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[2025] NSWSC 1266
General information, not legal advice.
Supreme Court of NSW
2025-10-28
Walton J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bailey v Kmar Engineering Pty Ltd [2025] NSWSC 1266
Hearing dates: 19, 20, 21 and 25 August 2025
Date of orders: 28 October 2025
Decision date: 28 October 2025
Jurisdiction: Common Law
Before: Walton J
Decision: (1) The plaintiff is directed to file and serve Short Minutes of Order reflecting this judgment within 48 hours of the publication of this judgment.
Catchwords: TORTS – negligence – liability for crush injury at work – whether occupier breached duty of care – vicarious liability – defendant failed to establish the defence of contributory negligence
TORTS – negligence – identification of risk of harm – whether risk of injury was an obvious risk – precautions which a reasonable person would have taken in the circumstances – precautions including safe zones, exclusion zones and hand signals – whether adequate precautions taken
DAMAGES – quantum of damages – out of pocket expenses – economic loss – non-economic loss and superannuation – domestic assistance and care – apportionment – s 151Z Workers Compensation Act 1987 (NSW)
Legislation Cited: Civil Liability Act 2005 (NSW), ss 5B, 5C, 5D(1), 5F, 16(2), 33
Work Health and Safety Regulation 2017
Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited: 5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, [2009] HCA 48
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, [1990] HCA 11
Bird v DP (a pseudonym) [2024] HCA 41
Burton v Brooks [2011] NSWCA 175
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, [2011] HCA 21
De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Garzo v Liverpool/Campbel/town Christian School [2012] NSWCA 151
Jones v Dunkel (1959) 101 CLR 298, [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Liu v Lam [2024] NSWSC 1306
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Pavlis v Pavlis [2021] NSWSC 1117
Pavlis v Pavlis [2021] NSWSC 1117
RHG Mortgage Limited v Ianni [2015] NSWCA 56
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sangha v Baxter [2009] NSWCA 78
Shoalhaven City Council v Pender [2013] NSWCA 210
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62
Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62
Texts Cited: Nil
Category: Principal judgment
Parties: Mr Justin Bailey (Plaintiff)
Kmar Engineering Pty Ltd (First Defendant)
MMM LOGISTICS PTY LTD (Second Defendant)
Haworth Transport Services Pty Ltd (Third Defendant)
Representation: Counsel:
L Robison with D Gray (Plaintiff)
M Noakhtar (First Defendant)
W Reynolds (Second Defendant)
D Kelly (Third Defendant)
Solicitors:
Santone Lawyers (Plaintiff)
Mills Oakley (First Defendant)
Hall & Willcox (Second Defendant)
Rankin Ellison Lawyers (Third Defendant)
File Number(s): 2021/71170
Publication restriction: Nil
On 21 September 2018, Justin Jones Bailey, the plaintiff in these proceedings (“Mr Bailey”) drove a flatbed truck, the tray of which was about 40 feet long, to a location at Doyalson, New South Wales (“the site”). The site was occupied by KMAR Engineering Pty Ltd, the first defendant (“KMAR”).
At this time KMAR was incorporated and operated a business of steel processing which was carried out in an industrial building at the site (“the premises”). Mr Bailey arrived at the premises at about 12:55pm. He reversed his truck, as he had done a number of times before, into the loading or delivery dock of the premises.
There was no dispute that Mr Bailey lawfully entered the premises. KMAR regularly had deliveries of steel at the premises as part of its business. As at this date, Mr Bailey was employed by the third defendant, Haworth Transport Services Pty Ltd (“Haworth”).
The steel contained on the truck was owned by Liberty OneSteel, which used MMM Logistics Pty Ltd (“MMM”), the second defendant, to collect and deliver the steel. According to the “Driver Daily Work Sheet” of MMM for 21 September 2018 (“the log book”), the delivery to KMAR’s premises was the eighth and last delivery for that day. As the proceedings evolved, no attention was given to the relationship between the second defendant and KMAR or Mr Bailey as to the delivery of the steel on this day. It was agreed that Haworth had directed Mr Bailey to attend the premises to deliver the steel.
Upon positioning the truck into the loading dock of the premises, Mr Bailey filled out the log book and then exited the vehicle. It was at or about that time that Mr Bailey encountered Peter Learmonth (“Mr Learmonth”). Mr Learmonth was, as at 21 September 2018, the sole director of KMAR. In his Evidentiary Statement in these proceedings of 20 May 2025 (“the Learmonth Evidentiary Statement”), Mr Learmonth referred to himself as the only employee of KMAR at the premises on 21 September 2018.
There was situated in the premises a “Demag” 10-tonne gantry crane which was used to lift and unload steel beams. The gantry beam (or bridge) ran across the width of the industrial building and moved up and down the building for approximately the length of the building.
The gantry crane was connected to a trolley which ran along the length of the beam or bridge of the crane. It had a winch attached to chains for the lifting or lowering of loads.
In the result, the gantry crane enabled the unloading and movement of loading within the premises, as Mr Bailey described it, in all compass directions: north, south, east and west (which directions were shown in the undersection of the beam).
The chains hanging from the trolley on the crane had attached hooks (“the hooks”). The hooks used in lifting of steel beams had a ‘C’ shape. The gap in the ‘C’ could be closed by clipping or similar mechanism to close the face of the hooks.
“…So I turned to my left, I got my left foot up onto the beams that were behind me. However, I was still standing on my right leg, and the beam swung into my right leg and crushed my right leg between the pack that was stationary, and the pack that was being lifted. I do also recall that the beams, I heard banging. So the beams that were attached to the crane pivoted on my leg, and I heard the beams collide together down one end, and then the other end.”
In the result, Mr Bailey was injured when hit by the bundle of steel beams during the course of the unloading of the truck (“the incident”). The incident occurred at 1.15pm.
There were factual disputes as between Mr Bailey and KMAR. These related to the acts or omissions of Mr Bailey and Mr Learmonth in the course of unloading the steel. They were the only persons present during the incident and gave, in certain respects, conflicting accounts. The resolution of those issues will involve, inter alia, an assessment of the credibility of those witnesses. Ultimately, I will find Mr Bailey a witness of credit and Mr Learmonth not. In areas of disputed accounts of the circumstances of the incident, I will prefer the evidence of Mr Bailey. I will give my reasons for forming that view after turning first to the content of the proceedings and providing a summary of Mr Bailey’s evidence as to the circumstances of the incident.
By a Statement of Claim filed on 12 March 2021, Mr Bailey commenced proceedings against KMAR. During 2022, Mr Bailey joined MMM and a third defendant to the proceedings, INFRABUILD (Manufacturing) Pty Ltd.
During 2023, Mr Bailey amended his pleading and replaced the then third defendant, INFRABUILD (Manufacturing) Pty Ltd with Haworth. During 2024, the current iteration of the pleadings, the Further Amended Statement of Claim was filed on 28 July 2023 (“FASOC”).
On 24 July 2025, Mr Bailey discontinued his case against MMM by filing a Notice of Discontinuance. On 20 August 2025, the second day of the trial, Mr Bailey consented to Haworth being removed from the proceedings (see Exhibit 7).
On 21 August 2025, KMAR filed in court a Further Amended Defence to the FASOC with handwritten notations and a final form of the pleading was later filed online.
There are also significant shifts in the three cross-claims filed in the proceedings. By Notice of Discontinuance, variously executed in August 2025, MMM discontinued the Second Cross-Claim filed on 30 January 2024 as against KMAR.
The First and Third Cross-Claims remain extant. However, the Court was advised that it was not required to decide any matter in relation to them. The Court was informed that KMAR and Haworth had reached an agreement in respect of those cross claims and the orders finalising them. The following exchange occurred in that respect:
“GRAY: Your Honour, there's one matter that I've - I'd like to hand up some proposed consent orders. An agreement has been reached against the third defendant.
HIS HONOUR: Thank you. I make the order proposed in the terms proposed. So the net effect of that order is that the third defendant is removed from the proceedings in effect.
KELLY: As a third defendant, your Honour, yes. Your Honour, I'm also happy to be able to tell you that I'm now going to be removed from the proceedings as a cross-defendant. Your Honour, Mr Noakhtar and I have reached an agreement that will dispose of both cross-claims. That is, the first cross-claim by my client against his and the third amended cross-claim by his client against mine. At the moment all we'd ask your Honour to note is that the - both cross-claims - there's an agreement in relation of disposal to those cross-claims, but consent orders in relation to them can't be filed until completion of the plaintiff's claim.
HIS HONOUR: Completion of the?
KELLY: Plaintiff's claim. That is, whether by judgment or by agreement. Your Honour will not be required to decide any matter on either cross-claim which I can tell your Honour will save an enormous amount of time and headache.
HIS HONOUR: So the net result of that is that there will be no remaining cross-claims in the proceedings?
KELLY: Correct, your Honour. So to make it clear, as between ourselves we agreed a mechanism to deal with those matters and finalise them formally on 45 the Court - either after judgment's handed down or the parties - the plaintiff and the first defendant reach an agreement. Your Honour will not have to decide any issue about them.”
In the result, what remained in substance in the proceedings was the claim by Mr Bailey under the FASOC and the defence of that claim by KMAR.
However, KMAR sought a ruling on apportionment for the purposes of s 151Z of the Workers Compensation Act 1987 (NSW) (“WC Act”) even though Howarth was excused from attendance. Ultimately after the hearing, KMAR and Haworth filed a Statement of Position in that respect, stating:
“Haworth Transport does not oppose the Court determining the s 151Z(2) issue raised in the First Defendant’s Defence first filed on 2 July 2021 (as amended). That is, Haworth Transport does not oppose the Court determining the apportionment of liability between Haworth Transport and the First Defendant pursuant to section 151Z(2) of the Workers Compensation Act 1987 (NSW), in the absence of the employer. Haworth Transport’s position is that the Court would be acting consistently with principle and statute in determining the apportionment of liability pursuant to s 151Z(2), in its absence.”
It is appropriate to briefly touch upon the FASOC and some issues raised by KMAR about the pleadings within that claim.
The pleadings stated that Mr Bailey was “working under the direction, supervision and control of the Defendants who controlled [Mr Bailey’s] system of work”.
It was submitted by KMAR that this form of pleading represented a legacy of the earlier stages of the proceedings and that previously both MMM and Haworth had admitted to controlling Mr Bailey’s system of work. [1] KMAR denied the allegation in its Amended Defence.
KMAR contended that it was left in a position where it was defending an allegation, notwithstanding that other parties had admitted to it but had left the proceedings. That much is true, but it barely reflects the reality of the proceedings.
MMM and Haworth, as the second and third defendants respectively, left the proceeding after the commencement of the trial. It would have been technically possible to amend the further amended proceedings at that stage but to little effect given that counsel for Mr Bailey, Mr L Robison, made clear in opening that KMAR was vicariously liable for the primary tortfeasor, Mr Learmonth, who had controlled the system work by provision of directions, and being in charge of and operating the crane.
KMAR also submitted that the FASOC “is problematic” because the allocation of a breach of duty of care was not accompanied by any pleading articulating the risk of harm, or the reasonable response to it, for which Mr Bailey contended although Mr Bailey’s position as to those matters was made clear in the proceedings.
KMAR also made reference to the deficiency of the pleading in [8] of the FASOC, which merely referred to the “accident [being] reasonably foreseeable”, and that the only identification of the conduct, the subject of the claim, was that an employee of a defendant operated a crane, which was carrying a steel beam attached with chains such that the beam collided with Mr Bailey causing a crushing injury (FASOC [7]). It was properly submitted that the allegation so expressed commenced with the injury rather than the risk of harm which was to be guarded against and was defective to that extent: 5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785 at [25]. Furthermore, it was submitted that the risk of personal injury was again deficient.
KMAR also complained that the opening submissions made on behalf of Mr Bailey, whilst clarifying these issues to some extent, left the proceedings relatively unpleaded and, therefore, in an unsatisfactory state.
However, in my view, the opening submissions in writing for Mr Bailey, which were the subject of elucidation in opening oral submissions, made clear the basis upon which Mr Bailey’s case on liability rested. Those submissions, so far as they concern KMAR, were as follows:
“5. There can be no doubt that the primary tortfeasor in the matter is Mr Learmonth. No explanation for his conduct is consistent with an absence of negligence. The accident could only have occurred as a result of [not] keeping a proper lookout as to persons in the crane's path. Pursuant to Bird v DP (a pseudonym) [2024] HCA 41; 98 ALJR 1349; 419 ALR 552; 334 IR 404 there is equally no doubt that the first defendant, as his employer, is liable for that negligence. Interesting questions may arise as to whether the first defendant was itself negligent, but that is probably unnecessary to resolve (except in relation to employer-liability in exposing the plaintiff to the site).
6. The CLA modifies the common law of liability as against the first defendant but not the third (see s.38). Applying the statutory criteria as one must vis the first defendant:
a. s.58 suggests a duty of care will arise where a risk was foreseeable. Swinging loads of a crane when workers are in the building means it is foreseeable they will be hit. The probability of the harm arising is high given that a heavy load could obviously cause injury in the event of a collision. The likely seriousness of the harm is also significant and could include death. The burden of taking precautions is low, as all one has to do is satisfy oneself that there is no person in the pathway of the crane before moving loads.
b. s.5D says that one must look to both factual causation and scope of liability. As to the former- the only necessary condition of the farm (sic), at least in terms of immediate factual causation, was the operation of the crane. As to the former, it is clearly appropriate that a crane operator not expose persons in its path to risk of collision with the load.”
I accept the submission advanced by KMAR in its opening submission that those submissions may leave open a reliance by KMAR upon it being “an obvious risk”, but that is another question to which I will return later in my judgment. Further, the issue of vicarious liability dissipated by closing submissions.
Ultimately, I consider that counsel for Mr Bailey was correct to submit that, provided KMAR is not suffering procedural unfairness (and I will find there was none), it is too late in the proceedings to take these pleading points. In fact, no issue of procedural fairness was raised by KMAR. Nor did they result in an application for an adjournment in order to cure any unfairness or other remedies sought, in that respect.
It is well established that parties may expand on particulars orally in order to overcome a pleading issue. As Mason CJ and Gaudron J stated in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, [1990] HCA 11 at 286-287:
“The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, for example, Browne v. Dunn, at p 76; Mount Oxide Mines, at pp 517-518.
Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.”
In my view, the deficiencies in the pleadings, such as they are, were sufficiently cured by the opening submissions of Mr Bailey and his closing submissions. There was no further complaint in that respect.
By closing submissions, counsel for Mr Bailey defined the risk of harm as “[t]he risk of impact to truck drivers of the steel beams”, which has to be what KMAR described as the “integers of [the] (alleged) negligence”.
I note that in [10] and [11] of the FASOC pleaded:
“10.The accident would not have occurred but for the casual act of negligence of the employee of the defendant pleaded above in paragraph 7, and by reason the unsafe system of work pleaded in paragraph 7A.
Particulars
a. Failure to exercise reasonable care.
b. Placing the plaintiff in a position of peril.
c. Failure to keep a proper look out.
d. Failure to warn the plaintiff of the location of the beam.
e. Failure to operate the crane with due skill, care and attention.
f. Failure to take steps to avoid the beam hitting the plaintiff.
g. Failure to obtain confirmation from the plaintiff that it was safe to operate the crane.
11.Further, and or in the alternative to the matters pleaded and particularised in paragraph 9 above, the accident would not have occurred but for the failure of the defendant to provide a safe system of work to the plaintiff.
Particulars
a. Failure to exercise reasonable care.
b. Placing the plaintiff in a position of peril.
c. Failure to supervise, adequately or at all, workers at the site including
i. its own employees
ii. the plaintiff.
d. Failure to provide proper training.
e. Failure to provide proper plant and equipment.
f. Failure to comply with the Work Health and Safety Regulation 2017 including as to
i. Part 3.1 as to managing risks to health and safety;
ii. Part 3.2 as to general workplace management.
g. Further particulars to be provided in due course.
h. Failure to have safe procedures around safe zones, exclusion zones and interactions between driver and crane operator.
i. Failure to provide any or adequate training in the necessary elements of crane unloading.”
“He was taken to the improvement notice, your Honour, which is at p 463. He accepted that those three dashes in the middle of the document reflected measures which were not in place as of the date of injury. They all involve, amongst other things, the provision of information regarding unloading and loading of items from the trucks. In terms of the transcripts, if I could turn from the documentary evidence to the transcript.”
“22. Prior to 17 June 2025, the plaintiff’s statement of particulars identified his injuries received as being an “[i]njury to right lower extremity”, consequential injuries to his “left lower extremity” and “lumbar spine” and “[p]sychological sequelae” (CB 1/2/12). The plaintiff’s evidence in the proceedings reflects those particulars in that the vast focus has been on physical injury, particularly of the “right lower extremity”.
23. On 17 June 2025, the plaintiff filed his amended statement of particulars (ASOP) (CB 1/10/63). The amendments include the specification that Mr Bailey “sustained the following injuries on 21 September 2018” (“Particulars of injuries received” at CB 1/10/65). That may be unremarkable in relation to injury of the “right lower extremity”, bit it sits uneasily with the consequential injuries, which presumably would have subsequently developed over time.
24. The ASOP also amended the psychological component in a specific way. As of 17 June 2025, the plaintiff asserted not psychological sequelae, but psychological injury. The relevant particular is in these terms (CB 1/10/65):
e. Psychological injury sequelae, including persistent depressive disorder, chronic post-traumatic stress disorder and complex regional pain syndrome.
25. The plaintiff should not be permitted to hedge its position with the precautionary use of “including” in particulars. The three bases on which psychological injury are asserted are “persistent depressive order”, “chronic post-traumatic stress disorder” (chronic-PTSD) and “complex regional pain syndrome” (CRPS).
26. Those three prongs of the psychological injury case are presumably advanced by reference to the evidence contained in the report dated 31 October 2024 of Dr Assad Saboor (Saboor Report) (CB 1/32/317). Of course, the Saboor Report predated the amendments made in the ASOP which articulated a psychological “injury” for the first time. In any event, as developed in the submissions below, the Court would place very limited weight on the Saboor Report.
27. The ASOP also expanded the “Particulars of continuing disabilities” into a list which extends across 2 pages (CB 1/10/65-6). Many of the particulars received limited attention at trial. The Court would be cautious to find many of the particulars established on the evidence. Numerous of the particulars could only be evidenced by broad statements in dated documents from several years ago.”
For reasons which I will turn to later in this judgment, I have ultimately found that Mr Bailey was a witness of credit and Mr Learmonth was not. As such, I propose to address Mr Bailey’s evidence at the outset, noting that this is the version of events which I ultimately accept.
The following portion of this judgment consists of a summary of Mr Bailey’s evidence from the following sources:
His Evidentiary Statement dated 14 May 2021.
His Further Evidentiary Statement dated 13 December 2024 (“Further Evidentiary Statement (2024)”).
His Further Evidentiary Statement dated 16 June 2025 (“Further Evidentiary Statement (2025)”).
His oral evidence.
This summary excludes those parts of the factual background appearing at the commencement of this judgment.
I shall also address some of the particular challenges to Mr Bailey’s evidence by KMAR under this heading, although, part of that discussion also appears in the discussion of Mr Learmonth’s evidence below and some particular factual issues raised by KMAR.
The two bundles of beams were located side by side. Mr Learmonth looked at the documentation and checked that he could lift both bundles in one lift. However, the crane was not rated to lift the weight of both bundles.
The chains from the crane were “wrapped” on the beam “so it could be moved out slightly so that the middle of the other beam could be accessed". Mr Learmonth did that himself with Mr Bailey standing on the ground near the truck. They were facing each other, “basically looking in each other's eyes”.
Mr Learmonth "directed [Mr Bailey] to get on the back of the truck”. The beams could not be lifted “from [a] standing position… [on the ground]”. Mr Bailey was happy to comply with that direction as he had "done so many times in(sic) previously and it was just part of the job and it should have been exceptionally safe…”.
