Chapman v Dickinson

District Court of NSW|2020-12-18

Judgment

Intending no disrespect, in this judgment I sometimes refer to Kevin Dickinson as Kevin and Justin Dickinson as Justin for ease of understanding.

A. Introduction

Christopher Chapman suffered a badly injured arm on 1 September 2014 on a White Heavy Haulage industrial worksite and commenced proceedings for damages under the Civil Liability Act 2002 against the business owner, Annette Patrick, and her son, Justin Dickinson, who was an employee involved in the incident. The defendants claim that Mr Chapman was a worker or deemed worker under the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act). If that is so, the Civil Liability Act does not apply, and the claim for damages cannot be maintained.

B. Issues

Paragraphs (f) and (g) of s 3B(1) of the Civil Liability Act 2002 exclude from the operation of the Civil Liability Act: "civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies" and "civil liability for compensation under the Workers Compensation Act 1987". Div 3 of Pt 5 of the Workers Compensation Act 1987 includes s 151E, which provides that the Division applies to an award of damages in respect of an injury to a "worker". Worker appears not to be defined in the Workers Compensation Act.
Section 4 of the WIM Act provides that "In this Act… worker means a person who has entered into or works under a contract of service or a training contract…" On its face, this definition does not extend to another Act, namely the Workers Compensation Act. Section 4 defines "Workers Compensation Acts" to include the WIM Act and the Workers Compensation Act, and "workers compensation legislation" is similarly defined, but that seems not to alter the meaning of the chapeau in s 4.
Section 2A of the Workers Compensation Act provides that the Act "is to be construed with, and as if it formed part of" the WIM Act. A note to the WIM Act at the conclusion of the definitions in s 4 of the WIM Act asserts that "a reference in this Act to this Act generally includes a reference to the 1987 Act". But s 4(3) provides that "Notes in the text of this Act do not form part of this Act". Moreover, it is not in the present context so important that "a reference in this Act to this Act includes a reference to the [WIM] Act", as s 2A provides, but rather that a reference in the WIM Act to "this Act", should include a reference to the Workers Compensation Act.
In any event, if "worker" in the Workers Compensation Act is to be construed as if it forms part of the WIM Act, as s 2A proposes, it seems appropriate to adopt the WIM Act definitions, even if the methodology to reach this position appears a little awkward. The parties did not submit otherwise, but adopted this approach in their submissions.
Accordingly, whether Mr Chapman is a worker or deemed to be a worker depends, in either case, upon the existence of a contract. The definition of worker in the Workers Compensation Acts requires that there be, as indicated earlier, a "contract of service"; [1] and Sch 1 of the WIM Act relevantly requires that there be a "contract… to perform any work" in order for the contractor to be "taken to be a worker".
The existence of a contract is denied by Mr Chapman. He says he was voluntarily and gratuitously assisting at the worksite, that any arrangement for his assistance was too uncertain to be contractual, and that there was no intention in either Mr Chapman or Ms Patrick to enter into legal relations.
Mr Chapman was injured when the bucket of a front end loader operated by Justin Dickinson closed on Mr Chapman's left arm. It is in issue whether Justin Dickinson was negligent in the operation of the front end loader. There is no issue that Ms Patrick is vicariously liable for any negligence of her employee son. Contributory negligence is alleged by the defendants.
There are also issues arising from the calculation of damages: principally the appropriate amounts for non-economic loss, economic loss, and future care arising from Mr Chapman's physical injury and psychological sequelae.
Accordingly, the various issues can be listed as: 1. was the arrangement between Ms Patrick and Mr Chapman as at 1 September 2014 sufficiently certain and made with an intention to create legal relations so as to constitute a contract; 2. was Justin Dickinson negligent; 3. was Mr Chapman guilty of contributory negligence, and if so, how should his damages be apportioned; and 4. quantum of damages.

