Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd

Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd - [2016] NSWSC 1893 - NSWSC 2015 case summary — Zoe

[5]

Issues

Before dealing with the evidence in the proceedings and the findings of fact arising therefrom, it is appropriate to set out the issues in the proceedings. They are: 1. The existence and scope of the duty of care of the defendant and its employees; 2. Whether the defendant's duty of care was breached, having regard to the provisions of s 5B and s 5C of the Civil Liability Act 2002 (NSW) ("the Act"); 3. Whether, if there were a breach, the breach caused an injury to the plaintiff, having regard to the provisions of s 5D of the Act; 4. Whether there was contributory negligence by the plaintiff and, if so, the extent of the liability that would be apportioned thereto; 5. The amount of damages, if any, under the various heads; 6. Whether the cross-defendant, Professional Contacting (NSW) Pty Ltd, ("the Employer") breached its duty of care to the plaintiff and, if so, the apportionment between Avopiling and the Employer and the calculation under s 151Z(2) of the Workers Compensation Act 1987 (NSW), assuming, that the breach of duty rendered the Employer a joint tortfeasor and the negligence caused or materially contributed to the injury to the plaintiff, if any.
To understand the factual contest, it is necessary to note that the cause of the accident is not in issue. The secondary rope (an auxiliary cable) snapped during the erection of the mast of the pile driving rig. The snapping occurred under extreme tension, equivalent to 28 tonnes, which is 7 tonnes above its design strength. This was caused by the hook and gear on the end of the auxiliary cable being pulled into the sheave in the "cathead", at the top of the mast.
These items were too large to go through the opening and resulted in an explosive release of tension causing the metal objects (the bobweight, thumb eye, hook, chainlegs and various links), weighing in total approximately 25 kilograms, to be released from the cathead to the ground and one, some or all of that to strike the plaintiff on the head, neck and chest. The plaintiff was at that time standing approximately six metres from the pile driving rig (although the distance from the rig is the subject of minor controversy).
With that brief background, it is necessary to deal with the evidence, which I hereafter summarise in relatively neutral terms, subject to comments during the course of that summary. The evidence now summarised will deal with both liability and damages, but, in relation to damages, I summarise in the following section only that which has been adduced through non-expert witnesses.

[6]

WorkCover Statements

Exhibit A in the proceedings is Volume 1 of the plaintiff's tender bundle on liability, part of which includes a statement obtained by WorkCover inspectors from the employees who were erecting the piling rig. Those employees were Mr Ben Edwards (the off-sider/dogman) and Mr Jay Tangi (the machine operator). Even though each of those employees were employed by Avopiling, neither of them was called in evidence.
Mr Edwards' statement was that he had worked for Avopiling for approximately one year at the time of the accident and had two years' experience as an installer for a steel company, prior to that. Mr Edwards commenced work as a trades' assistant, learnt on the job to install and then was employed installing gates and security doors and awnings, handrails and everything to do with steel fabrication. In the previous employment he had supervised sub-contractors, tradesmen and other trades' assistants. Prior to that he had been a bobcat operator/labourer.
He described his duties at the construction site at Casula as "offsiding the 930 rig Turbojet. Grout injection. My role is to offside, spot the rig while operating. An example is lining the tool in the position for where the piles go, make sure the nozzles aren't blocked, watch the hydraulic hoses for blockages. Let the driver know if the ground is too hard, to not place too strain on the machine. I am pretty much the operator's eyes on the outside." Mr Edwards had a dogman's certificate and bobcat skid steer tickets and six years' experience in the construction industry. He described the incident in which the plaintiff was injured, including the background, in the following way: "Q17: Tell me about the day of the incident? A: We started at 7:00 in the morning. Went through our toolbox and discussed what was happening through the day. We weren't going to grout inject that morning as the casings auger and equipment for the 516 were arriving that day. We serviced the 930 and the grout pump. Around 9:00 or 9:15 the truck arrived with the casings and augers. The crane also turned up. We unloaded the truck, the casings and the auger. The truck left. I went to the shop to grab some smoko. I came back and the other rig had arrived on the site, the 516. I went down to assist the people to move the 516 rig off the truck. And up onto the oval. Walked the rig halfway into the yard, still folded down. Jay TANGI and I swung the cathead around. Put the bolts together locked the cathead into place. Connected the wiring for the override sensors. They all have three different plugs so you can't mix them up. Once the cathead was in order, we took the rig out onto the oval as there was an overhead wire above the gate where we were, which prevented us from standing the rig up in the yard. We walked the rig out onto the oval as we had discussed in our talk. And started standing up the mast. As we were standing up the mast, I was taking out the travel bar which connects the mast to the bottom leg. As I was doing that, Riste, we call him Chris, and Lou, they walked towards me. Chris asked if I needed a hand with anything. I already took the travel bar out and as I walked out I said no I am fine, I don't need any help thanks. And began to stand the mast up more. To swing the bottom leg into place. As I was standing up the leg I heard tension noise, I told Jay to stop, I walked around the front to see if anything was caught, The main rope, rope 1 had tension as it was still connected to the drive unit which is on the bottom leg. And the secondary rope was hanging about a metre and a half from the top. From the front of the machine I asked Jay to go again slowly and I noticed the drive unit sliding up the rails of the leg. So I walked in a few steps toward Jay and said are you releasing the main, he said yes I am using slow release on the main on the drum. As he was saying it was rolling off the drum I heard tension. I said stop, as I said stop I heard a bang or a pop. I've turned up and around and saw the secondary chains falling, I looked around and Chris and Lou were there. Lou was a few metres back. Q18: Then what happened? A: As I saw it, Chris was struck on the right hand side of the head and shoulders. He collapsed to the ground. Lou ran to get help and an ambulance. As Jay did as well. I briefly went to Chris's aid. He blacked out for a few seconds then became conscious, wanted to sit up. I tried to keep him calm, help is on the way. Dave came down with the first aid kit and worked off the instructions of the operator on the phone to take care of him. Then the ambulance arrived five to ten minutes after and took over the situation. We were told to walk up to the sheds afterwards, we were distressed with the situation. The forensic Police arrived, questioned everybody on site and about 3:00 Jay and I went home. … Q26: Why do you think the secondary rope broke? A: I think in that 5 to 10 seconds that I walked into Jay I have lost sight of the front of the rig and as he was rolling the mast forward there wasn't enough slack on the secondary and it sheared off on the sheave of the cathead as there wasn't enough slack on the rope. Jay doesn't have a view of the front of the mast so he can't tell how much slack is on the secondary. I had heard the tension noise and I asked him if he was rolling the main of the drum by slow release. He replied yes. As he replied yes l heard the tension noise get worse, so I said stop and the secondary snapped off the sheave. I was more concerned about the main because I had view of the secondary from the front of the mast and there was a metre and a half of slack. As we were raising the mast forward the slack was getting taken from the secondary so I said to Jay to release the secondary, he did but he was saying the limit switch should be alright, but we kept rolling the secondary anyway to be safe. Q27: What is the process for ensuring there is enough slack on the secondary? A: Giving a good couple of metres from the top and always having a spotter. Q28: Why didn't the limit switch on the cathead stop this? A: The limit switch only works on the winch control. It will stop you pulling too far on the winch but when you take the slack by folding the mast forward you are not actually using the winch control."
After a few questions relating to learning the jobs in question, Mr Edwards was asked by the inspector whether there was a work method statement for the erection of the rig, whether he had seen it prior to the erection of the rig on the day in question and whether it was a document he had when he was learning how to erect the pile driver. To which of these questions, Mr Edwards answered in the affirmative. The inspector then asked Mr Edwards in the following terms: "Q39: Were there any other documents used in your training? A: On jobs like we done for Bectel [sic] in Newcastle, they do an on the job inspection on you a checklist. That's about it. The Work Method Statement has the steps the hazard and the control methods. Q40: In your training and instruction were you given precautions about over tensioning of the rope during assembly? A: Yep. Q41: Did you follow those precautions on the day of the incident? A: Yes. Q42: What supervision did you have for this task? A: Dave TEVANIAN was the site supervisor and he told us to go down and put the rig up. Me and Jay have enough experience together without Dave having to watch, because has watched us before and we have enough experience to do this without supervisor. Parts had arrive for the pump and Dave was just there helping the boys put it together properly as he had plenty of experience on the pump and when he heard the bang he was one of the first on the scene."
The statement given by Mr Jay Tangi was in or to the same effect as the foregoing, given by Mr Edwards. In each case the workers on the rig did not realise that the source of the tension noise was the auxiliary rope, until after the accident had occurred. I omit opinions given by Mr Tangi, based on conjecture. Nevertheless the following exchange is relevant and adds to the statement made by Mr Edwards: "Q23: Why do you think the secondary rope snapped? A: I don't think I released enough slack and it must have got caught in the sheave. As the mast is going up it takes up its own slack. I didn't see the rope getting tight. Q24: What is the process for ensuring there is enough slack on the secondary rope? (Interview paused at 11:14. Interview resumed at 11:15) A: It is just up to my offsider. We are both meant to look. We are meant to keep an eye on it. To make sure there is enough slack to make sure it doesn't get to close to the sheave. Q25: Is there a safety device to prevent this happening? A: A limit switch yeah. Q26: Why didn't the limit switch stop this? A: I was over-riding it. Q27: Why were you over-riding it? A: Because it wasn't working to start with. Q28: Why wasn't it working? A: Sometimes the chain link where the secondary comes out of the sheave pulls the limits switch on so you have to use the override to get the mast to stand up. Once it is up you can shake the secondary rope around and it will free the sensor. But we didn't get to that stage. Q29: What controls does the limits switch stop? A: It stops the mast going up, the main rope function and the jib function."
Exhibit A also contains affidavits read or tendered without objection, which detail the purchase by Avopiling of the rig and the process by which an Operation and Maintenance Manual was prepared for the rig. A copy of the Manual is provided. The affidavit also records that the manufacturer has no record of complaints about or problems with the drilling rigs, being problems of a similar kind to that which may have caused the incident at Cringila. The Operation Manual is uncontroversial and it is unnecessary to summarise it.

[7]

Riste Bosevski (the plaintiff)