After Mr Bailey climbed onto the truck, Mr Learmonth was situated on the ground and Mr Bailey was situated on the tray of the truck. They were about a metre and a half apart.
Mr Bailey accessed the tray of the truck by yellow ladders depicted in photographs before the Court. I infer that the presence of ladders meant that access to the tray of the truck was contemplated.
As to the procedure for lifting loads during the unloading process, Mr Bailey gave the following evidence:
Mr Bailey thought that he and Mr Learmonth had discussed “verbal and hand signals” for the lifting of loads prior to the day of the incident.
As to the nature and type of signals which were applicable and safe in lifting, Mr Bailey gave the following evidence:
“Q. You can control it, is what you're saying. You can set the tones and you can say, "It's not safe, I'm not doing it."
A. If ‑ if you're the person with the, yeah, with the ‑ with the button that operates the crane, yes. Yes. You're the ‑ as the person operating with the button that operates the crane, you do not do anything whilst there is a chance ‑ whilst anyone is in the vicinity of the crane.
Q. If you're in the other position, you want to make sure it's very clear to them what the go signal is and what the safe sign is; correct?
A. Listen. This, international, "Go the hell up".
Q. I didn't actually know that.
A. Do this, means "go the hell down". If you ‑ if you can't ‑ if there's all sorts of noise, you do this, it means go up, right? That's not a matter of do that and go up, no ‑ no, this is people's ‑ people get injured. Okay, you do that, you don't go ‑ you're not going up. You do this, you go up. So there is a set ‑ I do not need to communicate with a ‑ with a operator if I'm operating as a dog and if somebody was operating for the ‑ as the dogman for me. I do not need him to communicate with them what the commands are, because they're set out by correct me if I'm wrong, by law. Is it law?”
There are elements of co-operation in the crane operation and the driver doing their roles.
Mr Bailey stated that, even if the communication for lifting had not been previously discussed with Mr Learmonth, Mr Learmonth was well aware that if you wanted him to go up, Mr Bailey would say “go up” or, if he wanted Mr Learmonth to go down, Mr Bailey would say “go down”. He could also say: “[go] north, south, east or west”.
Mr Bailey could not recall having discussions with Mr Learmonth on the day regarding any such communications as to lifting but stated that the terms of communications were “well accepted”.
During the attaching of the chains, Mr Bailey and Mr Learmonth were engaged in “chit chat”.
However, the “chit chat” ceased when the lift was to be undertaken. Mr Bailey’s evidence was:
“Q. There must be some element of co‑operation because the crane has to be positioned so that the chains can reach.
A. That's correct. So before you would do it ‑ before ‑ once the chains are hooked up, before you lift, you look up, you look at the ‑ you look at the load, and this is a point at which you can't be idly chit chatting. This point in ‑ I mean, you do it, right?
Q. No, I don't.
A. No, I'm saying in your job, you have points at which you have to be focused solely on the job and there's other points at which you can have some ‑ a bit of idle chit chat. Even if the job's still going on, yes? So this is a point at which there's no idle chit chat and you have to focus on the job at hand, you have to get it right. Okay…”
“Q. You were, as I understand it, carrying on casual conversation as this‑‑
A. That's correct. Like I said, this is now at a point where we're actually got to ‑ got to stop the conversation and we need to focus on the job. However, Mr Learmonth decided to take it upon himself while I'm squatted down in between, like I said before, the equivalent weight of two big four‑wheel drives in front of me two big four‑wheel drives behind me‑‑
Q. So it's dangerous.
A. So it's ‑ not while they're on the ground. While they're on the ‑ while they're still on the tray of the truck, not ‑ man, I could ‑ I could ‑ realistically, because they're, like I said before, they're sitting on timber, they're not sitting on steel‑‑
Q. A little bit higher?
A. No, no. Remember I explained to you the dunnage?
Q. The loose slats?
A. Yeah, the loose slats with the timber in there, right. I could basically get that truck, without it being ‑ and I'm not suggesting that I would, but I'm ‑ and I would suggest it would be dangerous, but you could basically get that truck and do donuts and they wouldn't move.”
During the unloading of the steel, Mr Learmonth operated the gantry crane.
The first lift that consisted of a bundle of pipes was uneventful.
Mr Bailey then moved the chains to the middle of the beam “that had been moved” and “wrapped the chains around it so it could be lifted”. This was done by Mr Learmonth lowering the chains sufficiently for the chains to be placed under the beams. There were two chains fixed in the middle to form a v shape. Mr Bailey had a “good sense how to do it”.
Mr Bailey stated that the chains held the beams by the use of a ‘C’ hook which Mr Bailey stated he could do “blind folded”. He squatted down to attach the chains.
Mr Bailey described this work as exceptionally safe. This was because the beams were immobile because of their own weight and attachment of the chains, if not under load, represented minimal risk.
He stood between the 2 stacks of beams. He said he was requested to do so to secure the chains for the lift.
In his Evidentiary Statement, Mr Bailey stated:
“As soon as I finished wrapping the chains, I stood up and was about to begin moving to a safe area away from the beam when all of a sudden, the beam began being lifted.
I quickly scrambled to get out of the way. I turned to get to the other side of the trailer which meant that I had to get up over the other beam and my left leg got up onto the beam, but my right leg became caught and was then crushed in between both beams, as the beam that was being lifted swung towards me. I recall that both of the beams subsequently crashed together at the ends.”
“I refer to paragraph 32. I do not recall giving any indication that the load should be lifted. Nonetheless, saying “ok” (which I deny) is not a signal it is safe to lift. Voice signals should be clear and concise constituting a clear instruction to lift for example saying “lift” or “up”. It needs to be a word that is not used in another context and if there is any doubt, then the operator needs to wait and confirm that the load is to be lifted via clear verbal instructions or hand signals. This is especially necessary if the operator could not see the dogman (which was not the case in this incident). I recall that the crane used on this day was able to move in a north, south, east and west direction (not just up and down). As such, “ok” could not be considered a direction as there are many possibilities as to what movement is required. Directions such as “up” or “north” for example, would be required to be used for clarity.”
“On 21 -9 at around 115-130pm I was at kmar doyalson assisting to unload the semi trailer I drive there was two beams left the beams were around 12.5meters long 50cm tall 70 cm wide each lift being around 5 tonne we separated them at the rear of the trailer using the overhead crane which the kmar employee was operating I was connecting chains once separated we moved to the middle of the beams [I] had the beams we were lifting in front of me and another behind me I wrapped the chains around the beams however by the time I had stood up I saw the crane was staring to take the pressure and that the lift had begun with that I tried to get onto the beam behind me [I] had turned towards the back of the truck but the beam being lifted left the deck and swung into me l herd the beams BANG together at each end the back first then the front and the beam had swung into me twisting my right leg I felt my ankle twisting knee twisting.”
“Q. Then you stood up.
A. No. Here, and I would suggest this is very accurate, I haven't stood up. I'm in the process of standing up and I've ‑ it's in front of me, right, and I'm seeing the crane going up. And then, if you'll excuse the language, your Honour, shitting bricks.
Q. You didn't hear the mechanism, you just saw it?
A. That's correct.
Q. There was slack in the chains?
A. Not very much, no. I ‑ it was actually ‑ realistically, it could ‑ it would've been easier for me to connect the chains if there was a little bit more slack. So the chains were quite taut.
Q. You don't shout out "stop" or exclaim loudly or, "Hey, I'm"‑‑
A. I'm shitting bricks at the moment, mate, all I'm thinking is I need to get the hell out and dodge.
Q. You agree with me you didn't say anything audible?
A. I may have or I may not have, I can't actually ‑ I can't ‑ I can't testify whether I did or I didn't. I would lean towards the "I didn't", unless I actually said, "Oh, shit". This is the amount of time that I've got, I've got to make a split second decision: "Do I stand here and chat to old mate or do I get the hell out of the way?" And you don't have ‑ I'm not having the ‑ this is an unexpected ‑ it is exceptionally unexpected for it to start going up. So all I've done is shit myself and tried to get the hell out of the way.”
The beams were lifted vertically by the crane.
Mr Bailey gave evidence that he did not give a signal to lift the beams.
Mr Bailey stated:
“I wrapped the chains around the beam. And as I stood up, I saw that the beam was ‑ I could see the crane was going up. So I turned to my left. I'm not sure whether I said anything or not, but I know that there was a ‑ if you'll excuse the language ‑ "oh shit" moment in my head. And I just thought to myself, I need to get the hell out of dodge. So I turned to my left, I got my left foot up onto the beams that were behind me. However, I was still standing on my right leg, and the beam swung into my right leg and crushed my right leg between the pack that was stationary, and the pack that was being lifted. I do also recall that the beams, I heard banging. So the beams that were attached to the crane pivoted on my leg, and I heard the beams collide together down one end, and then the other end.”
On Mr Bailey’s evidence, Mr Learmonth did not wait for Mr Bailey to give a signal or at least move to a safe area before he lifted the beams.
Mr Bailey stated he was in excruciating pain, and an ambulance was called.
Mr Bailey stated:
“A. All I knew was that I was in trouble. I knew that there was a hell of a lot of pain, and I laid down on the truck, and there was quite a number of choice words. Not aimed at anyone, but just, you know.”
Mr Bailey recalled Mr Learmonth apologising.
Me Bailey stated that when he was in the ambulance, the ambulance officer told him that he had been out here at the same premises, a few months earlier to treat the owner who himself had an accident.
Mr Bailey also stated in his Further Evidentiary Statement (2025):
“I refer to paragraph 40 I recall seeing the beam being lifted and to get out of the way I had managed to get my left foot onto the beam behind me. There was bruising to the outside of my right leg, and the bone was crushed.”
“Q. I think you alluded to it before when you were showing me with the pen, there is a possibility of swinging?
A. Well, there's always a possibility of swinging, but when I was showing you with the pen, I wasn't talking about an up and down motion.
Q. Right, I understand.
A. If the crane is positioned correctly, then there should be exceptionally small possibility of the ‑ of the load swinging sideways or lengthways.”
“…So what should happen is that you wrap the chains around, you make sure that they're secure on the ‑ in this case, you stand up, you take a step backwards, you look at the load. You say, "Is it centred northwest over the load? Is it centred east south" ‑ northwest ‑ north‑south or east and west?
So in other words, is ‑ if it's attached down here, right, is the crane ‑ is the crane ‑ the hook of the crane on an angle? You can ‑ if the hook of the crane's on an angle, you don't lift, you move the crane like that so that it's lifting straight. It's not trying to ‑ because if you do this, it'll lift it off the ground, it'll swing.”
Mr Bailey gave evidence as to whether he could see Mr Learmonth during the preparatory stage and during the lift. He gave evidence that he could do so.
There was a "clear and unimpeded view" between both men. The only thing between Mr Bailey and Mr Learmonth was the beam which was about to be lifted. Mr Bailey stated in the Further Evidentiary Statement (2025):
“I refer to paragraph 30. I was always within clear view of Mr Learmonth. There was nothing obstructing his view of me or the load at any time. I recall engaging in pleasant chat while performing our work.”
“Q. Do you see that better from the ground or from the tray?
A. Either. Realistically, either, either, and I would suggest it would be ‑ I would say ‑ I would suggest that that is probably something that you would do in conjunction with the other person that you're working with…”
“Q. Could you see Mr Learmonth when you were scrambling?
A. Yes. While I was squatted down, Mr ‑ Mr Learmonth, we were face to face. I'm squatting down on ‑ the beam's 50 centimetres tall. If you squat down and you've got something 50 centimetres tall in front of you, it ‑ your head is still above that.”
Mr Bailey said there were “some factory noises”, but communications were quite easily made.
As to Mr Learmonth’s evidence that Mr Bailey used the word “OK”, Mr Bailey stated:
“Q. Could you have used "okay" as part of the conversation you were having?
A. No. Oh, the part of the conversation ‑ the ongoing conversation? It's possible. However, I would deny saying "okay", but I can't categorically state whether "okay" was said or not. But it was ‑ it could've been part of the conversation that was ongoing, which was not ‑ which had nothing to do with the ‑ like I said, it was idle chit chat.
Q. But it could have been said.
A. Could've been said. Oh, well‑‑
Q. There hadn't been a conversation about specific verbal signals, had there?
A. Not at that ‑ like I said, there's ‑ there is ‑ it's already set out. Verbal ‑ verbal, visual, auditory signals are already clearly set out.”
It was suggested to Mr Bailey that he may have climbed off the truck or moved to a safe area at some stage during the unloading process.
As to the general proposition of coming off the truck bed, Mr Bailey gave the following evidence in cross-examination:
“Q. It would have been possible to get off the truck if you wanted to. Get the chains on, come down from the truck bed‑‑
A. I would suggest that that would've been probably a reasonable way to go about it. I would suggest that there isn't necessarily a need for it. However, there ‑ it could be a ‑ it could be a way to go about it. Considering there was a second lift to be done at the time, if you get down off the tray of the truck and then ‑ you ‑ you're going up and down‑‑
Q. It's inconvenient?
A. It's inconvenient and there's not necessarily, provided that all checks ‑ and again, this is ‑ this was part of Mr Learmonth's job. However, I would expect that he does his daily checks on his crane. It's part of regulation that every ‑ every day, that you inspect your chains for any damage, wear—"
“Q. As I understand your evidence, you also didn't have a discussion about a designated "I'm going to come off the truck, don't start anything until I come off the truck" or "don't start it till I'm in this particular area" with the designated safety‑‑
A. No. However, the ‑ the ‑ again, the rules of operation of a ‑ of a ‑ of a ‑ of a crane. I've personally done ‑ I couldn't tell you how many crane courses. I've done that many that it's like you reading law books, right? What ‑ they all blend into each other, right? The rule ‑ the rule of the operation of a crane is if there is anyone in danger, you do not operate the crane. If there's anyone in the vicinity, you do not operate the crane. If you feel that that person is any sort of danger, you ask them to remove themselves from the ‑ from the dangerous area. If they refuse to remove themselves from the dangerous area, nothing happens until they are out of the way. If you've got to call the police to move them out ‑ out of the way before you lift anything, you call the police and get them removed. Nothing happens until no one is in the vicinity.
Q. You can control it, is what you're saying. You can set the tones and you can say, "It's not safe, I'm not doing it."
A. If ‑ if you're the person with the, yeah, with the ‑ with the button that operates the crane, yes. Yes. You're the ‑ as the person operating with the button that operates the crane, you do not do anything whilst there is a chance ‑ whilst anyone is in the vicinity of the crane.”
It should be noted that it was never put to Mr Bailey that he was employed as a dogman. Nor did he suggest to he was.
Mr Bailey was asked whether he had seen a document prepared by MMM titled “Confidential Incident Report From” (“the Incident Report”). He indicated that he had not seen that form.
The form gives the impression that Mr Bailey had been interviewed for the purposes of preparing the report. One of those carrying on that investigation was Mr Haworth, the Managing Director of MMM and Haworth. It is unclear whether Mr Bailey did have contact with Mr Edwards, an employee of Haworth who managed the operation at Mayfield NSW.
Mr Bailey also indicated that he had contact with Mr Haworth but adjusted that answer to indicate he had contact with Mr Haworth at the hospital. It is clear that the various answers to questions in the Incident Report were entered by a person other than Mr Bailey and, on the balance of probabilities, I do not consider the answers to various questions there recorded were statements made by Mr Bailey and recorded by the authors.
Mr Bailey was also asked questions about a policy issued by MMM entitled “Policy for all staff working on back of trucks” (“the MMM Policy”). That policy was dated 15 October 2018 and accordingly was promulgated after the incident. In fact, the policy states: “due to the nature of the incident, clarification is required as to the process to be engaged by all personnel going forward”. That note immediately followed a specific reference to Mr Bailey and his injury as being the reason for the policy being updated.
The new entry to the policy was written in red in the following terms: “[t]his is the preferred process, MMM does not want anyone on the back of trucks, if it can be avoided!”
The policy operating before the incident as to the working on the back of trucks, which was retained after the incident, was as follows:
“1. Arrival at delivery address, wear PPE.
2. Communicate with unloader as to where to position vehicle
3. Park Truck, apply brakes, switch off
4. Have a conversation with unloader/receiver
1. Where load is on truck
2. How to be unloaded
3. Requirements from either parties
4. Discuss the process to unload
5. Can unloading be done from the ground”
Mr Bailey had not previously seen the policy document but did understand that there was a new policy which was the section marked in red on the document.
Mr Bailey was then asked whether the process identified in the document was one he would follow, notwithstanding the fact that he had not seen the document prior to the incident. That cross-examination was as follows:
“Q. When you were doing your work when you were doing it, this is not the process you would follow?
A. It's roughly the process. Depends on the job too a little bit. It depends on where you're going. So, in some instances, you might just unchain the load or part there of and point to it and go, "That's your stuff". Therefore, the rest of it is irrelevant, right? So, you get to point 1, okay? Down the bottom there, see in, "The unloading process", and then you're done. However, in other circumstances where your assistance is required or requested to unload the vehicle, then it's roughly the process, yeah.”
“Q. I think the one that I've read.
A. I think no could be possibly misleading. Listen, whilst I was employed with Mr Hayworth, okay, I actually had to train some individuals, right? And that's roughly what I would've explained to them how to go about their job. So, whether it's technically a policy or whether it's my policy or ‑ but I think no is misleading and Mr Hayworth did provide training to those who needed it upon, you know, starting their job. Now, with my experience, I demonstrated to him my experience and he was quite confident that I knew what was going on.”
“Q. That process wasn't complied with on the day of the accident?
A. "Where is the load on the truck", I showed him the load. Look, "How is it to be unloaded?". I'd been there prior. I knew that it was getting unloaded with the crane. So, redundant. "Requirements for me, the parties". Well, Mr Learmonth asked me would I assist him and I agreed that I would assist him. "Discuss the process of unloading". Yeah, this is for you. We'll get rid of that off the truck first. Yep, agreed. So, yeah, roughly. Do I need to stand there and have a full hour conversation prior to unloading? We've all got other things to do, right?
Q. Did at least say where your safe area was?
A. No. There was no safe area.”
“The general process is that once I had wrapped up the beam with the chains, I would move to a safe area on the back of my truck, and I would then give a verbal and hand signal. Hand signals were supplementary. The signal indicated that the beam could now be lifted.”
“The operator of the crane had the responsibility to ensure loads were lifted safely and to not operate the crane until all persons were clear of danger. This extended to requiring that if a person was in danger from the load, the crane would not be operated until the area was clear. In instances where there was danger, procedure dictated that the operator should request the individual remove themselves from the area. If the individual refused, then the load should not have been lifted until all persons were clear of danger. The responsibility described in this paragraph would fall upon the operator. Any instructions to lift the load by a dogman were merely a guide and should not be followed if the dogman was in the vicinity of the load - only once they were clear of any danger.”
“…Mr Learmonth assumed control over the method of work in unloading the truck. Further, as the operator of the site, Mr Learmonth had responsibility to ensure all in attendance were in a state fit for work. If he believed I was unfit for work or unsafe in any way at the time (which I deny), then it was his responsibility to request me to remove myself from the site / refuse the delivery / ban me from the site and request a different driver.”
“[59] The assessment of credibility of a witness may be based upon whether the accounts of a witness is inherently probable or given against interest. It does not follow that a witness who has been found not to be honest or unreliable about one matter should necessarily be disbelieved about everything else: Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084 at [118] (O’Loughlin J). Nor does the disbelieving of a witness as to a particular proposition necessarily mean that the proposition has been proven: Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640; [1975] HCA 63 at 694.
[60] Further, as Basten JA observed in Sangha v Baxter [2009] NSWCA 78 (with whom Handley AJA agreed), considerable caution should be exercised in making global credibility findings. His Honour observed:
“[155] There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.
[156] Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].”