C. Mr Chapman's relationship with Kevin Dickinson and Annette Patrick

Kevin Dickinson was the father of Justin Dickinson and de facto husband of Ms Patrick. Mr Chapman first met Kevin in about 1986. [2] Kevin died in 2013. Before then, from about 2006, [3] Mr Chapman and Kevin shared a common interest in purchasing things at auctions, [4] such as "engineering materials, machine tools, lathes, milling machines, surface grinders, mill machinery, engineering tools". [5] Sometimes Mr Chapman would buy things at an auction for Kevin. Items were bought to on sell or for their own use. [6]
Several of the auction transactions involved an invoice issued to White Heavy Haulage, which was Annette Patrick's business. [7] This appears to be because Ms Patrick regarded Kevin as her partner in the business, as she testified: "Q. You met Mr Chapman through your husband, Kevin? A. Yes. Q. That's correct. A. De facto partner, yes." [8] "Q. Kevin wasn't paid by White Heavy Haulage, was he? A. He's my partner. Q. Indeed being your partner he got to use the resources of White Heavy Haulage, being yourself? A. Yes." [9]
Ms Patrick was Kevin Dickinson's de facto partner for approximately 50 years, [10] and Kevin "had a big role in the business. He bought and sold anything that we weren't using, and anything we needed, he bought from auctions".
Ms Patrick accepted that Kevin as her partner was not paid by White Heavy Haulage but got to use the resources, vehicles, yards and accounts of White Heavy Haulage, and that Kevin and Mr Chapman would divide up "the items and sort it out between themselves as to who got what, where it was stored". [11] Ms Patrick accepted that some things were bought by their business and somethings by Kevin with his own money, as she "wasn't with Kevin all the time when he bought whatever".
Mr Chapman said most things he bought for Kevin Dickinson were not bought for the business, and would not be used in the business. He said, "Because Kevin just bought everything under the sun", [12] he was "just a collector of everything", [13] he "bought anything that was going cheap"; [14] and with some items he would not use them "he'd just store them", and it would "make him happy". [15]
Kevin had access to several industrial yards, including one at Sydenham from where the heavy haulage business operated, and one at Kingswood where items were stored. [16] At both of these yards would be found: "Mountains of machinery, plant and equipment, materials of all nature…Things piled on top of each other. There's so much material that space was fully occupied, things would be piled on top of each other". [17] Some of those items were things Mr Chapman had bought [18] and transported to the yard either on his utility [19] or if it was larger, he would get Kevin to organise a truck. [20] Mr Chapman ceased taking his items to Sydenham to be stored in early 2013, [21] but some of his goods remain on the property. [22]
Mr Chapman would frequently see Kevin at the Sydenham yard, where Kevin and Ms Patrick would regularly be found. Mr Chapman had a key to the yard and could come and go as he pleased. [23] He volunteered to do odd tasks at the Sydenham yard, [24] but there was no instruction given to him. [25] He would have a coffee and occasionally have meals there. [26]
Ms Patrick gave evidence that the yards at Sydenham and Kingswood were leased [27] at the time of the incident, although the yard at Kingswood had since been relinquished. [28] She met Mr Chapman through Mr Dickinson in about 2011, possibly earlier. [29] She regarded both Kevin and Mr Chapman, and others she met through Mr Dickinson, as "wheelers and dealers". [30] Kevin had borrowed cash off her a couple of times to pay Mr Chapman, [31] but when Kevin died on 3 December 2013, there was no resultant change to her relationship with Mr Chapman. [32] She said Mr Chapman "came and cleaned yards up. We need them cleaned up badly because Kevin was a hoarder" [33] and "I had to wait for him to die to do it because he wouldn't let anything be moved". [34] "He was a hoarder to the day he died". [35] This meant "we had a job to drive the semi-trailers in and work the forklifts because there was so much stuff he'd buy". She said Mr Chapman "was a welder", that he "would gather the scrap at Sydenham, clean the yard, fix - weld anything". [36] After a fire at Kingswood in 2014, "we all had to go out to Kingswood because council was more onto us". [37] Mr Chapman used a "[w]elder, shovel…forklift, bobcat".
Mr Chapman rarely, if ever, went to the Kingswood yard before 2014. In 2014, prior to the fire, he went there once or twice to the Kingswood yard to investigate some missing equipment. [38] He also went there a number of times in 2014 to assist in the clean-up after the fire. This was the activity in which he was engaged at the time of the injury to his left arm. Whether the fire was related to the missing equipment or the investigation was not explored at the trial. [39]
At Sydenham, Mr Chapman did welding, loaded table top trucks, fixed a gate twice, and did sweeping or cleaning. He organised an account for the scrap metal, [40] and assisted in its removal as he did with the fire-damaged material at Kingswood. [41] He did it to help, [42] sometimes he used the White Heavy Haulage equipment, and sometimes he used his own. [43] Mr Chapman said that from April 2014, as his diary records, he went regularly to Sydenham. [44] He said his intention from the beginning was just to assist Ms Patrick to clear the yards as he had "contributed in no small way … to their frustration with the accumulation of the material", and he was concerned with his property on their premises, after Kevin died. [45] He took it upon himself to clean the yard, and said as much, implying, he said, that he would do it for free. [46]
Mr Chapman's history to Dr Virgona, the defendants' medico-legal expert, is consistent with this. Dr Virgona recounted Mr Chapman's history [47] with Kevin Dickinson and noted Mr Chapman stating his relationship was "somewhat strained" because Ms Patrick and Justin resented Kevin buying things and not doing anything with it. Mr Chapman is recorded as reporting that after Kevin's death he kept up the relationship with Justin and Ms Patrick, that he "went to the yard, tried to help them out, tried to dispose of a lot of stuff because I was responsible for buying a lot of it".
The 2014 fire at the Kingswood yard was extensive and destroyed about half the items in the yard. [48] The yard was several acres in size. [49] After the fire, Mr Chapman drove to Kingswood in his utility and assisted with the clean-up, removing fire-damaged material. [50] He did not drive the trucks at the yard or the front end loader that was used in the clean-up, although he did drive the bobcat on a couple of occasions. He handled the burnt refuse by hand. [51] He also organised and negotiated an account with Sims Metal for the scrap metal. [52] Generally he worked at the same location as Justin and one Brad Moody, who had also been a friend of Kevin.
Mr Chapman had no set hours or days he attended the Kingswood yard, and had no arrangement as to when and why he would attend. Before he started assisting, there was no arrangement for him to be paid for doing anything at the yard, nor was he given any other specified benefit such as free storage or accommodation. [53] Mr Chapman did not consider himself under any obligation and "certainly no legal obligation" to attend the yard and assist in the clean-up. [54]
Mr Chapman gave evidence that he was not working for money at the time of the incident, [55] that he was a volunteer. [56] He had no registered business or business address, no business phone number of office, no business stationery, did not advertise, employed no one, paid no GST, lodged no tax returns and had no business accountant. [57] He said he was not getting paid for anything he was actually doing.
However, whilst Mr Chapman was not paid by Ms Patrick prior to Kevin's death, he was "given money" or "paid" by Ms Patrick after Kevin died. [58] Mr Chapman said Ms Patrick paid him because "[s]he had a personal interest in me". [59] He said he "didn't want her money"; [60] he "might not have deserved it". [61] He said that after Kevin died, Ms Patrick invited Mr Chapman to reside at the Sydenham site, which he declined. Mr Chapman gave evidence that during the time Mr Chapman was cleaning up Sydenham, Ms Patrick told Mr Chapman that he should take some money. [62] They had a heated argument as Mr Chapman attempted to refuse and return the money. [63] Ms Patrick got upset and angry. [64] Ms Patrick said, "Nothing is for nothing", [65] which Mr Chapman presumed meant Ms Patrick thought "if I'm doing something around the yard she might give me some money, and nothing is for nothing, so take the money". [66] Mr Chapman's diary recorded that when Mr Chapman refused a payment, "[s]he blew up" and Mr Chapman returned and took the money. [67] The diary records an unsuccessful attempt of Mr Chapman to return some of the money the next day. [68] But these records indicate that these were not the first payments received by Mr Chapman.