The plaintiff was born in Macedonia on 11 March 1961 and completed compulsory military service in Macedonia, before migrating to Australia in the early 1980's. Upon arriving in Australia, the plaintiff worked in factories as a process worker for a couple of months after which, the plaintiff was employed in the construction industry.
Initially the plaintiff was involved in heavy work, but after some experience was engaged in more skilled work and obtained various licences (also referred to as tickets), including tickets as a forklift driver and hoist operator. Not uncommonly in the construction industry, the plaintiff had multiple employers over the years.
The plaintiff was rubbing the side of this head during the course of giving testimony and explained (Transcript, 13 April 2015 at 24-25) that he did so to ease the pain from the wire that is in his head. He described the pain as continuing down to his eyes.
The accident history of the plaintiff was the subject of examination in chief. The plaintiff explained that he was involved in a car accident in 1982, from which he suffered an injury to his jaw. The jaw was the subject of an operation and the plaintiff was off work for between one and half and two years. The plaintiff also suffered an injury to his shoulder on 25 January 2006, when he slipped while cleaning a floor. At that time, he was employed by Hansen Yuncken. Following that accident, the plaintiff was off work for four to five months.
The plaintiff returned to Macedonia with his family on a couple of occasions. Those periods, together with the time, explained above, that he was recovering from injuries, were the only long periods of time when the plaintiff was not working.
In January 2006, Dr Peter Giblin advised the plaintiff that his shoulder would need to be the subject of an operation.
On 28 June 2006, Hansen Yuncken terminated the plaintiff's employment. In July and August 2006, the plaintiff obtained WorkCover certificates to the effect that he was fit for light work, which he submitted to his employer, in relation to the accident on 25 January 2006. The plaintiff received weekly payments of workers compensation from 1 August 2006 to January 2007, while he was off work from that employer (Hansen Yuncken), even though he had been terminated.
The plaintiff, in his evidence, said that he was unaware that he was not entitled to workers' compensation payments, in relation to that employer.
Following a call from WorkCover, the plaintiff told his then solicitor about the receipt of workers' compensation payments and his solicitor contacted WorkCover. The plaintiff repaid the compensation and was fined.
Counsel then adduced some evidence from the plaintiff as to his employment with the Employer, by whom he had been employed since 12 September 2006. The plaintiff had been unemployed between 25 May 2006 and 12 September 2006.
The site in question, at which the accident occurred, was the site of Cringila Public School at which the plaintiff was responsible for keeping clean the excavator as well as keeping the area around the drilling clear. His supervisor was Luke Carpinato, who instructed him on the functions to perform and the manner of their performance. Mr Bosevski was not undertaking any heavy work prior to the accident at the site and did not have any previous difficulties at work.
On the day of the accident, Mr Carpinato was present at the site. The plaintiff did not have a great deal of work to do as the drill [pile driver] that was being used on site was too small for the task to be performed and needed to be replaced. The replacement "drill", to which the plaintiff was referring, is the pile driver, which is the subject of these proceedings. The plaintiff was on site when the new pile driver arrived and saw Messrs Edwards and Tangi commence its setting up. The plaintiff has no memory of anything else on that day (22 September 2006).
The plaintiff was initially taken to Wollongong Hospital and later transferred to Liverpool Hospital. The plaintiff has no memory of how long he was at Wollongong Hospital or Liverpool Hospital. His best estimate was that he was at Liverpool Hospital for two weeks or more.
When the plaintiff became conscious, he had blurry vision and was in a lot of pain in his head, neck, lower back, jaw and teeth. The pain was very sharp and constant.
The plaintiff has never been completely free of pain since the accident and still suffers from pain in the head, neck and lower back.
After the accident an operation was performed on the plaintiff's shoulder by Dr Giblin in a private hospital. The plaintiff's shoulders were not affected very much by the accident. The plaintiff had seen Dr Giblin five or six times since 2006 in relation to his shoulder.
Before the accident, the plaintiff went to a GP, approximately once per month, to obtain medication to ease the pain in his right shoulder.
After the accident, the plaintiff attended Dr Lam, a GP, to obtain medication, being Aropax, Zyprexa and Digesic for the pain in his head, neck and his lower back injuries. He continues to take this medication.
The plaintiff recently moved houses, but was unable to lift heavy things because of the pain.
Since the accident, the plaintiff does not feel happy about himself and he was referred to a psychiatrist, Dr Benjamin, whom he attends every month. He has also seen two other psychiatrists.
It was Dr Benjamin who prescribed Zyprexa for the plaintiff. The pain necessitated the plaintiff seeing a pain specialist, Dr Henry Lam, after being released from hospital in 2007. He still attends on Dr Lam every three months. Dr Lam prescribed (and continues to prescribe) 150 milligrams of pain medication to the plaintiff.
The plaintiff has also been attended by a neurologist, Dr Absrasko, an ear, nose and throat specialist (ENT), Dr Scopa in relation to his nose, and sees Drs Lam and Benjamin regularly.
The plaintiff ceased being treated by the neurologist, because the insurance would not cover any further appointments. After the accident, the plaintiff lost his dentures and cracked his teeth. The plaintiff saw a dental specialist, Dr Gershensfeld in Burwood, four or five times. The plaintiff stopped seeing the dental specialist, again, because it was not covered by the insurance.
The plaintiff intends to get further treatment on his teeth should he receive money from these proceedings and feels "100 precent" that he needs such treatment.
The plaintiff was also fitted, on a number of occasions, with a stimulator on a temporary basis and now has a permanent stimulator. The first stimulator, which was received around 2000, operated on his face and was located outside his body. This caused problems, because it restricted his movement. The stimulator implants were done in August 2007, August 2008 and September 2009 respectively.
The first stimulator implant was located on the right side of the front of his head. The second stimulator implant was located in the back of his head at the bottom of his skull.
Counsel then adduced evidence from the plaintiff in relation to his domestic circumstances. Prior to the plaintiff's divorce from his first wife in 2010, they had been married for 36 years. The plaintiff attests to the fact that it was a happy marriage until the accident, but the divorce seems to have been acrimonious.
The plaintiff met his second wife, Lydia, in Macedonia in 2010 and married her in 2011. On the plaintiff's version, the accident was the cause of his divorce, as he was no longer fit and had money problems so that he could no longer support her. Before the accident, the plaintiff owned four properties, which, because of the accident, he was forced to give up. In his words, they were "lost".
After the accident, the plaintiff's former wife took out an apprehended violence order against him in 2008. She claimed that the plaintiff cut the brakes of her car and tried to kill her, but the police never took any action against the plaintiff in relation to the allegations.
The plaintiff married his second wife in 2010/2011 and they lived together for three years. They now live apart because the plaintiff is unable to control her children. Lydia, the second wife, lives close by and sees the plaintiff every day. She continues to do the plaintiff's ironing, cleaning and cooking.
When Lydia first moved out of the home, there was a period to two weeks during which time the plaintiff did not see her, but, during that time, the plaintiff's son, David, lived with the plaintiff and looked after him.
The plaintiff was released from Liverpool Hospital on 13 October 2006. For about two months after his release, the plaintiff was unable to shower or shave without his first wife's help. His first wife also had to remind him about his appointments and taking his medication. His memory has been affected by the accident and he still has problems remembering things. To remember things, the plaintiff must write reminders and put them on the fridge.
The plaintiff's first wife also did all of the housekeeping. Before the accident the plaintiff did some housekeeping.
During the first four years after the accident, the plaintiff and his first wife mainly stayed at home, because he struggles to communicate with people due to lack of concentration and the plaintiff getting frustrated with little things.
After the accident, the relationship between the plaintiff and his first wife altered. They struggled as a result of the shortage of money. Their sex life changed. They could not go out; nor have people come to visit. He heard from his first wife's sister that his wife was going to leave him, at a time that his wife was in Macedonia.
The first six months after the accident, the plaintiff struggled to walk because he had double vision. David, one of his sons, helped him by mowing the lawn and doing other things around the house. Before the accident, the plaintiff had mowed the lawn, done gardening, fixed things around the house, built a pergola and helped his wife with the vacuuming.
Between 2008 and 2010, the plaintiff lived with his son Michael, Michael's wife and Michael's mother-in-law. Their (being Michael and his wife) son was born in 2010. Michael would help the plaintiff considerably and he or his wife would do the housework.
Before the accident, the plaintiff generally enjoyed his life. After the accident, the plaintiff's mood changed "a lot" as little things would make him angry. The plaintiff gets frustrated, because he cannot do things he used to be able to do. He first saw Dr Benjamin, a psychiatrist, on 20 February 2008. He went to him because he thought he needed assistance because of the changes that had occurred since the accident.
Between the time that his son Michael and Michael's family left and August 2010, the plaintiff lived with his second wife and her two sons in Bankstown. The plaintiff's second wife did all of the things for the plaintiff that his first wife had done previously. The second wife, Lydia, looked after the plaintiff totally. However, the plaintiff was able to help out a little but "not a lot".
When Lydia moved out, in August 2010, the plaintiff's son, David moved in with the plaintiff and looked after him. When Lydia, the plaintiff's second wife, came back to the house after 2 weeks or so the house was not under control.
To this day, after returning as aforementioned, Lydia, the plaintiff's second wife, performs the cleaning and the cooking for the plaintiff. The plaintiff states that if Lydia were not looking after the house, the plaintiff would not be able to do so, due to the pain that he suffers.
The plaintiff still forgets things, if not reminded, and obtains assistance if the plaintiff is required to deal with government departments, the making of payments and the like.
The plaintiff does have a social life. He goes out with his second wife once every two or three months, but not for long. He goes to dances and can dance in a manner which is about 10% of the way he use to dance before the accident. Otherwise, the plaintiff has friends to his residence, but not as much as he did before the accident.
The plaintiff no longer goes fishing or hunting, as he did before the accident.
The plaintiff has a piece of metal in his right eye lid, which causes him pain and, in the first year following the accident, it caused him double vision. The plaintiff's pain is "constant", "permanent", "24 hours" and located in the right side of his head, his neck and lower back. The plaintiff consumes tablets that were prescribed by Dr Benjamin for sleeping, but he only sleeps for two hours a night. The plaintiff does not have the same enjoyment of life as he did before the accident and does not think of things to do himself.
The regime of medical appointments is that the plaintiff sees Dr Benjamin every month, his family doctor every month and Dr Henry Lam every three months. The plaintiff's second wife comes every day to clean his house and to cook.
The plaintiff's son, David, continues to live with the plaintiff. The plaintiff's pain is not improving or ameliorating. The level of pain has not decreased since the period ending 12 months after the accident. The tablets for the pain do not relieve the pain 100 precent but ease some of the pain (about half).
In May 2009, the plaintiff was diagnosed with thyroid cancer and underwent an operation to remove his thyroid. Later he was treated with radiotherapy. As far as the plaintiff is aware, he is in remission.
In September 2011, the plaintiff was involved in a motor vehicle accident in which a car collided by running into the back of his car. The plaintiff was not admitted to hospital, but saw a doctor and physiotherapist. The motor accident caused the pain in his shoulder to worsen but it is now back to the same level as it was before that motor accident.
The plaintiff was cross-examined in relation to a number of matters, as would be expected. He was cross-examined, at first, concerning the accident in January 2006 at Hansen Yuncken and it was established that, at the time of the incident, the plaintiff was suffering pain in his hands, right shoulder and chest, but the plaintiff suffered increased pain in his left shoulder. He was cross-examined about the statement he had provided and explained that he did not include his wife and persons who assisted him as he had been asked only about gardening and not about cleaning.
He was cross-examined about a number of other incidents about which he had no memory, being incidents relating to his knee in May 1999 and again in 1 April 2000.
Nor did the plaintiff recall going to hospital in 2003, complaining of chest pains.
He was cross-examined about a car accident in 2004 and an injury suffered as a passenger in a motor vehicle accident in 1982.
He was further cross-examined about another incident in 2006 when, at Hansen Yuncken, he fell and hurt his right hand. The plaintiff said he continued to work after the fall and went to hospital later that day, but the plaintiff could not remember the date. The plaintiff said he had pain in his shoulder and trouble moving it in all directions, but went back to work the day following the accident and continued to work for several months until he was terminated by his then employer in May 2006. After the termination, he was off work for approximately 5 months, but was chasing work during that time and was doing housework and gardening at home. He did accept that he needed a break after 20 years in the construction industry.
While the plaintiff continued to have problems with his shoulder from May until September 2006, it at no stage stopped him from getting a job. Nevertheless, the plaintiff made a claim for workers' compensation on the basis that he could not work because of his shoulder and received weekly payments until he started working for the Employer.
The plaintiff was cross-examined about a GIO form (Exhibit 5, pages 447-450) in which the plaintiff identified his signature and handwriting in the box that contains his name and address and the name of his children, but states that the other handwriting on the form is not his. In his opinion, the handwriting was that of his first wife, whom, he said, he trusted to put down information that was true and correct.
The cross-examination continued to test the plaintiff's conduct in receiving payments for workers' compensation based upon information that was false. The cross-examination included reference to letters from solicitors in December 2006, a letter from GIO (see Exhibit 5, page 453-455 and page 446, respectively).
The car accident in 2011 was then the subject of cross-examination and the plaintiff described the accident as entering the M4 expressway when a vehicle collided into the rear of the car. He repeated the evidence that he had pain in his neck earlier but the accident made it worse. There was also an injury to right knee in the accident. But the plaintiff does not recall asking Dr Lam (to whom he was referred) to write any reports in relation to this accident and did not make any claim in relation to the accident.
The plaintiff was further cross-examined about a motor accident in February 2004, which the plaintiff could remember, but he could not remember what, if any, injuries he sustained as a result of the accident. Nor could he remember the circumstances of the accident, except that it occurred when another car hit the middle of his car.
The plaintiff was referred to Exhibit 5, page 387, being a document from Hansen Yuncken regarding the accident on 25 January 2006. The plaintiff stated that the handwriting is not his but one of the men with whom he was working. He cannot now remember who that person was.
The plaintiff was also cross examined about his knowledge of safety procedures and the level of induction that he had undertaken over the time, since 1987, that he had worked on construction. The plaintiff accepted that when he was on the Cringila site he was required to look out for hazards, work safety and to stay away from places where workers were not to go. Cross-examination occurred as to safety measures generally on building and or construction sites and the fact that there were areas on construction sites where safety procedures ought to be undertaken.
The cross-examination dealt with paragraph 22 and page 3 of the damages tender bundle, the work of Dr Radcliffe and whether he could remember what he had said to the doctors at the hospital in Wollongong. It continued onto the plaintiff's first trip to Macedonia in December 2008.
Cross-examination then referred to the plaintiff's second trip to Macedonia in December 2009. During the first trip, the plaintiff met the person who became his second wife, Lydia, and stayed with her on his second trip. During the first trip, the relationship was not an intimate one, but it became one during the second trip. The plaintiff maintained that his capacity to engage in sexual contact and "to make love" was not the same as it used to be before the accident.
On his return to Australia, the plaintiff bought another car and he was cross-examined about his driving, seeking to test his capacity to drive. The plaintiff made it clear that his son owned a Commodore, which was in the plaintiff's name, and that his son was driving it.
The plaintiff was cross-examined about consultations with specialists and what he told them and about the domestic arrangements before the accident and after the accident.
Next, the plaintiff was cross-examined about his capacity to perform work and the occasions when it was said he may have performed some work, including the moving of furniture when he moved houses, cooking, his capacity to operate a computer and an ATM.
Some issues of credit were put to the plaintiff, including whether he told his first wife what to say to the doctors, whether he was violent towards his first wife prior to the accident and at times when his son David was living with him.
In relation to credit, the plaintiff was shown a photo of Lydia and him dancing at a club in Rockdale in January 2012 (Exhibit 5, page 593-596), a photo on another occasion (Exhibit 5, page 610), at a Macedonian restaurant in Kogarah (Exhibit 5, page 605) in 2010 or 2011, at a Monastery in Wollongong to which the plaintiff and Lydia had driven and to which they go for Easter and Christmas, perhaps two or three times a year. The plaintiff also identified pictures of himself at a friend's house on 18 February 2012 (Exhibit 5, page 587-590) and conceded that he socialised with friends for four to five years after the accident.
The plaintiff also identified himself at page 577 of Exhibit 5 at a Christmas party in 2010 or 2011. He was also shown a picture at page 608 of Exhibit 5 at Brighton-Le-Sands and the plaintiff accepted that the photograph was an example of the social activities in which he engaged during the end of 2011, 2012 and 2013. Other occasions in which the plaintiff and his second wife were out on social occasions were shown (Exhibit 5, page 592, 581 & 586). The plaintiff conceded that he drove from time-to-time, that he attended Church located in Cabramatta or Liverpool four or five times per year and that he drove there.
The plaintiff was shown a number of pieces of video footage, being of his presence at the Commonwealth Bank at Centro Bankstown; his moving of house from Yagoona (Bankstown) to Brighton-Le-Sands; which consisted of a number of parts. The video footage showed the plaintiff at the Commonwealth Bank and able to operate an ATM. He stood for the time that the video was playing and, during the duration of that part of the video only touched his face once.
In the video footage of the plaintiff moving house from Yagoona/ Bankstown to Brighton-Le-Sands, he moved furniture and there are photographs of the plaintiff loading a boot of a car from a trolley after shopping.
The first film, approximately 20 minutes in length, did not show the plaintiff rubbing his face except perhaps a couple of times. During the course of the evidence otherwise given, the plaintiff continually rubbed his right forehead, his face between his lips and his nose and his right hand cheek. He was also quite voluble in the giving of evidence.
In the second film, the plaintiff was moving house and lifting what, on the film, seems like quite light objects. He wheeled a BBQ and trolley but could not lift an esky (see the film at 9.32am). He was seen carrying a suitcase, which, from the film itself, seems to have been empty and light.
The third film was taken on 30 March 2015 and was extracts from various times during the course of the day. During the course of the film the plaintiff can be seen moving a picnic trestle table, which I infer was not heavy. During the course of this film he was touching his face from time to time. At some points, during the course of the film, he was driving a car and alighted from the car.
Following the cross-examination in relation to the film, the plaintiff was cross-examined on monies received and cash deposits. He was also cross-examined on the truthfulness of his tax returns in 2008, 2009, 2012, 2013 and 2014 and the fact that, during each of those years or in the tax returns for each of those years, expenses were claimed relating to work, being clothing and other work expenses. Nevertheless, it seems, on the plaintiff's evidence that he did not complete the tax return and the amounts were claimed for the same items in each year.
The plaintiff was cross-examined about attendance at places, namely catered functions, at which it was suggested, or about which he was asked, as to whether they were work places. He was also asked about certain social events and the possibility that he was working or capable of working. The plaintiff denied that he brought food from the kitchen to the tables; brought plates from the tables to the kitchen; placed chairs around the tables; stacked chairs; cleaned tables and moved them to the side of the room. The plaintiff stated, in relation to each of the two social events about which he was asked, that he was a visitor at both functions. Nevertheless, the plaintiff did accept that he was capable of bringing a plate from a kitchen to a table and vice versa.
The cross-examination was thorough and competent. Nevertheless, apart from issues associated with claiming work expenses of a very small amount on his tax returns and the claiming of workers' compensation benefits, an explanation for which he gave during the course of the testimony, the plaintiff generally showed himself to be truthful.
Some aspects of the answers that the plaintiff gave were clearly understated and other aspects, particularly those relating to symptoms, and injuries were the subject of testimony and treated as "matter of fact". In other words, at least in relation to the demeanour of the witness and his appearance, it did not seem that the witness was exaggerating as he testified about the issues in question. The plaintiff was very fidgety during the course of giving evidence and, as earlier noted, rubbed his face on a number of occasions.
The plaintiff openly admitted other accidents while working in the construction industry and in motor vehicles. Nevertheless, it was not disputed that, following such incidents, the plaintiff continued to work.
During re-examination the plaintiff explained that he experiences pain 24 hours a day (a matter to which he testified in chief). He puts his hand to his face "to feel more comfortable" as it helps him with the pain. The worst pain that he feels is in his head, but he also feels pain in his neck and lower back.
The plaintiff openly admitted that he can lift items up to about four to five kilograms and that the pain is relieved about 50 precent when he takes pain killer and he can, at that point, do more work or activities than otherwise he is capable of performing.
The plaintiff has metal in his head and a small wire in his eyeball. The wire is a fragment of the metal that hit him at the time of the accident. The plaintiff does not feel the wire, although it caused him to have double vision for approximately 12 months, which has since stopped, but he now has pain in his eye.
Further, the plaintiff attested to the fact that he has driven to Newcastle once or twice; to Canberra a couple of times; to Melbourne twice and to Wollongong a number of times, but not often. On each occasion, the plaintiff did not drive there alone and swapped driving with someone else during the trip.
The evidence also established that the medication consumed by Mr Bosevski was the reason the RTA took away his heavy vehicle licence.
The foregoing evidence was adduced over a period of days and, on one or more occasions, after the interposing of other witnesses. The interposition of other witnesses was occasioned by availability and implemented so that Court time would not, otherwise, be wasted.

