Adlawan v Recochem Inc [2021] NSWSC 223 | Case summary

Supreme Court of NSW|2020-10-30|Before: Cavanagh J

Judgment

The plaintiff claims damages from the defendant arising out of an accident at the defendant's premises in Padstow, New South Wales on 9 November 2012.
At approximately 11.30am on that day, the plaintiff was struck by a forklift which he had been operating shortly before the accident in the course of his employment with the defendant.
As a result of the accident, the plaintiff suffered a severe injury to his right leg, leading to amputation of the leg.
The plaintiff claims that his accident was caused by the negligence of the defendant. Damages have been agreed in the sum of $3.7 million.
The plaintiff has expressly limited the particulars of negligence to particulars which the plaintiff submits would give rise to an entitlement to damages assessed under Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) (MACA).
The plaintiff disavows any allegations of negligence which would not give rise to an assessment of damages as against the defendant under Ch 5 of MACA. With the consent of the defendant, the case has been run on the basis that, if the plaintiff is not entitled to damages under MACA, then the defendant is entitled to a judgment in its favour.
This is because the damages which are ordinarily payable to an employee arising out of negligence of the employer are limited by s 151E of the Workers Compensation Act 1987 (NSW) (WCA).
Having regard to the severity of the plaintiff's injury and the cost of regular prosthetic updates and changes, I assume that the plaintiff considers that the value of his rights to compensation and payment of medical and equipment expenses would be more than any damages he might recover if damages are assessed under the WCA.
Having regard to the way in which the case was conducted by the parties, the three issues for determination are: 1. What were the circumstances of the accident? 2. Having regard to my findings as to how the accident occurred, was the defendant negligent in any of the limited ways pleaded or articulated? and 3. Having regard to my findings on the first two issues, is the plaintiff entitled to damages assessed under Ch 5 of MACA?
If the answer to the last issue raised is in the negative, then the parties agree that there should be a judgment for the defendant because the plaintiff has not sought damages assessed in accordance with the WCA.
If the plaintiff is successful the defendant maintains that the agreed sum should be reduced on account of contributory negligence.

Circumstances of the accident

On the plaintiff's case he had been employed by the defendant in Sydney for a number of months prior to the accident. On commencing employment with the defendant, he undertook a short period of training at the defendant's South Australian premises. This included training in the operation of a forklift, albeit, there is some controversy as to whether there were differences between the type of forklift he was driving at the time of the accident and the one on which he trained.
Part of the plaintiff's duties involved using a forklift to load and unload trucks and move goods around the factory.
There were two types of forklifts at the premises being a green Mitsubishi model and an orange TCM model. The plaintiff normally drove the TCM forklift but, on this occasion, he was using the Mitsubishi forklift.
Despite having written guidelines, policies and procedures, the defendant had provided little by way of training of the plaintiff in those policies and procedures. Indeed, it is apparent that the defendant was not enforcing the policies and procedures set out in its own manual.
For example, the defendant's "Forklift Safe Operation Policy and Procedure" booklet specifies that forklift operators must park the forklifts on level ground and turn the engine off.
On the occasion of his accident the plaintiff parked the forklift on a slope and left the engine on. He was never told that he should not be doing this.
He had been told that, if he needed to alight from the forklift during the loading or unloading process, he should leave the engine on and in neutral, lower the load and apply the handbrake. He says this is what he did immediately prior to his accident.
On the day of the accident, the plaintiff had been performing his ordinary duties, operating a forklift and assisting in the unloading of a truck which was parked on the driveway out the front of the premises.
The plaintiff's description of what occurred is set out in his supplementary evidentiary statement of 12 October 2020 as follows: "20. I started the day driving my usual forklift, that is the orange vehicle, but that was ultimately being used by the sub-contractor who had been brought in anticipation of my absence finding accommodation. 21. Mid-morning a Border Express truck came in with a load to be taken off and put into storage. The driver of the green Mitsubishi was taking a morning smoko, and so the green Mitsubishi forklift was available to me for about 10 minutes. I began to use it to unload the truck and for this purpose part of the curtain wall was rolled back to enable the end of the third row to be unloaded. I took the first load off and placed it in the warehouse, and then, in accordance with my usual practice, I took the second load off and parked it near the entrance to the warehouse while I attended to the manifest before the new loads were mixed with the old in storage. I parked the forklift slightly at an angle but generally facing the door of the warehouse near the top of the slope. When I parked the forklift, I put the load down, tilted the mast to get it firmly on the ground, put the forklift in neutral and pulled the handbrake on before alighting. 22. As far as I am aware I engaged the handbrake in the manner I had always done. There was no alarm to indicate whether or not the handbrake was properly engaged. I walked back to the truck to check the material off so that I could then remove the rest of the material without using the checklist again. I checked the stock by putting my head under the side curtain. I believe that I was away from the forklift for at least a minute prior to being hit by it. 23. Whilst I was checking the stock the forklift that I had parked collided with me. I had just turned around and saw it about to hit me and managed to step to one side but it caught my right leg. I was unable to extract myself. The driver of the Border Express vehicle, a gentleman who I understand is called Steve, drove the forklift off my leg. 24. I saw him release the handbrake, put the forklift into drive and he drove off and put the forklift in a different spot."
The accident was witnessed by a number of persons, including the truck driver, Stefce Trpkovski, and a supplier of the defendant who happened to be there, Shane Black.
There is no doubt it occurred as alleged, except for three matters of controversy.
The plaintiff says that he applied the handbrake before alighting from the forklift and that he was struck by the forklift up to two minutes after he had alighted from the forklift.
The defendant says that the plaintiff could not have applied the handbrake properly and that the plaintiff was struck only seconds after he had alighted from the forklift.
There are differing estimates as to the time between the plaintiff alighting and being struck, ranging from seconds up to the plaintiff's estimate of two minutes. Of course, time estimates are notoriously unreliable in these circumstances.
The plaintiff underwent an extreme trauma. Other persons observed the accident and professed to have been shocked by it. Estimates given a considerable time after the accident can vary and be unreliable.
It seems unlikely that there was a gap of two minutes but there is no evidence that the forklift commenced to roll the second that the plaintiff alighted from it. There was a slight delay before it commenced to roll down the slope.
There is also an issue as to whether the forklift was actually parked on a slope. Whilst the defendant submits that the area was essentially flat, it must be that the wheels of the forklift were on a slope. The plaintiff says that he parked it on the top of the slope. It is difficult to understand how it could have commenced to roll if it was wholly on the flat surface. The defendant's own post-accident investigations tend to indicate that the forklift was on a slope.
In any event, the critical questions remain what the plaintiff did and what would have caused the forklift to initially remain stationary and then start to roll.
It is necessary to consider what the plaintiff said he did and the operation of the handbrake.