Although Mr Chapman said he did not think he was being paid for work around the yard, he accepted Ms Patrick may have "thought that way". [69] He "took the money to keep her happy" [70] and that: "It was my intention to just assist her to clean the yard up because I had property - I - my property on the premises. I was concerned about that. And I just happened to volunteer my services without receiving any money for it but she insisted." [71] He said he had no choice; he acquiesced and took it when she gave it. [72]
Mr Chapman said that he had no "involvement in relation to the amount that Ms Patrick would pay", that he did not tell her "what sort of odd tasks" he did, [73] but he did tell her what hours he did because she asked Mr Chapman to keep an account of the times so she could give him some money in relation to that. [74] Mr Chapman accepted that he was assisting Ms Patrick when he was at one or other site, [75] and that Ms Patrick "would want to pay [him] some money for the things [he] had done". [76] As far as he knew, he was getting money in exchange for the assistance he provided her. [77]
Mr Chapman's diary recorded several visits to the Sydenham yard from about April 2014. It also recorded monies paid by Ms Patrick. [78] Mr Chapman recorded the times he did tasks. He was paid an amount that reflected $30 per hour, [79] although it appears that the hours were not necessarily what Mr Chapman beforehand recorded, but what Ms Patrick determined to pay. The evidence comprised extracts of the diary from March to September 2014, [80] which recorded visits by Mr Chapman to Sydenham and Kingswood.
Ms Patrick says that Mr Chapman "would write the hours down, and on whatever - a piece of paper, bit of cardboard, whatever, and I'd pay him [81] … The going rate - 20 - $30 an hour". [82] Asked if she ever asked Mr Chapman to do anything she said, "A couple of things, yes". She said: "Mr Chapman would go to an auction with Kevin, and he'd pick out what he wanted, and Mr Chapman would bring it back to the yard, and I'd bellow at him, 'Don't bring it in the yard', and he'd say, 'Kevin bought it. Kevin said, "Bring it back"'. I'd argue with Kevin. I said this is a transport yard, not a junkyard, and that went on and on every time I saw Mr Chapman."
Ms Patrick accepted that she said, "Nothing's for nothing"; [83] she believed "if someone does something for you, you've got to pay them". [84] "It's just a belief I've got, and we were brought up with".
When asked: "Q. Well, what did he do for you? A. He was like a handyman." [85] The reason why she paid him, she said, "He worked for me" and she denied that there was any time that he had refused payment. She accepted that the plaintiff was not employed by the business [86] because: "Well, I pay him cash, and I don't know if it stands for a - he was a worker. If don't know if it stands for a deemed worker. I don't know if it stands for a deemed worker I didn't know." [87] She denied Mr Chapman was a friend. [88]
Ms Patrick fed Mr Chapman often at Sydenham as she would feed everyone. Ms Patrick was at Sydenham from 4.30am until 6.30pm. She supposed she saw Mr Chapman three or four times a week then "mightn't seem him the following week". [89] She accepted that as Kevin's health deteriorated over the last five years of his life, sometimes his "health [was not] up to it towards the end" and that "Kevin would sometimes ask Mr Chapman to go to auctions". [90] Ms Patrick said of Mr Chapman "I dislike the bloke…only for bringing all this junk in" [91] and that "I screamed my head off ten times, 30 times" about him bring in "ute loads of junk". [92] Mr Chapman's attendance at the yard "was not wanted because we believe in safety and health hazard" because she thought Mr Chapman would get himself killed. [93] She accepted that Mr Chapman would turn up after anyway "after I'd scream my head off" [94] and seemed to dispute that Mr Chapman was ever welcome ("What could I do if he turned up" [95] she said) except perhaps when he would "be a friend to Kevin" [96] or do a task that was of some use to Ms Patrick. [97] It was a "fluctuating relationship between him turning up and being appreciated and being run off the place from time to time". [98] She accepted that "the majority of times" or except for "a couple of times", she "didn't tell him to do things he would just go and do them". [99]
Ms Patrick accepted that from Kevin and Justin she: "got the understanding that Mr Chapman was pretty down and out and doing things financially in a very tough way… living in a storage shed… that he had no money or access to very little money". [100] She accepted that she sometimes felt sorry for him. As to payments, she said, "[H]e'd give me the hours, and if I thought that he didn't do the hours, or didn't do the job good, I'd ask Justin downstairs or Colin". [101]
Ms Patrick denied it was up to her to decide what Mr Chapman should be paid regardless of the hours he worked. [102] Yet Ms Patrick was taken to her statement made 21 November 2017 and accepted she sometimes paid Mr Chapman because she felt sorry for him, and that she paid him for his assistance at the yard, with cash, without any recordkeeping, either from petty cash or her purse.
Ms Patrick initially denied the contents of her statement that payments were made "purely discretionary rather than systematic basis" [103] attributing it to "a long time ago, I wrote, I signed it". [104] When asked about having stated that Mr Chapman "was never asked to perform any services or work", [105] she said "Well, sometimes he was and sometimes he wasn't…" although she accepted "he was never an employee or a contractor" and said "he wasn't employed, he wasn't on the books. He was paid cash". [106] She questioned the meaning of the words "There was never a working relationship of any kind" in her statement. [107]
Ms Patrick did not dispute that she said she "could just decide how much he should be paid regardless of what he said he had worked" but explained she questioned the hours Mr Chapman said he had done, and asserted, "He got paid everything he done". [108] She accepted that she "considered it was [her] right to choose whether Mr Chapman got paid or not for any particular activity". She later said: "He worked. I paid him for working. He'd give me the times, so we'd sit there and it'd just be times, not exactly what he'd done…He worked, I paid him. You paid - nothing's for nothing. I paid the man." [109]
Ms Patrick accepted that she had paid some driving fines for Mr Chapman, [110] and that she has never charged Mr Chapman for storage of his goods at Sydenham. [111] She denied that it was because of sympathy. She disputed that she was no longer sympathetic or had animosity towards Mr Chapman because she was sued, although she accepted that she was annoyed at being sued. She gave the following evidence: "Q. To repay Kevin's generosity about allowing free storage, et cetera, being his friend, taking him to auctions, you observed Mr Chapman starting to do things around that yards he wasn't asked to do? A. Mr Chapman would come in the yard of a Sunday. I wouldn't ask him to do it, he'd just go ahead. He had keys to the yard. He'd do it without my knowledge. I wanted to be there all the time when people work in my yard because I'm responsible, I've got to answer to the railway who I lease off. Q. At times you felt that Mr Chapman had done such a good job and so much work around the place that you paid him some money? A. Yes." [112] She accepted that she had paid for his fines at one stage and fed him along with others. She "continued to provide him with, free storage, all as part of a give and take relationship". [113]
Ms Patrick also said: "I'd lock the gate Sunday. He'd climb over, get caught in the barbed wire, get ripped to pieces. He'd fall backwards and then he'd climb under, ripped, bleeding; still go and do welding, and I wouldn't know about it until I come in the yard and check on the yard Sunday afternoon and he'd be all battered and bleeding and I've had to patch him up. He'd want to get paid for it. I didn't ask him to; I didn't ask him to climb the fence, even though he had a key. I just want to explain when I'm asked a question I don't seem to be able to or allowed to explain there's a story with this bloke. How do you go to court and you say yes or no without explaining?" [114]
Ms Patrick recounted her recollection of Mr Chapman investigating stolen items at Kingswood. She said Mr Chapman told her an item was missing, that the next door neighbour had it, and that he said, "I'll fix it. I've get over the fence and have a good look to see if it is yours". Ms Patrick said, "Do it".
This episode appears even from Ms Patrick's account to be done by Mr Chapman on his own initiative, not by any direction from Ms Patrick. Ms Patrick said Mr Chapman "had more idea that they belonged to Kevin than what I did because I'd only been out there once". [115] Mr Chapman took photos to confirm that the items belonged to Kevin. Ms Patrick apparently never went to Kingswood before the fire. [116]
Ms Patrick accepted that Mr Chapman never received a uniform because "I knew he wouldn't wear a fluorescent…you cannot get out the gate unless you've got a fluorescent uniform on" [117] although she said Mr Chapman did have a fluorescent vest that she gave him. [118]
