep a lookout for his own safety must amount to significant contributory negligence. If the court was to accept the defendant’s version of events and yet still find some negligence on his part, the defendant submitted that it is still arguable that a real cause of the accident was the negligence of the plaintiff. The defendant ultimately submitted that when assessed as against any fault of the defendant, the Court should comfortably find contributory negligence of at or above 50%.

Resolution

1. [159]

   The plaintiff did what a reasonable person in his position would have done. The plaintiff secured the attention of the defendant, as stated numerous times in this judgment, by way of an “X” with his hands and yelling. The plaintiff then walked away from the defendant in the direction of the defendant’s direct line of vision. The plaintiff was not required to continuously look back to the excavator while he walked away, nor absurdly walk backwards while maintaining eye contact with the excavator. It is my view that the plaintiff did all he needed to do, and that a reasonable person in his circumstances would have done the same. In the circumstances the plaintiff has no culpability. The plaintiff exercised care for his own safety. Contributory negligence has not been established.

After the accident

1. [160]

   As the defendant has been found negligent, I shall outline the plaintiff’s condition after the accident, analyse the medical reports and then determine damages. As a result of the defendant’s negligence, the plaintiff was severely injured. He suffered a comminute fracture of the shaft of the left tibia, a displaced fracture involving the midshaft of the left tibia, compartment syndrome in the left leg, deformity and scarring of the left leg, a chronic pain disorder with peripheral sensitisation syndrome, and adjustment disorder with mixed anxiety and depressed mood (Ex A 292).

2. [161]

   It is common ground that an ambulance was called, and the plaintiff was conveyed to Shoalhaven District Memorial Hospital where he underwent emergency surgery.

3. [162]

   At the time of the accident, the plaintiff’s pain was severe. The ambulance officer’s description reads: “40mg morphine IV, 100mg ketamine IV, 2 x 3mL methoxyflurane… Decision @ scene… made to [transfer] to Wollongong Hospital. Pain not able to be controlled with morphine and methoxyflurane post Ketamine wearing off. Pt diverted to Shoalhaven” (Ex B 2).

4. [163]

   The plaintiff was diagnosed with left tibia and fibula comminute fractures and underwent emergency surgery performed by Dr Chad Todhunter. Dr Todhunter performed an open reduction and internal fixation to the left tibia with insertion of intramedullary nail, and a fasciotomy to relieve compartment syndrome in the left lower limb (Ex B 20).

5. [164]

   On 6 March 2019, the plaintiff was transferred to Wollongong Hospital and the next day underwent a washout, debridement and closure of the left leg medial wound and application of a VAC dressing. This procedure was also performed by Dr Todhunter (Ex B 30). On 11 March 2019, he underwent a split skin graft to the fasciotomy site performed by Dr Heartsch (Ex B 30). The skin graft has left Mr Sivonen with scarring.

6. [165]

   The plaintiff was an inpatient at Wollongong Hospital until 23 March 2019 when he was transferred back to Shoalhaven Hospital (Ex B 27). On 10 April 2019, the plaintiff was transferred to David Berry Hospital for rehabilitation (Ex B 10). He was eventually discharged home on 18 April 2019 (Ex B 10).

7. [166]

   On 1 May 2019, the plaintiff attended upon Dr Todhunter for review (Ex B 37). The plaintiff was noted to be two months post compound segmental left tibial fracture and noted to have suffered from compartment syndrome, requiring a fasciotomy and skin graft (Ex B 137).

8. [167]

   On 4 June 2019, plaintiff attended upon Dr Ravi Thapaliya at the rehabilitation clinic of Shoalhaven Hospital (Ex A 74). The plaintiff reported that he had been progressing functionally but had ongoing pain and loss of confidence. Dr Thapaliya suggested progressively increasing weight bearing and walking with his affected leg, although weight bearing should be as tolerated, and advised the plaintiff should commence some water-based exercises, such as walking in the pool (Ex A 74).

9. [168]

   On 12 June 2019, three and a half months after the injury, the plaintiff attended upon Dr Todhunter (Ex A 74). He was noted on this occasion to be walking with the use of a single crutch. The plaintiff made complaints of anterior knee pain (Ex B 38).

10. [169]

    The plaintiff also attended upon Dr Thapaliya for rehabilitation treatment at Shoalhaven Hospital and was referred to the Hospital’s orthotist.

11. [170]

    On 2 December 2019, the plaintiff attended upon Dr Mario Farina for psychological treatment (Ex B 82).

12. [171]

    On 10 December 2019, the plaintiff was diagnosed with chronic pain syndrome by his treating doctor, Dr Geoff Murray, Director of Rehabilitation Services and Pain Service at the Illawarra Shoalhaven Health District Hospital (Ex B 48). He underwent a pain management program including medication and non-pharmaceutical treatment, until it was suspended due to the Covid-19 pandemic (Ex A 52).

13. [172]

    The plaintiff has undergone significant physical therapy including physiotherapy, hydrotherapy and specialist pain management.

14. [173]

    On 6 February 2020, the plaintiff attended upon Dr Todhunter for review, seven months following injury. The plaintiff complained of persistent pain in the distal third of his tibia and over the proximal and distal parts. Dr Todhunter recommended referral to pain specialist care.

15. [174]

    On 14 February 2020, the plaintiff attended upon Dr Thapaliya for review. The plaintiff was noted to seem more relaxed following participation at the pain clinic and a further pain management course was noted to be forthcoming. A possible skin draft procedure and removal of hardware was also discussed.

16. [175]

    The plaintiff completed four weeks of a pain management course at Shoalhaven Hospital, with the final two weeks postponed due to the Covid-19 pandemic.

17. [176]

    The plaintiff attended regularly with Dr Farina for discussion of his psychological sequalae following the accident.

18. [177]

    On 20 April 2020, the plaintiff attended upon Dr Farina where psychological testing was performed to assist with his presenting psychological symptoms (Ex B 83).

19. [178]

    The plaintiff attended upon Dr Thapaliya for review on 2 June 2020. He reported no change in his functional state although he was coping better with his pain. Dr Thapaliya noted that the plaintiff still struggled to put weight on his left leg, it was not reliable, and he could collapse. Patchy sensation loss in the left leg was also noted.

20. [179]

    On 11 August 2020, the plaintiff attended upon Dr Murray at the Chronic Pain Clinic, via telephone. The plaintiff’s physical symptoms and pain were noted as well as his psychological condition, including PTSD necessitating counselling. The plaintiff was also noted to be participating in an online pain management group.

21. [180]

    The plaintiff attended upon Dr Thapaliya who noted the plaintiff’s difficulties coping with his pain in the left leg. The plaintiff remained anxious and was overcompensating for the gait-deficiency due to his injured leg.