The operation of the handbrake

The plaintiff said that prior to alighting from the forklift he depressed the handbrake and pulled it back hard.
He also said that after the accident and while he was trapped by the forklift, he saw Steve (Stefce), a truck driver, pull on the handbrake. He said: "A. Yes, and he pulled the handbrake up, which is to release it, and then he put it to forward and then when I tried to step on the right side, because I was wearing long pants, it wouldn't let me stand. And it was just hanging, hanging around… "Q. You said you saw him release the handbrake. How did he release the handbrake to do that? A. So, it was down and he pulled it up. Q. Did that release the handbrake or not? A. To release the handbrake, yes… "Q. When you saw him, you say, release the handbrake, was the handbrake, so far as you could see, in the same position you had left it in when you exited the vehicle at the top of the hill? A. I think so. Q. When he released the handbrake, as far as you can remember, he changed the handbrake from the position where you had left it into a different position to release it? A. To release it, yeah."
There is some confusion in this evidence from the plaintiff as, although the plaintiff said that Steve released the handbrake by pulling it up, the handbrake is put on by pulling it up.
Mr Black said in his evidentiary statement that he had observed the plaintiff reach to his left side and pull back on the handbrake simultaneously whilst he was exiting the forklift. It did not appear that he was doing anything unusual. It looked like a normal pull of the handbrake. He did not appear to be in a hurry, which would tend to negate the defendant's suggestion that he was.
In his evidentiary statement, Paul Russell, the defendant's Warehouse Supervisor described the operation of the handbrake as follows: "23. The handbrakes in both forklifts are identical. It is a single handle ratchet lever. This is a similar handbrake found in most motor vehicles, with the only difference being it does not click as it is being pulled up, instead it [clicks] once it reaches the gripping point to engage the brake. 24. If the clicking sound is not heard the brake may engage momentarily before it automatically disengages. I have since attempted to see if the brake engages outside of the clicking sound and besides engaging for a second or two before it releases. 25. Basically you have to confirm the handbrake has been pulled all the way up. The handbrake gets tighter as it is pulled up. The tension increases rapidly as it reaches the gripping point of the handbrake. 26. The clicking sound regarding the handbrake is similar to the clicking sound of a push pen. I would say that once outside it is quite hard to hear the clicking sound, as there are trucks and etc. 27. Despite the clicking sound not being overly loud, whilst moving the handbrake it can be felt when it has clicked into place and engages the brake as there is also a buffer that prevents any further pulling of the handbrake."
Kenneth Gleave, the defendant's Logistics Coordinator, described the handbrake as follows: "24. The handbrake is a manual handbrake. It requires the operator to physically raise or lower the handbrake. The handbrake makes a clicking sound once it has reached the highest point to indicate the brake is secure. If the handbrake is not pulled all the way up the brake quickly drops and disengages. The handbrake only works if it is raised to at least ninety percent. Furthermore the handbrake does not make a ratchet sound when either being lowered or raised. 25. The force within the handbrake increases the higher it raises. It is not extremely heavy however it is noticeable."
The plaintiff and the defendant relied on experts, Mr Grant Johnson and Dr Tim White. They prepared reports and then prepared a joint report dated 23 September 2020. They gave evidence concurrently. Neither expert examined or tested the specific forklift or any similar forklift, but Dr White did examine another forklift which he says had the same type of handbrake lever as the subject forklift.
The experts were asked whether there was material before them which indicated that at the time of the accident, the forklift rolled backward because its braking system failed. Mr Johnson considered the fact that the brake system appears to have been sufficient to restrain the forklift for a finite period on a slope prior to it spontaneously rolling backwards suggested a failure in the braking system (meaning a componentry failure or defect).
However, he noted that none of the WorkCover tests were able to replicate the circumstances experienced in the incident.
Dr White was of the view that there was no evidence to support any suggestion that the braking system failed.
The evidence on the operation of the handbrake was expanded upon by the experts concurrently. Effectively, there is a single "on" position which is once the handbrake lever is pulled over the centre and then fully pulled back.
Mr White added to this, explaining that as the lever is pulled back (after about 80% of its travel), it becomes easier to pull. That is because it is easier at the end of the pull than at the beginning. However he was uncertain whether this would be detectable by the operator.
What might have happened with the handbrake immediately before the forklift commenced to roll was expanded upon by the experts as follows: "WITNESS WHITE: Yes and your Honour this goes back to the second or third last question that I answered and that was in relation to whether the brake was either on or off digitally and I think I agreed yes the brake was not on properly. What I have - or one scenario I believe is possible is that the lever was pulled on perhaps 75, 80% on, but not 100% on. So the lever could've been on centre if you will but not over centre. So it just wasn't quite pulled all the way back, it just wasn't pulled over centre. It was just sitting there on centre. So the brake was effectively applied then because the cable was pulled, pulled up to its full 10 millimetres, whatever the number was that I used before. But the lever itself was not actually locked over centre. So again, over time, particularly because the engine was still running, vibration could've just caused that lever to unstick and have the cable pull it back down to zero, to the disengaged position. CRANITCH: But you'll see without the hand pressure being applied to it, it's not going to hold in that position for more than a second or two anyway, is it? WITNESS WHITE: No, it will, and I, I have done this on forklifts. CRANITCH: Do you agree with that Mr Johnston? WITNESS JOHNSTON: There is a position sort of right around centre where it can kind of grab hold. Because it's starting to release, if you get just beyond centre, it's sitting right at the top and, and will bounce back with fairly minimal interference. But there is sort of an equilibrium point there were it does, at least momentarily hold without interference. CRANITCH: Yes, in other words we're talking seconds, we're not talking a minute or two, are we? WITNESS JOHNSTON: Depends what happens to it. If it was completely left alone, and effectively off, it may stay there indefinitely. But it's not a real stable position, put it that way. So it can bump off relatively easily if it's interfered with or there's a force upon it. CRANITCH: Can I ask you this Dr White, even if it was due to the engine vibrating, it would come off within seconds, would it not? WITNESS WHITE: I, I don't necessarily agree with that, no. CRANITCH: Mr Johnston? WITNESS JOHNSTON: Without knowing how much this engine vibrated, you'd think if it was going to come off, it probably would come off fairly quickly, because you assume that it's not operating if you've got homogeneous forces. There's nothing changing about the operation. But without seeing the actual forklift and testing it, how much vibration there was and how rigid the handbrake lever was, I think we're speculating to say exactly what was - what would've happened. But you know, it's an equilibrium but it's not a real stable equilibrium at that point and can come off quite easily."
It is difficult to reconcile the plaintiff's evidence (that he pulled the handbrake on fully) and the evidence of the witness, Mr Black, (that he observed the plaintiff pulling the handbrake on in the normal way), with the absence of any finding of defect in the operation of a handbrake on investigation following the accident.
There is no dispute that if the handbrake was fully applied, it should have been sufficient to prevent the forklift rolling. There is no evidence that any componentry failed to operate as intended.
That only leaves two explanations being that: 1. the handbrake was not fully applied; or 2. there was some temporary defect with the handbrake which was not discovered on investigation after the accident.
The second explanation is most unlikely. Testing with the handbrake on failed to replicate the event. Examination of the forklift failed to reveal any part that was not working or might have failed. There is no evidence to support a failure, other than a general comment from the plaintiff's expert which includes as an assumption that that the plaintiff applied the handbrake properly.
The evidence of Mr Russell and the experts is to the effect that the handbrake could have been pulled on but not fully, in which case it might have set temporarily in the position to which it was pulled before releasing or fallen back immediately. There is an explanation for a delay in the forklift rolling even if the handbrake was not applied fully.
It seems likely that the handbrake was not applied properly by the plaintiff. As he alighted from the forklift, he might not have realised that he had not pulled the handbrake on fully. As he alighted it released (immediately or moments later) but the forklift remained stationary until the vibrations from the tynes caused the forklift to roll.