Mr Chapman accepted that he may have told someone at Nepean Hospital that he suffered a work-related injury, [119] that he could have told a therapist on about 5 September 2014 that he did casual work, [120] that he could have told Dr Lowe, his cardiologist, on 8 April 2014 that he was "currently working cleaning up a friend's property", [121] and subsequently in June 2018 that he probably told Dr Patrick that at the time of the injury he was working in the yard at Kingswood. [122] He denied that he was working under the direction of Ms Patrick, or that he would have so said. [123] He also denied telling Dr Teoh in July 2018 that he was "working in an informal arrangement in Kingswood" [124] asserting that he said he "would have been helping somebody out". [125] He also denied telling a treatment provider, Jessica Medd, that he said the injury involved a "workplace accident". [126] He denied referring to Ms Patrick as his employer. [127]
Ms Patrick's statement was also in evidence. It read: "1. This statement is made freely by me and accurately sets out the evidence that I would be prepared, if necessary, to give in Court as a witness. This statement is true to the best of my knowledge and belief, and I make it knowing that, if it is tendered in evidence, I may be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true. 2. I have been requested by Pedja Ilic acting on behalf of HWL Ebsworth relation to the insurance matter of IM:683451. I am willing to provide this statement. 3. By providing this statement, I acknowledge and consent to HWL Ebsworth handling my personal information under its Workers Compensation Privacy Statement. I understand the Privacy Statement is available on the HWL Ebsworth website. 4. I understand that the personal information I provide to HWL Ebsworth may be disclosed to other parties in line with that Privacy Statement, such as other people connected with this claim and potentially the police. 5. I understand that in the event of a dispute a copy of this statement may be provided to the claimant or their legal representative in accordance with workers compensation legislation. 6. I understand that if I decide not to answer one or more questions I'm asked by the investigator during the interview to produce this statement, HWL Ebsworth may not be able to fairly assess the matter we are discussing today. 7. I understand that I can request a copy of this statement from HWL Ebsworth. I do not have any outstanding questions or concerns about how this statement has been taken or how my personal information will be handled by HWL Ebsworth. 8. My full name is Annette Patrick. 9. I am 67 years of age. My date of birth is 5 May 1950. I was born in Australia. 10. I have allowed Pedja Ilic to sight my government-issued photo ID prior to providing this statement. 11. I do not require the services of a licensed interpreter to provide this statement. 12. I do not require a support person to be present whilst I provide this statement. 13. I am the owner of White Heavy Haulage (hereafter referred to as the insured). I have been in this position for 46 years. I operate as a sole trader. 14. I am familiar with a man by the name of Christopher Chapman (hereafter referred to as the claimant). 15. I understand that the claimant has instigated a claim for work injury damages following an injury allegedly sustained in the course of his relationship with the insured. 16. ln relation to how the claimant came to establish a relationship with the insured, this started around 2011. At that time my husband, Kevin, was engaged in some work as a 'wheeler and dealer' which saw him purchasing a variety of equipment and machinery related to the trucking industry, which he would then sell at a profit by way of auctions. 17. I understand the claimant was present at one such auction and began talking to my husband. After some discussion the claimant revealed his dire domestic situation in that he was struggling financially and living out of a Kennard's Hire space (i.e. a warehouse). The claimant also mentioned that he had a number of machines and equipment that he had nowhere to store. He was unemployed and was totally disconnected from his family. 18. Out of sympathy, my husband offered to allow him to store his equipment and/or machinery at our premises. 19. Over time, the claimant developed a habit of coming in and out of our premises to pick up or store his equipment. Then, of his own accord and without any invitation, he began to assist around the yard by doing things such as sweeping, consolidating and cleaning up machinery and truck parts, and fixing doors. I believe he did this as a show of gratitude to my husband for taking sympathy to his living situation, even though he was never asked to do any such tasks. 20. The claimant's visits to the yard were sporadic and without notice. He would come in one day and then we would not see him for weeks. This continued for a number of years. 21. Because I felt sorry for him, I would pay him for his assistance around the yard. This was done with cash, without any recordkeeping, and on a purely discretionary rather than systematic basis. I would literally take the cash straight out of my purse. I would estimate that, in total, I paid him approximately $1000.00 over a period of three months. I do not believe I ever paid him more than $100 at a time. 22. To clarify, the claimant was never asked to perform any services or work for the insured. He was neither an employee nor a contractor. There was never a working relationship of any kind. 23. It was readily apparent that the claimant had a mental condition of some sort. He was seemingly unable to understand that we did not want him working in the yard and would often do things that indicated he was almost entirely lacking in common sense. He became a liability and a concern around the yard because he appeared to have little awareness of his own safety and the things he was doing. We tried to get rid of him many times but he simply kept coming into the yard of his own accord, at random times. 24. Shortly after his injury on 1 September 2014 the claimant stopped coming into the yard and I have not seen him since that time. 25. I am unaware of whether the claimant had an ABN but I highly doubt it given the nature of his living situation. 26. I would like to clarify the following: • The claimant was not entitled to any benefits or entitlements such as sick leave or annual leave • The insured did not make any superannuation contributions on behalf of the claimant • The insured did not remit any income tax on behalf of the claimant • The insured did not pay any GST on behalf of the claimant • The insured did not supply the claimant with any tools or equipment • The insured did not issue the claimant with any uniforms • I am unaware of whether the claimant carried any of his own insurances at any time 27. I cannot think of anything else that I wish to add to this statement. 28. I have been advised that I am free to take breaks at any time during the provision of this statement. 29. I have carefully reviewed this statement and made any desired amendments prior to signing it. This statement is a true reflection of the interview and represents my knowledge of the circumstances relating to the matter to the best of my recollections." [128]
The plaintiff's chronology was verified in the witness box and admitted subject to any later objections. [129] No objection was subsequently taken. It contains an extract from a statement of 1 December 2017, not otherwise tendered, from Justin Dickinson, who was not called to give evidence, as follows: "21. The claimant was never offered employment by the insured but to my knowledge, he was never paid by the insured for anything. The insured never placed any expectations upon him. He was merely in the yard to tend to his own equipment … 27. It goes without saying the claimant was not entitled to any leave entitlement. 28. By the same token, the insured did not remit any tax on behalf of the claimant as he was never renumerated … 30. … I have been informed that the purpose of this statement is to determine the nature of the claimant's relationship to the insured …" [130]
Mr Chapman's diary was also in evidence. [131] As indicated earlier, it recorded Mr Chapman attending the Sydenham yard (recorded as "Kev's") regularly. The following is a schedule of its contents relevant to payments and hours: Date Hours Payment 3 March 2014 No hours recorded $585 9 March 2014 No hours recorded $1020 14 March 2014 No hours recorded $915 29 March 2014 No hours recorded $1040 6 April 2014 No hours recorded $1260 17 April 2014 No hours recorded $1030 19 May 2014 No hours recorded $310 25 May 2014 34 hours $1020 31 May 2014 31 hours $930 13 June 2014 36 hours $1080 25 June 2014 No hours recorded No payment noted 27 June 2014 38 hours $1140 28 June 2014 No hours recorded No payment noted 29 June 2014 No hours recorded No payment noted 1 July 2014 No hours recorded No payment noted 3 July 2014 No hours recorded No payment noted 4 July 2014 No hours recorded No payment noted 5 July 2014 "43 hours - which was wrong, should have been 33 hours" $1290 6 July 2014 No hours recorded -$300 7 July 2014 No hours recorded No payment noted 27 July 2014 No hours recorded. "Didn't take it. She blew up..." $1000 5 August 2014 No hours recorded No payment noted 8 August 2014 33 $1000 20 August 2014 "Tried to return give $340 back…" No payment noted 29 August 2014 No hours recorded $1240 1 September 2014 No hours recorded No payment noted