22. [181]

    The plaintiff was noted as being able to feel the internal fixation hardware from the outside which caused him pain, and which is worse during weight bearing. Dr Thapaliya increased the height of the plaintiff’s crutch and noted the plaintiff to be very keen to get the internal fixation hardware removed.

23. [182]

    On 17 September 2020, the plaintiff attended upon Dr Farina, who recorded the plaintiff to be suffering from high range moderate levels of depression, extremely high severe levels of anxiety, and low range severe levels of stress following DASS-21 testing (Ex B 84). On this occasion, the plaintiff noted his deteriorating psychological condition to be the result of his pain levels and compromised mobility and energy levels (Ex B 84).

24. [183]

    On 21 September 2020, Dr Farina wrote to the plaintiff’s solicitors, RMB Lawyers, noting the plaintiff’s disabilities include: “Depression, anxiety, stress, recurrent and intrusive thoughts and recollections of the event (flashbacks of it, acting and feeling as if it is re-occurring), intensely emotionally upset when reminded of the events; making persistent efforts to avoid thoughts and feelings associated with the event, persistent efforts to avoid activities, situations or places that remind him of the event; marked loss of interest in free time activities since the event” (Ex B 91). Dr Farina then considered the plaintiff’s prognosis to be difficult to predict, and he recommended continued treatment (Ex A 92).

25. [184]

    On 20 October 2020, the plaintiff attended upon Dr Thapaliya, who noted the plaintiff’s ongoing difficulties coping with pain in his left leg. The plaintiff remained anxious and was overcompensating for the gait-deficiency due to his injured leg. The plaintiff noted being able to feel the internal fixation hardware from the outside which caused him pain, and which is worse during weight bearing. Dr Thapaliya increased the height of the plaintiff’s crutch and noted the plaintiff was eager to get the internal fixation hardware removed.

26. [185]

    On 1 December 2020, the plaintiff attended upon Dr Murray via telephone. Dr Murray noted the plaintiff’s pain condition and amended his prescriptions.

27. [186]

    On 2 December 2020, the plaintiff attended upon Dr Farina, who noted the plaintiff displayed moderate levels of psychological distress following DASS-21 testing (Ex B 86).

28. [187]

    On 5 February 2021, the plaintiff attended upon Dr Farina, who noted the plaintiff displayed extremely severe levels of depression and anxiety, and severe levels of stress following DASS-21 testing (Ex B 87).

29. [188]

    On 13 May 2021, the plaintiff was admitted to hospital where he underwent surgery for removal of the pins, rods, and screws in his left leg. Unfortunately, his pain remained the same after this operation (Ex B 43).

30. [189]

    On 1 June 2021, the plaintiff attended upon Dr Murray following his hardware removal procedure. Sensory loss in the lower leg was noted. The plaintiff’s pain prescriptions are again amended (Ex A 61).

31. [190]

    On 9 June 2021, the plaintiff attended upon Dr Farina, who noted the plaintiff displayed extremely high levels of psychological distress following DASS-21 testing (Ex B 88).

32. [191]

    On 13 September 2021, the plaintiff attended upon Dr Murray by telephone and was told there can be little done with respect to increasing his medication.

33. [192]

    On 21 January 2022, the plaintiff consulted with Dr Murray by telephone at the Chronic Pain Clinic, discussing his physical and psychological condition, with the plaintiff’s continuing pain linked to the compartment syndrome. Dr Murray opined that since the injury occurred three years ago, the plaintiff’s pain should be considered chronic. Dr Murray opined that the plaintiff’s prognosis for return to manual work was very poor.

34. [193]

    The plaintiff attended upon Dr Chaminda Hettige for review on 10 March 2022. Dr Hettige noted the plaintiff’s long-term struggle with chronic pain, stress, depression and PTSD following his major leg trauma. Referrals were issued to Dr Thapaliya and Dr Farina.

35. [194]

    On 4 May 2022, the plaintiff attended upon Dr Matthew Starr, Plastic Surgeon. The plaintiff was placed on a waiting list for a first stage scar revision.

36. [195]

    On 26 May 2022, the plaintiff attended upon Dr Hettige for review. It was noted that the plaintiff had developed left hip regain pain, likely due to his altered walking posture.

37. [196]

    The plaintiff reported similar left sided pain to Dr Murray by a telephone on 31 May 2022. The plaintiff was asked to walk with two crutches.

38. [197]

    On 9 September 2022, the plaintiff attended upon Dr Murray at Chronic Pain Clinic, who noted pain was limiting the plaintiff’s ability to walk, drive and stand for prolonged periods. This is consistent with the video of the plaintiff relied upon by the defendants at the trial.

39. [198]

    On 13 September 2022, the plaintiff attended upon Dr Thapaliya for review. Dr Thapaliya noted that the plaintiff walks with two crutches and found a topical patch she provided him to be helping.

40. [199]

    I observed that the plaintiff was in pain while giving his evidence. In his evidence in chief, Mr Sivonen explained that “My pain is just a bit increased” (T24.36). He described that he also had some difficulties having confidence in himself and is: “[t]rying to learn to accept what happened” and that “it’s fairly difficult” (T24.45-49). He explained that “Well, I – I do I sort of focus on my children and my family and try to do the best with what – what I’ve got” (T25.3-4). He was alert during cross examination, challenging some questions on the basis of relevance (T138.8). It is my view that the plaintiff gave truthful evidence and I accept him as a credible witness.

41. [200]

    The plaintiff takes various pain killers including, 200mg of Palexia in the morning and 100mg at night slow release, 50mg of Palexia quick release and Oxycodone for breakthrough pain and 5mg Oxycodone Mylan for breakthrough pain. In respect of the pain relief, he said “It helps somewhat but it’s not a total relief. It gives – like takes the edge off” (T26.21).

42. [201]

    During cross examination, the plaintiff confirmed that his pain medication is being increased by Dr Murray and that his pain stops him from doing the things that he was able to do in the past (T27.23-28). He confirmed that he continues to have a loss of confidence and self-esteem (T28.1), lacks energy and motivation (T28.3-4), has trouble concentrating because of the pain (T28.6-7) and is frustrated, sad and anxious (T28.9-10). He also said that there was no improvement in his frustration, sadness and anxiety. He said it was about the same (T28.16, 23).

43. [202]

    The plaintiff spoke about the pain management course that he had referred to in paragraph 72 of his first evidentiary statement. He deposed “When I done the pain management course, they gave me a lot of learning in regard to how to do breathing exercises, how to distract your mind from the pain. I have asked to redo that course again to refresh myself with all that” (T28.31-33).

44. [203]

    The plaintiff confirmed, as he said in paragraph 7 of his first evidentiary statement, that he still had persistent left leg pain, difficulty walking long distances and on uneven surfaces (T28.35-39). He confirmed that he still had the “dead sensation” in his left leg and that “it just feels like a heavy weight your dragging, you’ve got with you” (T28.47-49).