[8]

Lidija (Lydia) Bosevski

As earlier stated, Lydia (spelt alternatively as Lidija) is the person earlier referred to as the plaintiff's second wife and was born on 30 September 1971 in Macedonia. Her residential address was provided and it is a different address from that of the plaintiff. They were introduced or met through the plaintiff's sister in Macedonia in or about December 2008, formed a romantic relationship (but not an intimate one) and in April 2009 the plaintiff returned to Australia.
After the plaintiff returned to Australia in 2009, Ms Bosevski and the plaintiff communicated by Skype "day and night non-stop".
The first visit that Ms Bosevski had to Australia was shortly after April 2009 and, at that time, she noticed the plaintiff "touching his head, rubbing his head, little movements with his mouth and redness on his face". Ms Bosevski stayed at Green Valley for approximately one month, with the plaintiff, his son Michael and daughter-in-law, Melina. During this time, the witness formed an intimate relationship with the plaintiff. During the stay, the witness did not see Melina's mother do any housework. The witness did notice the plaintiff could not sleep at night; experienced headaches and lower back, jaw and teeth pain. Ms Bosevski returned to Macedonia, but continued a romantic relationship with the plaintiff, presumably by Skype.
Ms Bosevski returned to Australia in August 2010. She cannot remember the suburb name where she was residing, but she stayed for approximately one month with Melina's mother, Melina, Michael and Alex. From other evidence the Court understands the address was in Glenfield. Ms Bosevski took over duties in the house such as cooking, cleaning and the like. She resumed an intimate relationship with the plaintiff, whereupon the plaintiff's son gave him an ultimatum and the plaintiff chose to live with Ms Bosevski. They moved to Bankstown.
Ms Bosevski and the plaintiff married on 27 October 2010. Ms Bosevski was required to return to Macedonia approximately one week after the marriage, because of issues with her visa. Ms Bosevski has two children from a previous marriage (a 21 year old and a 15 year old). On her return to Macedonia, Ms Bosevski made application to migrate to Australia.
Once the visa was granted, Ms Bosevski moved to Australia with her two children and arrived on 27 August 2011. They lived with the plaintiff and the plaintiff's son (Michael) and two children at Yagoona.
Mr and Ms Bosevski lived at Yagoona until August 2014 and, for the period between August 2011 and August 2014, Ms Bosevski did the "washing, ironing, cleaning, cooking … taking care of him [Mr Bosevski] paying bills (and) paying rent". The plaintiff did no housework during that time.
The proposition, asked in chief and later put in cross-examination, that the plaintiff would make his own breakfast, lunch, dinner or perform his own cleaning, caused Ms Bosevski to chuckle. Ms Bosevski was a very emphatic and believable witness, whom I believe. She described in detail the physical appearance of the plaintiff when he had to live without assistance and the state of the house.
Ms Bosevski testified to observing the plaintiff during 2011 to 2014 and his obvious problem with his lower back; other pain; irritability; and his argumentative character (particularly if driving, but even as a passenger).
Ms Bosevski paid the bills with the plaintiff as he knew English. She observed that the plaintiff's memory was quite poor and he could not remember how much money he had in the bank or the time of appointments.
Ms Bosevski said she had observed the plaintiff becoming irritable in traffic situations. She gave an example of him never wanting to allow a person into a traffic line, were he driving, arguing with people including other drivers and of her having to intervene, on many occasions, and alight the car to pull the plaintiff back, so that he did not argue with people. Likewise, when he is shopping, "he would argue with older people regarding the disability parking area".
Ms Bosevski denied that the plaintiff ever hit or physically hurt her or either of her sons. Nevertheless, she considered that the plaintiff was "hard on her sons" and would disown them, exclaiming that he "was not their father", "not responsible to feed them" and they would obstruct him when he was seeking to go about his own matters.
Ms Bosevski moved to a new residential address (in or about August 2014) because of the foregoing disagreement between the plaintiff and her children. For two weeks immediately following that move, the plaintiff and Ms Bosevski did not see each other. After that, Ms Bosevski would go to the plaintiff's house three to four times per week and wash, clean and cook for the plaintiff. Further, the plaintiff would visit Ms Bosevski at her house.
When Ms Bosevski first returned to the plaintiff, after the two-week period to which the Court earlier referred, she noticed the physical changes in the plaintiff. He was quite skinny in the face; quite "disappointed of things"; the home was a mess; the home had not been dusted or vacuumed; and the sink was full of dishes. The visits that Ms Bosevski undertakes to the plaintiff's house, as earlier stated, occur between three and four times per week and are for up to four to six hours on each occasion.
Ms Bosevski and the plaintiff signed a pre-nuptial agreement and the plaintiff has trust issues. There was a joint account between them for $45,000 at the Commonwealth Bank at Centro Shopping Centre in Bankstown in or about February 2014.
The testimony of Ms Bosevski was that she continues to observe the plaintiff's irritability and pain, but notices that the irritability and pain improve on social occasions, when the plaintiff is more distracted.
In cross-examination the witness was questioned about the beginning of her relationship with the plaintiff and the times that the plaintiff was driving or was observed to be driving by Ms Bosevski. Ms Bosevski was picked up at the airport by the plaintiff, his son, Michael, and Michael's wife. Michael drove the car from the airport. Ms Bosevski conceded that she witnessed the plaintiff driving from time-to-time, but mostly the driving was done by another person, either Michael or the daughter-in-law. In cross-examination, Ms Bosevski gave evidence relating to a trip to Sydney with Michael and Melina and Michael's in-laws to see the beaches and to Kiama to see the blow hole. Ms Bosevski observed that the plaintiff was not able to stand long on his feet; cannot sweep; cannot dust; cannot cook, but can take food from the fridge. It was suggested to her that the plaintiff was more capable than she had described, which the witness denied.
Ms Bosevski denied discussing with his first wife, when she met her, her sexual relationship with the plaintiff and denied telling his first wife that she walked in the mountains with the plaintiff, making love "in the nature".
Ms Bosevski was examined about trips to Wollongong and/or Kiama and a trip to Melbourne. The witness gave evidence that she and the plaintiff went two to three times per year to the Monastery and has been to Kiama with friends. Ms Bosevski has been to Melbourne twice with the plaintiff at which time the plaintiff, Ms Bosevski and the plaintiff's son drove. Ms Bosevski has not worked since coming to Australia as she has been looking after the plaintiff 24 hours per day. Since August 2014, Ms Bosevski has applied for Newstart from Centrelink.
On questioning in relation to money, Ms Bosevski stated that the plaintiff withdrew money from his account and would add it to Ms Bosevski's bank account.
When Ms Bosevski returned to Australia with her two sons, they lived in a unit with the plaintiff and his son, David. David did his own cooking and cleaning, while Ms Bosevski would cook and clean for everyone in the household, which I understood to mean in a general sense.
The plaintiff drove to his doctors' appointments, to the shops and to the groceries and was observed so doing by the witness. The witness did not have a driver's licence until 2013 after which time she did all of the driving for the plaintiff. Again, I took the term "all of the driving" in the manner in which it was expressed not to indicate that the plaintiff never drove. Rather, that it was unusual for the plaintiff to drive.
The cross-examination of Ms Bosevski as to the plaintiff's capacity to stand occasioned the testimony from Ms Bosevski that the plaintiff, generally, stood on his feet for 10-15 minutes at the most. There was also cross-examination about the witness' relationship with Mr Vallari, a solicitor who gave the plaintiff advice on a pre-nuptial agreement.
As to the relationship between Ms Bosevski's sons and the plaintiff, Ms Bosevski said that the plaintiff did not physically hurt either of her sons. The police were called to the house on 27 July 2014 and, after a suggestion was put to her, the witness denied that the plaintiff grabbed her eldest son by the neck and continued to hold him. Ms Bosevski had asked her children to call the police and she went to the neighbour's house.
The evidence of Ms Bosevski was that the plaintiff went to the police station after the incident and she had not requested an Apprehended Violence Order ("Avopiling") against the plaintiff. An AVO was issued for two weeks, because of the verbal disagreement, about which the questions had been asked. During that time, Ms Bosevski did not see the plaintiff and she, with her two children, moved out of the unit. Ms Bosevski attended court and expressed the view that she did not want or seek the AVO. When all of that occurred, the plaintiff was living in Meredith Street, Bankstown and thereafter in March 2015, the plaintiff moved to Brighton-Le-Sands.
The plaintiff sees Ms Bosevski every day. Ms Bosevski goes to the plaintiff's house to do the cleaning, washing, ironing etc. for approximately two-three days per week and, otherwise, the plaintiff spends most of his time at the witness' house. In Ms Bosevski's observation, the plaintiff is less irritable on social occasions, at least in the period extending over the six months leading up to the time that the evidence was adduced.
In answer to a number of suggestions, Ms Bosevski denied going to Greece with the plaintiff but agreed that she visited coffee shops, dances, the Church and other social functions at clubs with him. Further, the witness has not seen the plaintiff use the computer or internet, but has seen him use an iPad. He rarely, if ever, uses Facebook. In Macedonia, the plaintiff's sister has a sweet shop, but Ms Bosevski denied having ever seen the plaintiff drive or make deliveries either for that sweet shop or otherwise, and there would be no need to do so, because taxis are very inexpensive in Macedonia.
The cross-examination then turned to the attendance by the plaintiff at a Christmas party at Superior Paper in Kogarah. Ms Bosevski testified that she (and the plaintiff) had been to coffee, as friends, with the owners of the establishment and she was unaware (and denied) that the plaintiff worked at the premises. The event was a Christmas Party. Ms Bosevski agreed that David Bosevski (the plaintiff's son) was employed at the premises.
Cross-examination occurred as to the physical condition and capacity of the plaintiff at Brighton-Le-Sands. Ms Bosevski agreed that she and the plaintiff had engaged in intimate relations at Brighton-Le-Sands, but denied observing the plaintiff, in those premises, making his own breakfast or lunch. The witness does not know about dinner, but does know that he does not clean and she certainly has not seen him clean the premises.
Ms Bosevski spends up to five to six hours per day doing domestic chores at the plaintiff's house at Brighton-Le-Sands. During that time she uses a vacuum cleaner, engages in dusting, cleans the shower and bathroom and general cleaning duties. The premises consist of two bedrooms, one bathroom and a kitchen connected to the living room. The plaintiff's son, David, sleeps in the bedroom next to the balcony. There are no steps within the unit. When preparing meals, Ms Bosevski prepares the meals for herself, the plaintiff and the plaintiff's son. The washing machine and drier are operated by buttons.
In re-examination, Ms Bosevski explained that she invited the plaintiff's first wife for coffee. Ms Bosevski described the relationship between her and the plaintiff's first wife and what Ms Bosevski says was said at the coffee shop. The relationship was so antagonistic that the plaintiff's first wife, at a function which they both attended, pulled Ms Bosevski's dress off her shoulder and chest region in front of 300 people, in circumstances where Ms Bosevski had, to the knowledge of the first wife, breast cancer and a partial mastectomy.
Ms Bosevski asserted that the relationship between her and the plaintiff's first wife was toxic and Ms Bosevski did not and would not discuss her and the plaintiff's intimate relationship with the first wife.

[9]

David Bosevski

David Bosevski is the plaintiff's son and, at the time of giving evidence, lived with his father in Brighton-Le-Sands. The witness grew up living with his parents, being the plaintiff and the plaintiff's first wife. Before September 2006, the plaintiff did "general house-keeping", such as "maybe cook" and "clean sometimes", as well as mow the lawn, gardening and odd maintenance jobs. He built a pergola.
Before September 2006, the plaintiff's first wife did most of the cooking and cleaning. The plaintiff's marriage with his first wife was, as the witness perceived it, "good". David Bosevski never saw the plaintiff hit or be violent towards his mother.
When the plaintiff was in Wollongong Hospital, after the accident in September 2006, David Bosevski visited him at the same time as his mother did. His mother, the plaintiff's first wife, was "shocked", when she saw the plaintiff. The plaintiff was in hospital "a while" but David Bosevski did not remember the exact dates.
When the plaintiff returned from hospital to the home in Hinchinbrook, the plaintiff "just wasn't the same" "personality-wise" and he "wasn't being himself".
After September 2006, the plaintiff could not do things that he used to do before the accident, such as work. In particular, David did not see his father do any work in the garden. Rather, Tony, his brother, mowed the lawn. The plaintiff's first wife, David's mother, did all of the work inside the home.
David Bosevski also noticed that after September 2006 the plaintiff and the plaintiff's first wife "weren't getting along", but doesn't remember any fights between them. When the plaintiff and his first wife separated, David lived with the plaintiff in Casula and has been living "on and off" with the plaintiff, the plaintiff's first wife or his brother.
The reason that David Bosevski has been required to move addresses is because the plaintiff sometimes has "mood swings" and becomes "really aggravated". The plaintiff was not like that before the accident. Despite these mood swings, David returned to live with his father because he loves him and "deep down, he's a good bloke".
Over the periods, David Bosevski lived with his father in Casula, Green Valley, Yagoona and Brighton-Le-Sands. He did not live with his father at Glenfield. Between 2011 and March 2015, David Bosevski moved out of the home a few times and then returned, from time-to-time.
Since the time that David Bosevski has lived with the plaintiff and his second wife, the plaintiff's second wife does the cooking and cleaning. The plaintiff does "not much" in the house. Since the plaintiff's second wife moved out of the house, she still returns to their house to cook and to clean.
David Bosevski describes his father as "depressed" and testifies that he was not in that condition before September 2006. David believes his father is depressed because he cannot do anything, such as work. He also relates it to the father being "constantly at home" and unable to do the things he used to do or to live a normal life.
In cross-examination, David was asked questions in relation to his attendance at TAFE, when he attended and how he travelled to and from school and/or TAFE. Part of the answer was the witness did a course in spray painting and was currently studying plumbing, but could not remember the length of time between finishing school and starting TAFE. David obtained his driver's licence when he was 17; lost his licence several times; but does not remember how many.
Before he had a driver's licence, David travelled to and from TAFE by public transport; then his friend started to drive him. David never drove to TAFE nor was he ever driven by his father.
While the plaintiff has driven David since 2006, he does not recall him driving him to TAFE or work. Nor does David remember his father driving him to Wollongong, staying overnight in Wollongong and going back to Sydney. He, further, does not remember his mother staying in Wollongong immediately after the accident in September 2006.
There were a number of matters of detail which David Bosevski could not recall. For example, David could not recall how long his father was in hospital in Liverpool; whether he was still at school when he returned from Liverpool Hospital; whether he was working when he returned from Liverpool Hospital; nor which home they were living in at the time (although he does remember that he was living at home with his father).
David does not remember whether his mother was living at the family home through the whole of that time; or whether she left the family home for some of that time; whether Michael was living in the family home during all of that time or his other brother Tony was in the home during all of that time.
David also did not remember whether his father had injured his shoulder in an accident in January 2006; seeing doctors as a result of any such accident or because of difficulties with his shoulders; whether his father was working in January 2006; whether he was working during any part of the first half of 2006; where he was working at any time, including August or September 2006. He also could not remember whether his mother and father were having difficulties in their relationship prior to September 2006, as far as he could observe it.
Nevertheless and despite his lack of recollection of details, he could remember that the mood swings started after the accident and that his father did not have them before the accident and, having been reminded that the accident was in September 2006, he still could not recall whether his mother and father ever had disputes.
The witness does not remember dates or details, but has an overall memory of major aspects. While he does not remember the dates upon which he lived with his father, he does remember that his father was living in Yagoona at all times when David was. He also remembers living with his father's second wife and her two children.
There was further cross-examination about riding a motorbike, which, it seems, went to credit. It is difficult to apprehend any other basis for it. Nevertheless he rode a motorbike and a car, eventually selling the motorbike. He sat on, revved up and otherwise toyed with his brother's motorbike, but did not take it on the road and had not ridden a motorbike in 2015.
Notwithstanding his ability to drive, David remembers his father driving him in the last three years, but doesn't recall where to or where from. David Bosevski has never been to a social function with the plaintiff and his second wife. Nor has he travelled outside of Sydney with them. He did travel to Macedonia with his mother at a time since 2006, but does not remember whether the plaintiff was with them or for how long they were overseas.
The witness also gave evidence as to the times he was absent from his premises. The witness also attested to the fact that since he has worked at Mario Trailers, doing spray painting, his father has, occasionally, driven the witness to work and then "hung out" with the owner.
In answer to a proposition that there has been no change in the plaintiff's behaviour since the accident in September 2006, David Bosevski responded "That's a lie. Obviously it has caused a change … it's caused a very big change". I accept the witness, except as to dates and despite his seeming and understandable reluctance to get involved in what must have seemed to him to be a dispute between his parents.