The diary thus indicates that Mr Chapman received $14,560 in total. He also received $3,000 from Ms Patrick in respect of his traffic fines.

The evidence [132] also included about a dozen invoices produced by Mr Chapman for many sundry items supplied to White Heavy Haulage. In about half of those invoices, Mr Chapman's name appears.
Finally, in prior proceedings Mr Chapman as Applicant gave the following evidence: "MR PARKER: So you accept by using the words 'work' or 'working', that connotes some sort of relationship or contractual - - - APPLICANT: Well, it could, yes. Yeah, well, it depends on what context of the words used. I mean, if you're assisting somebody and you happen to be removing items and what you're actually working, you're physically working, but it's not in a paid sense, if that's what you mean. MR PARKER: Yes. But you wouldn't tell someone that you were working, unless for instance you were doing something physical and you were getting paid. APPLICANT: That's right, yes." [133] "MR PARKER: No. Because if you're working, that connotes some sort of commercial relationship, doesn't it? APPLICANT: Yes. That's right. That's so." [134] "MR PARKER: Well, they could tell you and say, 'I want you to go and do - - - ' APPLICANT: Well, they could. If - if they wanted something done, they could do that, yes." [135]

D. Credit

Mr Chapman's circumstances were humble, but I was impressed by the manner of his evidence. He readily corrected errors, and conceded matters against his interest. On some matters, his memory seemed weak, but that tended to be on matters of less significance. However, he carefully dealt with each question and his answers were corroborated by other material. I accept that I could rely upon his answers.
Ms Patrick was also an impressive witness. Like Mr Chapman, I was satisfied that she attempted to answer questions honestly. On some occasions she did not exhibit the same care with her answers as Mr Chapman, and preferred to give her opinion rather than answer the question. She also manifested some reluctance to adopt her earlier statement, even though she gave evidence that she was its author and she made corrections to and signed it. [136]
I would prefer the evidence of Mr Chapman, but generally on factual matters of importance there was little difference between their evidence.