45. [204]

    The plaintiff was asked whether he continued to use crutches. He answered, “at home I’ve been – at home I’ve been told to walk as much as I can without crutches on grassed areas, using one crutch or I start to get spinal problems so, like, I use 2 crutches when there is paved hard areas because I don’t want to fall and injure myself anymore” (T29.11-14). In cross-examination, the plaintiff was asked if this is what he needs to do on every occasion. The plaintiff replied: “not on all – not on all occasions. If I’m going – if I know it’s only a short distance, say for instance, if I’ve parked my car in a disability area and I’m just going to a shop and its just 5 or 10m away, I’ll only use one crutch as I’ll use my other hand to carry what I’ve got to buy. Using 2 crutches, I can’t” (T29.20-26).

46. [205]

    In relation to his use of crutches at home, he said, “I don’t walk – I try not to walk on uneven areas. I try to stay on grass areas and not rocky surfaces …” (T29.31-32). He was asked whether he could walk in an outdoor area that’s sloping upwards without a crutch. The plaintiff replied: “I can do it with increased pain” (T29.40-42). It was put to him that he could walk around the farm on the undulating paddocks without any crutches. He said, “I do my best to” (T29.48-50).

47. [206]

    When the plaintiff was asked how long he had been doing that, he said:

48. [207]

    The plaintiff made it clear in respect of the use of crutches outside of his property “Yes, if my pain’s – if my pain’s excessive that I can’t put up with it, I’ll use my crutch. If I can put up with it. I’ll use no crutch” (T30.20-22). He was asked whether he walked outside on his property without using any walking sticks or crutches most of the time. He answered, “I do most of the time. If I have to go anywhere further, I use an automatic quad bike” (T30.24-29). He explained it was a 4-wheel farm mode of transport. It was automatic and he didn’t need to use his feet for the left-hand side (T30.32-22).

49. [208]

    The plaintiff explained that he would use the quad bike to take his “Kelpie dog [Rex] for a run. It makes me feel a lot better to get outside and get around a bit” (T30.31-42). When asked how often he took the quad bike out and took Rex for a run, he answered, “I do it when I can. If its inclement weather I don’t, if I don’t feel – if I feel like I don’t want to get up, I don’t. I try to do it for the dog and myself. Like I just don’t keep a diary of how often I do it. If I said weekly, it would be not right – not right – but I do do it -yeah” (T31.29-33).

50. [209]

    It was suggested to the plaintiff that outside on the property on the grass, the surfaces were uneven. He did not accept that proposition stating, “It’s pretty level. It’s not – it’s not like it’s a rough surface. It’s been a grazing property for over 100 years, so it’s – you can drive around and not be thrown out of your seat or anything like that if you’d like to say” (T32.14-18).

51. [210]

    The plaintiff was taken to paragraph 80 of his statement where at sub-paragraph J he said he had difficulty walking on uneven surfaces. He said that was true and clarified that meant “stairs, going up stairs, things like that” (T32.16-17).

52. [211]

    It was put to the plaintiff that when he gave his evidentiary statement, he did not mention the fact that he could walk on certain areas unaided with a walking stick. He responded, “I use a walking stick or walking aid. I have to use it on hard surfaces to make sure I don’t fall over and hurt myself. I fell down on grass not using it which – I got 7 stitches in my hand” (T35.5-10).

53. [212]

    He was then asked whether he had a tractor on the property and whether he operated that, to which he answered:

54. [213]

    The plaintiff confirmed in respect of the use of the tractor, “I’ve moved things. I haven’t spent extensive time on it like nothing – nothing more than a couple of minutes” (T34.14-15). In respect of the quad bike, he explained that he could be on it for longer, “Up to half an hour” (T34.34). He was asked about an excavator on the property and whether he used it. He was asked how long ago he had used it and replied “Possibly – could be 2 weeks or somewhere around that period” (T34.50; see also T35.1-3).

55. [214]

    In relation to the use of the excavator he said, “It’s not regular, no. I had – I had people come work – do work for me if I need to move something heavy that they can’t lift, I would use it” (T35.9-10). He confirmed “it’s a rare event” (T35.16) and that “Yes, most of the time my son does – what, only if I haven’t got my son there to do it if I have to” (T35.20-21). He also confirmed that driving the tractor is a rare event (T35.36-37). He explained that the last time he moved a tractor was in the following circumstances:

56. [215]

    The plaintiff was cross-examined about his statement at paragraph 81 of his first evidentiary statement that he generally led a reclusive life. He answered, “I don’t socialise like I used to. That’s true” (T36.11-3). He explained that he did not mean that he felt socially isolated clarifying, “I didn’t mean that. I mean like if we – if I had people around me and they were having a conversation, it was hard for me to – be involved in conversation because of my pain level” (T36.27-30).

57. [216]

    He agreed that his social isolation has been something that has improved since the time of making his statement (T36.31-34). However, he confirmed that “the frustration is still the same. Anxiety is not bad as well, yes.” (T36.44).

58. [217]

    In cross-examination, the plaintiff was asked whether the problems he had with frustration, anxiety, low mood, depression, short tempered, loss of motivation and social isolation were things that he had suffered from before the accident. He answered, “I have years and years prior to that. But everything was fine” (T36.46-49).

59. [218]

    He was also asked whether he had suffered from depression, anxiety, frustration, and loss of motivation after the accident in 1997 to which he answered, “Not to the degree as now” (T37.16).

60. [219]

    The plaintiff was cross-examined about his first evidentiary statement where he said, “I get so frustrated that I am unable to do these tasks that I would get wound up and have to walk away.” He answered, “I still feel that way in regards to – I have to pay people to do labouring jobs. Like, I did jobs around the place, even labouring work at the house and stuff like what I normally could have done, which now I am not able to do. Things like mixing cement, carrying timbers, putting gyprock on walls, and things like that, what I’d normally be able to do. I can’t do it, and I have to pay people, and it’s frustrating, yes” (T37.39-44).

61. [220]

    The plaintiff was also cross-examined about his rehabilitation physician Dr Murray and his interactions with that doctor. It was put to the plaintiff that when he had seen Dr Murray, “He has told you that you require to use a walking aid because that you require to walking aid, that’s right, isn’t it.” The plaintiff answered, “Professor Murray told me to use the walking aid, and then when I got to – when I go to the physio at the hospital, they said to use the walking aid, try to use it as little as possible so you can rehabilitate yourself” (T40.29-34).