I have also taken into account the observations of Kunc J in Pavlis v Pavlis [2021] NSWSC 1117 (“Pavlis”) at [158] to [167], with which I broadly agree.
However, the principles set out by Kunc J in Pavlis are, of course, not principles of law to be applied on every occasion. Rather, they are matters stated to be derived and applied from particular cases based on the facts of those cases. Ultimately, it is up to the Court to assess the whole of the evidence presented, including, in that respect, issues concerning credit, and make its own findings based on that evidence.
Mr Bailey’s account of the circumstances giving rise to and of the incident in his Evidentiary Statements and oral evidence in chief were not, in substance, disturbed by cross-examination, in so far as he was, in fact, challenged. Whilst Mr Bailey’s evidence given in cross-examination may have occasionally displayed an overt expression of incredulity as to the questions asked, those reactions were not entirely unjustified.
In my view, Mr Bailey was a humble man of limited formal education. His way of responding to questions was, on occasion, to be engaged in a more bombastic response. My impression of Mr Bailey, in this respect, is directly contrary to KMAR’s submission that Mr Bailey was guarded and suspicious.
Mr Bailey’s credibility was challenged on his evidence of the impact of his injury and his incapacity, as well as his living circumstances after the incident. KMAR’s submissions, in that respect, were more detailed and require closer examination, which I undertake immediately below, although, I will ultimately conclude that KMAR’s credit attack failed both in that respect and in its employment to challenge Mr Bailey’s evidence as to the incident.
KMAR’s submissions in relation to the credibility of Mr Bailey were, in summary, as follows:
A notable feature of Mr Bailey’s evidence was its vagueness and the many unexplained gaps. The unexplained failure by a party to give evidence, to call witnesses, to tender documents or other evidence or to produce particular material to an expert witness may in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case. KMAR relied on the comments of the majority judgment in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63] to [64] in this regard.
The three evidentiary statements of Mr Bailey were notably vague, especially in so far as the statements referred to people who provided Mr Bailey with daily assistance relevant to the proof and quantum of his claim, and the breakdown of the relationship with his ex-partner, Karen. KMAR took particular issue with the fact that Mr Bailey either did not recall or did not disclose the surnames of Karen, Craig, Shane and Sheriee (who were persons referenced in his evidentiary statements), when “it is clear that [Mr Bailey] knew the surnames of the friends he referenced”.
In response to orders of Justice Chen dated 3 March 2024, Mr Bailey’s solicitors issued a letter dated 12 March 2025 setting out the location of where he had resided and the periods of time at which he had resided since 1 January 2022 (“the 12 March letter”). Mr Bailey did not include the address of Mr Shane Stagliar in this letter, despite accepting during cross-examination that he had spent time with Mr Stagliar in 2023 and 2024.
Given the absence of critical information, Mr Bailey has failed to meet his onus of proof. For example, Mr Bailey’s claim that a neighbour provided him food or assistance while at the Collie property cannot be sustained in the absence of details concerning the costs incurred by Mr Bailey or the name of the friend (although, it was indicated during cross-examination that the friend was Paula Leong).
The Court should infer that the evidence of each of Craig, Shane and Sheriee would not assist Mr Bailey, given that Mr Bailey provided no explanation about their absence as witnesses in circumstances where each of those persons were said to have provided Mr Bailey care relevant to his claims. The omission of addresses and information by Mr Bailey would also permit the Court to make more severe inferences, including about the extent and nature of Mr Bailey’s asserted homelessness.
In the absence of Mr Bailey’s cooperation, KMAR was unable to have Mr Bailey assessed by an occupational therapist in any home environment.
Mr Bailey’s evidence was guarded and suspicious. When Mr Bailey disliked a question, he would retort rather than answer, and when asked about inconsistencies between his evidence and what he had disclosed to various independent examiners, he was either dismissive or disagreed with aspects of what was written in those independent reports. In this regard, KMAR made particular reference to the evidence concerning Mr Bailey’s use of crutches as well as Mr Bailey’s failure to take up the saphenous nerve injection.
KMAR took particular issue with the fact that Mr Bailey only identified persons by their first name, with the inference being that Mr Bailey was either deliberately concealing or omitting the surnames of persons who could have given evidence relevant to the proof and quantum of his claim.
However, the fact that some of those details, as was submitted by KMAR, were available in other documentary evidence, must be contrary to the suggestion that Mr Bailey was deliberately concealing that information. Further, there was no suggestion that at any time did KMAR submit a request for those details, despite having concerns that Mr Bailey may be deliberately concealing information since, at least, 14 May 2021 (the date of Mr Bailey’s Evidentiary Statement).
KMAR submitted that “Craig, Shane and Sheriee” are “each said to have provided [Mr Bailey] care, relevant to his claims” and “no explanation about their absence as witnesses” was provided by Mr Bailey. It was submitted that the Court should infer that their evidence would not assist Mr Bailey.
The principles discussed in Jones v Dunkel (1959) 101 CLR 298, [1959] HCA 8 are concerned with a party’s unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence.
In RHG Mortgage Limited v Ianni [2015] NSWCA 56 at [75] to [96] (per McColl JA, with whom Emmett JA and Sackville AJA agreed) the three relevant considerations were identified to be: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained.
I accept the submission made by counsel for Mr Bailey, that no aspect of Mr Bailey’s account of the need for domestic assistance was challenged, including no cross-examination in respect of Mr Bailey’s claim for domestic assistance and care. Hence, no inference with respect to the failure to call Mr Bailey’s friends may be made, in circumstances where the only evidence that could have been given by those persons, with respect to Mr Bailey’s claim, was in relation to domestic assistance and care. In those circumstances, no adverse inference should be drawn with respect to the failure to call evidence from ‘Craig’, ‘Shane’ and ‘Sheree’.
The 12 March letter set out four different addresses where Mr Bailey had resided from 1 June 2022 to 12 March 2025. The 12 March letter was in response to an order of Justice Chen dated 2 March 2025, which directed that “[Mr Bailey] provide the defendants within 7 days the location of where he has resided and the periods of time at which he has resided since 1 January 2022 to date.”
KMAR took issue with the fact that Mr Bailey omitted Mr Stagljar’s address in the 12 March letter, despite the fact that Mr Bailey readily accepted having stayed at Mr Stagljar's address in 2023 and 2024.
Mr Bailey gave evidence, which I accept, that he was homeless, had no fixed address and lived between a number of different addresses across NSW. He was reliant on the “gratuity of…friends” and would “couch surf” between their houses. When he felt he had overstayed his welcome, he would move to another location. On the evidence before this Court, Mr Bailey identified at least six different addresses where he had resided temporarily since the breakdown of his relationship with his ex-partner Karen in or around August 2020.
In my view, it is not inconceivable that someone in Mr Bailey’s circumstances, that is, someone who is homeless and living between multiple different and temporary locations, would not recall the exact addresses where they have resided throughout a three-year period. KMAR’s attack on Mr Bailey’s credit, in this regard, is unwarranted.
Further, KMAR’s submission that the Court should be critical of the nature and extent of Mr Bailey’s homelessness is, on the evidence, unwarranted, and I do not accept it.
“Q. There's no images in your material of inside the shipping container, is there?
A. Do you have photos of the inside of your house that I can see?
Q. I'm simply asking.
A. No, there's not. Or I don't believe so, no. It's not exactly something that I'm proud of.”
While KMAR’s contention is plainly a reference to the first answer which Mr Bailey gives, it ignores the fact that Mr Bailey immediately goes on to answer the question in very direct terms.
I accept that Mr Bailey occasionally became frustrated and responded to questions forcefully or, on limited occasions, defensively. However, in my observation, this was often in response to inflammatory or confusing questions, and in all circumstances, Mr Bailey ultimately, and in close proximity to the question asked, gave both direct and frank evidence. I do not agree with the submission that Mr Bailey’s evidence was evasive or non-responsive.
Another example, while not referenced by KMAR, is as follows:
“Q. You're not exaggerating your pain are you?
A. I was hit by your client with the equivalent of two four-wheel drives worth of weight. Swinging.
Q. Did you hear my question, Mr Bailey?
A. No, I'm not.”
“Q. And you told Ms Mullens that you had owned the Collie property before you were injured?
A. I don't - no, she must have misunderstood me if she said that.
Q. Can I ask you to look at page 292?
A. Okay.
Q. Could I ask you to read paragraph - looking at the numbers on the left, it's 4.4.
…
WITNESS: That's incorrect.
NOAKHTAR
Q. That's incorrect?
A. The last sentence of that is incorrect.
Q. You didn't say that to Ms Mullens?
A. That's incorrect.”
“He enjoyed spending time with family and friends, riding motorbikes, 4WDing, working on car and motorbike engines, boating and fishing. He owns a 1 acre property at Dubbo with a converted shipping container that he would stay in when he could get away. He would mow the property with a ride on mower and planned to renovate the 150 year old house there.”
It is entirely unclear how Mr Bailey’s response (as set out above) could be perceived as dismissive. In my view, Mr Bailey was communicating to counsel for KMAR that Ms Mullens must have misunderstood what he had communicated to her, and as such, was simply correcting an error in her report. The point that Mr Bailey was making was that he only acquired the property after his injury, which is factually correct.
KMAR also submitted that Mr Bailey told three different examiners that he was living in a shipping container during 2023, whereas his Further Evidentiary Statement (2024) indicated that after late 2022 he stayed there irregularly and the 12 March letter indicated that he had not stayed at the Collie property “for some time”. The inference which KMAR wished the Court to draw, was that Mr Bailey must have been lying about his living arrangements, either to independent examiners or in his evidentiary statement.
It was Mr Bailey’s evidence that he stayed “at the Collie property irregularly and sporadically, depending on which of my friends’ houses are available to me at the time”.
The joint report of Dr Mitchell, Dr Tyler and Dr Nohra dated 19 June 2023 (date of assessment: 4 April 2023) and the report of Dr Dalton dated 26 October 2023 (date of assessment: 15 August 2023) both refer to Mr Bailey’s “current living arrangement” or where he was “currently residing”. Hence, the fact that Mr Bailey may have been residing at the Collie property on 4 April and 15 August 2023, is not inconsistent with his evidence that he stayed there irregularly and sporadically.
The report of Dr Anthony Smith dated 16 November 2023 (date of examination: 2 November 2023) included the following details:
“DOCUMENTATION REVIEWED
The documentation which has been reviewed for the purposes of providing this report is as follows:
• Letter of instruction from Mills Oakley dated 20 October 2023.
This man was seen on 02 November 2023. He is 46 years old and right handed. He lives at 15 Bundemar Street, Collie, near Dubbo. He has lived there for some two years by himself. It is about one acre of land that he owns, and he lives in a shipping container. The house there is in ruin. He said he was injured on 21 October 2018.”
During cross-examination Mr Bailey rejected that he had told Dr Smith that he had lived at Collie for two years consecutively. I accept Mr Bailey’s evidence in this regard, noting that the report as to Mr Bailey’s living arrangements appears under the heading “documentation reviewed” and it is therefore plausible that the information as to Mr Bailey’s living arrangements may have been obtained from the letter of instruction, rather than Mr Bailey’s himself. In this regard, I note that Dr Smith specifically references having been told by Mr Bailey that he was injured on 21 October 2018, while the balance of the paragraph as to Mr Bailey’s living arrangements does not contain a similar statement.
Further, given the 12 March letter is dated 12 March 2025, Mr Bailey’s statement that he had not stayed at the Collie property “for some time” is not inconsistent with the fact that he may have stayed there at times during 2023 – being “some time” since 12 March 2025.
KMAR submitted that Mr Bailey’s evidence, that no medical person had ever told him not to use crutches, was inconsistent with Mr Bailey’s later cross-examination on the same point, as well as the contemporaneous documents of Axis Injury Management dated 7 June 2021 and 10 August 2021, and the report of Dr Harrington dated 23 July 2021.
Mr Bailey’s evidence during examination-in-chief, was as follows:
“Q. Did somebody recommend to you that you should use the crutches?
A. Dr Burton. And the physiotherapist.
Q. Can you recall the name or names of the physiotherapist?
A. One of them was Josh, but that was - he wasn't the one who originally recommended it. The original guy, I can't remember his name.
Q. Who paid for the services provided by Dr Burton?
A. Workers comp.
Q. Have you seen him recently?
A. No.
Q. Why not?
A. Because workers comp stopped me from seeing him, basically.
Q. Has any medical person ever told you not to do this?
A. No.”
“Q. Yesterday you answered some question from your counsel about your crutches.
A. Yeah.
Q. Do you remember that? In the morning. Do you remember Axis Injury Management raising with you concerns about the long duration that you were utilising the knee brace and crutches?
A. I do recall being told that - nothing about the knee brace, but I do believe - do believe that I was told that if I continue to use crutches that it will destroy the rest of my body.”
In my view, there is a clear difference between a medical practitioner telling Mr Bailey not to use crutches and raising concerns with Mr Bailey as to his reliance on crutches. Hence, I do not consider there to be an inconsistency between Mr Bailey’s evidence-in-chief and later evidence given during cross-examination.
I also do not consider that the contemporaneous medical reports of Dr Harrington and Axis Injury Management express an unequivocal opinion or recommendation that Mr Bailey cease using crutches.
The report of Dr Harrington dated 23 July 2021 recommended that Mr Bailey concentrate on dispensing with crutches, noting that the use of crutches has become an ingrained way of life rather than a necessary mobility aid. Dr Harrington also reported that "[Mr Bailey] should participate in a strengthening program and dispense with his crutches however this is unlikely to affect the permanent impairment therefore he has reached maximum medical improvement for the purpose of assessment".
The Axis Injury Management report dated 7 June 2021 recommended further investigation around the use of a knee brace and crutches for weight bearing.
While it may be implicit that those medical practitioners were advising Mr Bailey that he should stop using crutches by expressing a concern with the continued use of crutches by Mr Bailey, in my view, Mr Bailey’s evidence that no one advised him to stop using crutches is neither unreliable nor deliberately dishonest. In my observation, Mr Bailey has most likely misunderstood the subtleness of the recommendations given by doctors, and as such, his evidence demonstrates a genuine confusion rather than a real inconsistency.
KMAR submitted that Mr Bailey’s course of conduct with regard to the saphenous nerve injection, namely, that Mr Bailey chose not to take up this treatment, may support various inferences being drawn about the extent of Mr Bailey’s pain. Plainly, the inference which KMAR sought the Court draw was that Mr Bailey must not have been in as much pain as he attested to if he refused a treatment which could have assisted.
KMAR also submitted that Mr Bailey’s position, that it was Dr Tame who insisted on the saphenous nerve injection being postponed, reflected Mr Bailey’s refusal to concede what was plain on the face of various letters from treating practitioners, presumably meaning, that it was Mr Bailey alone who decided not to undertake the saphenous nerve injection. It is useful, in this regard, to set out the letters of Dr Volschenka and Dr Tame:
Report of Dr Volschenka dated 19 February 2019:
"If he has persistent neuropathic pain in the saphenous nerve distribution in spite of physical rehabilitation and initiation of an antineuropathic medication then we would proceed with a pulsed radiofrequency neurotomy of his saphenous nerve to provide him a reduction in pain of between nine to fifteen months."
"Today we discussed procedural treatments that could be useful for neuropathic pain. The simplest treatment that might help reduce Justin's symptoms is a local anaesthetic and steroid injection around the saphenous nerve combined with a pulse radiofrequency treatment. Justin's neuropathic symptoms are clearly in a saphenous nerve distribution. The procedure could provide some relatively sustained improvements in neuropathic pain symptoms for Justin. We will consider proceeding this injection next time we meet.
…
Justin might benefit from a local injection to the saphenous nerve combined with pulse radiofrequency treatment. This very simple injection could potentially provide improvements in pain for an extended period. Justin may also wish to consider spinal cord stimulation therapy in the future if his neuropathic pain fails to improve with other strategies."
“Justin has ongoing neuropathic pain symptoms most likely related to the saphenous nerve. We have approval in place to proceed with a saphenous nerve injection and pulse radiofrequency treatment when Justin wishes to proceed. At this stage he is keen to hold off. He remains concerned about potential side effects and complications related to the procedure which whilst rare, certainly can occur.”
“Justin is planning on having nerve conduction studies in October. He is keen to have a review following his nerve conduction studies which I have arranged for him. At that time, we will consider proceeding with a saphenous nerve injection and pulsed radiofrequency treatment if Justin wishes.”
On the face of those documents, in particular the report of Dr Tame dated 3 April 2020, it is clear that Mr Bailey was concerned about certain side effects and complications of the saphenous nerve injection, which Dr Tame conceded were real concerns, despite those side effects and complications being rare.
During cross-examination, Mr Bailey gave the following evidence:
“Q. Do you accept that Dr Tame has been telling you that this might be useful and take your pain away?
A. Dr Tame also told me that it could make it worse. Or it could have no effect whatsoever. Dr Tame advised me that should it - should it make it better, it would make it better for a short period of time and it would be an ongoing thing that I would continue to need those injections probably for the rest of my life. At certain intervals, which I think was a month or a couple of months. He said it could have no effect whatsoever and he said it could make it worse. If it were made worse, then it was made worse on a permanent basis.”
I turn then to the evidence of Mr Learmonth who was the only other witness as to the incident. It is convenient to approach Mr Learmonth’s evidence through the prism of the Learmonth Evidentiary Statement, so that his evidence-in-chief may be examined as to its reliability having regard to the cross-examination of Mr Learmonth and objective material, bearing upon that question.
I observe by way of preamble, that I found Mr Learmonth to be an unsatisfactory witness. Counsel for KMAR contended that Mr Learmonth’s evidence was clear and that he had made appropriate concessions. However, many of the concessions made by Mr Learmonth were inevitable in the light of the cross-examination and written material. Whatever clarity there may have been in Mr Learmonth’s evidence was significantly undermined by critical parts of his evidence being patently implausible, inconsistent or self-serving.
I approach Mr Learmonth’s evidence by focusing upon evidence which was contentious.
“Due to the makeup of the Premises, the crane operator was required to stand almost directly against the truck tray, during a lift. This could result in an obscure line of site with the truck driver, which could not be avoided.
…
It was agreed I would use the gantry crane and he would use verbal directions as I would not be able to clearly see the plaintiff, during the lifting.
…
This movement is made at the rear of the trailer and is a necessary step in order to allow the plaintiff clear access to the middle of the beam to allow him to wrap the chains around the beam. This could be achieved from the outside edge of the load, not between them. Due to the makeup of the load, I was not in a position to see where the plaintiff was standing and relied on him to inform me that he was standing in a safe place during the lift.
…
The whole process was very gentle. When I saw the load rotate, I released the crane placing the load back down.
…
I cannot say where the plaintiff was standing during the 15 to 30 seconds between me starting to raise the crane and the lift commencing.” (emphasis added).
It follows that Mr Learmonth’s evidence in The Learmonth Evidentiary Statement was:
The location of the crane operator to operate the crane next to the tray of the truck meant there was an “obscure line of sight with the truck driver.” Later however, it was said that due to the “make up of the load”, Mr Learmonth could not “see” where Mr Bailey “was standing”.
It was, therefore, necessary for Mr Bailey to supply Mr Learmonth with information to inform Mr Learmonth that he was “standing in a safe place”. Mr Learmonth stated that Mr Bailey was required to use “verbal directions as [Mr Learmonth] would not be able to clearly see [Mr Bailey]”.
The bundles of steel beams were separated by means of Mr Learmonth attaching the chains of the crane to the end of the first pack of beams and moving the pack away from the secured pack. This allowed the chains to be wrapped around the beams, from “the outside edge of the load” and “not between them”.
Mr Bailey was “standing” at the time of the lifting of the load even though his evidence was that Mr Bailey had to inform him where he was located.
In oral evidence, Mr Learmonth’s account was different, as described below, and was itself inconsistent.