E. Was there a contract?

It is convenient to set out findings in relation to the working relationship such as it was between Mr Chapman and Ms Patrick prior to Mr Chapman's injury.
I find that Mr Chapman volunteered to clean or assist to clean the yard at Sydenham, not expecting payment, motivated by the circumstance that he had some goods stored there and that he had contributed to the accumulation of the material through his auction purchases with and for Kevin.
I find that Ms Patrick was not inclined to have Mr Chapman giving her assistance without him being paid. She insisted that Mr Chapman be paid for the assistance he gave, and Mr Chapman accepted those payments, although initially and at other times he did so reluctantly. I am not persuaded that those payments were solely based on the hours Mr Chapman recounted to Ms Patrick, not only because she paid other matters such as fines, but she determined the value of the work Mr Chapman did. In my view, the payments reflected her view, after enquiry, of the value to her of Mr Chapman's assistance, moderated by such matters as his history of friendship with Kevin and her sympathy for him.
I find that Mr Chapman was never obligated legally to provide any assistance to Ms Patrick. Mr Chapman went to one or other yard or not at all invariably according to his own inclination, and if he chose not to turn up, no one was troubled. Ms Patrick on many occasions did not want him to turn up, and sometimes strongly expressed her disapproval of him coming or being on site.
Mr Chapman came to expect that he would be paid something for his labours, that amount would be based upon a rate determined by Ms Patrick to be the going hourly rate together with Ms Patrick's view of the appropriate number of hours, taking into account what Mr Chapman reported, her own enquiries, and other matters like her sympathy for him and his past friendship with Kevin. Mr Chapman never regarded Ms Patrick as bound in law to pay him, and Ms Patrick, although she felt in accordance with her own principles and morality that she would and did always pay him, understood Mr Chapman's view on the matter. Apart from what she saw of Mr Chapman at the Sydenham yard, she was personally unaware of the hours of assistance he had provided, the work he had done, and when he would or might return in the future. Even at Sydenham, Mr Chapman might turn up on weekends when she was not present. Ms Patrick understood Mr Chapman would do his own thing. Only on rare occasions did she direct his activities, and even then Mr Chapman was not likely to follow her direction unless it accorded with his view of what he should do.
It follows that there was no formal offer of employment by Ms Patrick, or offer to work by Mr Chapman, nor any acceptance. Ms Patrick said she paid what she regarded as "the going rate", which she said was $20 to $30 per hour. There was no evidence that Mr Chapman sought that rate, or any rate. The amounts he received appeared generally to be at or near $30 per hour in 2014, but the methodology of calculation of the hours was uncertain. Mr Chapman's duties and obligations were not agreed and were essentially at large. He was doing what he wished according to his own timetable. He generally accepted what he was paid, although on occasion he attempted to refuse payment or return some funds. But the amount he was paid was an amount Ms Patrick determined.
Mr Chapman, by his counsel, submitted that this arrangement was not a contract, both because it is not sufficiently certain and because legal obligations were never intended. He submitted it was not the law but her own principles that required Ms Patrick both to tolerate, often with difficulty and sometimes under protest, Mr Chapman's presence on site and to pay him, because "nothing's for nothing".
One challenge to this submission was based on comments in medical reports about Mr Chapman working at Ms Patrick's direction, [137] and other like comments about his employment. I have referred to these matters and Mr Chapman's answers to them earlier.
The defendants also tendered hospital records which noted Mr Chapman had "sustained a work related injury", [138] that Mr Chapman's "Employment productivity" was "casual work" [139] and that the clinical notes record: "Employment: [Patient] was doing casual work, cash in hand".
A report of Dr Lowe, cardiologist at Concord Repatriation General Hospital, noted on 8 April 2014 that Mr Chapman was "currently working cleaning up a friend's property". [140] Dr Lowe reported on 26 July 2016 that Mr Chapman had moved from the "storage facility" and "derives income from odd jobs". [141] On 20 February 2018 Dr Lowe reported that he was "living under" a church because "he had been locked out of the storage facility", that he "does odd jobs" and had lost his driving licence. [142]
Caution must be exercised in relying on the contents of expert reports. [143] This caution is especially needed when considering the contents of medical reports to answer nuanced questions like whether the novel relationship in this case involved employment or whether the statutory tests in the Workers Compensation Acts were satisfied. The direct evidence of Mr Chapman and Ms Patrick is to be preferred because it is directed to the particular question in issue, whereas the medical reports contain a summary of a combination of instructions by Mr Chapman and conclusions by the medical expert. I was not persuaded by the contents of the medical notes and reports to reject Mr Chapman's account of the relationship.
Even though there was no conventional offer and acceptance in the relationship between Mr Chapman and Ms Patrick, a contract may still be found from inference or implication. Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [144] stated: "… even in the absence of clear offer and acceptance, and even without being able (as one can here) to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: 'and we hereby agree to be bound' in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract."
In applying this approach, the circumstance that the arrangement may be mutually beneficial is not of itself determinative of a contract, [145] and it is the objective intentions of the parties gleaned from their communications and their conduct towards each other that is relevant, rather than subjective understandings. [146]
The objective theory of contract does not involve a search for the uncommunicated subjective motives or intentions of the parties. [147] Yet: "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts". [148]
These circumstances concern what was communicated between the parties, and other surrounding facts informing their arrangement, "[t]he outward manifestation of those intentions". [149]
The matters to which I have referred would not, in my view, cause the informed observer to conclude that a legally enforceable contract had been reached.
Importantly, care must be taken in finding a contract based on inference. [150] In particular, contracts are not to be lightly implied and just because something is done does not mean a contract is being executed, or that a proper inference is that the conduct results from an earlier promise.
In my view, there is nothing in the conduct between Mr Chapman and Ms Patrick that manifests "an intention to be legally bound to the essential elements of a contract". [151]
If an intention in some way to be legally bound to pay (absent "the essential elements of a contract") is manifested in some way by Ms Patrick, that of itself is insufficient to establish a contract, for Ms Patrick would be legally bound on a quantum meruit for accepting the benefit of work done by the other. This is a legal obligation "that differs in character from the contractual obligation". [152] The "true foundation of the legal right to recover on a quantum meruit does not depend on the existence of an implied contract". [153]
Had Ms Patrick refused to pay Mr Chapman on any particular day, on the basis that his work was considered unproductive, unhelpful, contrary to what she requested that he stay off the site, could Mr Chapman sue for payment? It is "of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty". [154] While a voluntary assumption of a legally enforceable duty may be necessary for a contract, of course not all such assumptions of duty give rise to a contract. A motor vehicle driver assumes certain duties when they drive on a public road, but there is no contract involved. The duty assumed by Ms Patrick was that "nothing is for nothing" and she would pay Mr Chapman whatever she thought was the value of his work, determined by her assessment of his hours, and her view of the "going rate". She acquiesced in Mr Chapman doing work for her benefit. If that gave rise to any obligation, it was at most to pay the fair value of the work done. A refusal to pay a reasonable amount may found a quantum meruit claim, but no legally enforceable duty to pay an agreed sum under a contract was established.
In my view, any entitlement at law Mr Chapman may have possessed had he received no payment for his activities seems not to rest on an implied contract, [155] but rather in the unjust enrichment Ms Patrick may have received resulting from her deriving a benefit in which she has acquiesced and which she accepts without payment. Even this entitlement seems not to have been established at the commencement of Mr Chapman's activities. But as he continued to receive payment on some basis related to his hours, he expected to be paid and I accept that he attended at the sites with that expectation. And Ms Patrick continued to accept his presence, somewhat intermittently and reluctantly. Yet this does not give rise to a contract as there is an absence of features that objectively manifest a common intention to create legal relations.
No arrangement was ever reached as to the days or times or which site that Mr Chapman would attend, what he would do when he attended, or whether Ms Patrick would protest against or acquiesce to his attendance. Mr Chapman's times, places and activities remained solely a matter determined by Mr Chapman's inclination, and there was no legal obligation on Mr Chapman in any of those respects. So far as Ms Patrick is concerned, she had acquiesced to some extent to work by Mr Chapman and she had rewarded him in the past for the benefit of his work, at least when she did not protest his attendance. She remained entitled to prohibit Mr Chapman from entering the site, and on several occasions told him to depart. When she allowed him to enter the site, it was at her discretion, and she could withdraw it at any time. What amount she paid, how the value of his work was determined by her, what was at any time to be the going rate, were matters at her sole discretion, and governed by her own principles. If she had a legal obligation to pay Mr Chapman, it arises not from any implied contract, but because of a quantum meruit to avoid an unjust enrichment, a discrete principle. [156]
The same circumstances deny certainty to the essential terms of the arrangement sufficient to establish a contract. That Mr Chapman was prepared to work cleaning up the yard, apparently for nothing, but accepted whatever Ms Patrick gave him in her discretion, does not reflect a concluded certain bargain.
I am not persuaded that the Court should find a contract of service or for services where the alleged worker has no obligation to perform any duty at any time, and the existence, rate or basis of payments remains undefined and payable out of the largesse or at the discretion of the alleged employer.
The factors in Hollis v Vabu Pty Ltd [157] that determine whether a person is in substance an independent contractor or an employee, whether the contract is one of service or for services, are less informative here where the issue is whether a contract of any kind exists. I accept because of the matters mentioned earlier (at [25]) that Mr Chapman never "regularly conducted a business in his own name", the exception to a deemed worker. So much is plain from the words of Dixon J in Humberstone v Northern Timber Mills, [158] because Mr Chapman did not work for anyone else. But that question does not relevantly arise in these proceedings until a contract is found.
Ms Patrick, through her counsel, accepted that she bore the onus of establishing a contract, as it was an exception or defence to the statutory right to damages given to Mr Chapman under the Civil Liability Act. [159] Contrary to her submission, I was not satisfied that the nature of the arrangement placed upon Mr Chapman any tactical or forensic burden to disprove a contract. In any event, I am satisfied that the arrangement between Mr Chapman and Ms Patrick was not contractual for the reasons I have given.