62. [221]

    It was suggested to the plaintiff that he told Dr Murray that if he doesn’t use the walking crutches or walking aids he has falls. The plaintiff answered, “I’ve told Professor Murray when I’ve talked to him that I have fell [sic] without crutches, and when my pain is bad, but I have to use them, he said that he wants me to use them all the time, but that’s not realistic, you know, like I can’t do – I can’t do – one person’s telling me that, and I understand he is a Professor and he manages my medication, but if I did everything what Professor Murray told me just to use crutches, how am I supposed to get myself better.” (T40.39-46).

63. [222]

    He was asked whether it was correct that even using a walking stick or crutches he could still fall. He said, “If I trip over something, or if I don’t – if its dark and I’m walking without looking where my feet goes, yes, I can still fall over, because my feet has less – has less feeling and senses of the ground” (T41.10-12). He added, “It feels like – sorry, I was wrong to say that. It is possible to still fall over, if you use – if I’m using this one stick. If I fumble, then night-time, if – I don’t feel the ground if I walk. If it’s dark, its more – I’ve got more chance of falling over then because if I’m not seeing where my foot goes, it doesn’t feel the ground as such.” (T41.18-23).

64. [223]

    The plaintiff confirmed that he had been given advice from Amanda at the Shoalhaven Hospital during pain management rehabilitation that he should try to walk as much as possible without the walking sticks.

65. [224]

    In cross-examination, the following proposition was put to the plaintiff: “You see, nowhere in any statement have you, before coming today in court, have you suggested to anyone that you had received advice to walk around at home, outside, without the assistance of walking aids, have you?” He answered, “I haven’t put it down on paper or any such thing but anybody is welcome to ring Amanda at the Shoalhaven Hospital and ask her” (T42.12-16).

66. [225]

    In fact, the plaintiff had said that at [66] in his first evidentiary statement (Ex A 67). A letter from Dr Thapalia also confirmed that Mr Sivonen had been given this advice (Ex B 78).

67. [226]

    It was put to the plaintiff that he can walk around without the use of a walking aid safely outside. He answered, “In the mornings is my best time ever. In the afternoon, my pain is a lot worse. I have days where I, you know, could be in bed for up to 3 days if I – leave – getting out of my bed, because my pain’s so bad. I – I have to pick – that’s what I have to do at my best to walk – to do these exercises – or – in all of this time, my main objective is to try to get better. To make myself a useful part of society, not on some pension or some disabilities as such. I want to do the – I listen to the doctors need. I tell them what’s going on. I spend – I go to every single session with Amanda at the hospital and she gives me exercise to do. Things that possibly better myself” (T42.20-28).

68. [227]

    In his second evidentiary statement, the plaintiff described his earlier accidents and confirmed he had completely recovered from them (Ex A 75-77). He was not challenged in respect of this evidence. The plaintiff submitted the defendants have not called any evidence to prove the contrary.

69. [228]

    The plaintiff relied on the unchallenged opinions of orthopaedic surgeon, Dr James Bodel, Rehabilitation Physician, Dr Vaidya Bala and Psychiatrist Dr Julian Parmegiani. The defendant had the plaintiff examined by Pain Specialist Dr Gorman, and Psychiatrist Dr Rickard-Bell. These reports have not been served. Clearly, their opinions are of no assistance to the defendants.

70. [229]

    The records of the plaintiff’s treating doctors confirm the serious and permanent nature of his physical and psychiatric injuries.

71. [230]

    In his report dated 9 February 2021, Dr Bodel diagnosed the plaintiff with a very serious injury to the left leg (Ex A 272 and 276). Those injuries were described as a comminute fracture of the left tibia and fibula, compartment syndrome, and the complication of chronic pain. Dr Bodel records that the plaintiff suffers from a sharp stabbing pain and numbness in the whole of the left leg below the knee, anterior knee pain with the plaintiff unable to kneel, squat, or climb, and an aggravation of pain related symptoms upon prolonged standing or walking (Ex A 273). He described ongoing disabilities of pain, stiffness, and weakness in the left leg as well as chronic pain and sensitivity (Ex A 276).

72. [231]

    Dr Bodel considered that the plaintiff is unlikely to ever return to work, noting his ability to seek employment on the open labour market to be “severely impacted by his injury” (Ex A 277). Dr Bodel confirmed some of the various ways in which the plaintiff has become incapacitated for the everyday tasks of his life such as the completion of domestic duties and the construction of his house (Ex A 277).

73. [232]

    In a supplementary report dated 13 October 2022, Dr Bodel opined that the plaintiff’s condition is unlikely to improve further over time (Ex A 284). He described the plaintiff as severely and permanently incapacitated for work (Ex A 285). He wrote that the plaintiff’s skills were “limited to the heavy work that he has done and the truck driving work that he has done in the past and he has no specific computer-based skills or other indoor skills to fall back on – the plaintiff effectively having no residual earning capacity and no ability to be retrained” (Ex A 285).

74. [233]

    Dr Bala, Consultant Rehabilitation in Rehabilitation Medicine, provided a medico legal report dated 21 February 2021. He wrote:

75. [234]

    Dr Bala considered that the plaintiff is more likely to develop post traumatic osteoarthritic changes in his left ankle and left knee joint and accelerated osteoarthritic changes in his hip which would contribute to lower back pain in the future (Ex A 302).

76. [235]

    In his further report dated 4 October 2022, Dr Bala confirmed his earlier views and the permanent and irreversible nature of the plaintiff’s severe injuries and disabilities (Ex A 302 and 311).

77. [236]

    The evidence discloses that the plaintiff experiences depression and anxiety caused by the incident and the resulting injuries and disabilities. He has feelings of guilt regarding his inability to earn an income, support his family or to play with his children (Ex A 292). He has become withdrawn and unmotivated and sometimes neglects his personal hygiene (Ex A 292). The plaintiff has received psychological treatment from Dr Farina (Ex B 84-91). He was prescribed Duloxetine by Dr Murray (Ex A 55).

78. [237]

    According to Dr Julian Parmegiani (Ex A 287-294), the plaintiff has an adjustment disorder with mixed anxiety and depressed mood. The plaintiff did suffer from psychological injuries in the past, but Dr Parmegiani opined:

79. [238]

    Finally, Dr Bala confirms what, on the evidence, might seem obvious: “Mr Sivonen is also at risk of developing worsening of his mood disorder, especially anxiety and depression, which requires ongoing assessment and follow up” (Ex A 310).

80. [239]

    The plaintiff’s prognosis is poor. Dr Bodel considered that:

81. [240]

    Dr Bala echoed this opinion, writing in his most recent report:

82. [241]

    Dr Parmegiani commented that the plaintiff’s psychiatric prognosis was tied to his physical injuries, with pain and associated limitations impacting his mood and self-esteem (Ex A 292). With respect to the plaintiff’s ability to obtain employment, Dr Parmegiani opined that plaintiff’s history suggested mild learning difficulties and that the plaintiff continued to experience problems with reading and writing, making retraining in other occupations a challenge (Ex A 293). Further, he stated that the plaintiff “may not have the cognitive skills required to retrain in an intellectually demanding occupation” (Ex A 293).