Mr Learmonth stated he had not separated the two bundles of steel. This is plainly inconsistent with the Learmonth Evidentiary Statement and, in any event, even his oral evidence is inconsistent. In cross-examination he stated, “I separated one pack ready for unloading” but in his evidence when asked whether he had separated the “two remaining bundles” he stated, “I don’t think so”. [2] It is plain on the evidence that Mr Learmonth did separate the two bundles of steel consistently with Mr Bailey’s evidence and the Learmonth Evidentiary Statement. Further, that fact is also consistent with the mechanism of the injury of Mr Bailey at the time of the incident because the “crush” occurred because one bundle of steel beams swung against the other.
Contrary to the Learmonth Evidentiary Statement, that he could not see or clearly see Mr Bailey at the time of the lift, Mr Learmonth agreed he could “see Mr Bailey's head, but below his waist probably”. This evidence is, in one sense, inexplicable. In any event, Mr Learmonth agreed a short time later he could “see Mr Bailey’s head”. He then agreed he would only lift the steel with the crane after Mr Bailey “nods” considering he “could seriously injury him”.
The truck was 1.5 metres high, and the bundles of steel were about “600 mil”, hence there was nothing between Mr Learmonth and Mr Bailey except for the steel beams (and he said “the trailer” but he was standing next to the trailer).
Notwithstanding this evidence, when pressed as to knowing Mr Bailey’s position in relation to the steel being lifted, Mr Learmonth gave the following evidence which, in addition to the inconsistencies in the evidence as to being able to see Mr Bailey while operating the crane above and whether he had separated the steel beams, adversely reflects on his credibility as a witness:
“Q. So you knew where Mr Bailey was in relative terms to the steel.
A. Not entirely, no.
Q. Well if you didn't entirely know it's pretty dangerous to operate the crane until he'd moved, wasn't it?
A. Well, one would assume he is standing in a place where he can't get hurt.
Q. How do you make that assumption if you can't clearly see where he is?
A. I don't know I'd do anything else, to be honest.”
“Q. And now I'm putting a different proposition to you, which is that you could clearly see him. If you could clearly see where he was then you knew that moving the steel was likely to cause an accident.
A. I wouldn't have done it if I thought it was likely to cause an accident.”
“Q. You say that your vision of Mr Bailey was obstructed; don't you?
A. To ‑ when I'm unloading him; yes.”
There is a further unsatisfactory aspect to Mr Learmonth’s evidence on this topic. Mr Learmonth’s evidence as to whether Mr Bailey was crouching or standing vacillated. This is significant. In the Learmonth Evidentiary Statement, he stated that Mr Bailey was standing at the time of the lift and then later suggested that he could only see Mr Bailey’s head at that time or in the time leading up to the lift. When asked later in cross-examination whether Mr Bailey was crouched, Mr Learmonth seemed to suggest that Mr Bailey was crouched to fit the chains to the steel beams (which would seem most likely) but he “would have” been standing when the lift was made.
The preponderance of the evidence is, however, that Mr Bailey was crouched at the time of the lift between the two bundles of steel because:
Mr Bailey says he was crouched down, and Mr Learmonth says he could only see Mr Bailey’s head, so it is likely that he had not proceeded to stand up.
This is consistent with KMAR’s initial report to SafeWork (“Mr Learmonth’s WHS report”) whereby it was stated that once the chains were fitted, the weight was taken by the crane.
This unsatisfactory evidence was, in my view, an attempt to obscure the relative position where Mr Bailey was located to maintain a position that he could not see Mr Bailey or knew of his position at the time of the lift and depended upon a communication from Mr Bailey so as to know when to lift the bundle.
Yet that position is unsustainable, not only because Mr Learmonth accepted that he saw Mr Bailey’s head and that Mr Bailey could give directions by nodding at him, but because there was no dispute that Mr Bailey and Mr Learmonth were in close proximity and, at the time of the lift, were likely no more than 2 metres apart, Mr Learmonth standing by the tray of the truck while Mr Bailey was on the tray. A photograph of a truck in the loading dock with one person standing behind the truck and one person standing on the tray was put to both Mr Bailey and Mr Learmonth, and it was largely agreed by the witnesses that it reflected their respective positions with a beam between them. I have earlier described the height of the steel beams. It is inconceivable that Mr Learmonth could not see at least part of Mr Bailey’s body at the time he commenced the lift.
In my view, Mr Learmonth’s evidence of not being able to see Mr Bailey at the time of the lift was simply an attempt to avoid liability. When combined with his evidence that Mr Bailey gave him directions then to lift (which I do not accept), Mr Learmonth attempted to shift responsibility for the incident to Mr Bailey. His evidence, in both respects (the latter to which I will now turn), reflected adversely on his credit.
Mr Learmonth’s evidence, in the Learmonth Evidentiary Statement, as to who bore responsibility for the unloading of steel from the tray of the truck was as follows:
It was not his responsibility to direct the unloading process of the deliveries.
He relied on the driver to ensure that it was safe for the load to be lifted. He also relied upon the driver to implement controls to make the lifting process safe.
Mr Learmonth assumed that delivery drivers have the appropriate high risk work licencing to act as “doggers” for a lift.
“I was entirely reliant on the skill, concentration, expertise and co-operation of the delivery driver in co-ordinating the unloading of the steel beams. This included the delivery driver establishing a safety zone and directing me, as the crane operator, when it was safe to lift and move the load.”
“Responsibility for lashing the steel beams and the truck itself remained with Mr Bailey. It is a known issue that during the unloading of long and heavy beams that they can move when lifted. If the load is not balanced it is at risk of twisting.”
It was the responsibility of Mr Bailey to initiate the crane lift. The crane lift never begun until the driver confirmed that it is safe to do so, and he is out of the way.
As to the giving of directions associated with the unloading of the steel and the corresponding lifting by the crane, and, notwithstanding that he stated he was the “only person on site capable of operating the gantry crane”. In the Learmonth Evidentiary Statement, Mr Learmonth stated:
“Due to the makeup of the Premises, the crane operator was required to stand almost directly against the truck tray, during a lift. This could result in an obscure line of site with the truck driver, which could not be avoided.”
“Until the delivery was completed, the steel remained under the management and control of the delivery driver, they were in charge of all aspects of the steel until it was on the ground. The delivery driver was required to devise the most appropriate method to unload the steel.”
“It was agreed I would use the gantry crane and he would use verbal directions as I would not be able to clearly see Mr Bailey, during the lifting.”
“I do not commence lifting a load until I receive the agreed signal from the truck driver that he is ready and clear. The signal is either a hand signal or voice command that the driver has connected the chains and it is safe to move. On 21 September 2021, I recall Mr Bailey used the direction “OK”.”
“During the first trial lift, I took up the slack in the chains, at the direction of Mr Bailey, which took about 15 seconds, then proceeded to lift, slowly, the pack. I recall the tail end of the pack rotated slightly. The whole process was very gentle. When I saw the load rotate, I released the crane placing the load back down.”
“Q. And you are involved, when I say, "are" I'm speaking of the time relevant to the case. You were involved in the delivery of steel, weren't you?
A. Not at all.
Q. On this particular occasion, you requested that Mr Bailey assist you with getting the steel off the truck?
A. I don't actually recall requesting it, but clearly with only two of us there, he had to assist.
Q. After you assisted him, you directed him to assist you?
A. Well, like I said, I don't recall directing him to assist, but clearly he had to assist.
Q. At paragraph 27 of your statement ‑ a few pages along ‑ you set out your observation that you thought he was resistant to cooperating and complying with your directions.
A. Uh‑huh.
Q. So, you were providing him with directions, weren't you?
A. In terms of connecting the change, yes.” [3]
Additionally, Mr Learmonth operated the crane by way of pendant button and described himself as being in charge of the crane.
Secondly, Mr Learmonth complained about Mr Bailey not following directions. It is true the first complaint mentioned at [90] of the Learmonth Evidentiary Statement concerned the manoeuvring of the truck and trailer. However, at [27] of the Learmonth Evidentiary Statement, after returning to Mr Bailey’s mood on the day of the incident (because he was delayed driving to Queensland), Mr Learmonth stated that Mr Bailey was “more resistant to co-operating and complying with my directions”. This reference was to events after the truck had been parked. There was no suggestion that Mr Learmonth could not direct Mr Bailey to leave the premises.
Rather, I agree with Mr Bailey’s characterisation of Mr Learmonth assuming his duty of care to Mr Bailey.
Mr Learmonth indicated that he was unprepared for the delivery and, on that basis, was not responsible for the safe operation of the crane. Further, in oral evidence he stated, "Because one steel, who Mr Bailey was carting for, sent it down for processing at KMAR, and his arrival was the first I knew of it".
However, the unexpectedness of the delivery appears to be an accepted practice by Mr Learmonth, and not uncommon. It is unclear how a common practice of unexpected loads might be considered a factor in the operation of the crane or of his reliance on the assistance of Mr Bailey. The only other employee referred to by Mr Learmonth was his wife, who he described, "assisted from time to time" and managed KMARs books and accounts.
Mr Learmonth appeared intent on blaming anyone other than himself as the person responsible for the decision to operate the crane.
Thirdly, Mr Learmonth’s account that Mr Bailey gave him an instruction to lift by using the expression “OK” is not credible.
Under cross-examination, Mr Learmonth variously gave different accounts of receiving an instruction from Mr Bailey in addition to the use of the work “OK”: that he had been given the "Green light" to lift the load and further, that Mr Bailey had said "Lift the load". Mr Learmonth was taken to an earlier statement he had prepared no more than 3 days after the incident, which made no reference to any gesture or indication that Mr Bailey had asked for the load to be lifted.
I accept, in this respect, that submission made by counsel for Mr Bailey:
“[52] The initial account of the event from Mr Learmonth does not make any mention of communication from the Plaintiff to the First Defendant, regarding the lifting of the load.
[53] The initial report is consistent with the plaintiff's version that he did not communicate for the load to be lifted, as he had not reached a safe space before the lift could be commenced.
[54] It is only in the evidentiary statement, prepared almost 7 years later that for the first time that Mr Learmonth makes any mention of a communication from the plaintiff to him, regarding the lifting of the load. That developed further in his oral evidence. Each of these two developments in the narrative is less persuasive as being true than the original. Mr Learmonth said that in preparing the more recent account, he relied upon his notes, which he said was the material provided to SafeWork and produced under subpoena which omits any reference to "OK”
[55] The brief that he is referring to does not refer to any communication and in contrast to being adamant that there was a communication, he has qualified his evidence by stating that it was his belief that a communication was made. Mr Learmonth's recollection of the alleged use of the word "okay" was equivocal in any event namely:
Q. You can't now recall that he did say, "okay", can you?
A. Look, I do believe he said okay, and this brief here was for a submission to WorkSafe as to what went on.” (footnotes omitted)
Mr Bailey’s evidence on this topic was forthright and unshakeable, that he did not use the work “OK” to direct the commencement of the lift, and is consistent with Mr Learmonth’s initial reply to SafeWork in Mr Learmonth’s WHS report.
KMAR contended that there may have been confusion between Mr Learmonth and Mr Bailey about what was meant by the word ”OK”, and that Mr Bailey had accepted that the word may have been used as part of the conversation between Mr Learmonth and Mr Bailey. The evidence of Mr Bailey relied upon for that contention was as follows:
“Q. Could you have used "okay" as part of the conversation you were having?
A. No. Oh, the part of the conversation ‑ the ongoing conversation? It's possible. However, I would deny saying "okay", but I can't categorically state whether "okay" was said or not. But it was ‑ it could've been part of the conversation that was ongoing, which was not ‑ which had nothing to do with the ‑ like I said, it was idle chit chat.
Q. But it could have been said.
A. Could've been said. Oh, well‑‑
Q. There hadn't been a conversation about specific verbal signals, had there?
A. Not at that ‑ like I said, there's ‑ there is ‑ it's already set out. Verbal ‑ verbal, visual, auditory signals are already clearly set out.
Q. Can I ask you to turn to p 274? It should just be the next page over.
A. Yep.”
The latter part of that evidence related to Mr Learmonth’s WHS report which Mr Bailey had not seen before it being shown to him.
However, the balance of the passage does not support KMAR’s contention. The effect of Mr Bailey’s evidence was that, consistently, he denied using the word ”OK” at the time of the lifting of the load and, in particular, to indicate that the load should be lifted by Mr Learmonth.
Rather, Mr Bailey appropriately conceded that it was conceivable that the word “OK” may have been used during the ‘chit-chat’ between him and Mr Learmonth prior to the lift. That is considered with his earlier evidence to which I have referred, Mr Bailey’s evidence was that when one of the bundles was ready to be lifted, the chit-chat ended so that they could be concentrated in the process of lifting.
I accept Mr Bailey’s evidence that there was chit-chat as to general matters (which Mr Learmonth reluctantly accepted with an answer “probably”). I also accept Mr Bailey’s evidence that that sort of discussion stopped prior to the lifting of the beams when greater concentration was required.
I do not accept Mr Learmonth’s evidence which, in my view, was to the effect that “chatting” had continued during the lift.
Apart from my general findings as to the credit of Mr Learmonth, the evidence of Mr Learmonth, in this respect, coincided with his unsatisfactory evidence as to the use of the word ”OK” by Mr Bailey (as purportedly directing that the lift commence).
Further, I do not accept the submission made on behalf of KMAR, on that basis, that Mr Bailey’s conversation with Mr Learmonth continued in such a way that Mr Bailey acted “outside the safe system of unloading”.
A related consideration was the consideration by KMAR that the Court should infer that Mr Bailey had “rushed his work” and that this impacted his “concentration” (presumably at or about the time that the lift was undertaken).
That submission was advanced as part of KMAR’s case on contributory negligence.
KMAR’s submission, in that respect, was based upon the following evidence:
Mr Bailey’s concession that he was “keen” to go; and
Mr Learmonth had observed Mr Bailey “to be rushed in his work”.
The effect of this submission seems to be that, because Mr Bailey was anxious to travel to Queensland, as his trip to that location had been delayed, he had hurried his work.
That proposition was never made entirely clear in KMAR’s case, but it appeared to be directed to either misdirection by Mr Bailey or positioning himself on the tray of the truck in a way that was unsafe (although neither of those propositions were made explicit in KMAR’s submissions).
But those submissions may only go to causation if KMAR has established that, in some hurried state, Mr Bailey had taken a step that resulted in the beams being lifted unsafely.
The evidence does not support such a finding or a finding of contributory negligence on any of those bases because:
Mr Learmonth’s evidence does not actually state that Mr Bailey rushed his work during the lifting process.
It was never put to Mr Bailey that he had rushed his work at any time coinciding with the lifting of the bundles. For example, it was not put to him that he had attached the chains negligently or was rushing any step in the unloading process, in particular, giving a hasty or inappropriate direction (and I have found he made no such direction) for the lifting of the bundle.
Nor was it put to Mr Bailey that he had contributed to the incident by any act or manner of acting in haste because of his desire to resume his delayed Queensland trip. What was put to Mr Bailey in cross-examination was as follows:
“Q. In your statement, you refer to a camper trailer that was new at the time of your injury.
A. Yep.
Q. That's the one you were going to pick up that evening?
A. That's correct.
Q. It was in Queensland?
A. That's correct.
Q. You were keen to get on with that?
A. Yeah, I would say I was.
Q. This was your last delivery of the day?
A. It was. I'd been up for quite some time and I was planning on driving to Queensland and I would've preferred to drive the whole way in one hit rather than stopping and sleeping in my car.”
On the findings I have made regarding the giving of directions during the unloading process, I do not accept any of the versions given by Mr Learmonth, that Mr Bailey had given a direction or indication that the lift was to commence at the time that Mr Learmonth did commence the lift, and in particular, I do not consider that Mr Bailey used the word “OK” or gave such a direction or indication in relation not the lifting of the bundle.
Mr Bailey was positioned on the tray of the truck in consequence of a direction given by Mr Learmonth. His location and the position of Mr Bailey’s body were, in part, a function of his need to crouch near the bundle in order to fit the chains of the crane under the bundle for their attachment. The gap created by Mr Learmonth separating the beams was a place which permitted Mr Bailey to undertake that task. It is not clear on the evidence that there was a capacity to stand on the other side of the separated bundle, rather than the gap between the bundles, although Mr Learmonth suggested that may have been the case. However, on any view, Mr Bailey’s location and body position exposed him to significant risk if the lifting of the bundles occurred before he had the opportunity to move to a safe location, irrespective of whether he stood between the bundles or on the outside of the separated bundles.
I do not consider contributory negligence, in this respect, may be established by KMAR. It was not established on the evidence that Mr Bailey was rushing or lost concentration at the time of the lift. His evidence was that at or about the time of the lifting he was focused upon the job at hand and was concentrating for the very reason that the lifting process, when undertaken, represented risks to safety. KMAR has not established the causation necessary to establish contributory negligence.
At another level, the evidence does not properly permit the Court to draw the inference sought by KMAR that Mr Bailey was rushed in his work in such a way as to impact his concentration (at the time of the lifting of the bundle).
In this light, it is not necessary to discuss the legal principles associated with findings on contributory negligence, but I do note that it was for KMAR to prove contributory negligence as a defence: Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62 at [124] (Hayne J).
Finally, while Mr Learmonth assumed all drivers were appropriately trained as ‘doggers’ to assist him with the lift there is no evidence they were so trained. Mr Bailey had a good deal of experience in lifting from trucks, but that does not translate to him being a qualified dogman. In any event, Mr Learmonth did not have time or opportunity to train or direct persons on the site in relation to operating the gantry crane.
Nor did Mr Learmonth make inquiries as to the training of truck drivers or stipulate a safe work system for the unloading of trucks. There was no written policy on the question until after the incident when KMAR received an Improvement Notice from SafeWork NSW (“Improvement Notice”).
Lastly, there are two other aspects of Mr Learmonth’s evidence that require attention, namely, his evidence regarding the injuries sustained by Mr Bailey.
Counsel for Mr Bailey described Mr Learmonth’s statement that Mr Bailey “allegedly” suffered an injury as a result of the incident as a “curious” statement, rather than a credit issue. This was a generous, but in my view, unwarranted concession.
There seems to be suggested in the Learmonth Evidentiary Statement various suggestions questioning whether Mr Bailey had sustained an injury, or at least one of any significance. For example, Mr Learmonth alluded to Mr Bailey climbing down from the truck unassisted and, when contacting the hospital the next day, Mr Learmonth was advised that Mr Bailey had left.
Yet, it was also Mr Learmonth who stated that Mr Bailey laid down after the steel was lifted and “started yelling”. After apparent annoyance that Mr Bailey had not responded to his question as to whether an ambulance was required, Mr Learmonth stated that Mr Bailey had responded “yes”. But it was Mr Learmonth who asked the question, presumably reflective of the circumstances there applying. Mr Learmonth also gave evidence that the ambulance crew had advised Mr Bailey to lay on the bed they had provided. The Agreed Statement of Facts recorded that Mr Bailey was “injured” on 21 September 2018.
There is a further aspect of the Learmonth Evidentiary Statement which reflects on his credit, namely, the statement that “[t]his is the only instance where any person was injured during a delivery during KMAR’s operations”. I agree with counsel for Mr Bailey that, whilst strictly true, the statement is misleading as Mr Learmonth himself had his hand “caught” as he “was hooking up a very heavy angle”. Mr Learmonth stated “there being no one else around I thought the ambulance station was around the corner they could help me. But in terms of injury, there was no injury.” However, the ambulance officers attending to Mr Bailey mentioned that they had attended the premises when Mr Learmonth had his hand trapped.
As mentioned, the following discussion will address a number of specific issues of fact raised by KMAR in closing written submissions.
For the reasons which I have already given in my discussion of Mr Learmonth’s credibility, I do not accept that:
Mr Bailey was in a rush to drive to Queensland and as a result hurried his work in a manner which impacted the safe unloading of the beams.