Lights on the console

The plaintiff's evidence is also relevant to an issue of negligence raised by the plaintiff, being the absence of warning lights in the forklift which might have informed the plaintiff that the forklift was not fully on.
The plaintiff gave evidence about the instrument lights as follows: "Q. Do you remember what those lights on the vehicle you've trained on indicated? What they referred to in terms of the various operations of the forklift? A. Yes. Q. What did the various lights of the vehicles you've trained with indicate? A. There's oil, engine lights. And there are some for the - see, there is some for the handbrake. Yes, there's lighting for the handbrake. Q. What was the function of the light in relation to the handbrake? A. So, it, it, it - the light of the handbrake, it doesn't turns on if you don't engage fully. So that's what I can remember. There are other lights but I can't - yeah." … "Q. Did it have an instrument cluster, as it were? In other words, did it have dashboard lights operating on that forklift? A. Yes. Q. What lights operated, do you recall? A. There was no lights. Q. There were no lights operating? A. There was no lights operated, no, I'm sorry. Q. Were there lights that you could see that should have been operating? A. I, I believe so. There are some small LED - some sort of. Q. From time to time did you also have to drive a Mitsubishi forklift? A. Yes. Q. Were there any lights that operated on that vehicle? A. No. Q. Did it have any alarm system that operated at all? For example, was there a reversing sound made when the vehicle went into reverse? A. There is a sound which is the reverse mechanism." … "CRANITCH: Thank you your Honour, I'll clarify that. Q. Were there LEDs on the Mitsubishi forklift that you operated from time to time? A. LED, but it's not lighting. Q. Was there an instrument cluster on the forklift, the Mitsubishi forklift? A. There was, but it's not working, no."
I found the plaintiff's evidence-in-chief on the existence of any instrument light for the handbrake a little confused. The plaintiff became more uncertain during cross-examination as follows: "A. I can't, I can't - what do I say? I can't pacifically (as said) what type it is. Q. You can't specifically say what they were for? A. I can, I can say that when I did my training, there are some lights as well for, let's say, handbrakes and, and so forth. Q. What did the handbrake light look like? A. It was a colour red, something like that. Q. Did it have an icon inside it, did it have a symbol? A. I, I can't remember that. Q. Are you sure there was a handbrake light on this console? A. Sorry? Q. Are you a hundred percent sure there was a handbrake light on these consoles? A. Yes. Q. There actually is no handbrake light on these consoles, you appreciate that? A. Okay. … "CRANITCH: I don't understand that. HIS HONOUR: --forklift he was driving at the time, or the ones he used at training? MORGAN: I withdraw the question. Q. Are you a hundred percent sure there was a handbrake light on the forklift you trained on? A. Yes. Q. It was on the console? A. Yes. Q. Was it flat, part of the console, or did it stick out from the console? A. It - can you repeat that? Q. Was it a little light that stuck out from the console-- A. Yes. Q. --underneath the console? A. Underneath the console? You mean like there is a glass inside it? Q. Yes. A. I think so, yes. Q. Was it a sort of glow lamp or a switch that stuck out from the console? A. Not, not that I can remember, no. Q. Your memory is not very good of that, is it? A. Say that again? Q. Your memory is not very good of that is it? A. Look, in, in that essence, I, I remember that there is a light, that it's, it's a handbrake, it's for a handbrake, but I cannot define exactly what, what is the - what do you call it - the shape of it, but there is a light. Q. Was it on the left-hand side of the console, the right-hand side of the console, up the top or at the bottom, where was it? A. Near the - on the, on the, the gauges where it is the odometer and so, and so forth" "Q. Perhaps I'll try and put it in a different way. You've indicated there were lights on the console-- A. Yes. Q. --but they didn't work, yes? A. Yes. Q. In South Australia? A. I can't remember that. Q. So I take it you can't remember then whether there was, on the console, a light for the handbrake? A. I, I wasn't too fixated on, on, on that, because that was the earlier stage in my training and in Sydney, that's what I - it, it, it started to recollect to me that because it's so, it's, it's - there is a slope in there and then, and then there's - I, I stated to remember that it seems like there is no light working on the - on any of the cluster because while in - while I was in Sydney, majority of my week is on the forklift, so it seems like I'm aware more. Q. Your evidence is that there was never a handbrake light that worked in Sydney, that operated? A. There is no light. Q. So, other than your recollection that there was a light on the forklift that you trained on, you hadn't actually seen a handbrake light thereafter, driving forklifts? A. The one in, in, in Sydney and in South Australia. Q. You hadn't seen one operate other than what you'd seen in training, is that your evidence? A. That's correct. Q. So the whole time you were in Sydney, you drove both those forklifts and neither of them had a, to the best of your knowledge you say, a handbrake light that operated? A. That's correct. HIS HONOUR: Sorry again Mr Morgan, it's just the use of the terminology. When I go to read the transcript, are you suggesting neither forklift had any light on the console at all for a handbrake, or are you saying it wasn't working? When you say it operated, it's a bit confusing. MORGAN: Sorry, I thought I phrased the question in terms - I'll re-put it and assist your Honour. Q. Your evidence is that both in South Australia and in Sydney, as far as these forklifts were concerned, there were lights to indicate whether the handbrake worked, but they never operated in either place, is that your evidence? A. I think so."
The Mitsubishi forklift involved in the accident was sold or disposed of by the defendant at some time after the accident and was thus not available for inspection by any expert. The defendant produced a photograph of what it maintained was a similar Mitsubishi model forklift, although it was not conceded by the plaintiff that the features of the forklift involved in the accident were identical.
It was put to the plaintiff that the console on the current Mitsubishi forklift being used at the defendant's premises looks the same as the console on the forklift being used at the time of the accident. The plaintiff said that he could not remember that. Nor could he remember with reference to the photograph of the existing forklift where the lights which he said were on the console back in 2012.
The defendant adduced evidence from Mr Russell on the lights issue. He said that the only difference between the console on the current Mitsubishi and the Mitsubishi forklift being used at the time of the accident was that there was one extra gauge on the current Mitsubishi and there were only two on the older version. He said that there are no indicator lights or buttons on the current console and there was only one on the old console being the glow plug for the diesel. The light would show when the barrel was heated up.
Mr Russell's evidence on the absence of lighting on the console indicating whether the handbrake was on cannot be reconciled with that of the plaintiff.
The defendant also adduced evidence from John Yates. Mr Yates was involved in dealing with the mechanical and maintenance requirements in respect of the defendant's operations in Australia. He is located in Brisbane but is familiar with the operations in Sydney and deals with the mechanical and maintenance requirements.
Part of his role was to work with the supplier of the forklifts, MLA Holdings Pty Ltd ("MLA") and ensure that the forklifts which are provided to the defendant are fit for purpose and are fully maintained. He says that the forklifts leased from MLA are industry standard forklifts but they undergo significant modifications to make them flameproof so as to ensure that the forklifts could not inadvertently ignite any flammable substances. He says there can be no electronic devices on a flameproof vehicle and all electronic devices must therefore be removed by the supplier (being MLA) before the forklift can be used at Recochem.
The electronic functions are replaced by pneumatic devices.
He says that the forklifts that the defendant leased never had any warnings lights of any kind, even before the forklifts were modified to make them flameproof.
As might be expected, the accident was investigated by SafeWork NSW.
There is nothing in the material produced under subpoena which suggests either that there was a handbrake light on the console of the forklift in use at the time of the accident which was not working or that there should have been such a light on the console.
Indeed, the material produced under subpoena suggests that SafeWork's examination of the forklift did not find any parts of the forklift which were not working as they should have been.
There are service records and there is an MLA forklift truck driver's daily checklist. There is no evidence that the forklift in use at the time was being used whilst any part of the forklift was defective in the sense that it was not operational or working.
Further, although neither Mr Johnson or Dr White had the opportunity to examine the forklift involved in the accident, there is no evidence from them to the effect that such a forklift would normally have a warning light on the console indicating whether the handbrake was fully on or not on.
The plaintiff must be mistaken in his recollection of the appearance of the console on the forklift involved in the accident. I do not accept that there was a warning light on the console in respect of the handbrake on the forklift. Indeed, again at the end of the evidence and during submissions Mr Cranitch rather moved away from the proposition that there were non-operative warning lights on the console.
There is no dispute that the forklift did not sound an alarm or turn off should the operator alight whilst the handbrake was not applied properly.
There was no other warning or alarm signal such as a dead man's switch on any mechanism on the forklift which would have warned the plaintiff that the park brake had not been pulled on to its full extent or some other mechanism which would have had the effect of restraining the movement of the forklift.
I make the following findings in respect of the circumstances of the accident: 1. On the day of the accident, the plaintiff was attending to his normal duties in accordance with such training he had received and the instructions of the defendant; 2. Although he normally operated the orange forklift, he was operating the green Mitsubishi forklift at the time of the accident; 3. During the course of unloading a truck he was required to alight from the forklift to check the manifest; 4. He stopped the forklift on the driveway just at the point where the slope of the driveway commenced; 5. He stopped the forklift so that it was at an angle across the slope; 6. In accordance with the requirements of the defendant, he lowered the tynes of the forklift which were inserted into a pallet at the time to ground level. He left the engine on and in neutral; 7. He pulled on the handbrake believing that he had applied it fully but he had not; 8. It is likely that he pulled the handbrake up until just after the centre position at which point it would have felt at its tightest but the handbrake operates in such a way that the last 20% is in fact easier to pull on than the movement up to 80%; 9. Believing that the handbrake was on, he alighted from the forklift and walked towards the truck; 10. After he had alighted, the tynes of the forklift were vibrating as the engine remained on. The vibration of the tynes caused a reduction in the small amount of friction arising from the tynes being on the pallet which was on the concrete surface. Whatever friction was present was sufficiently reduced through vibration of the forklift, leading to the forklift commencing to roll; 11. It rolled into the plaintiff causing him severe injury; 12. The plaintiff's estimate of the time lapse of two minutes between him alighting the forklift and commencing to roll is not correct. It was more likely a shorter period, although it is not necessary to make any finding as to the precise period between the plaintiff alighting and being struck by the forklift; 13. There was no handbrake light or indicator on the console of the forklift. The plaintiff is mistaken in his belief that the console contained an indicator light for the handbrake which was not working; and 14. There was no other warning or alarm signal such as a dead man's switch on any mechanism on the forklift which would have warned the plaintiff that the park brake had not been pulled on to its full extent or in some way operated some other mechanism which would have had the effect of restraining the movement of the forklift.