F. The Incident

On the day of the incident, 1 September 2014, [160] Mr Chapman was engaged in assisting to remove some heavy chains that were part of the refuse from the Kingswood fire. [161] The chains were fused to a shipping container. [162] Mr Justin Dickinson was driving the front end loader. Although there was no real discussion about the methodology, [163] Mr Chapman indicated that he wanted to wrap the end of the chain around the teeth of the bucket of the loader, but Mr Dickinson told him to put the chain in the bucket [164] and Mr Chapman "just went along with the suggestion". [165] That process involved Mr Chapman feeding the chain underneath [166] through the open part of the bucket with his hands, then indicating by a nod or a wave that the bucket could be closed. [167] The bucket was then closed, Mr Chapman let go of the chain, [168] and the chain was dragged out by the front end loader reversing. This occurred separately with three chains, but the third chain slipped from the grasp of the bucket. [169] Mr Dickinson opened the bucket. When Mr Chapman "attempted to put it back in again" [170] (by reaching to grab the chain through the bucket [171] because the bucket was nearer to the ground than before), the bucket closed, crushing Mr Chapman's left arm in the side of the bucket. [172] Mr Chapman had not signalled for the bucket to be closed. [173] Mr Chapman shouted twice for the bucket to be opened and after a "momentary pause", the bucket opened. [174] Mr Dickinson did not have a line of sight to Mr Chapman's arm in the bucket. [175]
An alternative methodology for how the accident occurred was put to Mr Chapman, but he denied it. Whether the alternative was the account of Justin, someone else, or no one else, remained uncertain because no other witness gave evidence of the event. Mr Chapman's account of how the injury occurred was plausible and consistent with other accounts he had given, [176] and no reasonable alternative description of the incident was proposed, let alone evidenced. I accept Mr Chapman's account of how the incident occurred.
Mr Chapman accepted that if he had told Justin a safer way to do it, and Justin had accepted, it would have avoided the incident. [177] But because of Mr Dickinson's mood, he did not do so. [178] He said Mr Dickinson barked and shouted at him in an aggressive way "to put it [the chain] in the bucket" [179] and to do otherwise "might have led to a big fracas". [180] "Q. In any event, couldn't you have, after it had fallen on the floor, gone over and spoken to Mr Dickinson? A. Well, I could have, but I might have got my block knocked off." [181]
Mr Chapman denied that he was ever reprimanded for doing something unsafe, or told to be careful around machinery, to wear a vest or to stay away from forklifts. [182]

G. Negligence

The alleged negligence of the defendants is in Justin Dickinson's operation of the front end loader, closing the bucket on Mr Chapman's forearm. There can be little doubt that risk of injury from the opening and closing of the bucket of the front end loader in close proximity to Mr Chapman is a risk which is foreseeable and not insignificant, and a reasonable person would take precautions, because taking care was not onerous, the consequences were serious, and there was a significant chance of harm if care was not taken. The principles of s 5B of the Civil Liability Act thus point plainly to a duty of care. It may be that the risk was an obvious risk of which Mr Chapman is presumed to be aware under s 5G of the Act, but no failure to warn is alleged as a particular of negligence. [183] The risk was not an inherent risk [184] because it could be avoided by reasonable care and skill.
The methodology for extracting the chain was an unsafe system: the principal problem with the system was that there was no well-understood and standardised methodology employed by which Mr Chapman was to assist the front end loader to extract the chain. The matter was not discussed with any detail or clarity, but was determined by a word or two, a wink and a nod, even though the work involved Mr Chapman putting his limbs at risk. In the result, Justin failed to look to see if Mr Chapman was clear, could not see if Mr Chapman was clear and assumed that he was, or misunderstood some element of the system or signals of Mr Chapman. It follows that Justin proceeded to close the bucket without ensuring that Mr Chapman was safe and clear of danger. He did so without any appropriate indication from Mr Chapman. In any of these circumstances, Justin has failed to exercise reasonable care.
None of these matters appeared to be seriously challenged by the defendants. Justin Dickinson gave no evidence, which permits more easily the drawing of inferences against his interest in accordance with Jones v Dunkel. [185] I would draw a Jones v Dunkel inference in this case. However, the existence of negligence is established even without that inference. I accept Mr Chapman's account. I find that Justin was negligent, and that Ms Patrick is vicariously liable for the damages caused to Mr Chapman.