[10]

Helen Galagas

Ms Galagas runs a transport company with her husband and met the plaintiff in the 1990s at a mutual friend's barbeque. Her husband had met him earlier on a job site. They became family friends and visited each other's houses and went on social outings together.
One year or so before September 2006, Ms Galagas met with the plaintiff about once per week, sometimes more frequently. They would meet up for social occasions, including birthdays and anniversaries.
When they saw each other, the plaintiff was with his family, including his first wife, his three children and sometimes his extended family. On such occasions, Ms Galagas would spend a few hours in the company of the plaintiff and his first wife. She described them and their relationship as "amicable, friendly, socially very good".
Ms Galagas never saw the plaintiff behave in an aggressive manner to his first wife. She did observe that the plaintiff and his first wife had conversations together (sometimes private conversations, seemingly intimate) and often exchanges of affection. Sometimes they disagreed, but not often.
Ms Galagas went to see the plaintiff at Liverpool Hospital. She had spoken to his first wife on the phone, prior to arriving at the hospital. The first wife seemed "concerned" and "upset" and was "attentive" to the plaintiff. She described the reaction as "normal, in the circumstances".
Ms Galagas saw the plaintiff after he had been discharged, at his home in Hinchinbrook. He was not feeling well and was not as "lucid" as he had been before the accident.
For the rest of 2006, Ms Galagas continued to visit the plaintiff at his home around once per month and observed that his condition improved. He was sleeping on the ground floor in the living room, where a recliner chair had been placed after the accident. The chair had not been there before the accident. The plaintiff complained to Ms Galagas that he was suffering a lot of pain and he had difficulty remembering things.
Ms Galagas continued to see the plaintiff throughout 2007 and 2008. She observed that the plaintiff was "agitated" and "short-tempered" and that his first wife was "distant". Ms Galagas had not observed the plaintiff (or his first wife) acting in that way prior to the accident.
The plaintiff separated from his first wife and moved out of their shared accommodation. Ms Galagas has continued to see the plaintiff after his separation until the time of giving evidence.
During that time, the plaintiff complained to her of "intensive headaches", pain in his back and the need to have medication and a pain-management contraption. The plaintiff had told Ms Galagas that everything in his life had changed because of his pain and that he had found it difficult to do things.
Ms Galagas also noticed that the plaintiff's memory was not as good as it used to be. Things that the plaintiff used to recall very quickly, such as historical events and facts relating to the area of Greece, for example, he would have to stop and think about. The plaintiff also does not accept opposing views to his own, as well as he did before the accident.
Since the accident, the plaintiff, according to Ms Galagas, continues to rub his head and face and rubs it more when he is agitated and less when he is relaxed or distracted. The plaintiff, according to the witness, is more short-tempered and becomes agitated over minute issues.
Ms Galagas testified that, before the accident, the plaintiff was a very attentive host, when she visited him at his home, he would "do everything: cooking, getting out everything". Since the accident, according to Ms Galagas, the plaintiff barely attends to peoples' drinks and his second wife does everything.
During cross-examination, Ms Galagas accepted that, during the period that her business was being established, they saw their friends less regularly, but once it settled, they returned to their ordinary routine of social outings. The witness' business increased significantly between 2005 and 2007 and settled to the current level in approximately 2012.
Ms Galagas has never stayed at the plaintiff's home overnight, either before or after the accident in September 2006. As a consequence, Ms Galagas is unable to say whether the sofa in the lounge room was the same as that which was there before September 2006 and could not say whether the lounge was able to be converted into a sleeping facility. The witness volunteered that the plaintiff's first wife changed the look of the furniture several times.
When asked about the relationship between the plaintiff and his first wife and whether she had ever witnessed them disagreeing in public, Ms Galagas said, in answer to certain propositions in cross-examination, that she recalled having dinner with the plaintiff and his first wife at a restaurant in Rockdale at which they had a disagreement. She does not recall the plaintiff threatening to harm his wife or his first wife ever commenting that she was fearful of the plaintiff, at that time. The first wife did remark to Ms Galagas that she was "not feeling happy about their relationship", but that was the only time that the first wife had said anything of the kind.
Ms Galagas testified that when the plaintiff separated from his first wife, the first wife went to live in a refuge and, when she returned, the plaintiff moved out of their home. Between 2007 and 2008, the first wife went overseas and, when she returned to Australia, there were problems. The difficulties seemed to be based on the conduct of the first wife while overseas.
Ms Galagas could not remember whether, from the point of return to Australia, the first wife lived in a different house from the plaintiff. Ms Galagas observed that the plaintiff's relationship with his second wife gives the plaintiff a feeling of satisfaction and warmth, but there is some stress with the children of the second wife.
Next, Ms Galagas was cross-examined about the plaintiff's level of agitation and Ms Galagas said that she had observed that the plaintiff's agitation depended upon the situation at the time. Ms Galagas disagreed with the proposition that the plaintiff is more relaxed now than he was shortly after the accident in September 2006. That observation seemed to be based upon the proposition that the witness had observed the plaintiff becoming agitated, still, for trivial reasons.
Further, prior to the accident in 2006, the plaintiff used to cook for himself and his first wife. Indeed, according to Ms Galagas, his first wife boasted to Ms Galagas that she, the first wife, did not cook.
Ms Galagas socialised with the plaintiff last Friday and the plaintiff has driven the witness on more than one occasion since 2006, including a drive around Sydney and twice to Wollongong.
In re-examination, Ms Galagas testified that, prior the accident in September 2006, the plaintiff and his first wife slept upstairs in the master bedroom. After September 2006, according to the information provided to her at the time by the plaintiff, the plaintiff was sleeping downstairs on the recliner lounge, which had been set up with pillows and blankets. This had not been the situation before that time.
The witness also clarified that when the first wife went to live at the refuge, she informed Ms Galagas that she was scared to go home, because the plaintiff was accusing her of having an affair in Macedonia.
Ms Galagas was, in every sense, a witness of truth and gave reliable evidence. She denied that the plaintiff had, in her presence, slapped his wife in public prior to September 2006 and the witness displayed herself in a way which made clear that she was neither exaggerating the plaintiff's incapacity nor minimising the issues associated between the plaintiff and his first wife and his conduct prior to the accident in 2006. Ms Galagas accepted that the plaintiff was "slightly" more relaxed, but did so in a manner that made it clear that the improvement was minimal. I accept her evidence fully. No lay witnesses, other than those described above, were called in the plaintiff's case.

[11]