Negligence

It is clear that the accident arose as a result of some failures on the part of the defendant. Indeed, Mr Morgan did not dispute this in the end. Even the defendant's own documentation, including its post-accident investigation report, identifies failures. The summary of the incident investigation and reporting includes the following statements: "Due to no Risk [Assessment] of the work carried out in dispatch, insufficient training and the non-existence of a safe work place system this is the root cause of why the accident happened. Currently a safe work method has been devised and plans in place to have a people safe zone in the area where the driver and staff and safely monitor the loading and unloading of trucks. Warnings and signage to be also implemented... Drivers not adequately supervised in the proper use of a forklift and of the hazards associated with the plant in that particular work area. Drivers need to be adequately trained [sic] the correct procedures of how the dispatch area is managed."
Further, there were recommendations which included the following: "Bunding at the entrance of the warehouse could be considered to be moved further into the warehouse so that the forklift can [manoeuvre] into the warehouse onto level ground easier. It could be considered to look at replacing the forklift with a forklift that activates the braking mechanism automatically when the driver removes himself off the seat, this [needs] to be assessed due to the requirements of being a flameproof forklift. This could curb human error of not engaging the park brake properly. Otherwise a forklift with a ratchet handbrake instead of spring loaded. Having a safe people zone with full view of the dispatch area when loading and unloading is taking place. Staff training and procedures to be implemented so that everybody understands the correct way of loading and unloading goods from delivery trucks."
Mr Russell could not explain why the plaintiff was not informed of the contents of the defendant's "Forklift Safe Policy Operation and Procedure" booklet, which included a direction only to park on level ground.
He accepted that a number of changes had been made since the accident including a prohibition on loading trucks outside, a prohibition on alighting from the forklift outside (i.e. on the slope) and more training. The recommendation for a switch on the seat (a dead man's seat) had not been implemented.
Whilst the allegations of negligence were rather fluid and perhaps not necessarily articulated in the statement of claim, the plaintiff settled on four bases on which he asserts that the defendant was negligent, each of which he says entitles him to a payment of damages under MACA being: 1. there was a defect in the forklift componentry which caused the handbrake to fail (presumably the plaintiff says that I should infer as a result of the defendant's negligence); 2. the defendant failed to detect that there was a defect in the console which caused the warning light not to operate; 3. the defendant failed to instruct or permitted the plaintiff to park on a slope and alight from the forklift whilst undertaking the process of unloading; 4. the defendant failed to arrange safety modifications to the forklift such as a different type of handbrake, a warning buzzer or dead man's seat.
I have already indicated that I do not accept that the accident occurred as a result of some type of failure of the handbrake to operate properly caused by defective componentry. The first particular of negligence is dependent upon a finding that the handbrake was properly applied by the plaintiff. It was not.
I have already rejected the plaintiff's evidence that there was a light on the instrument panel for the handbrake which was not operational at the time.
The third particular relates to a failure to instruct or inform the plaintiff that he should not have parked the vehicle on the sloping driveway.
There could be no doubt that the defendant was negligent in not so informing the plaintiff as it records in its own manual that forklifts must be parked on level ground and recognised in its own post investigation report the need to enforce this.
The defendant did not adduce any evidence to establish that it informed the plaintiff that he should not park the forklift on the sloping driveway. Indeed, the evidence is that it was a regular practice. There is no evidence that any training the plaintiff undertook would have been sufficient to inform the plaintiff that he should not park the forklift where he parked it immediately before it rolled into him.
It is not necessary to consider this particular of negligence in detail. No submissions were made relating to matters such as the risk of harm or foreseeability and I took the defendant to be at least not disputing that its failure to inform the plaintiff that he should not be alighting from the forklift whilst it remained on the sloping driveway represented a failure to take care on its part.
The duty of care imposed on the defendant required it to instruct the plaintiff that he should not park the forklift (with the intention of alighting from it), whilst it was on sloping ground. The defendant did not so instruct.
The question is whether the establishment of such fault entitles the plaintiff to claim the damages under Ch 5 of MACA.
The fourth particular of negligence is more complex. The plaintiff alleges that, in circumstances in which it permitted the forklift to be parked on sloping ground and directed that the engine remain on at all times whilst it was parked, there were further safety modifications which should have been applied to the forklift.
Those safety features might have included: 1. a different type of handbrake; 2. a light on the console indicating whether the handbrake was on or off; 3. some form of warning alarm or light which would sound if the driver left the forklift with the engine running without the handbrake on; and 4. some type of dead man's seat, such that the handbrake would automatically operate should the driver leave the seat.
The plaintiff points to the fact that, although the forklift was registered to MLA and only leased by the defendant, the forklift was specifically modified for use at the defendant's premises. It was modified in accordance with the defendant's requirements. The defendant could have requested further modifications.
The relationship between MLA and the defendant was explained by Mr Russell. MLA provided the defendant with the forklift in a flameproof state. MLA then serviced and maintained it. As he said, they do everything bar drive it.
MLA attended the defendant's premises to service the forklifts. It brought any issues to the attention of the defendant. There is no evidence that there had been any issues which had not been repaired or that there had been any failure to service and maintain the forklift involved.
Mr Yates said that all of the defendant's forklifts were ordered through MLA. He had never spoken to MLA about any modifications to forklifts apart from making them flameproof and acceptable for a hazardous chemical environment.
It was put to him that the defendant's own recommendations after the accident included two measures which might or should have been put in place being: 1. that the seat activates the braking mechanism automatically when the driver alights; 2. that instead of a simple spring loaded handbrake, there should have been a different type of handbrake.
Mr Yates said he was not aware of either recommendation. He said that ratchet handbrakes are not a good idea. He had experience with ratchet handbrakes. He considered that there were better options than a ratchet handbrake, indicating that the better option was exactly the one that was on the current forklift.
It was put to him in cross-examination that it would have been a relatively simple thing to place a red button attached to the mechanism on the handbrake which would identify to the driver how far he had to pull the handbrake. He did not agree with this proposition, suggesting that it would have to be properly engineered.