83. [242]

    The defendants showed surveillance video of the plaintiff on the first day of the trial. The surveillance records produced disclose approximately 120 hours of surveillance to secure a little over one hour of video.

84. [243]

    Ms Heathcoate, occupational therapist, said when giving oral evidence that she had seen the footage shown in Court, and it she did not wish to change or alter any of the opinions she expressed in her expert report. Indeed, the surveillance footage affirmed her prior opinion (T273.12-27).

85. [244]

    It is my view that when the plaintiff was sighted and filmed, his behaviour was entirely consistent with the evidence he gave as to his abilities and in accordance with the evidence given by the medical experts

86. [245]

    The plaintiff’s balance has improved since his statement of 27 October 2021. He maintains, however, that he does not take any unnecessary risks (T38.23-4).

87. [246]

    The plaintiff is prone to falling when he trips over something, or if it is dark and he is walking without looking where his feet go. This is because his feet have less feeling and “… sense [of] the ground” (T41.7-22). He told Ms Heathcoate that his falls were mostly at night (Ex A 321) and that he avoided going out of the house at night unless he had a torch to light his way (Ex A 327).

88. [247]

    The plaintiff can and does drive an automatic car (T55.49-56.6). The plaintiff can now drive the excavator, and when he does, he uses his hands (T49.13-15, 50.36-42) though he cannot do it for a long time (T53.37-46). If he uses his feet, it is not worth it (T60.44-47). In re-examination, the plaintiff said the pain becomes problematic after fifteen minutes (T152.16-25).

89. [248]

    The plaintiff also described how he was able to drive his excavator that had no modifications. He can reverse and turn it using only his hands, though it was awkward. He could only do this for a short time (T62.48-64.42). The excavator and other equipment could be modified to allow the plaintiff to operate it without the need to use his left leg (Ex A 367).

90. [249]

    He was able to travel by car as a passenger from his farm in Parma to Goondiwindi Queensland in July 2019 (T157.40-41). This is about 770 km and would take about 9 hours to complete without any stops. His son Eric drove. They had a lot of breaks because Eric was new to driving and so it took a little bit longer than usual. He observed that his father was restless, because he said his leg was cramped up and painful “… cause we had luggage in the back so we couldn’t move his seat back to stretch his leg” (T158.1-16).

91. [250]

    The plaintiff can ride his quad bike using the hand control (T66.38-41, 67.22.34). He has used the quad bike to pull a boat trailer (T68.28-29).

92. [251]

    The plaintiff pushes himself (T53.6). In the mornings he is at his best (T65.23). In the surveillance footage, in the afternoon he is seen at the shops using one crutch and carrying a carton of beer comfortably which he says he can do over a short space (T57.46-8). The plaintiff was also at the motor registry on the afternoon of 16 February 2023 (T69.25-35).

93. [252]

    He normally wears thongs, as depicted in the surveillance video, when walking (T69.41-48).

94. [253]

    He can take weight on his left leg alone, though he clearly favours his right leg (T71.7-32).

95. [254]

    On the days he was filmed, the only day he uses a crutch when outside on the farm was 23 February 2023 (T78.9-11). It is only if there is a flare up that he uses his crutch on the farm. He tries to avoid using the crutch (T79.45-80.2).

96. [255]

    Amanda, his main pain management rehabilitation therapist at Shoalhaven hospital advised him to walk around the property without any walking aides. He saw her regularly. She took him down to the Shoalhaven swimming pool and encouraged him to do aqua therapy (T41.28-43). He saw her about six to seven months ago. As best he can recall she still works at the hospital (T42.33-37).

97. [256]

    He can speak Finnish fluently (T43.29-33). He denied any learning difficulties prior to his first accident and after spending 12 months in Finland in about 2002 he could speak Finnish as fluently as he speaks English (T144.8-36). His wife is of Finnish background.

98. [257]

    The plaintiff has owned a farm since before this accident on 2 March 2019 (T42.44-46).

99. [258]

    So far as the development of his farm is concerned, he has been helped by a friend, an old Finnish engineer, who organised the development, drew the plans, went with him to council, oversaw the builders, and oversaw construction (T43.5-23). Consistent with this evidence is the information provided by the plaintiff to Ms Heathcoate (Ex A 319).

100. [259]

     The plaintiff needed the assistance of an engineer to do any of this work that was provided gratuitously. He also needed the professional assistance of others with regards the previous work he had undertaken as reported by Ms Dinley (Ex A 368). In any event, the construction of his home that is now partially completed did not commence until after the accident (Ex A 366 and Ex 8).

101. [260]

     The plaintiff does not have cattle on the farm (T69.1-2). It is a hobby farm rather than a business that he can say would be commercially viable. It was always his dream to bring his children up on a farm (T149.35-48). Ms Heathcoate’s recommendation that the plaintiff required one labourer a day for an estimated 3 days a week to “manage his land” was predicated on the plaintiff’s hope to work on his land, including planting and harvesting garlic and running livestock and doing fencing, sowing, harvesting, weed control, vermin control and land maintenance (Ex A 334-5).

102. [261]

     The plaintiff has also expressed concern that he may have to relocate the family to a warmer climate to assist him to manage his pain (Ex A 323).

103. [262]

     So far as his farm is concerned, with regards to the completion of the house, the plaintiff told Ms Heathcoate that it would cost $150,000 to complete the home. He estimated the work required by the plumber and electrician was $30,000 and he would have completed the remainder of the home himself (Ex A 319).

104. [263]

     There is no evidence as to the viability of and/or how much the plaintiff would have saved (if anything) had he done the building work himself. Nor is there any evidence about the accuracy of the plaintiff’s estimates (Ex A 339).

Damages

1. [264]

   Damages are to be assessed in accordance with the provisions of Part 2 of the CLA. The burden upon the plaintiff to establish matters on the balance of probabilities is a reference to the legal onus of proof: see State of New South Wales v Doherty [2011] NSWCA 225 and Hirst v Sydney South West Area Health Service [2011] NSWSC 664.

2. [265]

   Damages are awarded as compensation for the harm suffered. It is accepted, and clearly understood, that it is impossible to use money to restore a condition of physical wholeness to a person who has suffered great personal injury. Therefore, all the law can do is restore the person who has suffered so far as money can do.

3. [266]

   Damages cannot be perfect. In Evans v Bartlam [1940] HCA 27; (1940) 64 CLR 1, Dixon J stated at 13-14:

4. [267]

   Damages are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff could have sustained: see Pamment v Pawelski [1949] HCA 43; 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans [1977] HCA 8; 138 CLR 563 at [585] (per Gibbs and Stephen JJ).