Fanula Mufovska

Fanula Mufovska, the plaintiff's first wife, was born in Macedonia and moved to Australia after completing the second year of primary school. She married the plaintiff when she was 20. It was a marriage arranged by her brother's friends and she married three months after first meeting the plaintiff. She married in May and had her first child, Tony, by the end of that year.
Ms Mufovska returned to Macedonia approximately six or seven months after the birth of Tony, according to her, "to protect" him and she stayed there for a few months. She returned to Australia alone and continued to live with the plaintiff at Marrickville/Stanmore.
Ms Mufovska's second son, Michael, was born in 1987. Tony returned to Australia after Michael's birth. The witness' third son, David, was born in 1992.
About one year after David's birth, the family moved to Green Valley. The house in Green Valley was on one level and had four bedrooms. The plaintiff slept alone in one of those bedrooms and, according to Ms Mufovska, she slept in another bedroom with David. Tony and Michael each had their own bedroom.
Ms Mufovska gave evidence that she slept in a separate bedroom because the plaintiff was "very aggressive" and would hit her. She was scared that the same thing that had happened to Tony would happen to David. According to the witness, the plaintiff hit her every day from the beginning of their marriage until their separation. The plaintiff, she said, would hit her on her head or stomach, pull her hair, use knives, stapler guns or other objects, such as salami or bread.
The plaintiff, the witness said, forced himself on her in order to have sex. At the time, they were living in Green Valley and the plaintiff would force himself on Ms Mufovska two or three times per week. When the family moved to Hinchinbrook, around the time of the Sydney Olympics, the plaintiff slept downstairs in the lounge room on a bed/recliner. The bed was not a foldaway bed.
Ms Mufovska would keep her bedroom door closed, but the plaintiff would push or punch it. Indeed, according to the witness, the plaintiff would use "his fist to break the door and, in that house, there's four places that he has broken the door".
There were a number of questions addressed to the witness in chief relating to the sleeping arrangements prior to the accident in September 2006. The answers to those questions are confused. In that I do not blame the witness.
It is clear that the witness intended to give evidence that, in this respect, she slept in the bedroom with her son David and that the plaintiff would punch the door, break the door or bang on the door and force his way in and, on her version, force her to have sex with him.
As I understand the purpose of the questioning, this material goes to the level of aggression displayed by the plaintiff before the accident in September 2006.
At Hinchinbrook, prior to the accident in September 2006, Ms Mufovska only cooked for herself and for the children. According to Ms Mufovska, the plaintiff, cooked for himself and, it seems, did some of the cooking for her and the children. According to Ms Mufovska, the plaintiff also cooked barbeques, casseroles, made some pastries and the like. It seems, from the witness' demeanour and the manner in which she answered the questions, that the witness understood she was to give examples of the kind of food that the plaintiff cooked, although the questions were directed to the amount of cooking and for whom it was undertaken.
Further, in examination-in-chief, Ms Mufovska, testified that the plaintiff mowed the lawn and, it seems, did other work around the house, including cleaning the yard, while she cleaned within the house. Ms Mufovska gave evidence that, immediately after the accident, she and her sons visited the plaintiff in hospital at Wollongong and she stayed in or around Wollongong for a number of days.
The witness returned to Hinchinbrook before the plaintiff, who arrived, stayed for a short time and then was admitted to Liverpool Hospital. When the plaintiff returned from Liverpool Hospital, according to her testimony, the witness went overseas and "never came back". That term was a reference to returning to the house at Hinchinbrook. The witness, Ms Mufovska, was overseas for approximately three months.
Notwithstanding the evidence as to the shortness of the time in which Ms Mufovska and the plaintiff lived at Hinchinbrook after his discharge from Liverpool Hospital, Ms Mufovska testified that both she and the plaintiff cleaned the house and, in the case of the plaintiff, inside the house, the plaintiff would, according to Ms Mufovska, clean the sheets and change the bed linen, make his bed and cook his own meals.
Outside the house he would, as he did before, mow the lawn and clean the yard, including edging and trimming the trees. Further, the plaintiff would cook for the children (as would Ms Mufovska) and the plaintiff slept downstairs in the living room. All of this, it seems, is said to have occurred immediately after discharge from hospital.
Moreover, according to Ms Mufovska, she would attend on one or more doctors with the plaintiff because the plaintiff would force her to attend. The evidence of Ms Mufovska was that the plaintiff would throw cutlery and crockery and cooking utensils at her. The plaintiff, she said, drove her to the doctors' appointments.
Ms Mufovska also gave evidence to the effect that when the plaintiff visited a psychiatrist in Parramatta he exaggerated the rubbing of his face, his lack of memory and his inability to sit or stand for any length of time.
The questioning in chief then turned to the operation of bank accounts and the evidence of Ms Mufovska was that she operated her own bank account, depositing and withdrawing money and that she did not, between the time she moved to Hinchinbrook until the time of the accident, operate the mortgage account, or mortgage accounts, by withdrawing or depositing moneys. Nor, according to the evidence-in-chief of the witness, did she operate any bank account which was only in her husband's name.
Further, she testified that following the accident in September 2006 there was no change in the situation relating to bank accounts in only her husband's name and she did not deposit or withdraw monies from those accounts. The plaintiff, according to Ms Mufovska, was able to concentrate and his concentration was good. There was no change in his capacity to concentrate following the accident in September 2006. Nor was there any alteration in the plaintiff's memory.
The evidence of Ms Mufovska then concerned an occasion, approximately three years before, when she attended the church at Cabramatta on St Nicholas Day and she saw the plaintiff "go to the storerooms and grab a big table - those tables can seat ten to twelve people - and he rolled it and put it on the floor, took the legs out and turned it upside down and he was doing that to all the tables. And then he went back and got the chairs and put chairs around the table." (Transcript, 27 April 2015 at 680).
After performing those functions, according to Ms Mufovska, the plaintiff lifted the table and placed it on the floor (the legs having been straightened while the table was lying, top down, on the floor). These tasks the plaintiff was, according to Ms Mufovska, performing by himself. At this function, the plaintiff also cleared the table by taking in plates and served the tables, at least for the first course.
During the examination-in-chief, the witness was keen to give evidence that she considered was desired by the questioner and which would hurt her husband's case. She testified that she and the plaintiff went to restaurants, went shopping, and went to doctors' appointments. Ms Mufovska gave evidence that her husband threatened her if she did not cooperate and corroborate that which he was saying to the doctors, that she was scared at that point and even today.
Ms Mufovska gave evidence that she met Lidija (Lydia), who became the plaintiff's second wife, in Macedonia when she went there on holidays. Ms Mufovska testified that she and Lidija had a conversation about Lidija giving Ms Mufovska keys to the plaintiff's father's property, which Lidija refused. In the course of the conversation, according to Ms Mufovska, Lidija suggested that the plaintiff did everything for Lidija; treated her like a queen; that they made love in the kitchen; outdoors; in the mountains; that he lifts her up on to the stage when they go out so she can take photographs with the singers.
During cross-examination, Mr Toomey QC commenced questioning on the allegation that the plaintiff dragged Ms Mufovska by the hair to the car in order to force her to go shopping and to doctors' appointments. In the course of that cross-examination, the witness embellished the account in a way that suggested that clumps of hair were pulled out of her head and the dragging occurred on a public street with houses and people around or possibly around. The witness seemed not to want to answer the questions and protested that she could not hear Mr Toomey's questions, because he spoke more softly than her counsel. That was inconsistent with the volume in the Courtroom, as I observed it.
It was put to the witness that she was giving evidence in order to prevent her husband from recovering any money, which she denied. Instead, she maintained that she was giving evidence "because people who are sick, who are on wheelchair, who have cancers, who have really hurt themselves, should be paid out. … [The plaintiff] is very healthy and he can work." (Transcript, 27 April 2015, 686).
The witness has, herself, been taking photographs of the plaintiff since 2010 and sending them to the insurance company. She has also asked her friends to do likewise, whenever the friends see the plaintiff. Nevertheless, and notwithstanding the apparent significance of the lifting of the tables (described as weighing 20kg), no photograph was taken of this event. It occurred after 2010. Further, the witness had the means and opportunity to take the photographs, because she was in possession of her mobile phone which had the facility to take pictures.
The witness volunteered a reason for the work at the Church function being that the plaintiff was working for the catering company. This proposition was not one put to the plaintiff during the course of his cross-examination and I infer, not a suggestion given to the defendant's legal representatives before the evidence during the proceedings.
The function was a Church organised function, open to the public, in which free food was given out on Saint Nicholas Day. Notwithstanding the limited number of people said to have attended, on the evidence of Ms Mufovska, it seems the people that she identified were only some of the attendees and there were many persons who attended the function. No other person, including the principal of the caterer, the identity of which was known to the witness and, it seems, the defendant, were called to give evidence of the "work" performed, on Ms Mufovska's evidence, by the plaintiff and his second wife.
The cross-examination then asked about the sending of accusations to the insurance company by Ms Mufovska regarding the plaintiff to which the witness responded that she was not sure and in the very next question agreed that she had sent a large number of complaints. The difference may have been because the first question involved a date (2010), but the manner of the asking of the question and the answer to the question did not bear that out.
The witness agreed that the allegations and complaints accused the plaintiff of fraud in a very large number of different ways. The witness gave evidence that to her "fraud is very bad and … shouldn't be done because you should be truthful to yourself and then to everyone around you and fraud is very bad. It's like stealing. It's lying. That's how [she] sees it." (Transcript, 27 April 2015 at 692). When asked whether she never lied, she responded that she lied to her children, but no one else.
The cross-examination and answers then disclosed that the witness, Ms Mufovska, had obtained a disability pension in circumstances where she was not entitled to do so and in circumstances where, on any reasonable view of it, she realised she was not entitled to receive it despite her giving evidence that she doesn't like people "cheating the Government", and that she separated from her husband in 2008. Further, during the questioning and resistance to the questioning, she accused her husband of "trying to kill her" in a car accident.
The nature of the evidence given during cross-examination by Ms Mufovska, including the demeanour, and the events to which she testified, for the first time during oral evidence, despite the existence of many statements and complaints, are such that I have little doubt that Ms Mufovska dissembled and fabricated evidence.
The witness is, in my view, both as to demeanour and the evidence that was given, mendacious. She gave evidence that she was hit and bruised and that she complained about these bruises and the violence of her husband to her doctor (Dr Sido). Dr Sido still practices medicine in Sydney and was not called.
The witness prevaricated, even about whether her husband was in the car when she alleges he was trying to kill her by having an accident. Ms Mufovska then said the accident occurred because her husband was drunk and, in cross-examination, admitted that the plaintiff neither drank nor smoked.
After prevaricating for some time, it became clear that Ms Mufovska, despite her comments on "fraud", claimed social security benefits from 1993 on the basis that she was a single parent. Not only did she claim the benefits, she was aware that she had claimed the benefits at the time that she was earlier questioned and was prevaricating. At the time she was claiming single parent benefits in circumstances where she was living with her husband. Further, she gave evidence that he did not support her during their marriage in monetary terms.
During the time that she said that the plaintiff did not support Ms Mufovska and she was claiming single parent benefits, she and the plaintiff owned three houses in joint names, each of which was mortgaged and the mortgages were paid by the plaintiff and were in his name alone (i.e. the mortgages were in the plaintiff's name, but the properties were in both names).
The evidence of Ms Mufovska was shown to be untrue on any aspect of controversy. Further, the witness plainly hated her former husband, with a vengeance, and, it seems, would do and say anything to ensure that her former husband was "punished" or would not be successful in these proceedings. The animus of Ms Mufovska in relation to her former husband should have been obvious from the outset when, in examination-in-chief, she objected to a question, albeit in the past tense, which referred to the plaintiff as her husband.
Further, the witness' evidence that the plaintiff broke in to her bedroom and forced her to have sex in the period leading up to the time of the accident, September 2006, and during the whole of her marriage is not accepted. On her own evidence, Ms Mufovska slept in a bedroom with her son David. It was never suggested to David, when he gave evidence, that there was any such occurrence.
Moreover, if, as Ms Mufovska claimed, the plaintiff broke the door and banged on it until she opened the door, that conduct, at least, would have woken her son who was in the room, if not her other sons who were in other bedrooms.
David was called; he gave no such evidence; and no other child was called to give evidence. Even the evidence about Ms Mufovska's reaction to the accident in September 2006 and her attitude at Wollongong Hospital is inconsistent with independent evidence, including hospital notes, that she was very upset and provided support. I do not accept her evidence

[12]

Expert Evidence on Liability

Two experts in engineering were called to give evidence, Mr J O'Brien and Mr A Montgomery. The letter of instruction to the engineering experts is in evidence as are their reports. Further, in accordance with the directions given by the Court, their evidence was given in conclave after a series of questions was asked, in writing, and a Joint Report prepared. The letter of instruction and Joint Report is at parts 9 and 10 of Exhibit B in the proceedings.
Without diminishing the value of the original reports, for relevant purposes, the Joint Report stresses the agreement between the experts and the areas in which they disagree. There is a significant measure of agreement between the experts, but that measure of agreement, in some instances, assumes a factual basis that is inconsistent with the evidence in these proceedings.
The "assumptions" by the experts are assumptions based upon their experience with the equipment in question and do not relate to assumptions that the parties sought to have the experts consider or to the evidence as adduced in the proceedings and available in written form prior to completion of the Joint Report.
The Joint Report commences with a preamble, concerning the occurrence of negligence and "foreseeability". That preamble does not respond to any question that the experts were required to answer. The Joint Report was the subject of questioning and its admission was the subject of objection by the plaintiff. The evidence of the experts, in conclave, was commenced on the voir dire but, on the suggestion of counsel for Avopiling, the report was received into evidence provisionally and the Court invited to consider its admissibility in whole or in part when delivering judgment.
The experts, or one of them, also relied on material that was neither provided to the experts by one or other of the parties, nor on which the experts reported their reliance. As a consequence of the foregoing in relation to the expert reports, there are some significant issues with the acceptance of the Joint Report. Nevertheless, I admit the Joint Report and treat so much of it that is otherwise inconsistent with the evidence and does not truly reflect the expertise of the witnesses as being inadmissible.
In particular, the preamble, insofar as it deals with "foreseeability" is not in answer to any question posed of the experts and, with respect to those experts, answers that question on a somewhat "non-Bayesian Bayesian analysis" in which the foreseeability of an event is measured by the incidence of such events having occurred either in the past or since the date of the event, without regard to the "likelihood" that "negligence" or "the methods adopted" would have been implemented.
In other words, the conclusion is a similar approach to suggesting that a driver of a motor vehicle, who does not keep a proper lookout when the motor vehicle hits a pedestrian in Phillip Street at Martin Place, is involved in an accident that was not foreseeable, because it does not happen often, or has not happened at all.
There was no tensile weakness in the cable that snapped. In the words of the witness O'Brien "anti-two block failures are not that uncommon in the craneage industry, but the mandated safety features normally stop that, provided they have been installed and maintained correctly" (Transcript, 21 April 2015 at 452).
Each expert witness, however, accepted that the cable would snap under tension if two blocks were utilised, if the tension were such that it exceeded the yield value.
Whether the event was foreseeable in circumstances of the method by which the erection of the pile driving machine occurred is a matter for the Court. The "foreseeability" to which the experts referred in the preamble was a foreseeability that ignored the method adopted for its erection.
There are some matters that are uncontroversial. It is beyond doubt that the cause of the injury was the collision of steel objects and/or tension wire with the plaintiff, Mr Bosevski. As the experts agree, the "proximate cause of the steel object falling was the tension failure of a steel wire rope on the auxiliary hoist. A deeper or root cause was the employment of a drilling rig that lacked the appropriate safety features." (Exhibit B, tab 10).
Next, the experts agreed that there were two principal risks relating to the possibility of steel objects falling from drilling rig. The answer, however, does not draw the distinction between "steel objects" and parts of the pile driving machine itself.
The experts accepted that a risk is associated with loose tools or loose parts falling from the top of the rig. That is not the circumstance or event that occurred on this occasion.
The experts also accepted that the second "principal risk" related to the possibility of cable and/or rigging breakage. The experts then record that "based on the historic data that [they] have been able to obtain … the risk of a cable snapping and/or rigging failure is highly unlikely." (Exhibit 5, tab 10). Again this is a record of the incidence of comparable snapping incidents.
The answer to the next question is, because of the nature of the question itself, somewhat misleading. The question asked is the magnitude of the risk, if any, of steel objects "falling" from the pile driving rig onto the plaintiff. In answering the question, the experts assumed that the "risk of a piece of the drilling rig falling on a person will depend on the distance of that person from the base of the mast as well as the likelihood of occurrence of the steel object falling event." (Exhibit B, tab 10).
The experts then considered that a person working within a radius of less than two metres from the base of the mast would be at a high risk of steel objects falling from the pile driving rig and beyond that the risk would be low and would "rapidly diminish with distance". The experts then assumed that Mr Bosevski, the plaintiff, was located within two metres from the base of the drilling rigs mast.
The difficulty with the question, which, in my view has led to some difficulty with the answer, is that the question relates to the risk of objects "falling", not being flung. In the situation where, as here, a steel wire rope snapped, because of over-tension, the distance from the mast would depend on the force necessary to break the rope. This is because, if the snapping of the rope causes the propulsion of steel objects, those objects would, on the evidence, travel some distance, depending upon the force necessary to break the rope and the force applied to the steel objects.
On the evidence before the Court, Mr Bosevski was struck well beyond a distance of two metres from the base of the drilling rig.
Further, the experts suggest only one step to reduce the risk of the steel objects falling on the plaintiff, being a warning to the plaintiff for him to stay away from the rig. Presumably, on their assumptions, this would have been to stay further away than two metres.
Moreover, in answering the question they have assumed a location of Mr Bosevski and of Mr Carpinato and assumed, given the noise environment, "that verbal communications between the off-sider (Mr Edwards) and the operator (Mr Tangi) would have been nigh impossible and that the only practical method of communication between the two would have been through hand signals" (Exhibit B, tab 10). Notwithstanding that assumption or note (presumably based upon their expertise, as neither party asked for such an assumption) the statements of Mr Edwards and Mr Tangi, which were read by each expert, make clear that they were in verbal communication.
Each expert considers that, given that which was occurring "both Mr Tangi and Mr Edwards would most probably have had their eyes directed to the top of the mast". (Exhibit B, tab 10).
For reasons which are unexplained in the Joint Report, neither expert refers to the warning to Mr Tangi and to Mr Edwards that there was tension in the wire rope or to what steps should have been taken as a result of hearing the tension noises.
The original reports of the experts on liability are in evidence and are taken into account. They are neither summarised nor repeated.
During the course of their evidence, both experts agreed that the only way of raising the mast safely, in the ultimate, was with sufficient slack so that the auxiliary cable did not jam and snap (Transcript, 21 April 2015 at 424-425).
The experts accepted that the steel wire rope (the auxiliary rope) failed explosively (Transcript, 21 April 2015 at 433.6) and projected out the chains and the various other bits that fell on the plaintiff (ibid). Further, the reference to "failure" was not a reference to an inherent defect in the rope but to its traumatic failure under pressure; a tensile failure caused by the tension placed on the steel wire rope being more than it was able to bear (Transcript, 21 April 2015, at 433.10-433.19). Further the auxiliary rope explosively failed or snapped when 28 tonnes of working load was applied to it, in circumstances where the safe working load was somewhere between 5 and 6 tonnes.
It is not absolutely clear, from the evidence of the experts, that the auxiliary cable has a safety mechanism when ordinarily utilised or during the erection of the pile driver. It is clear that, in relation to the main cable, there is a safety mechanism that is attached to the pile driver to allow its safe erection. The experts agreed that this pile driver did not have such a safety device and certainly did not have such a safety device in relation to the auxiliary cable.
The experts also agreed that in the absence of a safety device, other steps needed to be taken to ensure that the tension on the cable ropes did not become so great as to allow the ropes to break. One of those steps is that described by Mr Tangi and Mr Edwards "visually, to look to make sure that they don't overstretch the rope". Such a process requires a constant lookout.
It is also clear from the original expert reports that, during the erection phase, the auxiliary rope performs no function and it is capable of being tightened after the erection of the pile driver is complete. As a consequence, the auxiliary cable is capable of being given more slack than is judged to be "necessary" or even "appropriate", without any detriment to the process of erecting the pile driver.
In short, the winch that is used to tighten the auxiliary cable could have been utilised for that purpose after the pile driver had been fully erected. The evidence of the joint experts makes clear that when the 28 tonnes of load was placed on the auxiliary cable, it snapped. The explosive failure occasioned by the tension (and to some extent the elasticity in the mast itself) caused the tackle and chain to be "flung". The degree to which it was flung depended upon a range of factors, which were unknown to the experts.
Further, it is clear from the evidence of each of the experts that, had the initial pull out or allowance for the cable on the auxiliary hoist been adequate in terms of enough rope or cable, this tensile failure would not have occurred and if there had been someone constantly watching the tension on the auxiliary cable, even if the initial allowance for the cable had not been adequate, this accident would not have occurred. At Transcript, 21 April 2015 at 469.13, after Mr O'Dowd asked "would you agree with that?", Mr O'Brien nodded in agreement. The witness also agreed that those circumstances rendered it more important, rather than less important, that the operators pay very close attention to those two matters: one, the length of the initial cable; and/or two, the vigilance of the offsider who was observing the tension on the rope as the rig was being hoisted. Each expert agreed with both propositions.