He was also asked about whether it would be possible to install a pneumatic buzzer to the seat in the event the brake was not fully applied. Again, he said he had never considered that. He thought it would be quite involved, could be expensive and it would have to be engineered.
He also said that he considered the suggestion of a modification to a forklift to include a buzzer as problematic. He had not seen this on a forklift previously. He explained that the area could be quite noisy. Whilst reversing, buzzers and horns could be heard. It could become a problem if there were many different noises around the site. The warning sounds would all have to be completely different. He was unsure how to overcome that problem.
The suggested preventative measures were greeted with differing levels of enthusiasm by the experts.
Despite the forklift being pneumatic and not electronic, the experts generally agreed that modifications to the forklift could have been put in place, although they both saw different problems with these measures. Further, there is an issue as to whether all of the proposed modifications were available in the market prior to the accident.
As far as the warning buzzer is concerned, despite the forklift being pneumatic, the experts agreed that it would be possible for such a buzzer to be fitted, but Dr White, in particular, questioned the likely effect of such a warning buzzer in a similar way to Mr Yates.
It was agreed that a different type of handbrake could have been used, such as a fully ratchet type of handbrake, rather than an over the centre type of handbrake. By this, the experts meant that it would have been possible to install a handbrake which ratcheted up with a clicking sound at each level, so that the operator could understand when he had reached the position where the handbrake as fully on and, further, so that even if the operator did not pull the handbrake fully on, it would not disengage. It would simply remain at the level to which it had been pulled.
However, the experts agreed that the operation of the existing handbrake at the time was essentially tactile in the sense that the real signal to the operator that the handbrake was fully on would be that it could go no further. That is, it would come to a dead stop. In other words, whilst another type of handbrake might have been something that could have been considered (if the exercise of care required it), in circumstances in which the operator essentially relied on feel to determine whether the handbrake was fully on, a ratchet system might not have been any better.
Similarly, a dead man's seat might have been something that could have been considered, although there is no evidence that it was required by any standard or would normally be included on a forklift.
I must approach the question of breach prospectively and not with hindsight. I am not looking at how the accident occurred and then devising ways in which it may have been prevented. Whilst it is permissible to look at the circumstances of the accident in determining the risk of harm, the question of breach must be assessed prospectively.
Further it is always appropriate to have regard to what Mason J said in Wyong Shire Council v Shirt [1] as follows: "14. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
The question is what would a reasonable person do when looking prospectively at the risk (of which it must or ought to have been aware) created by the practice of parking on a slope with the engine on.
A reasonable person in the position of the defendant would have instructed the plaintiff not to park on the slope. The further question is whether a reasonable person would have undertaken the modifications nominated by the plaintiff.
I doubt that it was reasonable in all the circumstances for the defendant to have replaced the handbrake with a different type of handbrake which operated only slightly differently. Both types of handbrake required the operator to pull the handbrake on fully. The fact that the ratchet type might not have dropped back in circumstances in which it was only pulled on to 80% for example does not impact of the prospective analysis of what the exercise of reasonable care required in all the circumstances.
It is important to observe that none of the modifications suggested by the plaintiff were required by any standard rule, guideline or law. There is no evidence that the forklift generally, including the handbrake, was not fit for purpose as that term might be understood in the context of ordinary goods.
In Dovuro Pty Ltd v Wilkins [2] , McHugh J observed: " … From time to time cases will arise where, despite the common practice in a field of endeavour, a reasonable person in the defendant's position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff. But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence. Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. And the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required."
In Erwin v Iveco Trucks Australia Ltd [3] ("Erwin"), Sackville AJA stated: "[I]n the absence of evidence that the industry practice itself was deficient or that potential safety issues had been identified at the time but not acted upon, the respondent's adherence to the industry norm is a strong indication that a reasonable person in the respondent's position would not have adopted additional precautions to guard against the risk. …"
The thrust of the plaintiff's argument is really that in circumstances in which the defendant permitted and knew that its employees were parking forklifts on the slope out the front of its premises and should have foreseen that a forklift operator might inadvertently fail to properly engage the forklift, the exercise of reasonable care required it to take preventative measures.
That must be correct but I do not consider that the exercise of reasonable care required the defendant to arrange with MLA to modify the forklift in the ways suggested by the plaintiff.
In my view, this would be to apply hindsight reasoning.
This is because: 1. there is no evidence that the forklift did not comply with any standard regulations or guidelines; 2. there is no evidence of any common practice of modifying forklifts to include such buzzers, warnings or a dead man's seat; 3. whilst the experts tended to agree that such preventative measures were possible, problems were identified particularly by the defendant's witnesses; 4. in reality, there were other simpler preventative measures that could have been taken, rather than redesigning a conventionally designed and operated forklift.
I do not consider that the exercise of reasonable care required the defendant to place an order with MLA for the modification of the forklift to include those changes suggested by the plaintiff.
Further, it is not known whether MLA might have agreed to such changes. Mr Yates points to engineering difficulties. The experts might have been optimistic but there is little evidence of cost and practicality.
Reasonable care required the defendant to do something to reduce the risk of harm associated with the forklift being parked the sloping driveway, being a risk which it had previously identified. That could have been easily prevented through proper training, instruction and supervision and the defendant was negligent in failing to put a stop to the practice in any of those ways before the accident.
Reasonable care did not require the defendant to modify, redesign or replace the componentry of the forklift which the plaintiff was using.
Having regard to my findings, the plaintiff could only succeed on one of the four bases on which he alleges the defendant was negligent, that is, the defendant should have instructed the plaintiff not to park the forklift on the driveway in the way in which he did.
It is thus necessary to consider whether such a liability would entitle the plaintiff to damages under MACA or only in accordance with the WCA.