Mr Learmonth could not see Mr Bailey or did not know his position at the time the lift commenced.
Mr Learmonth was not responsible for unloading deliveries and only operated the crane at the direction of Mr Bailey.
Mr Bailey gave Mr Learmonth a direction to lift the beams (whether by using the words “OK” or otherwise).
KMAR submitted that in oral evidence, both Mr Bailey and Mr Learmonth accepted that they had not discussed the signals or language that would be used to communicate the operation of the crane, although, Mr Bailey’s response in this respect was “less precise”.
First, I do not accept that Mr Bailey’s response was “less precise”. Mr Bailey candidly accepted during cross-examination: “I don’t recall discussing it on that day, no.”
Secondly, it is entirely unclear how this proposition supports KMAR’s case. If no signals or language had been discussed, it is unclear why Mr Learmonth then, on his own accord, decided that “OK” was to be the verbal signal used to commence the lift.
Further, while both Mr Bailey and Mr Learmonth may have accepted that no signals or language were discussed on the day of the incident, they also both accepted that there were standard ways of communicating such directions – none of which were communicated prior to the lift.
In this respect, Mr Learmonth’s evidence was as follows:
“Q. Do you agree that in the industry there are standard ways of approaching this, such as to give compass directions; north, south, each west?
A. Well the north, the south, each, west is on the crane itself; on the underside of the crane its marked north, south, east and west, and that's what we refer to.
Q. And there are also standard hand signals which might mean up or down.
A. Yes.” [4]
This was similar to the evidence Mr Bailey gave that “there’s rules that’s set out for the – for the communication between people when they’re operating this sort of equipment” and that “if I wanted [Mr Learmonth] to go up, I would say, "Go up", or if I wanted [Mr Learmonth] to go down, I would say, "Go down", or north, south, east, west.”
Clearly, none of the accepted ways of communicating included the use of the words “OK”. Nor had the parties discussed that to be the signal they would use. It was also not suggested that Mr Bailey gave any other standard direction or signal that would indicate to Mr Learmonth to commence the lift.
KMAR submitted that “both witnesses appreciated an obvious risk involved in the task they were engaged in”. It was submitted that Mr Bailey accepted that “there’s always a possibility of swinging” and Mr Learmonth accepted that “[t]he potential for crush injuries is always there when you’re handling steel”.
However, the issue with this particular submission is that it proceeds on the assumption that Mr Bailey knew Mr Learmonth would commence operating the crane without any prior warning.
An obvious risk must necessarily be a risk which was known to Mr Bailey. A risk cannot be obvious if it is not known. Hence, the risk of Mr Bailey being hit by the steel beam was not an obvious risk in circumstances where Mr Bailey was not aware nor could have expected that the beams would be moved in the manner which they were. As Mr Bailey stated during cross-examination:
“it [was] exceptionally unexpected for it to start going up. So all I’ve done is shit myself and tried to get the hell out of the way.” (emphasis added).
KMAR submitted that the Court could comfortably determine that Mr Bailey was engaged in work that was part of his normal duties rather than some unusual direction or request from Mr Learmonth.
The issue with this submission is that it assumes that Mr Bailey could not have been acting under the direction of Mr Learmonth, while simultaneously performing a task which was part of his normal duties.
In my view, there is nothing inconsistent with the fact that Mr Bailey was acting under the direction of Mr Learmonth, despite the fact that assisting to unload a truck delivery was a task which Mr Bailey had done many times before and considered to be part of his normal duties.
KMAR submitted that Mr Bailey was contributory negligent, and in that context KMAR referenced the fact that, when asked about getting off the truck after putting the chains on, Mr Bailey accepted that it “would’ve been probably a reasonable way to go about it”, but it was “inconvenient”.
Clearly, there is no dispute that Mr Bailey was required to climb up onto the truck to apply the chains to the load. However, although somewhat implicit, KMAR must be suggesting that Mr Bailey contributed to the incident because of the fact that he did not move from the back of the truck prior to the lift commencing (after he had secured the chains).
I do not accept this proposition. While it may have been safer for Mr Bailey to be off the truck at the time of the lift, the only reason that did not occur is because Mr Learmonth commenced operating the crane, without any prior warning or indication. Hence, in my view, it was the act of Mr Learmonth which contributed to the fact that Mr Bailey did not have time to move and was unable to get himself in a safe position before the crane operated, a step not otherwise open to Mr Bailey.
It was also suggested in Mr Learmonth’s WHS report that the accident could have been avoided if Mr Bailey had “simply stepped over the middle pack of steel there providing him a barrier against the steel movement.” In my view, this is again an attempt to suggest that Mr Bailey was partly responsible for the injury by reason of his positioning between the steel beams. However, as I have already alluded, Mr Bailey did not have time to do what Mr Learmonth implies should have been done to avoid injury, namely, step over the beam. This is further highlighted by the fact that Mr Bailey did, in fact, attempt to take this precaution, but given the absence of warning and the speed at which the lift commenced, Mr Bailey only managed to move his left leg up onto the beams behind him, before having his other leg crushed.
Further, as I have previously discussed, Mr Learmonth gave evidence in the Learmonth Evidentiary Statement that wrapping the chains around the beam could be achieved from “outside the edge of the load” rather than “between them”. Additionally, Mr Learmonth also gave the following evidence at [29] of the Learmonth Evidentiary Statement:
“Based on the way the load was stacked, there would have been no need for the plaintiff to stand between the stacks to secure the crane hoist. Each stack was about 65cm in height including dunnage.”
This is, in my view, another attempt to suggest that Mr Bailey was partly responsible for the injury by reason of his positioning between the steel beams, given that his position between the beams was not strictly necessary or required for the task that Mr Bailey had been directed to perform.
In response to this suggestion, Mr Bailey gave the following evidence in his Further Evidentiary Statement (2025):
“In order to reach the chains and wrap the beam, I was required to stand between the loads. This should not have been an issue had the operator not lifted the beams before I left the area of danger. Positioning myself on the other side of the beam to be lifted would have caused a risk of falling, and I was unable to reach the beam to be lifted from behind the beam that was not being lifted. I recall Mr Learmonth directing me to get onto the tray of the truck.
…
Not being between the beams would have required being close to the edge of the truck tray, which is a fall hazard. The load being secure and sitting on the deck of the truck in a stable manner means that being between the beams should not have been an issue. There was an issue because Mr Learmonth did not wait until I was clear of danger prior to initiating the lift.”
I do not accept KMAR’s suggestion that Mr Bailey should not have been located between the two bundles of beams, nor the inference that, as a result, Mr Bailey was responsible for his own injury.
In the absence of Mr Learmonth’s evidence, there was no other evidence to suggest that it was possible to secure the crane hoist without standing between the loads. As such, I accept Mr Bailey’s evidence that he was, in fact, required to stand between the beams in order to reach the chains and wrap the load.
Nonetheless, as I will later find, the risk in this matter was created by the fact that Mr Learmonth operated the crane without any warning. Hence, in my view, Mr Bailey’s position on the truck (whether standing between the loads or otherwise) would not have ameliorated this risk. The risk simply would have been of a different nature, namely, the risk of falling of the truck rather than being crushed by the load.
Further, I also note that the document titled “KMAR – UNLOADING PROCEDURE”, which identifies hazards and the corrective action to be taken during unloading of trucks, and which was instituted after the incident at the request of WorkCover, makes no reference to the fact that persons should not stand between loads.
Rather, contrary to this, the document does identify that persons should “[i]dentify items for removal from a stable location on the load (not near the edge), maintaining three points of contact wherever possible.” Hence, in my view, Mr Bailey was likely positioned in the safer position, if regard is had to KMAR’s unloading procedure.
When my affirmative findings as to Mr Bailey’s evidence as to the incident are combined with my adverse findings as to Mr Learmonth’s evidence, in my view, as I have previously discussed, Mr Bailey’s account of the incident is to be preferred.
Hence, I accept that the circumstances of the incident were as follows:
There were two bundles of steel beams and one lighter load of pipes on the truck which required unloading.
While Mr Bailey stood on the ground near the truck, Mr Learmonth used the gantry crane to move one pack of steel so as to create a gap between the two bundles of steel so that the middle of the beam could be accessed. The first bundle was moved towards the edge of the tray where Mr Learmonth was standing by about 600 millimetres. The gap between the steel bundle was, therefore, 60 centimetres as the load was lifted.
Mr Learmonth directed Mr Bailey to locate himself on the tray of the truck in order to affix the chains from the crane to the first bundle of steel.
Mr Bailey climbed onto the truck using a ladder, while Mr Learmonth remained situated on the ground. They were about a metre and a half apart.
With respect to the procedure for lifting loads during the unloading process, Mr Bailey and Mr Learmonth had discussed verbal and hand signals prior to the day of the incident, and in any event, the standard industry signals were known to both witnesses.
Mr Bailey and Mr Learmonth engaged in chit-chat as to general matters but stopped their discussion prior to the lifting of the beams where greater concentration was required.
The first lift consisted of a lighter bundle of pipes, which was uneventful. Mr Bailey then affixed the chains to the first bundle of steel.
At the time of the lift, Mr Learmonth could, at least, see Mr Bailey’s head. There was noise from the crane, but the men were able to communicate. Mr Bailey was correct to say that there was a constant visual and auditory connection between them.
At the time of the second lift Mr Bailey was crouched between the two remaining bundles of steel, in the gap created by Mr Learmonth separating the bundles.
Mr Bailey gave no direction to commence the second lift – verbally or by hand signal.
Mr Learmonth activated the gantry crane without warning to Mr Bailey using a pendant button which he controlled from the ground.
Mr Bailey attempted to retreat from the swinging first bundle as it was being lifted into a safe area, as the first bundle of steel was being lifted. However, he only managed to step his left leg up onto the beams that were situated behind him.
At the outset, I note KMAR’s concession that it was vicariously liable for the tort feasance of Mr Learmonth. That concession was properly made.
As the High Court recently held in Bird v DP (a pseudonym) [2024] HCA 41 (“Bird”) at [46] (per Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ), the employee’s wrongful act – for which liability is attributed to the employer – must also be committed in the course or scope of the employment. Hence, the relevant inquiry is twofold: whether the alleged tortfeasor was an employee of the defendant, and then separately, whether the relevant act or omission of the alleged employee took place in the course or scope of that employment.
Mr Learmonth’s act of unloading the truck upon delivery clearly took place in the course or scope of his employment with KMAR (his employment being conceded in the Joint Memorandum of Agreed and Disputed Facts).
The liability of KMAR involves the application of the common law as amended by the Civil Liability Act 2005 (NSW) (“CLA”).
The CLA does not contain a definition of the circumstances under which a duty of care arises. However, the common law imposes a duty of care on occupiers in relation to the static conditions of the premises. The formulation of the relevant duty of care has been stated as follows in Shoalhaven City Council v Pender [2013] NSWCA 210 at [48] (per McColl JA):
“The respondent did not contend at trial, or on appeal, that the appellant owed him any duty of care higher than that of an ordinary occupier of land. That duty required the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent arising from the physical state of its land on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J.”
The duty of care extended to activities conducted on the premises as well as the system of delivery of services on the premises: Burton v Brooks [2011] NSWCA 175 (per McFarlan JA, with whom Hodgson JA and Tobias AJA agreed); Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [26]-[27] (per Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ).
There would not seem to be any dispute in this matter as to the existence of a duty of care owed by KMAR as an occupier, to Mr Bailey. The duty arose by reason of KMAR’s occupation of the premises at which Mr Bailey was required to attend for work. KMAR had an obligation to exercise reasonable care to ensure that its activities and the systems of work which were established and maintained on the premises, did not expose Mr Bailey to a reasonably foreseeable risk of injury.
The relevant question is then whether the scope of that duty of care extended to the circumstances of the incident. I note, in that respect, as was stated by Leeming JA in Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [53]:
"… the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care".
“... It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be ...”
“Section 5B of the Civil Liability Act 2002 (NSW) requires identification of a risk of harm, against which a person has failed to take precautions. Given its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence. That is because s 5B is dealing with a breach of a duty of care, being the duty of care owed by the defendant to the injured plaintiff. The relevant risk in the present case was the risk which materialised when the appellant slipped and fell. The harm suffered by the appellant, if it arose from the condition of the crossing at all, arose from the condition of the crossing as at the date of her fall. To establish a breach of duty, she needed to establish that the crossing was unduly slippery on that date.”
As I have previously mentioned, the risk of harm articulated by counsel for Mr Bailey was the risk that a truck driver could be hit with steel beams. I accept that the class of persons to whom that applies included Mr Bailey.
The mechanism of injury in this matter, was the operation of the gantry crane without warning and in circumstances where the lift was in close proximity to Mr Bailey who was crouched down between the two bundles of steel beams.
In the result, I find that KMAR had a duty of care to operate the gantry crane in a manner that kept truck drivers safe from the risk of being hit with the load.
“…the provisions of ss 5B and 5C of the Civil Liability Act 2002 are directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13]; Harmer v Hare [2011] NSWCA 229; (2011) 59 MVR 1 at [194]. Those sections assume an allegation of breach of duty resulting from negligence which is or can be formulated in terms of a failure to take precautions against a risk of harm. The question which s 5B requires be answered favourably to the plaintiff is whether in the face of a risk of harm which was foreseeable and not insignificant, a reasonable person in the defendant's position would have taken those precautions having regard to, among other relevant things, the considerations in s 5B(2). To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”
In this respect, it is useful to have regard to the expert reports of Mr Gavin Whitten dated 23 September 2021 and 21 October 2023 (“the expert liability evidence”).
KMAR criticised the expert liability evidence on the basis that Mr Whitten was “not an expert in work, health and safety”, and various other grounds. I do not agree with KMAR’s criticism in this regard, or the suggestion that Mr Whitten’s report should be given limited weight, for the following reasons:
The expert liability evidence was tendered without any objection or challenge from KMAR with respect to its admissibility as an expert report.
I accept the submission made by counsel for Mr Bailey that Mr Whitten is an expert in logistics, and, as his curriculum vitae would suggest, heavy vehicle transport safety and engineering.
I also accept that, while Mr Whitten did not physically inspect KMAR’s premises in Doyalson, this is of no real consequence given Mr Whitten’s qualifications, the circumstances of the incident, and the supporting documentation reviewed by Mr Whitten.
Having regard to the expert liability evidence, I accept that the following precautions could have been taken by KMAR to prevent the risk of harm materialising:
the implementation of safe zones and exclusion zones during the loading and unloading of equipment or truck loads;
the use of simple and effective hand signals to communicate during the loading and unloading; and
the training of all people on the loading and unloading site as well as the system or procedure to be followed with respect to safe zones, exclusion zones and hand signals.
The use of such precautions, as they should have operated on the day of the incident, were summarised by Mr Whitten as follows:
“There should be a safe zone for the driver whilst the crane is operation (sic). The driver may enter the exclusion zone when the crane is not in operation and the crane operator has signalled is safe to do so. The driver would then apply the chains to the beam in the position required for the lift to be performed before relocating to the safe zone. Once the driver is back within the safe zone, they should signal to the crane operator to commence operating the crane. The driver is to remain in the safe zone whilst ever the crane is in operation. If at any stage the driver is not in the safe zone, the crane operator should stop until the driver returns to the safe zone. The crane operator has control of the exclusion zone since they are operating the equipment which can cause serious harm.”
I further observe that the Court may reach a conclusion as to the need for those precautions independent of the expert evidence as the requirement for the precautions were evident from the nature of the risks (as demonstrated by the manner in which they materialised on the day of the incident), as well as various objective considerations such as Mr Learmonth’s agreement that the measures referred to in the Improvement Notice had not been implemented by KMAR prior to the incident and the change to MMM’s policy for truck drivers after the incident.
By reference to those precautions, I accept that there were inadequate systems of safe work implemented by KMAR at the time of the incident. As mentioned, the receipt by KMAR of the Improvement Notice was evidence, in and of itself, of those deficiencies.
Hence, as to the requirements set out in s 5B of the CLA, I accept that:
In the circumstances of the incident (including the layout of the site, the weight of the steel, the positioning of the gantry crane, and the location of Mr Bailey on the truck), it was reasonably foreseeable that Mr Bailey could have been injured if the steel beams were moved without warning or without giving Mr Bailey an opportunity to move to a safe area. The fact that Mr Learmonth could see and hear Mr Bailey makes this risk even more foreseeable, as Mr Learmonth must have been aware that Mr Bailey was not in a “safe zone”.
The risk of harm was not insignificant given the proximity of Mr Bailey to the steel beams as well as his position being crouched between the two bundles of steel.
No reasonable person would commence operating the crane knowing that Mr Bailey was crouched between the two bundles of steel. A reasonable person would have taken the precaution of waiting until Mr Bailey was no longer in the vicinity of danger (i.e. in a safe zone).
Given the weight of the steel and the location of Mr Bailey between the two bundles of steel, injury to Mr Bailey was very likely if care was not taken.
The likely seriousness of the harm was high, as a negligently operated crane, in this context, could result in fatality.
The burden of taking precautions was extremely low. All Mr Learmonth had to do was wait a few seconds for Mr Bailey to move to a safe area before operating the crane or operate under a procedure preventing any lifting until Mr Bailey was in a safe location. In other words, the only expense in relation to implementing a safer system of work was time.
It is also necessary to apply s 5D(1) of the CLA to the facts.
The first component is ‘factual causation’, which poses the question of whether the negligence was a necessary condition of the occurrence of the harm. Section 5D(1)(a) is a statutory statement of the “but for” test: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 443 (per French CJ, Gummow, Hayne, Heydon and Grennan JJ).
I accept that factual causation is satisfied in the circumstances of this matter, as if Mr Learmonth had not negligently operated the gantry crane, no accident or injury would have transpired.
The second component is ‘scope of liability’, which is a qualitative question as to whether it is appropriate for the harm which was caused to be within the scope of the negligent person’s liability.
I accept counsel for Mr Bailey’s submission that to exclude the harm suffered by Mr Bailey from the occupier’s scope of liability in this matter would excuse a clear workplace health and safety breach of some magnitude, and to do so would be inappropriate. It is appropriate that a crane operator does not expose persons in its path to risk of collision with the load. Hence, I accept that it is appropriate for the liability of KMAR to extend to the harm so caused to Mr Bailey.
As discussed earlier in this judgment, KMAR submitted that the task which Mr Bailey and Mr Learmonth were engaged in involved an obvious risk. While it was not identified as explicitly, this must be a submission that the risk was not just obvious in the abstract sense, but an ‘obvious risk’ for the purposes of Part 1A, Division 4 of the CLA.
Pursuant to s 5F CLA, an ‘obvious risk’ to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
For the reasons which I have previously stated, I do not accept the proposition that the risk was an obvious risk.
I therefore conclude that:
KMAR was vicariously liable for the acts or omissions of Mr Learmonth, being an employee of KMAR acting in the course or scope of his employment.
KMAR owed Mr Bailey a duty of care as occupier of the premises, to take reasonable care to avoid exposing Mr Bailey to risk of harm, namely, the risk that Mr Bailey could be hit with steel beams.
Mr Bailey was working under the direction, supervision and control of KMAR, who controlled Mr Bailey’s system of work.
KMAR breached its duty of care by failing to provide a safe system of work and failing to take necessary precautions against the risk of harm.
The incident was reasonably foreseeable, the risk of harm was not insignificant, and a reasonable person would have taken precautions such as the implementation of safe zones and exclusion zones while operating the gantry crane.
The incident would not have occurred but for the act of Mr Learmonth operating the gantry crane without any warning and in circumstances where the lift was in close proximity to Mr Bailey who was crouched down between the two bundles of steel beams until he stood as the beams were being lifted.
The risk of harm was not an obvious risk, as Mr Bailey was not aware and could not have expected that the beams would be moved in the manner which they were.
As I will discuss below, Mr Bailey was not contributorily negligent for the incident.