[13]

Conclusions on Liability

There are a number of intertwined issues associated with the liability and, if there be liability, whether it is the liability of Professional Contracting (NSW) Pty Ltd (the Employer), Avopiling and/or Soilmec (the provider or the pile driver), any or all of them.
I deal firstly with the alleged negligence of the second defendant, Soilmec. As indicated in the summary of the evidence of the liability experts, it was possible that there could be an appropriate and/or necessary safety interlocking mechanism, which, if it were installed and operative, would have prevented the tension in the auxiliary cable occurring. The prevention of the tension in the auxiliary cable would have prevented the explosive failure of that cable and thereby prevented the injury to the plaintiff. This proposition is the subject of submissions, inter alia, from the Workers Compensation Nominal Insurer.
The difficulty with such a proposition is that there is no evidence before the Court that the safety interlocking mechanism was available for the auxiliary cable. Even if it were available for the auxiliary cable, there is no evidence before the Court that Soilmec did not provide the machine with such an interlocking mechanism and Avopiling remove it.
The Court is unaware whether Avopiling, or its employees, removed or overrode such a safety interlocking mechanism. It was not the subject of evidence, except to the extent that it was said by Mr Edwards at Q28 and elsewhere, see [9] above, that certain limiting switches or safety devices were overridden. As a consequence it is not possible for the Court to come to the conclusion, even on the balance of probability, or the basis of some inference that might be drawn from evidence adduced, that Soilmec was negligent in any way.
I deal then with the detailed factual circumstances outlined previously. Notwithstanding the preamble to the Joint Report of the experts, it is uncontested and incontestable, on their evidence, that the risk of tension failure of the secondary cable (or any cable) is an ever-present risk and the explosive failure of the secondary cable was therefore foreseeable.
The evidence incontrovertibly establishes that the two operators heard "a tension noise" and, despite hearing that noise, chose to continue with the erection process. An alternative course, would have been to release the tension by lowering the crane mast, immediately upon hearing the noise. Instead, albeit slowly, the two operators continued with the erection process until the auxiliary cable explosively failed. At the time their attention was on the main cable. There was thought to be "slack" in the auxiliary cable, but there seems to have been no attention to the cathead at the top of the auxiliary cable.
There are a number of ways in which Avopiling, the operator and erector of the pile driver was negligent. First, the risk of the explosive failure arising from tension was, as earlier stated, foreseeable, being a risk that Avopiling and its employees knew or ought to have known: s 5B(1)(a) of the Act. Plainly, the risk was not insignificant: s 5B(1)(b) of the Act.
The Court must then direct its attention to what step a reasonable person in the position of Avopiling (through its employees) would have taken by way of precaution and that it failed to take.
On the oral evidence of the joint experts (but inconsistent with their Joint Report), the two operators of the pile driver, during the erection phase, should have taken the precaution of "paying out" sufficient slack in the secondary or auxiliary cable prior to or during the course of erecting the mast, by which precaution the pendent weight and chain would not have been drawn into the pulley at the cathead at the top of the mast and the explosive failure would not have occurred.
In the absence of an operative safety device preventing tension, it was necessary to ensure sufficient cable and to keep both the secondary cable (and the main cable) under continuous observation, otherwise the harm would occur, not probably, but necessarily. If a judgement were made by the two operators that sufficient slack had been allowed in erecting the mast, then the continuous observation of the two cables was necessary to oversee the judgement that was in the process of being implemented. In the absence of sufficient slack, the explosive failure of the cable, assuming the pile driver continued to be erected, was inevitable.
Moreover the likely seriousness of the harm, in the circumstance of an explosive failure was extremely likely, if not to others in the vicinity, then to the operators of the machine itself.
The burden of taking such precautions, namely the provision of sufficient slack and the constant observation of the cables during erection, was otherwise without cost and not a burden on the employees of Avopiling or Avopiling itself.
I accept that the necessity and social utility of the activity is important, but its importance does not qualify the foregoing conclusions. The foregoing conclusions are an application of s 5B(2) of the Act.
I take into account that the burden of taking precautions of the kind here described is the burden of taking precautions generally and not only in relation to this particular incident: s 5C(a) of the Act. Further, I make the findings on the evidence already outlined, not on the basis of hindsight (s 5C(c) of the Act), nor because (with hindsight or otherwise) the task could have been performed differently.
Rather, the negligence arises from the ever-present nature of the risk and the simplicity of the precautions that would need to be taken to avoid the risk. Moreover, the very existence of an offsider during the process leads inexorably to the conclusion that the risk was foreseen, but dealt with inadequately.
As earlier stated, the accident was caused by insufficient slack being allowed on the auxiliary steel cable; the failure of the offsider and the operator to maintain a proper lookout for tension in both the auxiliary cable and main cable; the failure to take steps once the tension noise was heard to investigate the cause of that noise adequately; and the continued erection of the mast, after the tension noise was heard, thereby applying the 28 tonnes of force necessary to break the cable. There was nothing wrong with, and no weakness in, the cable. It was designed to take a safe working load of between 5 and 6 tonnes; its safety design was 21 tonnes; and it broke at 28 tonnes of load.
During the course of the evidence and submissions from the parties, Avopiling and Soilmec suggested that it was negligent (for the purpose of contributory negligence) for the plaintiff, Mr Bosevski, to be in the vicinity of the pile driver during its erection. That contributory negligence is not established.
The operators of the machine, who were involved in its erection, were trained or instructed to ensure that only those who were involved in the work directly were to be in the area. Mr Bosevski (and his co-worker Mr Carpinato) were employed by their employer on the building site. There were not mere bystanders.
In the present erection process, they were in the vicinity because the erection of the pile driver and an excavator "needed a pad" (a reference to a concrete pad) and the plaintiff and Mr Carpinato were constructing the excavator pad they needed to build inside the yard that was safe for the rig to work inside (Exhibit A, 16.8-17.3).
It is clear that the two operators and erectors of the pile driver were aware that the plaintiff and Mr Carpinato were in the vicinity. The plaintiff and Mr Carpinato attended on the pile driver operator and offsider to ask if they were in need of any assistance, which I take to mean assistance from the general labouring force on the worksite and/or in the facilitation of the erection process. They were told that no assistance was needed. Each of Mr Bosevski and Mr Carpinato then departed the scene.
It is more probable than not that Mr Bosevski was struck by the object, thrown from the pile driver, as he was departing the scene. Two inferences may be drawn from that fact. First, the operators of the pile driver were aware of the plaintiff's existence in the vicinity of the pile driver. Secondly, if the operators of the pile driver had waited to ensure that the plaintiff had departed sufficiently to be out of the "danger zone", the accident and injury would have been avoided.
Part of the function of Mr Carpinato and Mr Bosevski was to assist the pile driver operators in the performance of their work by facilitating their work, more generally, on the construction site. The pile driver became necessary because an underground fire in the playground of Cringila Public School that had originally been extinguished had reignited and the pile driver was necessary for the purpose of finally extinguishing the reignited fire.
There is no evidence to suggest that the conduct of either Mr Bosevski or Mr Carpinato involved meddling or "being an onlooker". Rather, as workers entitled to be on the construction site, the inference, from the need for them to construct concrete pads and other support facilities for the equipment, was that the enquiry was within the terms of their functions.
Thus, over and above the negligence which gave rise to the explosive failure, there was negligence associated with performing the erection before ensuring that the two other building workers, of whom the operators were aware, had left the vicinity.
The failure, if there were a failure, of the pile driver operators to instruct the plaintiff to move from the vicinity of the machine, is not, on the foregoing analysis, a basis for a finding of negligence. Whether or not the operators directed Mr Bosevski and Mr Carpinato to move from the vicinity of the machine is irrelevant, because each of them was moving from the vicinity of the machine in any event.
The evidence is unclear as to whether they were instructed to move from the vicinity or, as persons with experience on building and/or construction sites, they were in the process of having regard to their own safety. In either circumstance, the failure to instruct the plaintiff to move from the vicinity of the machine is not a ground for finding negligence on the part of Avopiling.
As a consequence, the act of Mr Bosevski and Mr Carpinato, in enquiring as to whether assistance was required, was not a cause of contributory negligence. It was not shown to be anything other than an appropriate and reasonable process as part of the terms of their functioning on site.
Further, the failure to move from the vicinity of the pile driver was not a ground for contributory negligence, because, after ascertaining that no assistance was required, Mr Bosevski was in the process of moving from the vicinity of the machine. He had no disregard for his own safety and did not act otherwise than as a reasonable person in the position of Mr Bosevski on the basis of what he knew or ought to have known at the time: s 5R of the Act.
The foregoing is a direct conclusion from the evidence adduced and in concluding in that way (and drawing inferences from direct fact) I draw comfort from the fact that neither of the operators (Mr Tangi and Mr Edwards) were called by the defendants. Their statements are in evidence and I draw the inference that their evidence would not have, otherwise, assisted the defendants' case: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (at 308, 312, 320 - 321 of the CLR); Blatch v Archer (1774) 1 Co W P 63.
Moreover, the activity here in question was the erection of the pile driver, not its operation. It is unclear, on the evidence before the Court, that a person in the position of Mr Bosevski, would have had any knowledge of the dangers in the erection of the mast or any knowledge of any such dangers. While Mr Bosevski had no recollection of the accident, the material before the Court establishes that he (and Mr Carpinato) had not been made aware of the hazard associated with the erection of the mast during their site induction: Exhibit A at 4.
While it is probably unnecessary, given the foregoing comments, the Court notes the terms of s 5D of the Act and that, clearly, the particular harm would not have occurred without the explosive failure of the auxiliary cable, caused by the negligence of Avopiling. Further, particularly given the extremely simple means for overcoming the possibility of such an accident, it is appropriate for the scope of Avopiling's liability (or another person in the same position) to extend to the harm so caused. This is not a case in which one would need to rely upon the provisions of ss 5D(2) or 5D(3) of the Act. The damage is not remote nor is responsibility for the damage inappropriate, given the duty of care that has been established and the circumstances of the negligence.
It is necessary to deal with the negligence, if any, of the employer, in these proceedings represented by the Workers Compensation Nominal Insurer. There can be little doubt that an employer owes a non-delegable duty of care to an employee for whom the employer has exclusive responsibility for the provision of appliances, the premises in which work is performed and the system of work to which the employer subjects the employee: Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 (at 687 - 688 of the CLR); New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [259]; BlueScope Steel Ltd v Cartwright [2015] NSWCA 25 at [117].
Nevertheless the liability of the employer is not absolute. First and foremost, the employer must be in a position to know the risks that are occurring or are likely to occur. On the evidence before the Court, if the employer were to have asked Avopiling of the process it would undertake in erecting the pile driver, it would have been told, relevantly, that the auxiliary cable would be given sufficient slack and that an offsider would be observing continuously or constantly whether there were circumstances that would give rise to tension in either the auxiliary cable or main cable. In those circumstances, the employer would rightly have been satisfied that the system of work was adequate. Unfortunately, the work was not carried out with due care and bearing in mind that which was necessary in order to avoid the accident in question.
Neither the employer, itself or through Mr Bosevski or Mr Carpinato, had the requisite knowledge to amount to negligence either by approaching or permitting the worker to approach the pile driver prior to the accident or in the danger involved in the manner in which the pile driver was, in fact, erected.
I do not consider, on the principles established by the Court of Appeal (see Shoalhaven City Council v Humphries [2013] NSWCA 390 at [127] - [131]) that Avopiling has established that the employer was negligent or could have foreseen a failure of this magnitude in the process by which the pile driver was erected.
It is necessary, before leaving the issue of liability, to deal with certain submissions made on behalf of Avopiling Pty Limited and Soilmec. The Court has already dealt with the activities of Mr Carpinato and the proper basis for them to make the enquiry they did. Further, each of them moved away from the pile driver as soon as they were informed there was no assistance necessary.
Notwithstanding the view of the experts, the material before the Court, including the photographs of the objects that were thrown from the pile driver, is such that it is more probable than not that the plaintiff was located more than six metres from the base of the pile driver and not, as concluded by the experts, some two metres away.
The Court has already explained that the view of the experts that the snapping of the cable was "a quite unusual event" or "rare" is a misunderstanding of the issue of foreseeability by the experts. The risk of a failure of this kind was ever-present, particularly in circumstances where there was no safety device installed or operative to protect against such tension.
The experts, while originally volunteering that the accident "was not foreseeable" came to the conclusion, in their evidence, that the risk of an explosive failure was inevitable, if insufficient slack was allowed in the cable, and, in the absence of safety devices, if a constant process of observation was not employed.
The elements of the failure of the auxiliary cable during the process of erection was not a momentary lapse. First, it involved the failure to draw out sufficient slack, in circumstances where excess slack would never have been an issue or problem in the erection process or in the operation after erection had occurred, because the winch that was available, after the erection had occurred, would enable the auxiliary cable to be tightened after the completion of the erection process (Transcript, 21 April 2015 at 461.25 and other previously-mentioned passages).
The difficulty for Avopiling and Soilmec in reliance on s 5C(b) of the Act is that the act was performed in the manner directed and it is not suggested that, if carried out appropriately, and with due care, the manner directed would be any different. That is, in order to avoid the accident, the lookout that was implemented would be required to look for tension; the auxiliary cable would have been required to be drawn out to a greater amount; and the operator and the offsider would have had to cease, immediately, the erection process on hearing the tension noise.
Moreover, the hazardous reduction of slack was not observed or noticed, despite the existence of a lookout or offsider and despite the noise that the tension made. That lack of slack in the auxiliary cable would have been readily apparent, if due care had been exercised.
The fact, if it were the fact, that the amount of cable that fell short of that which was necessary in order for the pile driver to be erected without the auxiliary cable snapping was of small dimension is not to the point. As has been made clear by the experts (and as is obvious from the evidence in the proceedings), it was unnecessary for the operator and/or offsider to make such a fine judgement, because the auxiliary cable had no purpose in the erection process and could have been twice as long as was sufficient and, after completion of the erection process, retracted by use of the winch.
Lastly, in relation to matters that may not have otherwise been adequately exposed in the foregoing reasons, the Court accepts the proposition that far greater weight is now to be given to the proposition that people, including plaintiffs, or especially plaintiffs, will take reasonable care for their own safety: Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29.
The test, according to the Act (see s 5R) is to be dealt with in the same manner as in the finding of negligence in relation to a defendant. There are differences as a result of the different responsibilities, but generally that is the manner in which a court approaches contributory negligence. That is the approach taken by the Court in determining that, in the present circumstances, there was no contributory negligence.
A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is, as the submissions of Avopiling and Soilmec make clear, to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff "to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage": Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1) and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 (at 494 of ALJR).
Otherwise the test is the same, if one understands that the reasonable person is, in one instance the employer (with very strict duties of care), in another instances Avopiling with a less strict duty of care and, lastly, the plaintiff who is to be assessed in the same way, in relation to reasonableness, as Avopiling: Waverley Council v Ferreira [2005] NSWCA 418. In this case, the plaintiff was looking out for his own care and taking all reasonable steps for that care.
After enquiring, as he was either required to do or as was appropriate to do, as to whether assistance was necessary in the erection of the pile driver (including any concrete pads or the like) he set about moving out of the immediate vicinity of the pile driver. Avopiling, through its employees commenced or continued the process of erecting the pile driver, while the plaintiff was in the process of leaving the area.
As earlier stated, there is insufficient evidence upon which it could be held that Soilmec was negligent in the supply of the pile driver. It is unclear whether the lack of safety devices was a result of the failure of Soilmec or that it was not ordered, or, if ordered and provided, it was removed or overridden. I am not satisfied that Soilmec was in breach of a duty of care owed to the plaintiff or that Soilmec's failure was the cause (as that term is used in s 5D of the Act) of the plaintiff's injury: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [18], [42].
Ultimately, if Soilmec had acted carelessly or inappropriately in providing a pile driver without the appropriate safety devices, Avopiling, an expert and experienced pile driving contractor, should have insisted upon the supply of such devices (if they existed) and not performed the work in the absence of those devices.
In all of the circumstances, Avopiling has been negligent and is liable for the losses sustained as a result of the injury to the plaintiff, Mr Bosevski. Mr Bosevski is not required to contribute, by way of contributory negligence, and the damages are not lessened as a result thereof. Further, the Employer is not negligent. Nor is Soilmec.