The Motor Accidents Scheme

The introduction of the Motor Accidents Act 1988 (NSW) ("MAA") brought about significant change to the compulsory third party scheme in NSW, including the opening up of the market to a number of private insurers and statutory restrictions on damages.
Originally, the scope of the scheme and the statutory third party policy was limited with reference to the definition of "injury". That definition underwent a number of changes in the 1990s.
The scope of the statutory policies governed by MAA was the subject of two High Court decisions being: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [4] and Nominal Defendant v GLG Australia Pty Ltd [5] .
By the time those two cases were heard, MACA had commenced. It is in somewhat similar terms to the MAA. Which Act applies depends on the date of the injury. For the purposes of this matter, it is MACA which applies.
The legislature adopted a different drafting technique for MACA for the purposes of limiting the scope of the Act. The scope of the scheme was not determined by the definition of "injury". "Motor Accident" became a defined term and a general provision (s 3A) was included for the purposes of limiting the application of the Act and any third party policy under the Act. Section 3A is as follows: "3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control… (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents."
Section 3A is the "governing provision for the application of the Act… to a claim for damages by a person injured in a motor accident" [6] . It is a gateway provision.
Section 3A must be satisfied irrespective of whether it is a claim against the owner of a registered vehicle which is the subject of statutory CTP insurance or a work injury claim as that term is defined in s 3B. This is a work injury claim.
Chapter 5 contains a provision in respect of the award of damages. As the plaintiff was an employee of the defendant at the time of his accident, his damages would be limited having regard to s 151E of the Workers Compensation Act unless he is entitled to damages assessed in accordance with Ch 5.
Part 5.1 contains provisions in respect of the application of Ch 5. Section 122 is in the following terms: "122 Damages in respect of motor accidents (1) This Chapter applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. (2) This Chapter does not apply to or in respect of a motor accident occurring before the commencement of this Act. (3) This Chapter applies to and in respect of the assessment of damages by a claims assessor under Part 4.4 in the same way as it applies to and in respect of an award of damages by a court."
"Motor Accident" is defined in s 3 of MACA as follows: "3 Definitions motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."
If it was only necessary to establish that the plaintiff sustained injury in a motor accident for the plaintiff to be entitled to damages assessed under Ch 5 of MACA, then the plaintiff would be so entitled.
Plainly, there was an accident involving the use or operation of a motor vehicle that caused injury to the plaintiff. Further, the injury was a result of and caused during the vehicle running out of control.
As set out in the definition, it is not necessary that the injury be the result of a defect in the vehicle. Nor is there anything in the definition which suggests that the driver of the vehicle must be sitting in the vehicle at the time that it runs out of control [7] . The forklift was a motor vehicle. It does not matter whether it was registered or unregistered. It ran out of control in the sense that it commenced to move and roll whilst not under control. It struck the plaintiff. The definition of "Motor Accident" does not include a reference to fault in the use or operation of the vehicle.
However, merely establishing that the circumstances of the accident fall within the definition of "Motor Accident" is not sufficient for s 122 to apply. It is necessary that the claim fall within s 122(1) and, of course, that the threshold provision be satisfied (s 3A).
There is no issue that the defendant falls within the meaning of "owner" albeit MLA was the actual owner. The defendant is deemed to be the owner under s 4 of MACA.
Unlike in many cases, the plaintiff does not accept that those cases in which the similar provisions in MAA were considered are of relevance. I understand the plaintiff to submit that s 122 has a limited purpose and that its text is different from similar provisions in MAA.
I will firstly consider this submission, that is, that the differences between the MAA and MACA are such that a broader approach to s 122 (and I assume s 3A) is permissible.
Plainly, there are differences between the MAA and MACA. The legislature adopted differing drafting techniques.
Section 69(1) from Part 6 of MAA applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.
As McHugh J described in Allianz v GSF, this is the principal operative provision governing the award of damages under the MAA. (Section 122 is the principal operative provision governing the award of damages in MACA).
The term "injury" was defined in s 3(1) of the MAA as follows: "3 Definitions injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and (b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses."
Evidently, the wording in the first part of the definition of "injury" in s 3(1), mirrors that of the substantive provision in s 69(1): "69 Application (1) This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle."
The High Court considered these provisions in both Allianz v GSF and Nominal Defendant v GLG.
In Allianz v GSF, the owner of the vehicle (GSF) used trailers to carry packed containers that contained food to be used at an airport. There was a T-Bar mechanism on the floor of the trailer that enabled the heavy containers to be pushed to the back of the trailer where they could be unloaded by a forklift. The T-Bar mechanism broke down and the injured person was in the process of unloading the containers manually with a co-worker using crowbars. In doing so, he injured his back.
The Court held that his injury did not fall within the definition of injury set out in s 3(1) of the MAA. The Court did not consider that the defect in the motor vehicle, being the defective T-Bar mechanism, was causative within the meaning of s 3. It held that the system of work adopted by GSF was the proximate cause of the injury [8] .
In Nominal Defendant v GLG the injured worker who was employed under a labour hire arrangement with GLG being the host employer was unloading boxes stored inside a container at GLG's premises. An employee of GLG drove the forklift up and down a ramp connected to the container. The vibration from the tynes of the forklift hitting the ramp caused boxes stacked inside the container to fall and hit the plaintiff.
The Court held [9] that although there was fault on the part of GLG, there was no fault in the use or operation of the forklift. The driver was not driving in a negligent manner. GLG's fault lay in designing and implementing a system of work that involved driving the vehicle and the manner in which it was driven.
In finding that the definition of injury was not satisfied in Allianz v GSF Gummow, Hayne and Heydon JJ said: "[101] [T]he subject, scope and purpose of the 1995 Act, and the changes it made to the Motor Accidents Act, point in the other direction. The text of the new definition of 'injury' manifests that legislative policy of restricting previous overbroad interpretations of the CTP insurance legislation. A stated object of the changes made by the 1995 Act was (s 2A(1)(b)) the reinstatement of a common law based scheme but (s 2A(2)(a)) to keep premiums 'affordable' by containing 'the overall costs of the scheme within reasonable bounds'. A construction which promotes that object is to be preferred (s 2B(1)). [102] The use in the definition of the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of 'injury' looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act."
Similarly, McHugh J observed: "[53] The above examination of the subject, scope and purpose of the Act suggests three matters that are relevant in the construction of Pt 6 of the Act. First, the Act does not provide a universal compensation scheme for all injuries sustained in connection with a motor vehicle. Second, cost-saving and the need to keep the scheme affordable are significant objects of the Act. Third, the Act has tightened the definition of injury by reference to its cause. These three matters indicate that, in the inquiry into the question of causality, an approach that limits the scope of the Act is preferable to one that would extend its application. This in turn suggests that a close causal connection is required for the injury to satisfy the requirement the injury be 'caused ... by a defect in the vehicle'."
In GLG the Court observed that there were two relevant differences between its decision in Allianz and the issues in GLG being: 1. Allianz turned on para (a)(iv) of the definition of "injury" whereas the appeal in GLG Australia concerned para (a)(i) ("caused during the driving of the vehicle"); and 2. in Allianz, the appellant had conceded that there was "fault" on the part of "the owner … of a motor vehicle in the use or operation of the vehicle" (the opening words of para (a) of the definition of "injury"), whereas in GLG Australia that matter was contested.
The key question in GLG was whether there was fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. That is the key question in this matter. The Court held [10] : "[26] On the facts of this case, the relevant respect in which the vehicle was being operated was that it was being driven. The findings of the trial judge negate any fault on the part of the driver. Those findings were accepted by the Court of Appeal. A challenge in this Court must be rejected for reasons given later. [27] It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded."
The Court thus held that the worker's injury was not an injury within the meaning of that term in MAA. That is because the fault of the owner was not in the particular use or operation of the vehicle. As the Court said: "[29] … '[I]n the use' here means with respect to, as a consequence of, or by reason of the use of the forklift truck in the circumstances. That in turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury."
The plaintiff seeks to distinguish both Allianz and GLG on the basis of the differences in the legislation. However, s 69(1) of MAA is in the same terms of s 122(1) of MACA. Further, the language used in para (a) of the definition of "injury" in s 3(1) of MAA is now found in s 3A of MACA.
It follows that the work done by the definition of "injury" in the MAA (which has been described as the gateway that controls access to an award of damages under Part 6 of the MAA) [11] is now performed by s 3A of MACA.
Section 3A of MACA was introduced by the Motor Accidents Compensation Amendment Act 2006 (NSW) ("the 2006 Amendment Act"). The 2006 Amendment Act relocated most of the substance of the definition of injury then contained in s 3 of MACA into the new s 3A(1). Until that point, the definition was identical to that contained in MAA's considered by the High Court in Allianz and GLG.
The definition of "injury" in MACA has not changed since the 2006 Amendment Act.
Section 3A of the MACA was amended in 2009 and more relevantly again in 2010.
The 2010 Amendment Act arose following a decision of the New South Wales Court of Appeal in Zotti v Australian Associated Motors Insurers Limited [12] .
In a number of decisions the Court of Appeal has held that the reasoning of the High Court in Allianz and GLG in respect of the definition of "injury" in the MAA provides authoritative guidance as to the meaning of s 3A(1) of MACA, notwithstanding the differences between the sections [13] .
There is already a body of case law on the proper construction of s 3A of MACA, having regard to cases such Allianz and GLG. Indeed, in Zotti at [12] Spigelman CJ (with whom Allsop P and McColl JA agreed), held that the reasoning in Allianz applied to the definition of injury then contained in s 3(1) of MACA. It similarly applies to s 3A in the version relevant to this matter. [14]
I reject the plaintiff's submission that I should adopt a different approach having regard to the text and purpose of s 112. Apart from anything else, this rather ignores the significance of s 3A.
I am thus not embarking on a process of statutory construction. There is ample authority as to how the provisions should be construed. I am really considering the circumstance of the injury to the plaintiff and the fault of the defendant and determining whether those circumstances fall within s 3A and s 122.

Was the injury to the plaintiff caused by the fault of the owner in the use or operation of the forklift?