5. [268]

   Actual loss must be determined. The determination of actual loss is made even more difficult when the disabilities consequent upon the injuries suffered by a plaintiff are not clearly defined: see Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665 at 676.

6. [269]

   The plaintiff seeks $2,888,745.88 in damages. The defendant asserts that damages should be valued at $1,130,351.32. In assessing damages, I will focus upon the main differences between the parties.

7. [270]

   Section 16(1) of the CLA relates to non-economic loss, it reads:

8. [271]

   It is common ground that the plaintiff’s non-economic loss exceeds 15% of the most extreme case.

9. [272]

   The definition of a most extreme case pursuant to s 16 of the CLA has been discussed in Matthews v Dean (1990) 11 MVR 455; (1990) Aust Torts Reports 81-037 at 68,014; Southgate v Waterford (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 23 NSWLR 528 at 533.

10. [273]

    Non-economic loss means any one or more of the following: pain and suffering; loss of amenities of life; loss or expectation of life; or disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.

11. [274]

    The plaintiff claims $352,500 for non-economic loss, which is 50% of a “most extreme case”. The plaintiff submitted that his injuries are sufficient to qualify for a determination of a most extreme case.

12. [275]

    The plaintiff submitted that the injuries suffered are severe and permanent. Mr Sivonen is a relatively young man with chronic pain. The plaintiff submitted that on the evidence submitted, an award of 50% of a most extreme case is appropriate. That is, $352,500.

13. [276]

    The defendants claim that non-economic loss should be $282,000 which is 40% of the most extreme case.

14. [277]

    The defendant submitted that, as in the past, the plaintiff will continue to cope better with his disabilities in the future. In the time since the medical reports were obtained by the plaintiff’s legal representatives, the plaintiff has improved his condition. The plaintiff will continue his rehabilitation, which during the Covid-19 pandemic has been limited.

15. [278]

    Contrary to the way the plaintiff’s case is pitched, it was submitted that the plaintiff is not broken by the incident. His recovery from his previous injuries, was, on any view, remarkable. The defendants asserted that there is every indication that he is on the same trajectory to being able to cope with his pain and achieve a greater capacity, with the proviso that he will likely need to undertake physical activities more slowly and take regular breaks.

16. [279]

    On the evidence, as submitted by the defendants, they noted that the plaintiff’s cognition does not impede his recovery.

17. [280]

    In my opinion, the plaintiff has given “given his all” to recover from the injuries he has suffered in this accident and the previous accident.

18. [281]

    It is my view that the plaintiff’s recovery from his previous injuries has been courageous and remarkable. However, there comes a point where due to the prior injuries, this accident is the tipping point. If the plaintiff’s condition improves, it will be minimal.

19. [282]

    As I set out above in my judgment, prior to the injury the plaintiff had greater mobility, better mental health and an optimistic outlook on life. The plaintiff was working 40 to 50 hours per week and attending church services once per month. The plaintiff was building a bridge on his farm, enjoyed playing soccer with his children and had regular contact with his friends. There is little objective evidence of a psychiatric disorder before the accident.

20. [283]

    However, the plaintiff’s injuries sustained on 2 March 2019 have rendered him less social, with significantly less mobility. He is now in great pain. The plaintiff’s relationship with his family is not what it once was. I agree with the general theme of the plaintiff’s medico-legal reports that the plaintiff’s injuries are permanent in nature, and it is unlikely that the plaintiff will recover the same way he did from his previous injuries.

21. [284]

    The plaintiff now suffers from an adjustment disorder with mixed anxiety and depression. He now has chronic musculoskeletal pain with neuropathic features resulting in somatic and associated pain disorder with peripheral sensitisation syndrome. This is a significant disability. Dr Bala, in his report dated 4 October 2022, affirmed the permanent and irreversible nature of these disabilities.

22. [285]

    The evidence before me does demonstrate that the plaintiff’s condition has slightly improved and the plaintiff’s commitment to rehabilitation was, and continues to remain, strong. The plaintiff’s social life has also slightly improved, albeit not by much.

23. [286]

    In assessing non-economic loss, I have also considered the fact that the plaintiff has lost the opportunity to construct his new property at Parma. I will refer to his specific claim for the construction costs under future care.

24. [287]

    In CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1, Gleeson CJ, Gummow and Heydon JJ stated at [16] and [39]:

25. [288]

    Similar to the reasoning I adopted in Makaroff v Nepean Blue Mountains Local Health District [2019] NSWSC 715 at [498]-[514], I have considered the inability of the plaintiff to complete the construction of his new home to be covered under the head of non-economic loss.

26. [289]

    Ultimately, I therefore assess non-economic loss to be 48% of the most extreme case, that is, $338,400.

27. [290]

    Past out of pocket expenses are agreed at $14,352.00

28. [291]

    Future out of pocket expenses are agreed at $111,259.27.

29. [292]

    Section 12 of the CLA reads:

30. [293]

    The plaintiff claims $181,585.00 for past economic loss, which is inclusive of superannuation. In Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, the court expressed the general principle in relation to an award for economic loss at [7] as follows:

31. [294]

    The plaintiff’s evidence is that but for his injuries sustained on 2 March 2019, the plaintiff intended to continue working full time as a plant operator until at least normal retirement age and probably for longer. The plaintiff enjoyed his work. The plaintiff wanted to continue working to provide for his family. Prior to the injuries the plaintiff sustained on 2 March 2019, he says that he did not have any ongoing physical or psychological limitations on his ability to work and lead a normal and happy life. The plaintiff says that he was feeling good and had recovered from the injuries he had sustained in earlier years. The plaintiff was happy and active, looked after his home and property and actively participated in activities with his wife and kids.

32. [295]

    The plaintiff left school after Year 10. He did not do well academically. The plaintiff has not attained any formal qualifications since leaving school.

33. [296]

    Since leaving school, the plaintiff has worked in physical demanding manual employment. He worked on a pig farm and cotton farm, cleaning out, building and installing septic tanks. He also spent many years working as a plant operator/driver. He had a Class C HC Heavy Vehicle Drivers Licence from about 1995.

34. [297]

    The plaintiff acquired his own truck in 2005 and started working as a contractor. He worked as a contractor and employee at different times, but generally as a plant operator and/or float driver.

35. [298]

    In early 2019, the plaintiff commenced subcontracting to Lynch Civil Contractors Pty Ltd (‘Lynch’), based in South Nowra. He was working on a full-time basis.

36. [299]

    Since the accident on 2 March 2019, the plaintiff has been unable to return to any form of employment as a result of his injuries and disabilities.

37. [300]

    The plaintiff relies upon the joint expert conclave report of financial experts Mr Klain Elsmore and Mr Andrew Clifford dated 7 December 2022. They were not called to give evidence, giving only a joint report. Mr Elsmore has calculated notional earnings per week as being inclusive of superannuation.