[14]

Damages

Earlier in these Reasons for Judgment, the Court described and summarised the evidence of Mr Bosevski, Ms Bosevski (Mr Bosevski's first wife) and the son (David), together with Ms Galagas. Each of those witnesses and their evidence is relevant to the question of damages. As is not uncommon in witnesses, generalisations have been made, which must be understood accordingly.
On the other hand, Ms Musofska was not a truthful or reliable witness. That is not to say that there possibly is not some small aspect of the evidence that may be truthful but on which Ms Musofska has embellished.
For example, it may be that Mr Bosevski assisted with one or other tables at the function she described. On the other hand, he may have brought out some food on plates and/or set one or other of the tables. However, I reject (as previously noted) any evidence of Ms Musofska that is controversial.
I accept Ms Galagas' observation that Mr Bosevski was less likely to display symptoms such as the rubbing of his face in circumstances where he is more relaxed. Such an observation accords with the recordings of his activity and, to some extent, accords with the observation of the Court of Mr Bosevski during his evidence and during the course of the trial, as he was sitting in the public gallery and, from time to time, providing instructions. It is sufficient, for present purposes, to note that the observations of the witness both during evidence and in the body of the court room were consistent with the evidence otherwise adduced, except for the evidence of Ms Musofska.
It is necessary to summarise, very briefly, the medical evidence adduced in the trial. Again, as is usual under the Uniform Civil Procedure Rules 2005 ("UCPR"), the medical evidence was adduced in conclave, where there were two or more experts qualified in the area. Joint expert reports were tendered covering the following specialities: orthopaedics; neurology; neurosurgery; psychiatry; neuropsychology; and dentistry.
Further evidence was adduced by the parties by the plaintiff's treating doctors being: Dr Renata Abraszko (Neurosurgeon and Spinal Surgeon); Dr Henry Lamb (Pain Specialist); Dr Loi Lam (General Practitioner); Dr Samir Benjamin (Consultant Psychiatrist); Dr Dowla (Consultant Neurologist and Specialist in Clinical Neurophysiology); Dr Lucia Saliba (General Surgeon); Dr Leon Gershenfeld (Dentistry); Dr Nguyen (Staff Specialist, Rehabilitation Medicine, Brain Injury Rehabilitation Medicine, Brain Injury Rehabilitation Unit, Liverpool Hospital); Dr Shaun Watson (Audiologist, Blacktown Specialist Hearing & Balance Laboratory); Ms Kylie Richardson and Mr Mark Sabaz (Clinical Neuropsychologists); and Mr David Wilson (Case Manager, Liverpool Brain Injury Unit). Further, there were radiology reports relating to each of the areas of injury.
There are few, if any, differences between the experts in relation to their field of expertise. I deal first with the report of the orthopaedic specialists. A Joint Report was filed following the conclave between Drs Maxwell and Giblin.
The Joint Report of Drs Giblin and Maxwell is dated 18 February 2015. The report indicates that when Dr Maxwell first examined the plaintiff, the plaintiff suggested his lower back was not painful, except that it may ache a little after bending. He could walk for about 200 metres, sit for about one hour and felt more comfortable lying down. The plaintiff also complained of pain in the neck.
Dr Maxwell's examination indicated a symmetrical range of movement of his neck with no spasm or guarding. He had a full range of movement of his thoracolumbar spine and no sensory abnormality. These issues arose from the result of the first examination. He was complaining of back pain, but Dr Maxwell did not consider that he had sustained any specific pathological injury at the time of the subject incident.
Not inconsistently, Dr Giblin referred, in his view, to soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine and an aggravation of soft tissue injury to the right shoulder together with loss of taste and smell. Each of the orthopaedic specialists considers, in relation to the plaintiff's cervical and lumbar "disabilities", that, at best, they relate to soft tissue aggravation and that the disabilities are moderate for the cervical spine, minor for the shoulder and minor for the lower back and moderate for the cranial nerves.
Dr Maxwell express the view that most of the plaintiff's disabilities related to the chronic facial pain. Otherwise, the injuries to his cervical and lumbar spines relate mostly to asymptomatic pre-existing degenerative changes. Further, each of the specialists consider that the prognosis, in relation to their specialty, from a physical point of view, is good. Otherwise, there is a possibility of a markedly increased risk of the onset of malignancy and some cyclical and recurrent soft tissue symptoms.
Each of Dr Maxwell and Dr Giblin, consider that the cervical spine nerve stimulator is neither reasonable nor necessary, from their perspective. The Plaintiff's unfitness for work from the perspective of the orthopaedic specialists was limited, according to Dr Maxwell and confined to a two month period. According to Dr Giblin, the plaintiff has been totally unfit to perform his pre-injury duties as a result of his accident-related injuries, from the date of injury to the time of the Joint Report.
In that regard, Dr Maxwell does not consider that the orthopaedic injuries would prevent the plaintiff from "having an earning capacity in the open labour market". (Exhibit B, tab 2 at 4). Nevertheless, Dr Maxwell concedes that the plaintiff does experience chronic pain from his facial injuries, but facial injuries would not normally prevent a person from carrying out physical activity.
On the other hand, Dr Giblin, takes the view that the plaintiff will never return to labouring work; is unfit for heavy repetitive bending, lifting and twisting or operating heavy vibrating machinery. In Dr Giblin's view, the plaintiff's capacity "to access the open labour market, is significantly chamfered by his injuries which will remain a source of liability to himself and any employer having the propensity to material aggravation and ongoing deterioration". (Exhibit B, tab 2 at 5).
A joint neurologists' report was tendered. The neurologists (Dr Ivan Lorentz and Dr Renata Abraszko and Dr Mellick) were largely in agreement. The plaintiff suffered neurological injuries caused by the relevant accident, which involved traumatic brain injury, with six days post-traumatic amnesia; fractures of the right frontal and parietal bones; frontal lobe contusion; left occipital contra coup contusion; subarachnoid blood in the left orbital fissure; fractured right orbital and nasal bones; laceration of the scalp; trigeminal nerve injuries, cervical spine injury; dental injuries and possible rotator cuff injuries, with pre-existing rotator cuff problems.
The plaintiff, according to the Joint Report of the neurologists, has suffered from mental status impairment to the extent of 5% of whole person impairment; emotional and behavioural disorders to the extent of 20% of whole person impairment; trigeminal nerve injury, uncontrolled with medication and requiring the use of a nerve stimulator (unsuccessful) and the neurologists concluded that those injuries represented moderately severe uncontrolled facial neuralgic pain that interferes with activities of daily living, the whole person impairment for which was measured at 20%.
The neurologists also expressed the opinion that the "reason for this conclusion was that the pain was severe enough to require an occipital stimulator … and also necessitated multiple medications which have not succeeded in controlling the pain". (Exhibit B, tab 4 at 2).
The neurologists opined that: "In our opinion, mild, uncontrolled facial neuralgic pain which may interfere with activities of daily living is inappropriate in the assessment of this patient as mild trigeminal neuralgia would not require the use of an electrical stimulator or other surgical measures. We agree that there was a cervical spine injury with pain in the neck and asymmetrical neck movements with limitation of activities of daily living, an impairment of 7% WPI. There was loss of sense of taste and smell, 5% WPI (confirmed by Dr Scoppa, ear, nose and throat surgeon)." (Exhibit B, tab 4, at 2).
The neurologists expressed the joint view that the plaintiff's condition is unlikely to change in the future, and also agreed that the treatment received by the plaintiff (including the occipital stimulator) had been reasonable and necessary.
They also assess that the plaintiff will require continuing medical attention from a general practitioner and provide a cost at $100 per visit. The plaintiff will also require consultation with a pain specialist on a three monthly basis at a cost of $300 per session indefinitely. The plaintiff, they suggest, may require consultation with a psychologist or psychiatrist on a three monthly basis indefinitely at a cost of $250 per visit.
They refer to the needs for the plaintiff to see a neurologist or neurosurgeon ever two years, the cost of each such consultation being $350 per consultation and that the plaintiff will continue on multiple medications of Lyrica (150mg twice daily), Digesic (one three times a day), tranquilisers and sedatives such as Zyprexa, Aropax and Diazepam and that the occipital electrical stimulator, which the plaintiff continues to have, will need to be changed surgically in the future at a cost of approximately $32,000.
The neurosurgeons also agree that the plaintiff has been unfit for his pre-accident duties as a result of his accident related injuries and disabilities and that would be a condition that rendered the plaintiff totally unfit for his usual duties. Further, the neurologists expressed the opinion that the plaintiff is unlikely to be employable in the near future and has no capacity to perform in the open market in the future on account of his injuries.
I accept, without qualification, the joint opinion of the neurologists. To some extent (relating to spine and/or neck injuries) the neurologists' opinion is, at least in part, different from the orthopaedic specialists. The neurologists examined the plaintiff more recently and I accept their unanimous view.
There was also a Joint Report of Drs Benjamin, Jungfer and Lewin dealing with the psychiatric issues said to arise in relation to the injuries caused by the subject accident. The psychiatrists agreed that the history of the psychiatric disorder provided by Dr Lewin after he first examined the plaintiff in or about February 2008 was consistent with a major depression in partial remission, with psychotic features which had resolved.
They also considered that the chronology of the emergence of symptoms, the severity of the initial presentation and the limited response to evidence-based treatment at therapeutic doses rendered it more probable than not that the mood disorder arose secondary to structural brain injury and would be considered an organic mood disorder.
The psychiatrists identified that, from the time of the injury, there were multiple contributing factors which were implicated in terms of the maintenance and possible fluctuations of the plaintiff's mood disorders. The contributing factors that were identified by the psychiatrists were chronic pain, the significant disruption in his family relationships, the breakup of his second marriage, the diagnosis of thyroid carcinoma, as well as the inability to achieve symptomatic resolution with therapy.
The psychiatrists were of the view that the contributing factors arose following the brain injury and the development of the mood disorder. The thyroid function issue was normal and there was no evidence of recurrence and the psychiatrists agreed that this was not a contributing factor to his psychiatric presentation.
There was acceptance by the psychiatrists that a component of the plaintiff's clinical presentation was consistent with poor adjustment to his injury and disabilities. Dr Benjamin identified that the adjustment disorder was, in the presence of a major depressive illness, subsumed in the diagnosis of that depression.
Each of the psychiatrists agreed that Mr Bosevski had sustained a severe traumatic brain injury. This was defined as severe when considering a reduced level of consciousness, consistent with the Glasgow Coma Score of 13. His period of post traumatic amnesia was 11 days and CT scanning of the head demonstrated multiple fractures in the frontal regions, a small amount of extradural haemorrhage, and possibly cerebral contusions. The psychiatrists expressed the view that, while a Glasgow Coma Score of 13 would be consistent with mild traumatic brain injury, the presence of CT scanning abnormalities and a formally measured period of post-traumatic amnesia of 11 days would be consistent with severe traumatic brain injury.
As a result of the foregoing, the psychiatrists' panel were of the opinion that there had been changes in cognition and behaviour, consistent with structural brain injury. These included a reduction in concentration and memory, the onset of irritability, short temperedness and the continuing struggle, by the plaintiff, to maintain relationships with family and the wider community. These effects are consistent with the evidence otherwise accepted by the Court.
The latter aspects of the Joint Report confirmed that the psychiatrists agreed that the plaintiff had sustained a traumatic brain injury with cognitive and personality change as a result. The psychiatrists' report said: "Mr Bosevski has undergone repeated neuropsychometric testing. In this testing he has always done poorly in tests of effort and it has not been possible to determine the extent of his cognitive disabilities from his brain injury. There has been a clear history of change in personality consistent with that typically reported associated with frontal brain injury. The [psychiatrists] identified that pain and mood may be contributing to his poor cognitive performance and irritability. It was considered by the panel that as his antidepressants were at a stable dose and he was not taking narcotic analgesia that pharmacotherapy was not contributing to his clinical presentation. The impact of the brain injury resulted in conflict with others, a breakdown in the relationship with his sons, and the loss of his most recent marriage. … He was reported as having limited patience, problems with respect to concentration and needed to rely on memory aids. … He struggled to learn because of his problems with cognition and reduced patience. He was capable of doing basic shopping, driving a vehicle in the local area and handling day-to-day money. He was noted to neglect his self-care and his level of presentation had reduced following his wife leaving him." (Exhibit B, tab 6 at 5).
The psychiatrists formed the view that the changes in cognition and personality due to the structural brain injury were permanent, although the mood disorder might fluctuate depending on changes in life, circumstances and stress. This fluctuation could include a worsening of his mood state if the plaintiff became more isolated in the community. The impact of the mood disorder initiated by the structural brain injury was indefinite.
The treatment afforded Mr Bosevski has been reasonable, and on one view optimal, but the treatment has not brought the condition into complete remission.
The psychiatrists agreed that the frequency of psychiatric consultations should reduce from monthly to every two months and then every three months. They also agreed that Mr Bosevski, on account of his major depressive illness with psychotic symptoms, cognitive impairments and personality change due to his structural brain injury, had not been considered fit for paid employment since the time of the accident.
Mr Bosevski would be unable to safely complete duties that involve concentration or attention, particularly in work environments that may pose a safety risk to the employee. The psychiatrists expressed the view that Mr Bosevski would be unlikely, in the future, to be able to participate in gainful employment and, as a consequence of the chronicity of his symptoms and the permanent impairments, he was "unlikely to have any earning capacity".
Apart from his demotivational aspects, the psychiatrists identified that he had sufficient cognitive skills and physical capabilities to complete domestic chores, home maintenance and personal care and expressed the view that the provision of domestic assistance or personal care to a person with a depressive illness would not be in their best interests. The difficulty (identified by the original subjection) is the impact of the brain injury on motivation and initiative. As a consequence of that motivational deterioration, there would, according to the psychiatrists, be some requirement for domestic assistance and personal care. He would also need help with organisation, prompting to attend appointments and motivation to complete activities.
The issues with initiative and motivation would be overcome, at least in part, by the provision of a suitably qualified community support worker once or twice per week to assist with organisation, planning and motivation. The community support worker would also ensure that the plaintiff is participating in his own personal care to a reasonable standard.
The neuropsychologists differ fundamentally with the psychiatrist and, although to a lesser degree, with each other on their assessment of Mr Bosevski and on the prognosis. Mr Rawling, a Clinical Neuropsychologist, is of the view that the severity of the brain injury and the chronicity of his symptoms suggest a poor prognosis. Dr Wendy Roberts, Clinical Psychologist, declines to make a prognosis on the basis that it is not possible to make any accurate assessment, because, in her view, reliable test results and up to date information are not available.
They also disagree on the severity of the injury and whether the brain injury is associated with any acquired impairment. On the one hand, Mr Rawling has relied on the CT scan findings indicating primary cerebral trauma and the hospital based assessment of post-traumatic amnesia, to come to the conclusion that the head injury was very severe. As a consequence of that assessment, Mr Rawling formed the view that permanent residual deficits in cognition and behaviour are more probable than not.
Dr Roberts, while noting the injuries, including the CT scan findings, has questioned the validity of the plaintiff's hospital based assessments of post-traumatic assessment because of the onset of testing, the detail of the error and the role of anaesthesia and opiate based medication impacting upon the estimates.
Each agrees that the neuropsychological assessment, later tested, was compromised by lack of genuine effort. In relation to the lack of genuine effort, recourse should be had to the joint opinion of the psychiatrists.
No real basis is given by Dr Roberts for the invalidity in the testing at hospital, the results of which are before the Court, and, as a consequence, I prefer the assessment of Mr Rawling.