As set out in s 122(1), Ch 5 applies only in respect of an award of damages which relates to the death or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use of or operation of the vehicle. This mirrors the opening part of s 3A(1).
Section 122(1) thus must be construed in the context of s 3A(1). The same words should be given the same meaning.
Of course, the opening part of s 3A(1) is not the only causal requirement contained in s 3A.
The second part of s 3A includes both a causal and temporal requirement, that is, "is as a result of and is caused… during". The causal and temporal requirement set out in the second part of s 3A can only be satisfied by the circumstances set out in paras (a), (b), (c) and (d) of s 3A. The causal requirement set out in s 122 is contained in the first part of s 3A.
At this point I am not specifically concerned with the second part of s 3A, as I have already accepted the temporal and causal connection between the vehicle running out of control and the injury. There is a direct temporal and causal connection between the injury and the vehicle running out of control.
I am considering the causal connection between the injury and the fault of the defendant. The fault must be in the use of the operation of the vehicle.
As McHugh J said in Allianz "the question of causation must be determined in light of the subject, scope and objects of the Act". [15]
In Whitfield v Melenewycz, Meagher JA at [23] conveniently summarised the proper approach to the task as follows: "….As McHugh J observed in Allianz Australia v GSF at [17] this definition of 'injury' emphasised the element of 'cause' as the key factor governing the entitlement to compensation. A claimant had to establish that their injury was 'caused by the fault of the owner or driver … in the use or operation of the vehicle'. This required that the claimant establish as against the driver or owner (or both) that they were negligent or had committed another tort, that their relevant 'fault' was 'in the use or operation' of the vehicle and that the injury was caused 'by' that fault. Thus there had to be fault, the fault had to be in the use or operation of the vehicle and had to cause the injury. That remains the position under s 3A(1)." (citations omitted)
The fault was the failure to instruct the plaintiff not to park on the sloping driveway or permitting him to do so in circumstances in which its written system of work warned against such a practice.
The first issue is whether there is a sufficient causal connection between the injury and that fault. Again, as identified in Allianz, [16] guidance to the proper approach to causation is to be found in insurance law which looks to the proximate cause. [17] The proximate cause may be described as the dominant or effective cause.
It is no answer to the claim to suggest that the proximate cause of the injury was the failure of the plaintiff to apply the handbrake properly. There may be more than one proximate cause and the issue I am considering is whether there is a causal relationship between the injury and the particular fault of the defendant. It might be said that if the handbrake had been applied properly the plaintiff would not have sustained injury but if the forklift had not been parked on a slope it would not have run out of control and hit the plaintiff.
The injury to the plaintiff was caused by the fault (negligence) of the defendant which is deemed to be the owner of the vehicle.
The final issue is whether the fault of the defendant was in the use or operation of the vehicle.
It has been said that this is a matter of characterisation in the sense that a fault which arises as part of the system of work may not be fault by the owner in the use of the vehicle.
Since GLG, there have been a number of cases determined by the New South Wales Court of Appeal in which there was an issue as to whether the particular facts of the case and whether the fault attributed to the owner fell within the meaning of "in the use" identified in GLG.
Perhaps an approach has developed on behalf of the insurers involved in the scheme to maintain that a case that might be characterised as based on the system of work would not fall within s 3A or s 122. That is, if the claim could be characterised as a system of work type case, s 3A would not be satisfied. However, as observed by Spigelman CJ in Zurich Australian Insurance Limited v CSR Limited [18] at [29] nothing in the language used or scope or purpose of the Act suggests that a dual characterisation is impermissible. In GLG the Court accepted that the issue may be one of characterisation.
There has been some difference of views having regard to the scope given to the words by McHugh J in Allianz and the subsequent decision in GLG.
Indeed, in JA & BM Bowden & Sons Pty Limited v Doughty, [19] Giles JA doubted that the respondents in that case could rely on the scope given by McHugh J in Allianz to "in" His Honour said: [20] "[23] … His Honour's view that the expression included a direction to use an unsafe system of work to unload the truck (at [21]), or negligent instruction to unload the truck despite its unloading mechanism being out of operation (at [56]), cannot stand with the majority reasons, and the result, in GLG. [24] In GLG at [29] the majority gave 'in' the meaning of 'with respect to, as a consequence of, or by reason of the use of the forklift in the circumstances', at first sight similar to the meaning 'in relation to' or 'in the course of' given to the word by McHugh J. But there was then qualification. Their Honours regarded 'in' as restrictive in the definition of 'injury', just as much as 'if, and only if', and expressed the restriction in the consequential need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury. The actual use or operation of the forklift at the particular time and place of the injury was contrasted with antecedent events leading to the use and operation at that time and place. Their Honours returned at [30] to the 'narrowing effect' of the definition of 'injury' beyond the words 'if, and only if'."
In Bowden v Doughty, the respondent was injured when the tractor he was driving rolled over onto him. The appellant owner/employer had negligently instructed the respondent to drive the tractor with the roll bar lowered. Had it been raised, the respondent would not have suffered the injury.
Giles JA considered that the fault lay "in" the system of work put in place by an employer who was also the vehicle's owner, rather than "in" the use or operation of the vehicle. As his Honour said at [32]: "The actual use or operation of the tractor at the time and place of the respondent's injury was driving it. It was being driven with the rollbar lowered, but that was not an element in the way it was being driven (eg its speed, on a slope turning uphill). Nor was it anything to do with how it came to roll over. The tractor was just as stable or unstable on a slope with the rollbar lowered - it was not like defective brakes causing the tractor to run out of control and roll over."
Handley AJA took a similar view to Giles JA but Sackville JA adopted a somewhat different approach, accepting that the injury could and should be categorised as having been caused by the fault of the owner in the use or operation of the forklift at [59] as follows: "It seems to me that the important feature of the present case is that the appellant … instructed the respondent not to utilise a critical safety feature of the tractor itself in the course of its ordinary operations. The instruction (and the continuing failure to countermand it) created an unjustified risk of injury to the respondent as the user of the tractor. The appellant's 'fault' (that is, the instruction not to engage the roll bar) made the use of the tractor inherently unsafe for any operator (or passenger) and for the respondent in particular. In short, the [appellant's] instruction and the failure to countermand it went to the manner in which the tractor was to be used or operated as a tractor and necessarily made the use of the tractor hazardous to the operator. I accept, as Giles JA points out, that the positioning of the roll bar did not contribute to the accident. But the positioning of the roll bar made the use or operation of the tractor inherently hazardous and exposed the operator to the risk of more severe injury if an accident occurred while the tractor was being used or operated in the usual way."
Subsequent to Bowden, the Court of Appeal again considered the issue in TVH Australasia Pty Ltd v Chaseling. [21]
The plaintiff, an employee of the defendant, sustained injury when a box fell from a forklift being driven by another employee. It seems that the box may have become unstable whist in a container in transit. The employer/owner was aware that the tynes of the forklift needed to be spread to counter the flexibility of the pallets but the owner had failed to instruct the forklift driver that he needed to spread the tynes to alleviate that risk. The injured person alleged negligence on the part of the owner. The court accepted that the owner knew or should have known of this problem and should have notified the forklift driver to spread the tynes. That is, its fault was in failing to give proper instructions.
As observed by Basten JA at [25]: - "….the appellant argued that, assuming there was fault on its part as owner of the vehicle, the fault was not 'in the use or operation of the vehicle', but involved a failure, antecedent to the use or operation of the vehicle, to devise a safe system for that use or operation. Thus, if the accident were caused by the failure of the employer to give proper instruction to either Mr Barnes or the plaintiff with respect to the unloading operation and the risks involved, that was a fault which arose prior to any use or operation of the forklift."
This defendant's submission is in similar terms in this matter.
His Honour then said at [26] (Bathurst CJ and Whealy JA agreeing): "As explained in the joint judgment of Gummow, Hayne and Heydon JJ in Allianz, in relation to the second part of the definition, 'the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances': at [102]. Nevertheless, there is no bright line to be drawn between a cause which is predominant and immediate, rather than one which is 'more removed'. Similarly, it does not follow that, because one can characterize a fault in terms which appear to be detached from and antecedent to the actual use or operation of the vehicle, the definition is not engaged. For example, where an employer allows a heavy vehicle to be used in the course of the business and injury is caused by the driver losing control of the vehicle, it is appropriate to characterise the fault of the owner as permitting the use of the vehicle by a driver without proper training and thus a fault 'in the use or operation of the vehicle'. This conclusion is not undermined because the fault can also be characterized as the failure to provide training, which appears to be removed from the use or operation of the vehicle." (emphasis added)
His Honour's observations appear particularly pertinent having regard to the facts of this matter. The vehicle ran out of control because it was parked on a slope. The plaintiff thought he had applied the handbrake but he had not. That is the type of thing that can happen in a busy work place and for which preventative measures should be taken.
Whether the fault be described as permitting the parking of the forklift on the slope (when its devised system of work warned against it) or simply failing to specifically instruct the Plaintiff not to park on the sloping driveway whilst unloading the truck, the fault was in the actual use of the forklift at the time. That is, there was a failure to instruct the plaintiff in the use of the forklift (that is how and where it should be operated). The fact such a fault might have a dual characterisation does not preclude the satisfaction of S 3A and S 122.
I adopt Basten JA's observation that there is no bright line that determines which cases might be subject to s122 and which are not. The fact that it might be described as a work injury claim or arise out of a failure at the workplace does not preclude the application of MACA. Work injury claims are expressly included in S 3B. Further whether the act of negligence occurs in the minutes before the injury (or at some earlier stage), whilst the driver is driving the vehicle or after the driver has alighted from the vehicle is not the determining factor in assessing whether the fault was in the use of the vehicle.
This is not a loading or unloading case. The injury was not caused by something falling off the tynes.
Further, like Chaseling, the case does "not engage the questions of causality raised by the second part of the definition". [22] In Chaseling, the injury to the plaintiff was a result of and caused during the driving of the vehicle. I have found in this matter that the temporal and causal connection with the vehicle's running out of control is satisfied.
Like in Chaseling, the defendant submits that the fault in failing to give proper instruction should be characterised as a system of work case with the fault arising prior to the use or operation of the vehicle.
Adopting the words of Basten JA in Chaseling, this was a fault in the use or operation of the vehicle and this conclusion is not undermined because the fault can be characterised as a failure to provide instruction.
In my view, this case falls squarely with the observations of Basten JA in Chaseling.
Sections 3A and 122 are satisfied.
The plaintiff is entitled to damages assessed under MACA which have been agreed at $3.7 million.

Contributory negligence

In para 8 of the defence to the amended statement of claim, the defendant pleads that the plaintiff was guilty of contributory negligence in that he failed in all the circumstances to take proper precautions for his own safety. The plaintiff relies on the particulars set out in para 6 of the defence. Those particulars include:

that the plaintiff elected to park the forklift on an incline;
that the plaintiff failed to apply the handbrake properly or at all; and
that the plaintiff alighted the forklift and positioned himself behind it.