38. [301]

    The plaintiff claims the following for past economic loss:

Interest on past economic loss

1. [302]

   Interest on past economic loss is calculated at $9,317.42

2. [303]

   The defendants submitted that past economic loss (inclusive of superannuation) should be calculated at $158,320. The defendants submitted that the calculations of forensic accountant Mr Clifford at (Ex A 121) as compared to Mr Elsmore’s, forensic accountant (Ex A 120).

3. [304]

   Mr Elsmore’s findings at Ex A 120 are as follows:

4. [305]

   Mr Clifford’s findings at Ex A 121 are as follows:

5. [306]

   I have carefully read and analysed the evidence of both Mr Elsmore and Mr Clifford. The plaintiff has not worked since his accident. The fact is that he physically is not capable of any past earning capacity nor is he capable of any future earning capacity.

6. [307]

   While the plaintiff relies on Mr Elsmore’s findings, the defendants rely on Mr Clifford’s findings, the difference between Mr Elsmore and Mr Clifford relates to the plaintiff’s earnings and the appropriate calculation of his earning capacity. Mr Clifford factors in the higher earnings of the plaintiff in the year immediately before his injury but dilutes their effect by averaging those earnings over the past six years. Mr Elsmore was of the view that this approach would be unreasonable. The true calculations of the plaintiff’s earning capacity are what he would have earned uninjured. In that regard, his earnings from Lynch in the last year are the appropriate measure. I agree that the earnings should be based on the year prior to his accident, therefore I prefer the approach of Mr Elsmore’s report to that of Mr Clifford, I accept Mr Elsmore’s calculations.

7. [308]

   I assess past economic loss, inclusive of superannuation, to be $210,154.23 My calculations are as follows:

   1. (1)

      3 March 2019 to 30 June 2021 (as calculated by Mr Elsmore) = $81,933.99

   2. (2)

      1 July 2021 to 30 June 2022 ($1,143.67 per week x 52.20 weeks) = $59,700.00

   3. (3)

      1 July 2022 to 22 August 2023 ($1,161.36 per week x 34.40 weeks) = $68,520.24

   4. (4)

      Total claim for past economic loss inclusive of superannuation is $210,154.23

8. [309]

   Section 13 of the CLA reads:

9. [310]

   The defendant claims $461,082.37 for future economic loss (inclusive of superannuation).

10. [311]

    The plaintiff submitted that for his injuries, Mr Sivonen would have continued to work in full time employment until his retirement age of 67 years (a further 14 years). Given his injuries and ongoing symptoms, it was submitted that the plaintiff does not have any real or effective residual earning capacity.

11. [312]

    The plaintiff claims damages for future economic loss as follows:

12. [313]

    The defendants submitted that future economic loss should be assessed on the basis of Mr Elsmore’s $884.68 per week net earnings rather than the $1,161.36 per week net claimed by the plaintiff’s expert. In that event, if it is accepted that the plaintiff has no residual work capacity, the damages are $884.68 x 502.3 x 15% vicissitudes = $377,718.54.

13. [314]

    I am of the view that the plaintiff has no residual earning capacity. Consistent with the views of Dr Bala in respect of the plaintiff’s physical incapacity, and Dr Parmegiani in respect of the plaintiff’s psychological symptoms and capacity, the plaintiff is unlikely to work again. This accords with the bulk of the evidence before me.

14. [315]

    For the same reasons I provided in respect of past economic loss, I prefer Mr Elsmore’s calculations. I therefore assess future economic loss, less 15% for vicissitudes of life, to be $461,082.37. My calculations are as follows:

    1. (1)

       23 August 2023 to 30 June 2024 ($1,161.36 per week x 0.44 years) = $51,099.84

    2. (2)

       1 July 2024 to 18 July 2035 ($1,177.16 per week x 11.05 years) = $491,350.00

    3. (3)

       Subtotal for future loss of earning capacity $542,449.84

    4. (4)

       Less 15% for vicissitudes of life – ($542,449.84 - $81,367.47)

    5. (5)

       Total claim for future loss of earning capacity inclusive of superannuation is $461,082.37

15. [316]

    Past gratuitous care and assistance is agreed at $158,070.41. I agree that this amount is necessary and reasonable.

16. [317]

    Section 15 of the CLA governs damages for gratuitous care and assistance. It reads:

17. [318]

    The plaintiff claims the sum of $1,466,579.50 for future domestic care and assistance to be provided commercially. The defendants allow $28,631.30. Both refer to Ms Dinley and Ms Heathcoate’s written reports, who provided a joint report dated 24 January 2023 and gave conclave evidence.

18. [319]

    After the legal argument and before the conclave evidence took place, I allowed her report to be admitted into evidence on the basis that it was admissible. While I had some reservations as to some of the views she expressed, I came to the view that it complied with Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305;52 NSWLR 705 in that Ms Dinley’s opinion appeared to be based on specialised knowledge based on training, study, or experience.

19. [320]

    Ms Heathcoate has provided a detailed and reasonable assessment of the plaintiff’s future domestic care and assistance requirements. Her opinion was unchallenged. It accords with common sense given the very large (100 acre) property upon which the plaintiff, his family and Rex reside. The video tendered by the defendants establishes the fact that the property requires significant maintenance every week. Ms Heathcoate has assessed this need.

20. [321]

    There is no substance to any suggestion by the defendants that Ms Heathcoate has not considered the plaintiff’s earlier injuries and medical history. She has. At pages 109 and 110 of Exhibit A, Ms Heathcoate wrote:

21. [322]

    The plaintiff gave evidence that he intended to build a home for his family performing most of the construction work himself, bringing in contractors to perform trades work such as electricity and plumbing. As a result of his injuries, the plaintiff has been unable to perform the building work he had planned.

22. [323]

    Ms Heathcoate has assessed the plaintiff’s future requirements at 2.88 hours per week for domestic assistance and 27 hours per week for maintenance of the property and home. According to Ms Heathcoate, the plaintiff will require this for the rest of his life. The calculation is in accordance with schedule B to the plaintiff’s synopsis of damages, which is sourced from Ex A 104, 342-343 and 345:

23. [324]

    The defendants allow for future domestic care and assistance at $28,631.10.

24. [325]

    Ms Heathcoate’s estimate of the plaintiff’s need for future domestic assistance regarding the domestic garden and law is calculated until he turns 85. Mr Sivonen is now 53 years old. As admirable as the plaintiff’s efforts were in recovering from his previous injuries, it remains that he has to avoid heavy lifting. His working life was one of heavy labour. Though incapable of any precise calculation, inevitably, it was likely that his capacity to undertake these tasks would diminish as he aged so that he would not need this type of domestic assistance anyway. The defendants do not contest this part of the claim, but only until the plaintiff turns 67 years.