[15]

Conclusions as to Injury

The awarding of damages for personal injury arising out of alleged negligence is governed by the Act and, in particular, Part 2 of the Act. Damages for past or future economic loss are calculated in accordance with the limitations prescribed by s 12 of the Act and taking into account the requirements of ss 13 and 14 of the Act. Likewise, damages for gratuitous attendant care services are governed by the provisions of s 15 and for assisted care by s 15B of the Act.
The calculation of damages for non-economic loss is governed by the provisions of s 16 of the Act which prescribes a cap or limit (indexed annually) to any award for such losses. The extent of the limit is, as one would expect, to be awarded only in the most extreme case.
As already stated, I have not accepted the evidence of Ms Mufovska. I do accept that the plaintiff's propensity to rub his face and the irritation from his eye and face, together with the experiencing of acute pain, varies depending upon a range of factors.
The evidence before the Court suggests that the propensity for the plaintiff to rub his face varies depending upon the weather, the circumstances which the plaintiff is experiencing at the time and a variety of other factors. Further, Ms Galagas, as already indicated, gave evidence that the degree to which the plaintiff rubbed his face depended, at least in part, upon his level of agitation, excitement and the like. Her evidence was that the more relaxed the plaintiff was, the less he rubbed his face.
I have already stated that I accept the evidence of Ms Galagas, who, while a friend of the plaintiff, is independent. That evidence, of itself, would explain the difference between the plaintiff's propensity to rub his face in the witness box, compared with the propensity in the Courtroom as an observer and, lastly, to take the other extreme, when he is standing on a balcony engaged in social interaction with his friends.
Similarly, I accept that, in company, the plaintiff is able to drive, sometimes for extended periods. However, I also accept that the plaintiff becomes agitated very easily, obstructive and impolite when driving and, in the absence of a trusted passenger, would likely be unable to control his reaction to another driver changing lanes in front of him or any other usual situation that may arise from time-to-time when one is driving.
The submissions that were put, at one point, on behalf of one or other of the defendants, that the capacity to drive for extended periods required a finding that the plaintiff was employable as a taxi driver, underestimates that which is required of a taxi driver, which includes the use of centrally controlled satellite navigation for the allocation of work, dealing with the public, dealing with the conditions of traffic for significant length of time and requires patience and a degree of calm neither of which, on the evidence before the Court, the plaintiff has possessed since the accident.
The evidence of Dr Lam is to the effect that there were changes in the frequency of the plaintiff rubbing his head due to stress, change in the weather or distress (psychological or physical): see Transcript, 17 April 2015 at 338-339, and that is consistent with the evidence of Ms Bosevski and Ms Galagas. The evidence that is accepted by the Court, outlined earlier, discloses that there has been a fundamental alteration in the plaintiff's character and behaviour from that which existed before the subject accident and that which was evident after the subject accident.
As earlier recounted, the neuropsychologists, in their Joint Report, and otherwise in their reports, questioned the level of disability. Dr Roberts, who was most reluctant to give evidence that might support the plaintiff, was asked, in relation to the opinions she expressed in her report and in the Joint Report, whether, if there were no effects [being a reference to conduct and behaviour] before the accident and there were such effects after the accident, is it more probable than not that the accident was the cause of the effects, sought to prevaricate (Transcript, 23 April 2015 at 576, 577) but ultimately answered that it was (Transcript, 23 April 2015 at 578.9-578.13).
Further, the Court has found and reiterates that the symptoms were present after the subject accident and not before the subject accident. The 20 minutes of video recording tendered on behalf of Avopiling is not inconsistent with that conclusion.
First, it is clear from the schedules and the timing of the recording that persons on behalf of Avopiling had recorded significant periods of time of the plaintiff's conduct and behaviour. It is only the 20 minutes that was tendered that "assists" Avopiling's case as it is put to the Court. But even those 20 minutes at the bank and shopping centre, even if taken together with the other recorded events that were short in duration, is not inconsistent with the evidence that, when relaxed or when not agitated, the conduct of which complaint is made occurs less frequently.
In most cases of personal injury (except perhaps with paraplegic and quadriplegic cases) sequelae of that kind will vary in intensity, whether it be because of fluctuations in pain or because of reflex action or the like.
The orthopaedic evidence, to which reference has already been made, does deal with the duration of working life. There was a prior accident to that which is the subject of these proceedings, being the January 2006 accident. I note, at this point, that immediately after the injury to the right shoulder that occurred on 25 January 2006, the plaintiff returned to work and worked full-time until dismissed in May and would have worked until the subject accident.
Nevertheless, the injury to his right shoulder, according to Dr Giblin, would have shortened his working life by approximately five years. Dr Maxwell, who was qualified by the defendant, considers that the plaintiff's employability was unaffected or virtually so. Dr Maxwell's opinion seems affected by his diminution of the effect of any injury on employability.
I accept Dr Giblin's prognosis as to the shortening of working life and therefore take the calculation of any loss of earnings as a labourer to age 62, instead of age 67, the last five years thereof being referable to an injury for which damages are not now being calculated. However, in the absence of the subject accident, Mr Bosevski would have worked at least to age 67 in another capacity, e.g. taxi driver.
I have already dealt with the allegations as to "employability". I accept, without reservation, the opinion expressed by the psychiatrists and the neurologists/neurosurgeons that Mr Bosevski is, for practical purposes, unemployable.
His claim for future losses must be assessed to age 62 (as previously identified) in his labouring position and thereafter to age 67 in a non-labouring capacity as a taxi driver.
I turn then to the heads of damage. Past economic loss must be measured from 22 September 2006 and, in accordance with the material before the Court, includes a total loss of future earning and past earning. The plaintiff is seriously disabled. The overwhelming preponderance of evidence from those witnesses whose evidence I accept is to that effect.
Mr Bosevski was 45 years of age at the date of the accident and, as earlier indicated, would have continued to work in his current position until age 62 and thereafter in a position which I will calculate on the basis of working as a taxi driver, as has been put to me in the proceedings.
Mr Bosevski's life expectancy is to age 76 years and six months.
Past economic loss must be calculated on the basis of $660 net per week until 30 June 2008 then at $689.70 per week until 30 June 2009, $700.04 per week until 30 June 2010, $721.74 per week until 30 June 2011, $747.72 per week until 30 June 2012, $756.69 per week until 30 June 2013, $774.85 per week until 30 June 2014, $798.09 per week until 30 June 2015, $810.06 per week until 30 June 2016, $818.16 per week until 1 April 2017. The foregoing amounts are net, after tax. The adjustments are for C.P.I., not "award" wages or wage growth.
The damages must include an amount to compensate for the refund of gross Workers' Compensation payments upon which tax has been paid (Fox v Wood (1981) 148 CLR 438; [1981] HCA 41). This amount can be calculated by the parties.
The out-of-pocket expenses, about which there is little detailed evidence (leaving aside the issues raised in relation to the level of disability and the like) is for an amount of $163,317. This has been calculated, in relation to past expenses, by reference to payments by workers' compensation.
Future economic loss must be calculated on the last-mentioned wage rate, in relation to the period up to 1 April 2017 to age 67, assuming, as I do, that the earnings of a taxi driver between the ages of 62 and 67 is the same as that that would be earned by a labourer in the position previously occupied by the plaintiff. The future economic loss must be reduced by 15% for the usual vicissitudes. Compensation must be paid for the loss of superannuation at 11% on past economic loss and 12% at future economic loss.
Dental expenses have been agreed at $10,000. Allowances must be made for medication at $80 per week; GP and specialist consultations and imaging should be calculated in the following way. I generally accept the neurologists' recommendation that the plaintiff needs to be seen by a pain specialist on a three-monthly basis at approximately $300 per visit indefinitely and I generally accept that the treatment plan administered by such a pain specialist can be administered by a general practitioner, although a neurologist is preferable.
However, the plaintiff did not attend on the pain specialist as regularly as indicated by the specialists should have been done. In part that was due to the difficulties associated with approval of workers compensation issues. Nevertheless, I would allow one visit every 12 months at a cost of $300 per visit.
As to the neurologist's attention, I estimate, notwithstanding the recommendation that a neurologist should be seen every two years, that, in light of the failure to attend on a neurologist as often as recommended in the past, that an allowance should be made for treatment by a neurologist once every four years indefinitely.
I accept the joint psychiatrists opinion that the plaintiff's current treatment regime be reduced to consultations every two months for five years and then every three months for a further five years and that he continue with anti-depressant and anti-psychotic medication. Thereafter, it would seem that an allowance of four consultations per year after the first ten years would be excessive and I allow only one consultation per year thereafter.
If, as earlier indicated, the general practitioner would be administering the regime created by the pain specialist, then it seems that the plaintiff will need to see his general practitioner more often than indicated by Dr Maxwell (Exhibit B[8]). I would estimate that six visits per year for the purpose of treating issues arising solely from the subject injury is appropriate. Because the allowance is made for visits to the general practitioner solely for the purpose of treating matters arising from the injury, which is the subject of compensation, it is unnecessary to allow for vicissitudes. There will be other visits to the general practitioners for non-compensable reasons.
I deal then with the nerve stimulator. Mr Bosevski has a nerve stimulator device and, previously, had earlier versions of it. Mr Bosevski still suffers pain, but I accept that the nerve stimulator device ameliorates the pain and will be an ongoing necessity.
As a consequence, allowance must be made for the maintenance and programming of the device, its removal and replacement every 10-15 years (say twice during the life expectancy), with the maintenance and programming occurring on average twice per year. I accept the figures proffered by the plaintiff that an allowance of $31,570.11 should be allowed for this matter.
I also allow a further $9,000 for travel to the doctors, investigations and therapy, physiotherapy, hydrotherapy, rehabilitation, massage and other therapy.
Evidence was adduced from an occupational therapist who has provided reports that are before the Court. The occupational therapist, Ms Kennedy-Gould, estimated that an initial period of four hours per day of past gratuitous care was appropriate until 10 April 2007 and thereafter and into the future the claim is for three hours care per day. The care arises from a combination of a psychological and physical restrictions (see Ms Kennedy-Gould's first report, Exhibit F1, p 467-468 and her second report at Exhibit F1, p 484-485). Dr Jungfer concurred in those opinions.
The evidence of Ms Kennedy-Gould is not contested. The evidence of the psychiatrists in relation to their concurrence with those estimates in the reports of Ms Kennedy-Gould were not the subject of cross-examination.
The summary of the evidence earlier provided indicates that the plaintiff was active inside the house in cooking and other household chores before the accident and was not in any way active after the accident. As a consequence, I allow past gratuitous domestic and attendant care at 28 hours per week until 10 April 2007 at the rate of $22.50 per hour; at 21 hours per week from then until 13 April 2015 at the rate of $25.46 per hour; then at 21 hours per week until 1 April 2017 at the rate of $45.50 per hour and thereafter during the life expectancy at the continuing allowance of 21 hours per week at the rate of $45.50 per hour. I also allow lawn mowing and gardening on average at 1 hour per week at the rate of $45 per hour during the life expectancy and, likewise, handyman assistance on average 24 hours per annum or 0.46 hours per week at the rate of $70 per hour for the whole of the life expectancy.
The last matter with which I deal is the issue of non-economic loss. The cap on damages pursuant to the provisions of s 17 of the Act is, from 1 October 2016, $605,000. The Amount of the limit on damages is reserved for a most extreme case. I do not consider that Mr Bosevski represents such a case and, therefore, ought not receive at the maximum allowed for non-economic loss.
As earlier stated, Mr Bosevski is in constant pain, although not as acute as it would otherwise be if it were not for the nerve stimulator. Nevertheless, Mr Bosevski is required to suffer the inconvenience of the nerve stimulator.
He suffered a remnant of metal in his eye and significant facial and other injuries. I do not here reiterate the disabilities, inconveniences and detriments to lifestyle previously summarised. In my view, the appropriate percentage for his non-economic loss is at 55% of the maximum, namely, $332,750.
I accept that the plaintiff has attended various social gatherings, but has had a significantly diminished incidence of such activities and has, compared to his pre-injury activities, been largely staying at home. The plaintiff has continued to maintain some of the relationships with his circle of friends but, on the evidence of Ms Galagas, has not socialised to the extent that he would otherwise have.
Further, I accept that the plaintiff has travelled overseas, although never alone, all of which has been considered in determining an award of 55% of the maximum.
I direct the plaintiff to bring in a Short Minute of Order calculating the amounts in accordance with the foregoing. I reserve to the parties any omission from, or clarification of, the damages. Avopiling shall pay the plaintiff's costs of the proceedings and I will hear any application for any special or different order as to costs, including the costs of other parties.
The Court orders and directs: 1. Judgment for the plaintiff; 2. The plaintiff file and serve a short minute calculating damage on the basis of these reasons within 21 days hereof; 3. Liberty reserved to the parties to address the aforesaid calculation and any omission from or clarification of the heads of damage or detail necessary for said calculation by application by email to my Associate; 4. The defendant pay the plaintiff's costs of and incidental to the proceedings; 5. The parties have liberty to apply for any different or special order for costs within seven (7) days of the making and entry of the orders arising from the short minutes to which reference is made above.
The Court notes: 1. The plaintiff directs the defendant to pay to Allianz Workers Compensation (NSW) Limited the sum of $661,633.39 from the sum in order 1; and 2. The defendant is to have credit for the amount paid to Allianz Workers Compensation (NSW) Limited in the sum of $661,633.39.

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