The plaintiff submits that there should be no reduction on account of contributory negligence as the plaintiff was engaged in his ordinary occupation and a failure to adequately engage a handbrake would amount to no more than inadvertence, as observed in Podrebersek v Australian Iron and Steel Pty Limited [23] at [5].
The defendant submits that, in circumstances in which this is found to be a motor accidents case, then there should be a significant reduction on account of contributory negligence. Those principles which tend to apply in assessing contributory negligence in the context of the employment relationship are said not to apply because the liability of the defendant arises as the owner of the motor vehicle.
The plaintiff further submits that an employee cannot be guilty of contributory negligence when he is following the instructions of his employer. [24] That may be so, but the only basis on which the plaintiff could be guilty of contributory negligence is because he failed to properly apply the handbrake.
I do not consider that there is sufficient evidence to find that he was in some way hurrying or that the system of work in place at the time required him to alight from the vehicle in a hurry without ensuring that the handbrake was in place. I have found that he did not properly apply the handbrake.
It may be that because of the noisy background (as identified by Mr Yates when commenting on the viability of a buzzer or other warning sound indicating that the handbrake is not on), the plaintiff may not have been able to hear the final click indicating that the handbrake is properly applied. Thus he believed that he had applied it.
However, the handbrake is essentially tactile. The operator would know that it is properly applied because it could go no further. Whilst the plaintiff may have believed that he had properly applied the handbrake, in reality, he had not. It follows that he had not pulled it through to the end point where it could go no further.
There is no evidence that he did not know how to operate the handbrake. He had driven the forklift previously. I would not merely infer from his evidence that he thought the handbrake was on that he did not know how to operate it. As I have already found, his evidence was that he saw Shane Black release the handbrake after the accident by pulling it on cannot be accepted as accurate.
The onus is on the defendant to establish that the plaintiff failed to take care. The failure to properly apply a handbrake in a vehicle such as a forklift when parking the vehicle speaks for itself. Leaving a vehicle without ensuring that the handbrake is properly applied is not mere inadvertence. Applying the handbrake is fundamental to the operation of the vehicle.
The plaintiff may have been mistaken but he must be considered to have failed to take sufficient care to ensure that the handbrake was on prior to alighting from the forklift.
I do not consider that the plaintiff was guilty of contributory negligence in parking the forklift where he parked it, or in standing where he was standing when hit by the forklift. However, he did fail to take care for his own safety in failing to ensure that the handbrake was on properly prior to alighting from the forklift.
As set out in s 138 of MACA, the common law and enacted law as to contributory negligence must apply to an award of damages in respect of a motor accident, except as provided by s 138. Section 138(3) provides that the damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in all the circumstances.
The enacted law of contributory negligence includes s 5R of the Civil Liability Act 2002 (NSW) (CLA). [25]
As set out in Boral Bricks Pty Ltd v Cosmidis (No 2), [26] the correct legal question in determining contributory negligence in accordance with s 5R is whether a reasonable person in the position of the plaintiff, that is having the knowledge which the plaintiff had or ought to have had, was negligent. [27]
In assessing contributory negligence, it is necessary to have regard to the relationship between the parties and the duty of care that the defendant owed to the plaintiff. [28]
As observed by Basten JA in Cosmidis, [29] there remain considerable difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was guilty of contributory negligence in failing to take precautions against the risk of harm.
The defendant suggests that the critical fact in assessing culpability is that the plaintiff was in control of the vehicle and that vis-à-vis the owner of the vehicle, it should mean that the plaintiff's culpability is significant in assessing the culpability between the liability of an owner and driver.
However, it does not seem to me that I should apply such a narrow focus. This is a work injury claim as that term is defined in s 3B of MACA. The fact that damages may be assessed under Ch 5 of MACA does not preclude consideration of the true relationship between the parties in the circumstances in which the plaintiff found himself operating the forklift in the way in which he did.
Relative culpability must be assessed having regard to the momentary lapse of concentration by the plaintiff in failing to check that the handbrake was fully on as against the defendant's more culpable conduct in permitting the plaintiff to park on the driveway, even though he was required to leave the engine on, and its own procedures manual precluded such conduct.
The plaintiff was an employee of the defendant working at the defendant's premises in the system permitted by the defendant. I do not consider that I should disregard those matters and assess contributory negligence as if the defendant was a mere absentee owner of a motor vehicle.
The assessment of contributory negligence is an evaluative exercise having regard to a range of factors. I consider that the momentary lapse of the plaintiff when compared to the overall conduct of the defendant should result in the finding of contributory negligence at 20 per cent.

Conclusion

The case was conducted on the basis that if I find that the defendant was negligent and that the plaintiff is entitled to damages as assessed under MACA, then the plaintiff would be entitled to the agreed sum, less any reduction for contributory negligence. The agreed sum is $3.7 million. In the circumstances, I enter a judgment for the plaintiff in the sum of $2.96 million (being $3.7 million less 20 per cent).
I order that the defendant pay the plaintiff's costs. Should the parties seek a variation on this costs order, I grant liberty to apply on 3 days' notice.

Endnotes

(1980) 146 CLR 40; [1980] HCA 12 at [14] (Stephen and Aickin JJ agreeing).
(2003) 215 CLR 317; [2003] HCA 51 at [34].
(2010) 267 ALR 752; [2010] NSWCA 113 at [110].
(2005) 221 CLR 568; [2005] HCA 26.
(2006) 228 CLR 529; [2006] HCA 11.
Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 at [60] (Tobias AJA, Beazley JA and Sackville AJA agreeing).
See also Goodsir v Al-Ko International Pty Ltd [2002] QSC 191 at [41] (Mullins J).
(2005) 221 CLR 568; [2005] HCA 26 at [2] (McHugh J); [103] (Gummow, Hayne and Heydon JJ); [129] (Callinan J).
(2006) 228 CLR 529; [2006] HCA 11 at [27] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
at [26]-[27] (Gleeson CJ, Gummow, Hayne and Heydon JJ)].
See Mason P in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2003) 57 NSWLR 321; [2003] NSWCA 174 at [9].
[2009] NSWCA 323.
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257 at [40] (McColl JA, Gleeson JA agreeing), [81] (Sackville AJA, Gleeson JA agreeing); Toll Pty Ltd v Harradine [2016] NSWCA 374 at [87] (Sackville AJA, Meagher JA and Schmidt J agreeing); Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 at [122] (Leeming JA, Macfarlan JA and Sackville AJA agreeing); Whitfield v Melenewycz (2016) 92 NSWLR 624; [2016] NSWCA 235 at [21] (Meagher JA, Simpson JA and Sackville AJA agreeing)
Toll Pty Ltd v Harradine [2016] NSWCA 374 at [87] (Sackville AJA, Meagher JA and Schmidt J agreeing).
(2005) 221 CLR 568 at [41].
(2005) 221 CLR 568 at [102] (Gummow, Hayne and Heydon JJ); see also Leach v The Nominal Defendant [2014] NSWCA 257 at [53] (McColl JA, Gleeson JA agreeing).
Lasermax Engineering v QBE Insurance (Australia) [2005] NSWCA 66 at [39] (McColl JA, Tobias JA agreeing).
(2001) 52 NSWLR 193; [2001] NSWCA 261.
[2009] NSWCA 82 at [23] (Giles JA)
[2009] NSWCA 82 at [23]-[24] (Giles JA).
[2012] NSWCA 149.
[2012] NSWCA 149 at [25] (Basten JA, Bathurst CJ and Whealy JA agreeing).
(1985) 59 ALJR 492; [1985] HCA 34 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).
Kabic v AAI Limited t/as GIO [2019] NSWCA 247 at [115] (White JA, Meagher JA and McCallum JA agreeing).
Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) [2010] NSWCA 191 at [36] (Giles JA).
(2014) 86 NSWLR 393; [2014] NSWCA 139 at [47] (McColl JA).
Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 at [217] per Hoeben JA (Macfarlan and Ward JJA agreeing).
Cosmidis at [60].
Cosmidis at [90]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2021

Motor Accidents Compensation Amendment Act 2010(NSW)

Adlawan v Recochem Inc

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