On 17 June 2025, Mr Bailey filed an amended statement of particulars (“ASOP”) setting out the particulars of the damages claimed by reason of the incident.
On 15 August 2025, Mr Bailey filed an updated schedule of damages (“SOD”), and on the first day of the hearing, a version of the SOD was tendered which included KMAR’s position with respect to each head of damage (“Exhibit 3”).
The ASOP and SOD claimed the same quantum of loss with respect to each head of damage, with the exception of the claim for past domestic care and assistance, where the SOD contained slightly updated figures on the basis of what appeared to be an updated report from Ms Mullen dated 26 August 2024. However, a report of Ms Mullen dated 26 August 2024 was never tendered, and the only report of Ms Mullen in evidence was the Ms Mullen’s 2021 report.
In the ASOP, Mr Bailey claimed that he sustained the following physical injuries as a result of the incident:
Injury to right lower extremity (right knee);
Consequential injury to left lower extremity (left knee);
Consequential injury to lumbar spine (lower back); and
Consequential injury to bilateral wrists, elbows and shoulders,
(collectively, “the physical injuries”).
It was also claimed that Mr Bailey sustained psychological injury as a result of the incident, including persistent depressive disorder, chronic post-traumatic stress disorder and complex regional pain syndrome (the “psychological injuries”).
The physical injuries and psychological injuries will collectively be referred to as “the injuries”. Counsel for Mr Bailey submitted that the injures might be appropriately identified in three ways: (1) the immediately mechanical aspects of the injury, (2) the consequential pain and nerve damage, and (3) the consequential psychological injury.
The ASOP claimed that, as a result of the injuries, Mr Bailey suffered or continues to suffer from a long list of disabilities. It was Mr Bailey’s submission that the functional disability which he continues to suffer is, most likely, a result of nerve damage.
The submissions of the parties placed particular emphasis and reliance on the following expert reports:
The joint conclave report of orthopaedic surgeons, Dr Jonathan Negus, Dr Anthony Smith and Dr John Bosanquet, dated 8 August 2025 (“joint orthopaedic report”).
The joint conclave report of occupational therapists, Susan Mullen and Yvonne Varela, dated 8 August 2025 ("joint occupational report").
The psychiatric report of Assad Saboor dated 31 October 2024 (“Dr Saboor’s report”).
The parties also referred the Court to further evidence relating to the quantum of damages, including:
The expert reports of Gavin Whitten dated 23 September 2021 and 31 October 2023; Dr Jonathan Negus dated 29 April 2020; Dr John Bosanquet dated 26 April 2023; Dr Anthony Smith dated 16 November 2023; and Dr Chris Harrington dated 23 July 2021.
Various medical reports of Dr Peter Berton, Dr Willem Volschenk, Dr Donald Osborne, Dr Simon Tame, and Dr David Gill.
The reports of Dr Andrew Porteous dated 26 May 2021 and Dr Horace Ting dated 17 June 2021 (“Dr Ting 2021 report”).
The occupational therapist reports of Ms Mullen’s 2021 report, and Ms Varela dated 29 May 2025.
Medical assessment certificate of Dr Tim Anderson dated 4 July 2022.
Certificates of capacity.
It is necessary to first address that evidence separately, before turning to my assessment of the damages payable to Mr Bailey by reference to the heads of damage set out in the ASOP. That assessment will be informed by my findings with respect to the above reports, as well as the remainder of the evidence supporting the quantum of damages in this matter.
“The medical evidence previously relied upon by the third defendant is not before the Court. For that reason, whilst it cannot be totally ignored as it impacts the opinions of others, the contribution of that material to the conclave reports is not before the Court. That is, Dr Bosanquet's opinion does not form part of what the Court should make of the orthopeadic (sic) conclave report.” (footnotes omitted).
That submission was made notwithstanding the fact that, in a number of respects, the opinion of Dr Bosanquet was relied upon in other submissions made by Mr Robison. Mr Noakhtar did not express an opinion as to whether the Court should have regard to the evidence of Dr Bosanquet within the joint orthopaedic report. However, the individual report of Dr Bosanquet dated 26 April 2023 was in fact tendered as evidence by KMAR.
In my view, given that Dr Bosanquet participated in the expert conclave and expressed an opinion which is recoded in the joint orthopaedic report, which was received into evidence without objection or limitation, those opinions may also be considered by the Court.
In my view, the joint orthopaedic report resolves most, if not all, areas of controversy regarding the medical issues in this matter, with the exception of the question of nerve damage.
As there was no cross-examination of the orthopaedic experts in this matter, where there is consensus between the experts, I am inclined to accept that evidence at face value, and to the extent there are any inconsistencies between the agreed opinions expressed in the joint orthopaedic report and the individual reports of each expert, I accept that the joint orthopaedic report supersedes any prior expressed opinions.
The joint orthopaedic report outlined, as areas of agreement between the experts, that Mr Bailey suffered a crush injury to his right leg although the precise nature of the injury was unknown. The experts also agreed that no future medical or surgical treatment was needed, that Mr Bailey does not suffer from other conditions or disabilities unrelated to the incident, and that the use of a knee brace and crutches are not necessary at the moment.
However, it should be noted that, whilst the authors of the joint orthopaedic report commented at one point that “[n]o future medical or surgical treatment [was] needed”, this did not fully disclose the opinions as to treatment requirements for Mr Bailey expressed in the joint orthopaedic report or the recommendations in that report, particularly when one has regard to [16] of that report. In that section of the report, the experts opined that, even though further medical or surgical treatment was not indicated, there was nonetheless a requirement for therapeutic treatments. For example, Dr Negus recommended physiotherapy for a period of 6 to 12 weeks and Dr Bosanquet recommended 6 sessions with a “rehab provider”.
In my view, the agreement that no future medical or surgical treatment was indicated was most likely reflective of the fact that, while Dr Negus and Dr Bosanquet accepted the existence of a nerve injury, as was expressed by Dr Negus, “treating nerve injury less in his speciality and more towards pain specialists.” However, as all the experts go onto accept, there is clearly some ongoing incapacity.
At the outset, I note that it was Dr Smith’s opinion that the extent of Mr Bailey’s diagnosis as a result of the incident, was aggravation to pre-existing osteoarthritis in the right knee. Dr Smith found, therefore, no injury whatsoever as a result of the incident. Having regard to the totality of the evidence in this matter, I place little weight on Dr Smith’s opinion in this respect, as it sits ill with the evidence as to the nature and circumstances of the injury sustained by Mr Bailey and significant aspects of other medical opinion.
Both Dr Negus and Dr Bosanquet diagnosed Mr Bailey with a “crush injury” to the right knee and/or right lower leg. In Dr Negus’ opinion, the crush injury damaged Mr Bailey’s saphenous nerve, ACL and MCL. Other than to list some of the symptoms experienced by Mr Bailey, the experts did not define the injury sustained beyond being a “crush injury”.
Dr Bosanquet stated that the crush injury possibly involved the medial collateral ligament and possibly the saphenous nerve, and Dr Negus noted that Mr Bailey had evidence of a saphenous nerve injury with dysesthesia and neuropathic pain, with clinical instability in the knee consistent with the anterior cruciate ligament and MCL.
As to the symptoms on examination:
Dr Negus found that Mr Bailey had tenderness over the anteromedial tibia and medial joint line, as well as dysesthesia over the medial tibia down to the foot. Dr Negus also found quadriceps atrophy of three centimetres when comparing sides, a reduced range of movement and a mild increase in AP translation when compared to the other side.
Dr Bosanquet found no effusion in the right knee; full extension to 120 degrees, with some pain; tender over the medial joint line; some tenderness under the medial patella facet; altered sensation in the right leg, greater on the medial side than the lateral, and some allodynia on the medial side running into his medial foot and sole.
Dr Negus’ opinion, in this regard, did not differ from his report dated 29 April 2020, which concluded that Mr Bailey suffered a crush injury to his right knee and proximal tibia leading to dysaesthesia and neuropathic pain in the distribution of the saphenous nerve and potential ligament injury to the anterior cruciate ligament and MCL. However, Dr Negus also referenced the fact that the injury “would have caused significant damage to the underlying soft tissue”.
In his report dated 26 April 2023, Dr Bosanquet reported that Mr Bailey had sustained a soft tissue injury to the medial side of the knee, involving the medial collateral ligament and possibly the saphenous nerve. Dr Bosanquet noted that that injury appeared to have healed, as Mr Bailey had a full range of movement of his right knee and no evidence of any ligament instability. Dr Bosanquet reported that Mr Bailey did have ongoing pain and some altered sensation, for which there was no organic explanation.
On the basis of this evidence, I accept that Mr Bailey suffered a “crush injury” to his right knee as a result of the incident which likely resulted in damage to at least the soft tissue of his leg as well as damage to, or an effect upon, the saphenous nerve or the distribution of the saphenous nerve. As I will further explore below, I also accept that the crush injury was healed, save for the subsistence of nerve damage.
While counsel for Mr Bailey accepted that his functional disability was “most likely” a result of nerve damage (suggesting there may be additional bases for incapacity), in my view, on the basis of the joint orthopaedic report, the existence of nerve injury or damage is the only sustainable basis for an award of damages for future economic loss in this matter. With this in mind, the following discussion further identifies the bases for this view.
As earlier mentioned, the question of nerve damage was not squarely addressed within the joint orthopaedic report. However, on the basis of the report, I accept that:
Dr Smith was the only expert who did not address the existence or potential of a nerve injury. However, as I have previously addressed, Dr Smith also found no other diagnosis as a result of the incident, apart from the aggravation of pre-existing arthritis.
Dr Negus and Dr Bosanquet both agreed that Mr Bailey did have evidence of a saphenous nerve injury, although, Dr Negus’ opinion in this respect was much more unequivocal.
While Dr Bosanquet was of the view that Mr Bailey’s injury “possibly” involved the saphenous nerve, he was also of the view that Mr Bailey did suffer some residual nerve symptoms in the saphenous nerve.
In Dr Negus’ opinion, Mr Bailey had evidence of a saphenous nerve injury with dysesthesia and neuropathic pain, which was consistent with the nature of the alleged incident and the injuries diagnosed. It was his opinion that the nerve injury was the main reason for Mr Bailey’s ongoing disability and noted that the dysesthesia experienced by Mr Bailey will be ongoing.
Counsel for KMAR submitted that the evidence, as it stands, is unclear as to whether there is or is not nerve damage. This submission was predicated on the basis that “[t]he orthopaedic experts say nothing about it” and “[t]he pain specialists don’t come to any concluded view”. However, counsel for KMAR also submitted that “If [Mr Bailey’s] enduring ongoing pain, then I say there is a mitigation issue associated with that”.
Hence, while KMAR appeared to suggest that there is a lack of evidence to support nerve damage, they simultaneously criticised Mr Bailey for his decision not to proceed with the saphenous nerve injection. I accept that there is a logical issue with KMAR’s submissions, in this respect. Either Mr Bailey requires nerve treatment because he continues to suffer the effect of an injury to the nerve, or Mr Bailey does not continue to suffer from a nerve injury and, therefore, cannot be accused of a failure to mitigate.
In my view, the totality of the evidence (including the joint orthopaedic report as well as the balance of medical evidence) supports a conclusion that Mr Bailey continues to suffer from a nerve injury as a result of the incident. I have come to this view for the following reasons.
The joint occupational report was relied upon in this matter with respect to the quantum of damages for past and future domestic assistance and care.
Significantly, both occupational therapists agreed that the provision of attendant services to Mr Bailey is solely a result of the incident, and that the services would not have been required but for the incident. This detail must have been overlooked when counsel for KMAR submitted that “[t]he only area of agreement between the experts was that Mr Bailey’s living arrangements are not of an average person.”
KMAR submitted that, because the joint occupational report (as well as the individual reports of Ms Mullen and Ms Varela) proceeded on the basis that Mr Bailey is suffering a physical incapacity, the reports cannot be sustained, and the opinions should be discounted.
However, I do not accept that the reports are unreliable for two reasons. First, KMAR’s submission that Mr Bailey is not suffering from any physical incapacity is contrary to this Court’s findings in this respect. Secondly, the only “assumptions” listed in the joint occupational report were as follows:
“ASSUMPTIONS
Please assume the following facts for the purposes of your report:
(a) The Plaintiff was born on 12 February 1977 and is currently 48 years of age.
(b) The Plaintiff was employed by the Second Defendant as Truck Driver.
(c) On 21 September 2018, the Plaintiff was instructed by the Second Defendant to collect the steel beams from Infrabuild Manufacturing Pty Ltd and deliver the same to the First Defendant’s premises located at 8 – 10 David Street, Doyalson, in the state of New South Wales.”
Ms Mullen and Ms Varela did not merely proceed on an assumption that Mr Bailey was suffering from a physical incapacity, but rather, their opinions were based on a review of the documents provided to them. In my view, the way in which they described Mr Bailey’s injury is entirely consistent with the findings from both the joint orthopaedic report as well as Dr Saboor’s report.
For example, Ms Mullen noted that Mr Bailey “initially sustained a crush injury at his right knee and lower leg” but has “developed secondary injuries and disabilities as a consequence of the initial injury”.
As to past domestic care and assistance, the experts had differing views as to the level of past domestic assistance and care which was required. I outline below Ms Mullen’s assessments in this respect under the heading “past domestic assistance and care”. Ms Varela’s ultimate conclusion was that no allowance should be made for past domestic care and assistance. It is important to note that Ms Verala’s opinion was not predicated on the basis that Mr Bailey would not require domestic care and assistance because of his incapacity (a factor she accepted, as I will discuss below with respect to future domestic care and assistance), but on the basis that no such requirement arose because he did not have a home during the relevant period.
In my view, there is considerable force in Ms Varela’s assessment in this respect, except that it makes no allowance for the period that Mr Bailey was residing with his ex-wife and son, for which some allowance for domestic care and assistance should be allowed.
I turn then to the experts views as to future domestic assistance and care.
While both therapists agreed that there was a need for future domestic assistance and care, their opinions differed significantly with respect to the level of assistance required. Ms Mullen considered that Mr Bailey required 7.48 hours per week for domestic assistance and 1.73 hours per week for outdoor maintenance assistance, while Ms Varela considered that Mr Bailey only required 1.5 hours per week for domestic assistance.
In this respect, I accept, as was submitted by counsel for Mr Bailey, that where there is a discrepancy in opinion between Ms Mullen and Ms Varela, the opinion of Ms Mullen should be preferred, for the following reasons:
Ms Mullen carried out an assessment in person while Mr Bailey was living at a temporary accommodation, whereas Ms Varela did not carry out a physical assessment and never met with Mr Bailey in person. As was noted by Ms Varela, “an Occupational Therapy assessment is undertaken in the individual’s home environment” to allow an assessment of the individual’s capacity and determine if equipment or modifications would assist with or facilitate participation. Hence, less weight may be attached to an occupational therapy assessment which is conducted entirely on the papers.
Mr Bailey was assessed by an expert psychiatrist, Dr Assad Saboor, on 29 October 2024.
Dr Saboor diagnosed Mr Bailey as presenting with the symptoms of persistent depressive disorder, chronic post-traumatic stress disorder and complex regional pain syndrome.
At the outset, it is necessary to squarely address the submissions made by KMAR with respect to Dr Saboor’s report.
In summary, KMAR submitted that, on the basis of the assumptions which are set out in the letter of instruction to Dr Saboor dated 25 October 2024 (“LOI”), “[w]hat is described by Dr Saboor as a “diagnosis” was little more than recitation of the assumptions he was provided”. To support this contention, KMAR pointed to the fact that there was no articulation for the reasons for Dr Saboor’s diagnosis and the fact that Dr Saboor did not review a number of documents which were provided to him, including a report of Stephen Peate dated 15 August 2024 and the clinical records of Perfect Sense Counselling as at 17 October 2024.
Ultimately, KMAR submitted that the Court could not find that Dr Saboor’s report is evidence of any diagnosis of psychological injury of the type particularised in the ASOP.
During oral submissions, counsel for KMAR confirmed that what he was raising was “A Dasreef type issue”. In this respect, I note that in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, [2011] HCA 21 at [91] the High Court (per French CK, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated:
“[91] … At common law there is no doubt that an expert opinion is inadmissible unless the expert states in chief the reasoning by which the expert conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert's expertise. The court does not have to be satisfied that the reasoning is correct: "the giving of correct expert evidence cannot be treated as a qualification necessary for giving expert evidence." But the reasoning must be stated. The opposing party is not to be left to find out about the expert's thinking for the first time in cross‑examination”
(Footnotes omitted).
KMAR did not raise any objection to the admissibility of Dr Saboor’s report on the basis of insufficient reasoning. However, it relied upon the argument that as there was no articulation for the reasons for Dr Saboor’s diagnosis, Dr Saboor’s report should receive little to no weight.
I do not agree with KMAR’s submissions in this respect, for a number of reasons.
First, if one looks solely at the section of Dr Saboor’s report titled “DIAGNOSIS”, it is true that Dr Saboor does not provide any reasons. The section of the report contained under that heading is simply as follows:
“DIAGNOSIS
Persistent depressive disorder, chronic post traumatic stress disorder and complex regional pain syndrome.”
However, it is misleading to look at this section in isolation. In my view, if the report is read as a whole, KMAR’s criticisms with respect to insufficient reasoning, cannot be sustained. I agree with the submission of counsel for Mr Bailey, that it is clear that Dr Saboor took a history, conducted his own mental state examination, and then reached the diagnosis.
As such, Dr Saboor’s report and his conclusions as to diagnosis must be read in this context.
Dr Saboor carried out an examination, synthesised the documentation reviewed, and then (only after setting out his reasons) gave a diagnostic opinion. For example, prior to setting out his diagnosis, Dr Saboor observed the following, amongst others, under the heading “HISTORY OF PRESENTING ILLNESS”:
“He reported that he has been feeling depressed, anxious and stressed. He also developed OCD like symptoms around excessive cleanliness.
He reported that his relationship broke up two years after the injury. He has not had any stable accommodation and he has been staying with different friends.
He reported that he was fine before the injury and did not have any psychological problems. After the injury, he reported that his condition has been fluctuating.
He reported that when he had the injury his partner was looking after him and doing all the work in the house, he could not do anything and there were financial difficulties as a result of him not being able to work.
He reported that he was not able to do any house chores. He stated that during the birthday of his son he did not have money and it resulted in an argument and they finally separated. He has not been in any relationship since then.
He reported that the pain affects his sleep. He has been thinking about many things.
He was experiencing intrusive memories of the accident. He was thinking about and worrying about the future.
…
He reported that he has been thinking all the time about the accident and the scenario has been replaying in his mind.
He reported that he was having nightmares and flashbacks of the accident and the nightmare was occurring a few times a week. He was experiencing it as if it was happening again.
…
He reported his concentration was poor, he was forgetful.
He has not been attending any social or recreational activities. He was socially isolated and withdrawn.
He reported that he has not worked, travelled or studied since the injury.”
“Mr Bailey was assessed via Telehealth. He was outside during the assessment.
He had long hair tied up in a ponytail style. He had a beard. He was casually dressed. He was polite and co-operate. He became distressed and teary during the assessment.
His speech was normal in amount, rate and volume.
His mood was depressed and anxious. His affect was sad and restricted.
He did not display any formal thought disorder. He had good insight.”
Dr Saboor then goes onto explain that Mr Bailey “presented with the symptoms” of the relevant diagnoses. In my view, once these sections of the report are read together, then KMAR’s argument that with respect to insufficiency of reasons, becomes somewhat tenuous.
Secondly, as to the submission by KMAR that Dr Saboor merely recited the assumptions he was provided, rather than independently examining and diagnosing Mr Bailey, I do not accept this submission.