25. [326]

    A further vicissitude is the real chance that the plaintiff might move to premises with no gardens, especially given that he has quite sensibly contemplated moving to a warmer climate.

26. [327]

    The defendants submitted that the claim for 27 hours per week care for the remainder of his life in respect of maintaining his farm should not be allowed. This claim is advanced as a need created by injury. The defendants questioned whether this claim is in respect of a need and if so, whether cost of this assistance is reasonable to meet these needs.

27. [328]

    The plaintiff’s farm is a hobby farm. The defendants submit that the fact that this claim is not a need is in part best illustrated by the plaintiff’s desire to be able to drive his excavator to give a neighbour some topsoil, rather than let the neighbour load the topsoil into his truck himself. Further, and in any event, with some small improvement in his capacity to better manage his pain in the morning and the modification of his excavator, that is likely (or possible, being relevant with regards to the Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 assessment of future events) in the near future. The defendants suggested that if the plaintiff continues to manage his pain in the morning better, there is a likelihood, or at least a real chance that he will be able to work six half days that would obviate the need for any assistance – or alternatively, the 3 days that is now claimed.

28. [329]

    The plaintiff could not and did not assert that the farm would be commercially viable. There is no evidence that the plaintiff’s inability to do this work was productive of any financial loss. While it may be that he would have obtained satisfaction in undertaking this work, the defendants stress that his inability to do this work is not a need created by his injury. There is no suggestion of any health benefit arising from this extra work being undertaken by a labourer 3 days a week.

29. [330]

    It is accepted that this type of claim is sensitive. As referred to in paragraph 4.8.2 of Luntz Assessment of Damages for Personal Injury and Death, 5th edition (‘Luntz’), where a person needs to employ assistance in the home for cooking, cleaning, or laundering, the cost is recoverable, at least insofar as that assistance is directly referable to the plaintiff’s personal needs. The defendants submitted that the personal needs of a plaintiff living in a house that is cleaned and where the immediate lawns are mowed are different to this claim.

30. [331]

    That is not to say that the plaintiff’s loss of pleasure in having this work done may slightly increase damages for non-economic loss (see Luntz at 2.10.3 and Turner v SEC (WA) [1965] WAR 50), but the defendants argued that even that is doubtful given the CLA requires an assessment of such damages being a percentage loss of the most extreme case.

31. [332]

    The defendants also submitted that the considerable extra costs of this claim based on amenity only cannot be justified and are unreasonable for reasons similar to those traversed in Luntz at 4.5.1.

32. [333]

    In the alternative, the defendants submitted that the need for such assistance, if allowed, would need to consider the considerable vicissitudes of such services not being “needed” because of reasons other than the defendants’ breach as outline above, including aging. The defendants submitted that such a claim should not be allowed for the remainder of his life and should be limited to no more than 3 years.

33. [334]

    The defendants also noted that as the time goes by, the need for the plaintiff to mitigate his damages becomes more relevant.

34. [335]

    No significant piece of evidence, nor persuasive submission, was brought to light in respect of the plaintiff’s wife’s capacity to perform the assistance or mitigate the need for commercial assistance. The plaintiff’s physical condition necessitates domestic assistance for the rest of his life. The plaintiff’s property is also large, and the surveillance footage demonstrates that it regularly requires maintenance. The plaintiff, due to his injuries, has no ability to perform this work.

35. [336]

    The grounds are expensive to maintain, creating a need for assistance with the duties of management and upkeeping. The plaintiff requires 2.88 hours per week of domestic assistance valued at $57 per hour and 27 hours per week for maintenance of the property and home valued at $60 per hour.

36. [337]

    The plaintiff is 54 years of age. The date of injury is 2 March 2019. The period from injury to the date of calculation, being 27 February 2023, is approximately 4 years. I do not agree that as submitted by the defendant the plaintiff’s future domestic care should be limited to the time, he reaches 67 years. There is no real evidence that the plaintiff intends to move, and even if he did so, he may still have to tend to and maintain sizeable grounds, as it has always been his realised dream to live on the land. The plaintiff’s current life expectancy is approximately 30.46 years based on Medium Prospective Life Tables as adopted in Zhang v Golden Eagle International Trading Pty Limited & Ors [2006] NSWCA 25. The 5% multiplier for 31 years is 822 weeks.

37. [338]

    I assess future domestic care and assistance to be $1,466,579.50 in accordance with the following calculations:

    1. (1)

       Domestic assistance: 2.88 hours per week x $57 per hour = $164.16 per week

    2. (2)

       Home maintenance and garden care assistance = 27 hours per week x $60 per hour = $1,620.00 per week

    3. (3)

       Total per week = $1,784.16

    4. (4)

       Total claim for future domestic care and assistance = $1,784.16 x 822 = $1,466,579.50

38. [339]

    The plaintiff claims $150,000 for the construction costs of the house at Parma, NSW. $30,00 of which would be allocated to a qualified electrician and plumber to complete their tasks. (Ex A 339)

39. [340]

    It was submitted that the plaintiff would have performed the balance of labouring work for which he will now have to pay others. Mr Sivonen claims $120,000 (150,000 – 30,000) in accordance with the assessment of Ms Heathcoate (Ex A 339 and 346).

40. [341]

    The defendants submitted that the amount awarded under this head of damage should be nil.

41. [342]

    In Ms Heathcoate’s report (Ex A 339) the estimated costs claimed by the plaintiff are his estimates in respect of which Ms Heathcote did not have any expertise. That estimate is speculation. The basis of the calculation is not an expert opinion.

42. [343]

    This flaw in the evidence becomes even more stark in view of the plaintiff’s heavy reliance on the assistance of his Finnish engineer friend who oversaw the construction work. Clearly this work needed to comply with various requirements of the council which the plaintiff was not qualified to satisfy.

43. [344]

    The defendants submitted that the basis of any such claim can only be the difference between what he would have to pay a builder and what he could have saved if he did the work himself. There is no evidence that he would have been able to do this work himself for less than a builder.

44. [345]

    For reasons set out earlier, I have considered the construction of his house under the heading ‘non-economic loss’. If this approach is wrong, I don’t make any allowance as to the costs of building a house on the basis that the plaintiff has not provided evidence as to what work he would have done had he not been injured, nor has he provided any building expert report as to the quantum of these costs apart from what he told Ms Heathcoate, an occupational therapist.

45. [346]

    Ms Heathcoate at Ex A 339 stated the following:

Costs

1. [347]

   Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff’s costs.

   1. (1)

      The first and second defendants are to pay the plaintiff damages in the sum of $2,769,215.20, arising from an accident that occurred on 2 March 2019.

   2. (2)

      The first and second defendants are to pay the plaintiff’s costs up to 23 December 2021 and indemnity costs from 24 December 2021.