The assumptions, set out at 1.1(j) and (k) of the LOI are as follows:
“(j) The Plaintiff has developed Major Depression and Anxiety Disorder. The Anxiety Disorder includes severe Obsessive Compulsive Disorder (OCD) that includes germ phobia. The Plaintiff has also scored highly on the Post Traumatic Stress Checklist 5th edition (PCL-5), indicating he is a significant risk of currently suffering Post Traumatic Stress Disorder.
(k) The Plaintiff struggles with everyday activities, such as showering, cleaning, dressing, and leaving the house, as well as experiencing frequent pain and restriction of movement. The Plaintiff also suffers from anger issues and intrusive upsetting thoughts from his workplace accident.”
In my view, if Dr Saboor had done no more than blindly adopt the assumptions which were set out in those paragraphs, then Mr Bailey’s diagnosis should have also included a diagnosis of anxiety disorder with severe obsessive compulsive disorder and a germ phobia.
However, these were not diagnoses which were made by Dr Saboor, thereby supporting the conclusion that Dr Saboor did not merely adopt these assumptions, but must have (as his report, read as a whole, demonstrates) reached a diagnosis based on his own examination of Mr Bailey.
This is also supported by the fact that, at paragraph 2.1(c) of Dr Saboor’s report, his task, to assess Mr Bailey’s consequential psychological injury, is clearly stated.
I note that Dr Saboor acknowledged that he had read and agreed to be bound by the Expert Witness Code of Conduct.
I accept the submissions advanced on behalf of Mr Bailey, that KMAR’s attack on Dr Saboor’s report is of a serious nature – it is an allegation that Dr Saboor has not given a genuine or independent opinion. In the absence of Dr Saboor being called or required for cross-examination, and having regard to the aforementioned analysis, I do not accept that his report should receive little weight on that basis.
I note that there was one further submission advanced by KMAR with respect to the weight to be given to Dr Saboor’s report. KMAR submitted that:
“To the extent that the plaintiff seeks damages for economic loss for consequential mental harm, he must show that he suffered a “recognised psychiatric illness”. Dr Saboor’s report could not satisfy the Court that Mr Bailey has a “recognised psychiatric injury”. For example, Dr Saboor does not refer to the diagnostic requirements to meet any disorders, or their status in the medical community as “recognised”. Those considerations reinforce the first defendant’s oral submissions concerning the weight to be afforded to Dr Saboor’s evidence.”
I do not accept this submission. It is erroneous to suggest that an illness is not a “recognised psychiatric illness” for the purposes of the CLA merely because a practitioner has not made reference to diagnostic requirements, such as the DSM-5. Clearly, the diagnoses made by Dr Saboor, of persistent depressive disorder, chronic post-traumatic stress disorder, and complex regional pain syndrome, are well recognised disorders within the medical orthodoxy.
The correct view is that the reference to “recognised psychiatric illness” in s 33 of the CLA is merely differentiating a recognised psychiatric illness from transient feelings such as distress, sadness, fright or other emotional disturbance: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35. On that basis, the diagnoses made by Dr Saboor must be recognised psychiatric illnesses, as they are not merely injured feelings but diagnosable and treatable conditions.
In the ASOP and SOD Mr Bailey claimed $122,008.61 pursuant to s 151Z of the WC Act, being all money payable to the workers compensation insurer, EML, as at 2 June 2025.
However, pursuant to an amended summary of workers compensation payments which was tendered as Exhibit 22 in the proceedings, the parties agreed that the figure for past medical expenses was in fact $112,250.88. This was the figure which KMAR sought for out-of-pocket expenses pursuant to Exhibit 3.
The difference between the amount claimed by Mr Bailey and the KMAR, appeared to be an amount reflective of unrecoverable GST. KMAR submitted that Mr Bailey had not provided details of the expenses incurred to enable KMAR to identify any unrecoverable GST paid by EML. However, to assist the Court, KMAR ultimately accepted that the figure of $122,008.61 was reflective of all of Mr Bailey’s past out of pocket expenses.
On the basis of the agreement of the parties, and having regard to the evidence, I will award damages for past out-of-pocket expenses in the sum of $122,008.61.
In the ASOP Mr Bailey claimed a total of $119,978.70 in respect of past domestic assistance and care, however, the claim was updated in the SOD to $120,137.73.
The SOD referred to the report of Ms Susie Mullen dated 26 August 2024, and noted that Mr Bailey calculated his past domestic assistance and care as follows:
12.125 hours per week from 21 September 2018 to 1 February 2019 at a rate of $31.41 per hour. The subtotal claimed for this period was $7,468.33.
9.375 hours per week from 2 February 2019 to 15 August 2020 at a rate of $32.01 per hour. The subtotal claimed for this period was $24,207.34.
9.14 hours per week from 16 August 2020 to 8 June 2021 at a rate of $33.22 per hour. The subtotal claimed for this period was $12,779.30.
9.14 hours per week from 9 June 2021 to 18 August 2025 at a rate of $37.81 per hour. The subtotal claimed for this period was $75,682.76.
As earlier discussed, the report of Ms Mullen dated 26 August 2024 was never tendered as evidence, and as such, to the extent that report contained updated information, that information should not be accepted as it is not in evidence.
KMAR’s position that damages for past domestic assistance and care should be nil cannot be sustained on the evidence, although as I have earlier noted, I intend to discount the amounts estimated by Ms Mullens based upon the views expressed by Ms Varela.
Before turning to my final assessment in this respect, I note that the subtotals set out for each time period in the SOD are incorrect by reference to the weeks, hours and rates claimed. As such, the actual damages sought by Mr Bailey should be as follows:
21/09/2018 to 01/02/2019: (19.57 weeks x 12.125 hours per week) x $31.41 per hour = $7,453.16
02/02/2019 to 15/08/2020: (80.71 weeks x 9.375 hours per week) x $32.01 per hour = $24,220.57
16/08/2020 to 08/06/2021: (42.14 weeks x 9.14 hours per week) x $33.22 per hour = $12,795.00
09/06/2021 to 18/08/2025: (219 weeks x 9.14 hours per week) x $ 37.81 per hour = $75,682.76
Hence, the total damages payable for past domestic assistance and care as sought by Mr Bailey should properly have been expressed as $120,151.49.
As earlier mentioned, in my view, Ms Mullens’ estimates in this respect are excessive. On the other hand, as I have mentioned, KMAR’s argument for nil payment for past domestic assistance and care should not be accepted. In my view, the allowance should reflect the period in which Mr Bailey resided with his ex-wife and son. It follows that the only allowance from Ms Mullens calculations that I would apply is for the first and second period in the SOD above, giving total damages of $31,673.73.
Mr Bailey claimed a total of $576,796.00 in respect of past economic loss and loss of superannuation. This figure was calculated as follows:
Loss of income in the sum of $483,600.00 based on a total incapacity for work for the period between 22 September 2018 to date and an earning capacity of $1,220.00 net per week at the time of the incident, with allowance for a $50 increase in that amount per week each financial year, commencing 1 July 2019.
Loss of superannuation benefits in the sum of $53,196.00 based on 11% of Mr Bailey’s net loss of past earnings.
$40,000 for Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 (“Fox v Wood”) damages.
KMAR’s position was that damages for past economic loss and superannuation should be $237,558.24. However, no submissions were made with respect to how KMAR arrived at this figure. The only submissions made by KMAR, which may be of some assistance at determining their position in this respect, included that:
If pain was one of the hurdles preventing Mr Bailey returning to work, there were avenues available to help him overcome that pain, including the saphenous injection.
With some limitations, Mr Bailey has been certified as able to return to work to varying extents during 2021.
First, as I have earlier discussed, I do not consider Mr Bailey’s decision not to undertake the saphenous nerve injury was unreasonable in the circumstances.
Secondly, as to the suggestion that Mr Bailey has been certified as able to return to work to varying extents during 2021, I do not accept that this reflected the reality of Mr Bailey’s situation. On the basis of the whole of the evidence (rather than looking at the certificates of capacity independently of any other evidence), I accept that the predominant reason for the change in Mr Bailey’s certification for work was in order to obtain approval for courses to be considered by the insurer. I also accept that regardless of the change in capacity, there were significant limitations on that capacity. The findings I will go on to make below with respect to Mr Bailey’s suitability for office work for the period of past economic loss, support this conclusion.
Hence, the total damages payable with respect to past economic loss will be as calculated by Mr Bailey, being $576,796.00. The ultimate orders proposed by the parties should deal with any issues regarding workers compensation payments.
Mr Bailey claimed a total of $80,000.00 in respect of future medical treatment and travel expenses. This figure comprised of the following future treatments in relation to managing the injuries, as recommended by his treating practitioners and independent medical examiners:
Regular follow-up appointments with his general practitioner at a frequency of once every 4 weeks for Mr Bailey’s life expectancy at an average of $89.00 per consultation. The total cost was calculated as $17,984.82.
Regular consultations with a pain specialist at a frequency of once every 3 months for the next 5 years at an average cost of $300.00 per consultation. The total cost was calculated as $6,000.00.
Regular consultations with a physiotherapist at a frequency of once every 4 weeks for the next 2 years at an average cost of $84.80 per consultation. The total cost was calculated as $8,819.20.
Regular consultations with a psychologist at a frequency of once per month for the next 2 years at an average cost of $205.90 per consultation. The total cost was calculated as $4,941.60.
Regular consultations with a psychiatrist at a frequency of once per month for the next 2 years at an average cost of $385.00 per consultation. The total cost was calculated as $9,240.00.
Ongoing adherence with medications as prescribed at a cost of $50.00 per month for Mr Bailey’s life expectancy. The total cost was calculated as $10,104.42.
The sum of the figures listed above is $57,090.04. The SOD noted that the claim for $80,000.00 was a “buffer claim” in respect of future medical treatment as well as travel expenses.
KMAR’s position was that, if the report of Dr Saboor is accepted, damages for future out of pocket expenses should be $14,181.60. This position was set out in Exhibit 3 but contained no calculations or submissions in support of the figure. However, given that the cost of consultations with a psychologist and psychiatrist, when added together, equals $14,181.60, I accept that this is likely how KMAR arrived at this figure.
As I have noted above, as to future therapeutic treatments, Dr Negus recommended physiotherapy for a period of 6 to 12 weeks and Dr Bosanquet recommended 6 sessions with a “rehab provider”.
Given the findings made above with respect to the existence of ongoing nerve damage, which is unlikely to improve significantly, as well as Dr Saboor’s diagnosis and recommendations, I accept that Mr Bailey will require ongoing medical treatment as a result of the incident. I will address each claim, sequentially, below:
I accept that Mr Bailey will require regular appointments with his general practitioner. However, in my view, the claim for appointments every 4 weeks for Mr Bailey’s life expectancy is excessive. While Dr Saboor opined that Mr Bailey will require to see his general practitioner, he did not provide an opinion as to the frequency or length of time this should continue. Given that the longest duration of any ongoing future medical treatment is 5 years (for pain consultations with a pain specialist), I will make provision for regular appointments with the general practitioner for the same period, at a frequency of once a month. I note, in this regard, that it does appear (on the medical records before this Court) that Mr Bailey was visiting his general practitioner at least once a month. Damages in the amount of $5,340 will be awarded (60 sessions in total over 5 years at $89.00 per session).
Mr Bailey claimed a total of $988,516.28 in respect of future economic loss and loss of superannuation. This figure was calculated as follows:
Loss of future income in the sum of $862,454.90 based on a retirement age of 67 years of age, being 19 years future loss of anticipated earnings less 15% for vicissitudes.
Loss of future superannuation in the sum of $126,162.38 based on 14.63% of Mr Bailey’s net loss of future earnings.
KMAR’s position was that damages for future economic loss and superannuation should be $100,000.00, based on a 10% loss of earning capacity.
In my view, Mr Bailey’s claim with respect to future economic loss and superannuation hinges on my determination of whether, in my view, Mr Bailey could undertake a type of work which conforms with the restrictions on his capacity.
In this respect, it is useful to set out some of the evidence that is relied upon as to Mr Bailey’s capacity to work:
Dr Smith and Dr Bosanquet both believed that Mr Bailey was fit to work, so long as he does not have to engage in repetitive kneeling or squatting, use of long or repetitive flights of stairs and ladders, or prolonged walking.
Dr Bosanquet further opined that the only suitable employment option for Mr Bailey would be sitting at a desk. He reported that Mr Bailey’s prognosis for returning to work in the future was poor.
Dr Negus believed that Mr Bailey would need support to get back to working.
Dr Harrington opined that while Mr Bailey is not fit for pre-injury duties, he did not identify a significant musculoskeletal injury which would cause a permanent incapacity for work.
Dr Porteous concluded that Mr Bailey’s injury resulted in him being incapacitated or unfit for any work, including that which he has training, expertise and qualifications in and that Mr Bailey was totally incapacitated for any work “now” and “in the long term”.
Whilst the joint orthopaedic report was produced in 2025, the other reports to which I have referred above were all produced in the period 2020 – 2024. As I have further identified, the reports sustained, on the balance of probabilities, that Mr Bailey continues to suffer nerve damage. There being no other form of future incapacity identified in the expert reports, the sole basis for finding future incapacity (underpinning future economic loss) is the fact of that nerve damage.
The difficulty for claims of total incapacity for Mr Bailey for the balance of his life expectancy are, in part, affected by that limitation. The reason for that is that there is no claim for Mr Bailey’s treatment for nerve pain extending beyond a period of 5 years. It is difficult to conceive then, how any benefit for future economic loss for Mr Bailey should extend beyond that period.
Mr Bailey claimed a total of $482,017.80 in respect of future domestic assistance and care.
Mr Bailey’s claim was based on Ms Mullen’s 2021 report and was particularised as follows:
$1,680.00 for an OT assessment.
Domestic assistance for 7.48 hours per week for Mr Bailey’s life expectancy at a cost of $52.00 per hour. The total cost was calculated as $340,573.38.
Outdoor assistance for 1.73 hours per week for Mr Bailey’s life expectancy at a cost of $75.00 per hour. The total cost was calculated as $113,609.10.
Car cleaning once a month for Mr Bailey’s life expectancy at a cost of $60.00 per month. The total cost was calculated as $12,092.04.
In addition, Mr Bailey claimed future domestic assistance and care costs in relation to the following equipment’s and aid which were recommended by Ms Mullen:
Electric recliner chair at an annual cost of $129.99.
Shower chair at an annual cost of $23.99.
Long handled sponge at an annual cost of $39.98.
Long handled easi-reacher at an annual cost of $21.66
Elbow crutches at an annual cost of $26.40.
Electric Mobility scooter at an annual cost of $479.80.
Robotic vacuum cleaner at an annual cost of $179.60.
Perch kitchen stool at an annual cost of $29.54.
Laundry trolley and basket at an annual cost of $4.00,
(collectively, “the equipment and aids”).
The cost of the equipment and aids was calculated for Mr Bailey’s life expectancy. The total cost was calculated as $15,743.28.
KMAR’s position was that damages for future domestic assistance and care should be nil.
On the basis of Ms Mullen’s 2021 report, I accept that the allowance proposed for the OT assessment, domestic assistance, outdoor assistance and car cleaning should be applied in assessing future domestic assistance and care, save that the benefit would be confined, having regard to my earlier assessments with respect to future economic loss, to a period of 5 years. Hence, the amounts will be as follows:
$1,680.00 for an OT assessment.
$90,044.24 for domestic assistance.
$30,037.13 for outdoor assistance.
$3,197.02 for car cleaning.
Further, I accept Ms Mullens estimate for equipment and aids, save for those estimates extending beyond 5 years and for elbow crutches.
I do not consider, on the basis of the medical evidence (including the joint orthopaedic report), that Mr Bailey requires elbow crutches on an ongoing basis. Rather, I accept that the use of crutches by Mr Bailey has become an ingrained way of life rather than a necessary mobility aid.
Hence, the amount of the equipment and aids, for a period of 5 years, will be $4,044.31.
The total damages payable to Mr Bailey for future domestic care and assistance will therefore be $129,002.70.
Mr Bailey claimed a total non-economic loss of $495,000.00, being 65% of the most extreme case in accordance with s 16(2) of the CLA*.*
KMAR’s position was that damages for non-economic loss should be $34,500.00, being 22% of the most extreme case. However, KMAR made no other submission to substantiate its position, in this respect.
In relation to non-economic loss, Mr Bailey made the following submissions:
Mr Bailey has suffered great difficulties and great decline in his qualify of life as a result of the physical and psychological pain caused by the incident. There has been a complete breakdown of what was his family position, and he is now effectively homeless. It was submitted that this “is a pretty grim picture, compared to the provider and family man that he was, when he was a hard-working truck driver”.
It was reported in the Dr Ting 2021 report that Mr Bailey now binges on alcohol, has gained weight and on the self-rating depression scale is in the extremely severe range for depression, moderate range for anxiety and severe range for stress. While those rating are not diagnostic, it was submitted that they are relevant to illustrate how Mr Bailey feels as a result of the incident.
Mr Bailey has developed consequential psychological injuries as a result of the incident, as diagnosed by Dr Saboor.
Mr Bailey also experiences ongoing anxiety that his knee is unstable and a fear that his knee will buckle or that he will fall over and get hurt again. Mr Bailey gave the following evidence, in this respect:
“Q. And how did you get from Springwood to the city?
A. By train.
Q. And what was that like?
A. Scary. Really, not the most fun thing I've ever done.
Q. What was scary about it?
A. The jostling of the train, I'm really scared that I'm going to fall over and get hurt again.
Q. What's your concern in relation to falling over?
A. Well I've fallen over a number of times. My knee gives out sometimes, and without warning, and I - even with the crutches, it's - like the trains aren't a - the train's moving, the train's jiggling around.
Q. How do you feel emotionally about those issues?
A. I feel like my manhood's been taken from me, to be honest.”
In the absence of any submissions to the contrary, I accept that Mr Bailey has suffered considerably in the aftermath of the incident and continues to suffer from the breakdown of his relationship, ongoing capacity issues, ongoing pain, and an inability to engage in certain activities which he enjoyed prior to the incident.
While I accept that some damages for non-economic loss should be awarded, I consider that the claim for 65% of the most extreme case is excessive. In my view, non-economic loss should be calculated at 30% of the most extreme case.
KMAR submitted that Mr Bailey contributed to the injury and loss, and the damages awarded should, therefore, be reduced by one third on the basis of contributory negligence. KMAR referred to the authority of De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 in this regard.
Counsel for Mr Bailey submitted that no sum should be deducted on the basis of contributory negligence.
KMAR relied upon the following particulars in pleading that Mr Bailey was contributory negligent:
At all material times, the beam was in the care, control and possession of Mr Bailey and/or his employer and/or the contracting party.
At all material times, Mr Bailey was in charge of indicating when it was safe to lift the beam.
At all material times, the beam was in Mr Bailey’s line of sight.
Failing to take due care in all the circumstances.
Failing to implement his own safety procedures which he considered reasonable.
Failing to exercise his duties as the person responsible for safety of workers on site.
Devising and implementing an unsafe system of work.
Failing to notify the crane operator he had not cleared the area.
Failing to take steps to ensure his own safety.
Failing to seek assistance when assistance was available.
Failing to have regard for the condition of the area
For the reasons which I have already given, I do not accept that there should be any reduction for contributory negligence.
I agree with the submission made by counsel for Mr Bailey, that given the mechanism of injury was Mr Learmonth operating the crane without warning, it is difficult to see how KMAR’s argument as to contributory negligence can be maintained.
For the reasons which I have already given in my discussion of Mr Learmonth’s credibility, I do not accept that:
Mr Bailey was in a rush to drive to Queensland and as a result hurried his work in a manner which impacted the safe unloading of the beams.
Mr Learmonth was not responsible for unloading deliveries and only operated the crane at the direction of Mr Bailey.
Mr Learmonth and Mr Bailey continued chatting to each other during the operation of the crane.
Mr Bailey gave Mr Learmonth a direction to lift the beams (whether by using the words “OK” or otherwise).
As earlier discussed, the risk in this matter was created by the fact that Mr Learmonth operated the crane without any warning or without giving Mr Bailey an opportunity to move to a safe area, despite knowing that Mr Bailey was crouched between the two bundles of steel.
Hence, in my view, there is nothing that Haworth could have done or precautions or policy it could have implemented, to guard against this specific risk. The mechanism of injury was, in fact, unavoidable on Haworth’s part given the unexpected and abrupt actions of Mr Learmonth.
For example, no amount of policy or safety precautions, including the use of safety and exclusion zones while operating machinery, would have prevented the incident occurring given the speed and manner with which Mr Learmonth operated the gantry crane, regardless of Mr Bailey’s location.
In the result, I find that there is no apportionment.
In this respect, I acknowledge the notice of position received by the Court on 4 September 2025, which stated that Haworth did not oppose the Court determining the apportionment of liability between Haworth and KMSR pursuant to s 151Z(2) of the WC Act, in the absence of the employer, and that Haworth did not consider that doing so would result in any procedural unfairness to it.
As earlier mentioned, KMAR and Haworth advised that the Court was not required to rule on the cross-claims bought by them as against each other. Mr Bailey did not wish to be heard in that respect.
As I have previously concluded, KMAR is liable for the acts of Mr Learmonth in negligence.
The total damages payable to Mr Bailey shall be based upon the following two classes:
Claims determined by the Court as follows:
(a) $122,008.61 for past out of pocket expenses. (b) $26,539.20 for future out of pocket expenses. (c) $31,673.73 for past domestic care and assistance. (d) $576,796.00 for past economic loss and superannuation. (e) $185,000.00 for non-economic loss.
(a) $129,002.70 for future domestic care and assistance. (b) $353,134.20 for future economic loss and superannuation.
Should any party propose any variation to the calculations for future domestic care and assistance and future economic loss and superannuation in paragraph [420(2)], they should provide a short written submission accompanying the Short Minutes of Order I will direct be filed, demonstrating the basis for the alternative amount and the calculation of the same. It should be emphasised that this leave does not invite any submissions as to the merit of the particular claim, but only that the Court’s calculations of damages in accordance with the parameters set in this judgment are in all respects, accurate.
In the light of my decision in this matter, my preliminary view is that KMAR should pay Mr Bailey’s costs on an ordinary basis. If the parties accept that preliminary view, that should be reflected in the draft orders directed to be filed below. If not, the directions shall provide that the parties file their respective applications for costs and submissions as to costs within 7 days of the publication of this judgment.
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MMM amended its defence to deny the allegation but KMAR contended that this was done without legal consent. The Court was not asked to rule on this question.
There was a temporal element to this quotation but, in my view, that related to earlier questions as to whether Mr Learmonth could see Mr Bailey at the time of the lift.
The mention of “change” is a transcription error and should be read “chains”.
The mention of “each” is a transcription error and should be read “east”.
Amendment to figure for non-economic loss in paragraph [420], in accordance with slip rule.
Bailey
Kmar Engineering Pty Ltd [2025] NSWSC 1266
(2009) 239 CLR 420
(1990) 169 CLR 279
(2011) 243 CLR 588
(1981) 148 CLR 438
(1959) 101 CLR 298
(2011) 243 CLR 361
(2007) 234 CLR 330
(2002) 211 CLR 317
(2005) 221 CLR 234
(2005) 223 CLR 422
(2000) 103 FCR 1
(1975) 134 CLR 640
(1987) 162 CLR 479
(2011) 59 MVR 1
In a picture of the hooks in the proceedings, the hooks were shown holding a “plate grab”, which could be used to move the steel beams to position them on trucks (and presumably for other purposes).
On the tray of the truck were steel beams (“the beams”) which were being delivered to KMAR on 21 September 2018.
The beams ran along the length of the flatbed truck and were situated on steel cross beams (with a wooden insert to stop sliding) running perpendicular to the long edges of the tray of the flatbed truck (“the cross beams”).
The beams were in two bundles each consisting of three steel beams (“the bundles”). In the Learmonth Evidentiary Statement, Mr Learmonth referred to a photograph attached to an MMM incident report appearing to depict 3 bundles but as the evidence unfolded it became apparent that the third bundle consisted of a lighter load of pipes.
Mr Bailey described in his oral evidence the steel beams as “roughly 40 foot long and would have been 50 centimetres by 70 centimetres square” (he stated the beams were 48 feet long in his Evidentiary Statement dated 14 May 2021 (“Evidentiary Statement”)). Further, he stated each bundle weighed 5 tonnes.
Mr Learmonth described the steel beams as “lengths of 53UB92, 12 and 15 metres in length”. He stated that “The beam is 530 high, and, in this instance, it's laid flat across the truck so it's 530 wide, and the 92 is, 92 kilograms per metre of beam. The – the width of the beam is probably about - about 200. I don't have the number right off my head. So, three of them stacked on top of each other adds up to about 650 millimetres high”. He also stated that each “stack” was “65cm in height including dunnage”.
Mr Learmonth also described the cross beams fitted to the tray of the truck as "120 mil" high. As Mr Bailey described it, the cross beams were high enough to allow him to “stick” his hand under the steel beams.
It is apparent from that evidence that the top of the bundle of the steel beams, when situated on top of the cross beams, would have been approximately 77 centimetres.
On the evidence, I conclude that, if the beams were 15 metres in length (49 feet) then the weight of the bundle would seem to have been slightly more than 4 tonne (at the weight of 92 kilograms per metre per beam in a bundle of 3) Some beams were said to have been 12 metres in length, corresponding to Mr Bailey’s estimate of 40 foot.
There was no dispute that Mr Learmonth and Mr Bailey commenced unloading the steel from the truck on 21 September 2018. Nor was there any dispute that at the time the first set of steel beams were lifted, Mr Learmonth was standing on the ground next to the truck a short distance from the truck.
Mr Bailey was positioned on the tray of the truck near the steel, a short distance from Mr Learmonth.
In order to lift the steel on 21 September 2018, Mr Learmonth operated the crane to lift using the pendant (apparently using the ‘slow’ speed on that device). During the lift the bundles rotated creating a swinging action. Mr Bailey described what then occurred as follows:
Ultimately, Mr Bailey’s reluctance to provide information, including during cross-examination, should impact the Court’s approach to his evidence, and the Court should not accept Mr Bailey’s evidence unless it was against his interest or corroborated by contemporaneous documents.
I do not accept KMAR’s broad contention that the Court should not accept any of Mr Bailey’s evidence unless it is against his interest or corroborated by contemporaneous documents. That conclusion is based upon my analysis of the premises for those contentions and the further consideration expressed immediately below.
While counsel for KMAR, Mr M Noakhtar, made reference to specific aspects of Mr Bailey’s evidence which, in his opinion, were contrary to contemporaneous accounts, as noted above, considerable caution should be exercised in making global credibility findings as sought by KMAR, and untruthfulness with respect to a particular matter should not lead to the conclusion that the entirety of the evidence (such as evidence relating to the incident) is untruthful: Sangha v Baxter [2009] NSWCA 78 at [155] (per Basten JA, with whom Handley AJA agreed).
Based on my overall assessment of Mr Bailey’s evidence, which derived, in part, from my close observations of him as a witness, I accept that certain aspects of Mr Bailey’s evidence lacked detail or clarity. However, where Mr Bailey’s evidence is said to demonstrate a lack of credit by reason of certain gaps in information or detail, in my view, Mr Bailey was (contrary to those submissions), neither evasive nor deliberately misleading. His difficulty recalling minutiae details or information was simply reflective of his memory, which was sometimes a bit cloudy. Mr Bailey was candid and frank in his recount and did his best to tell the truth and answer the questions put to him, which were often not clear, or had the capacity to mislead. No such deficiency of recollection was demonstrated with respect to his memory of the incident which is hardly surprising because of the dramatic nature of the incident.
I will assess then certain aspects of KMAR’s submissions as to credit based on Mr Bailey’s living circumstances for the relevant period and his incapacity, in detail, below.
The effect of Mr Learmonth’s evidence was that, even though he operated the crane to undertake the unloading, he did so under the direction of Mr Bailey. Thus, until the steel was off the tray of the truck and on the ground of the premises “all aspects” remained “under the management and control of the delivery driver”.
There are three difficulties with that evidence to which I will not turn, the third of which goes directly to Mr Learmonth’s credit.
First, Mr Learmonth conceded in cross-examination that he did issue directions for at least some parts of the unloading question:
The first bundle of steel (which was being lifted) swung backwards and collided with the remaining bundle of steel (which was on the truck). Mr Bailey’s right leg got caught between the two bundles of steel and was crushed as a result of the collision between the bundles of steel.
Mr Bailey laid down on the truck and yelled out in pain.
Mr Learmonth enquired as to whether Mr Bailey required an ambulance and proceeded to phone the ambulance.
In respect of Mr Bailey’s capacity to return to work, the experts agreed that Mr Bailey should be able to return to work and may need support in doing so. However, the limitations on that opinion were as follows:
Dr Smith believed that Mr Bailey was fit to work, so long as he does not have to engage in repetitive kneeling or squatting or use long or repetitive flights of stairs and ladders.
Dr Negus believed that Mr Bailey needed support to get back to being independent and working, including physiotherapy and the option of a rehabilitation provider.
Dr Bosanquet believed that Mr Bailey could return to work with restrictions on kneeling, squatting, stairs, ladders and prolonged walking.
The areas of disagreement between the experts included: whether osteoarthritis was present; any laxity at the time of the assessments; muscle atrophy; and nerve injury.
First, while Dr Smith does not address the question of nerve damage, in my view, this conclusion is unremarkable given that it appears Dr Smith did not assess nerve damage and did not express a view in either direction. In other words, Dr Smith’s silence as to nerve damage should not be taken as a conclusion that he disagrees with that diagnosis. Rather, I accept that it simply appears Dr Smith did not appear to investigate for a saphenous nerve injury, and in any event, he also made no comment disagreeing with the findings made by Dr Negus and Dr Bosanquet in this respect.
Secondly, Dr Negus and Dr Bosanquet were not the only medical practitioners to have expressed a view with respect to nerve damage. At least three other practitioners (Dr Porteous, Dr Anderson and Dr Gill) also found, inter alia, the existence of neuropathic pain, neurological problems with the saphenous nerve, and dysfunction to the right saphenous nerve caused by the incident.
Thirdly, two of Mr Bailey’s treating practitioners, Dr Volchenkov and Dr Tame, recommended treatments to assist with Mr Bailey’s neuropathic pain related to the saphenous nerve. Their reports are set out at [152] of this judgment. In my view, this must be evidence that both Dr Volchenkov and Dr Tame believed Mr Bailey was suffering from ongoing neuropathic pain related to his saphenous nerve. It is highly improbable that a medical practitioner would recommend a treatment for an injury which does not exist. This is especially so where, as reported by Dr Tame, those treatments had potential side effects and complications. KMAR’s submission that there is no nerve damage, is essentially asking this Court to conclude that two qualified medical practitioners would recommend an invasive treatment that was not required or necessary. I do not accept that suggestion.
Fourthly, KMAR submitted that the Court cannot find the existence of nerve damage, because no report or other evidence from a relevant expert, such as a neurologist or neurosurgeon, was adduced with respect to this injury. However, I accept the submission made by counsel for Mr Bailey, that no objection to the expert evidence in this matter was made on the grounds of qualifications or otherwise. This is despite the fact that KMAR must have been aware of Dr Negus’ conclusions with respect to the existence of a nerve injury. Further, with this information at hand, KMAR did not seek to adduce any expert evidence to dispute the findings of Dr Negus in this respect. Whilst the evidence of orthopaedic surgeons may be inferior to evidence from a medical discipline more closely aligned to the investigation of nerve damage, it does not follow that little weight should be attached to those opinions, particularly when the nerve damage is closely related to the orthopaedic injury and the opinions they formed in that respect. In those circumstances, KMAR cannot now seek to rely on an argument that the experts in this matter do not have the relevant qualifications to support their conclusions.
I also note that Mr Bailey was in fact seen by two pain specialists (Dr Tame and Dr Volschenk), and their evidence is before the Court. Hence, KMAR’s submission that “[i]t's not proved because the evidence hasn't been garnered to put before this Court, presumably from neurologists or pain specialists or whomever is best placed to do it”, is simply not correct.
Lastly, KMAR placed reliance on the fact that chronic regional pain syndrome (“CRPS”) “was a nerve injury which had been investigated and ruled out”. However, I accept that CRPS is not the same as a saphenous nerve injury, and the absence of CRPS is not demonstrative of the absence of a nerve injury.
In the result, I find that, on the balance of probabilities, Mr Bailey suffered nerve damage as a result of the incident which has not resolved. I also accept that, as is expressed by Dr Negus and Dr Porteous, that the nerve injury is likely to be ongoing, is unlikely to improve significantly, and as a result, Mr Bailey’s prognosis is guarded.
Ms Varela accepted in her report dated 29 May 2025 that “[i]n order to provide an accurate review of his care needs into the future I would need to assess Mr Bailey in his home environment”. This qualification is significant and suggests that there may be parts of Ms Varela’s report which are not entirely reliable.
Ms Varela’s conclusion that Mr Bailey “does not have a home and as such there are currently no domestic requirements” is difficult to justify and fails to consider what Mr Bailey is likely to do with his living situation long term. I note, in this respect, that Mr Bailey gave evidence that he would buy a house if he had the financial means to do so. As such, it appears that Ms Mullens’ report more accurately considers Mr Bailey’s long-term plans.
I note that KMAR did not address the difficulty with the fact that Ms Varela had not physically assessed Mr Bailey or his home environment, other than to suggest that Mr Bailey made any assessment impracticable by not providing accurate details about his residency. As I have earlier discussed in relation to Mr Bailey’s credibility, I do not accept the suggestion that Mr Bailey was deliberately evasive or misleading or that it was not possible to make a proper assessment of his circumstances with due diligence.
Hence, where the opinions of Ms Mullen and Ms Varela differ, I accept that the opinion of Ms Mullen more accurately reflects Mr Bailey’s need for past and future domestic care and assistance.
I accept that Mr Bailey will require regular consultations with a pain specialist, and that in accordance with Dr Porteous’ report this should occur between two to four times a year in the long term. Damages in the amount of $3,000 will be awarded for twice yearly appointments with a pain specialist for the next 5 years.
Based on the joint orthopaedic report, I accept that Mr Bailey requires physiotherapy. However, I do not agree that the expert evidence supports the need for physiotherapy for the next 2 years. Rather, Dr Negus recommended one session of physiotherapy weekly for a maximum of 12 weeks, and similarly, the recommendation given by Dr Bosanquet was for a maximum of six sessions. Hence, damages in the amount of $1,017.60 will be awarded for the cost of physiotherapy (12 sessions at $84.80 per session). I also note, in passing, that one session of physiotherapy every 4 weeks for the next 2 years (i.e. 24 sessions in total) does not equate to a cost of $8,819.20, as claimed by counsel for Mr Bailey.
I accept that, on the evidence of Dr Saboor, Mr Bailey will need to see a psychologist on a regular basis and a psychiatrist on a monthly basis. Given that KMAR also accepted that these costs were accepted by them (in the event that Dr Saboor’s report was accepted), damages in the amount of $14,181.60 will be awarded for the cost of a psychologist and psychiatrist for the next 2 years.
I accept that Mr Bailey will require ongoing medications, for ongoing pain relief as well as a prescription for anti-depressants. However, in my view, the claim for ongoing medications for Mr Bailey’s life expectancy is excessive. In this regard, I note that while Dr Saboor did recommend the provision of anti-depressant medication, the claim for psychiatrist services is only for 2 years (as was recommended by Dr Saboor). As such, in my view, there is no reason for the provision of anti-depressant medication past this time period. Further, while Dr Porteous recommend ongoing pain relief “in the long term”, I do not consider this to mean for life. The same phrase “in the long term” was used by Dr Porteous to describe Mr Bailey’s need to see a pain specialist. In this context, Mr Bailey clearly interpreted “in the long term” to mean 5 years. Hence, I will make provision for ongoing medications for the same period. Damages in the amount of $3,000 will be awarded for ongoing medications (60 months at a cost of $50 per month).
Hence, the total amount payable for future out of pocket expenses will be $26,539.20. While counsel for Mr Bailey submitted that Mr Bailey should be awarded a “buffer” of approximately $23,000, no submissions were made to substantiate the reason for this buffer. I do not accept that this is an appropriate case for a buffer given the precision with which counsel for Mr Bailey has been able to calculate the future treatment expenses. There was no suggestion that the future treatment needs of Mr Bailey were difficult to assess with any certainty, and in my view, this is especially so given the time that has elapsed since the incident.
Further, while Dr Saboor was of the opinion that Mr Bailey was totally incapacitated for any type of gainful employment, including his pre-injury employment or any other employment, his recommendation for treatment was limited to “two years or longer”. I note that, on that basis, there was no claim for Mr Bailey’s psychological and psychiatric treatment extending beyond a period of 2 years. Hence, I consider that Dr Saboor’s opinion as to incapacity is not stated to be for Mr Bailey’s life expectancy but should be considered in the context of the other recommendations made as to Mr Bailey’s treatment for the next two years. In any event, it is difficult to conceive that Dr Saboor would be able to express a view as to incapacity beyond this time period.
There is a second and related consideration, and that is whether Mr Bailey would have a capacity in the future to engage in an administrative or sedentary role.
On the basis of the evidence, including the restrictions set out by Dr Smith and Dr Bosanquet, and the evidence of Dr Negus that Mr Bailey would need support to return to work, I accept that the only work for which Mr Bailey would have capacity in the future is an administrative or sedentary role. However, it is my impression that Mr Bailey would experience difficulties in adjusting to this type of work, for the following reasons:
Mr Bailey is not trained, qualified or experienced in this type of work.
Mr Bailey’s own evidence was that he was “not suitable for office work”. I do not accept that this demonstrated a disinclination to return to work but accept that this is the truth as to Mr Bailey’s honest belief as to whether he could hold down a job in this field.
However, it appears to me that there would be an opportunity for Mr Bailey to retrain for work other than his former duties of an administrative kind over the 5-year period I will allow for future economic loss.
I do not accept the submission made by counsel for Mr Bailey, that when one examines the evidence in context, there is no single job which Mr Bailey could actually perform in the long term, having regard to his occupational history and the functional limitations on his capacity if that submission were intended to convey that Mr Bailey was permanently incapacitated.
It follows, in my view, that Mr Bailey should have a sum for loss of future income and loss of future superannuation, calculated over a period of 5 years.
Hence, the total damages payable with respect to future economic loss will be $363,455, based upon $1,570.00 net per week multiplied by the 5% statutory multiplier for 5 years.
In his calculations, Mr Bailey allowed an amount of 15% for vicissitudes. I will make a deduction in the same way, resulting in damages being reduced to $308,936.75.
There should also be a provision for superannuation, calculated on the basis of 14.63% of Mr Bailey’s net loss of future earnings. That amount is $45,197.45.
The total sum for future economic loss and superannuation is $353,134.20.
Rather, as I have found earlier in this judgment:
Mr Bailey was acting under Mr Learmonth’s direction; and
was required to stand between the beams in order to reach the chains and wrap the load; and
did not have time to take any action, before Mr Learmonth began operating the crane, which may have avoided the injury.
It follows that items (1), (2), (4), (5), (6), (8) and (10) of the above-mentioned summary of the particulars may be rejected on the above bases.
As to item (3) of the summary of particulars, the contention is irrelevant to the risk I have found on the cause of the incident. So to is the contention in items (7) and (9). As to item (8), I emphasise that it would have been impossible to provide the advice claimed in the item of the particular as the circumstances had not arisen to do so; the steel beams were safe when lying on the truck bed under their own weight.
In those circumstances, KMAR’s claim for contributory negligence cannot be upheld.