H. Contributory negligence

The statutory principles in the Civil Liability Act that govern negligence also govern whether Mr Chapman was guilty of contributory negligence. [186]
Mr Chapman was an experienced person, who had been regularly at the yard for many years. He had assisted at the yard for some months. Any failure to take reasonable care cannot be attributed to reasons of youth, inexperience or naiveté.
The relevant questions [187] are: 1. Did Mr Chapman fail to exercise reasonable care for his own safety? 2. If so, how should Mr Chapman's damages be apportioned, bearing in mind what is just and equitable, the causal potency of Ms Patrick's negligence and Mr Chapman's contributory negligence, and the gravity of the negligence or degree of departure from reasonable conduct of each party?
Mr Chapman, like Justin Dickinson, was aware that Justin's operation of the bucket carried significance risk to Mr Chapman. They were also both aware that the procedure to be adopted had not been discussed, and the signals to indicate that the bucket was clear to close were based on an assumption of mutual understanding. In those circumstances, there was a risk that Justin would be unsighted as to Mr Chapman's position and could close the bucket by misunderstanding instructions. Mr Chapman gave evidence that Justin could not see him, or had no line of sight to his location. In that event, it was careless of Mr Chapman to rely upon a presumption that Justin understood his nods or hand signals. In my view, Mr Chapman was contributorily negligent in not ensuring a common understanding as to the procedure between him and Justin before putting his arm in a position of risk from the closing of the bucket, even if further questions or discussion with Justin would produce scorn, derision, argument, or no change to the system of work. [188]
The degree of departure from reasonable care is the first matter to assess in considering a just and equitable apportionment. Here Justin Dickinson determined the unsafe system that was used and failed to take reasonable care in closing the bucket without ensuring that the area was clear. Mr Chapman's breach was to participate without complaint in a risky system. So far as the gravity of the breach is concerned, Mr Chapman's responsibility for the damage is significantly less, since he neither determined the system of work, nor controlled the machinery giving rise to the risk.
As to the causal potency of each party's breach of care, Justin's operation of the bucket is the more immediate cause. Mr Chapman, putting his hand or arm through the bucket opening was a feature of the unsafe system, but the operation of the bucket was the means by which injury could be inflicted. Damage could result from accident or misadventure in the unintended operation of the controls as well as a failure of Justin to keep a close look out before closing the bucket. As Justin was operating the source of the danger, again the causal potency of his breach is more significant.
I assess Mr Chapman's contributory negligence at 10%.

I. The injuries

Mr Chapman was taken by Brad Moody to Nepean Hospital. Mr Chapman said at first he "felt nothing", but after arriving at hospital, he was in considerable pain, what he termed "bearable agony". [189] On 2, 4 and 11 September he underwent procedures on his left arm. Photos indicated that the upper side of Mr Chapman's forearm required skin grafts, and he had a raft of stiches running along the underside of his left forearm from near his elbow along the forearm, across the wrist and into the palm of the hand. [190]
Dr Patrick, General, Vascular and Trauma Surgeon, was retained by the plaintiff to examine Mr Chapman. He reported on 25 June 2018 that: "Chris Chapman sustained a significant crush injury to dorsal aspect left forearm with fracture of distal third of radius and significant crush injury and with effect on wrist and hand. This was an open fracture of distal radius - a high energy injury with gross contamination over extensive degloved area." [191]
Dr Patrick's report of the events at the hospital was not in issue: [192] "Chris Chapman came to three surgical interventions in all at Nepean Hospital during his admission there. There was an open fracture of distal radius proximal to the wrist with gross contamination and possibly some compartment syndrome dorsally. He was unable to extend index finger. He came to initial surgery under general anaesthetic on 2 September 2014 with wash out with debridement and fasciotomy left forearm. He also came to volar fasciotomy with carpal tunnel release. There was significant muscle contusion. The wounds were lavaged and he was put into a dorsal back slab. He was reviewed also by plastic surgeons. He was complaining of some paraesthesia and diminished sensation over median nerve distribution left forearm. He came to further surgery 48 hours later on 4 September 2014 with open reduction and internal fixation of distal radius, compound scrub and closure of fasciotomy under general anaesthetic. Flexor retinaculum was released completely. Median nerve was identified and protected. Fixation was achieved with six hole plate and screws with image intensification. The arm was elevated postoperatively and for plastic surgical review of dorsal wound. He had come also to plain X-ray of left humerus as well as left hand, wrist and forearm on the day of injury. He was discharged from hospital after a week for follow-up by usual GP and also orthopaedic clinic and plastic clinic for review of dorsal wound on 11 September 2014." [193]
Dr Patrick noted that donor skin was harvested from the proximal left thigh, that progress was gradual but satisfactory, that Mr Chapman had had substantial physiotherapy at Concord Repatriation Hospital and had been referred to a psychologist.
At the time of discharge, Mr Chapman's pain was moderate, [194] but he has never completely recovered. [195] Mr Chapman had follow up x-rays on 23 September 2014, 15 October 2014 and 24 December 2014, the last noting: "callus formation at fracture site. Part of fracture line is still visible. There is small opaque foreign body over soft tissues medially to shaft of fifth metacarpal." [196] Mr Chapman's physical recovery and improvement continued for a year, [197] and the mental recovery remains unresolved, he said. [198]
Physically Mr Chapman said his left hand is constantly numb, he has no dexterity, it is weak [199] and he has a strange sensation in his arm. The strength in his hand is diminished about 50%, and his forearm strength is also diminished. He has a limited range of movement [200] and problems grasping with his left hand except for very light objects, [201] and to lift a chair or use a broom would cause pain. [202] His movement in the witness box manifested this disability, using only his right hand to manipulate folders and exhibits when requested. [203] On 25 July 2018 a Dr Meares reported: "Clinically, he does not use the left upper extremity much…his long term prognosis is guarded." [204]
On 11 April 2019 Dr Virgona reported: "It was likely he suffered a personality disorder. This disorder rendered him vulnerable to the development of his adjustment disorder." [205]
On 14 January 2020, Dr Patrick reported: "I do consider that Mr Christopher Chapman does continue to be totally and permanently incapacitated for work." [206]
So far as the mental effects are concerned, Mr Chapman feels betrayed and that the matter is unresolved. [207] He has been treated by a psychologist until earlier this year.
On 12 July 2018 Dr Teoh, psychiatrist, reported: "He had last worked in 2015. … He was working in an 'informal arrangement' in Kingswood". [208] "Diagnosis of diagnosis of Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood…His prognosis is poor, as his condition has become chronic." [209]
Dr Patrick reported present symptoms, as at 25 June 2018 as: "1. He has significantly diminished dexterity with the left hand generally. 2. He has significant numbness of the fingers and thumbs. This numbness had improved somewhat but over the past 12 months has deteriorated. 3. He has considerable stiffness with the fingers of the left hand as well as the wrist. 4. He frequently has abnormal feelings through the left forearm. 5. He has developed significant stiffness at the left shoulder. 6. He was always a willing worker, but he is very limited now the way he is. He believes that but for this devastating injury to his left arm he would have worked until he was 75 or more. 7. He is limited in what he can do where he lives at Homebush. He does have a son Chris aged 30 who works in events management. 8. The left arm is of limited use to him now. He has diminished strength. There is a lot of numbness. Some parts are very sensitive. There is considerable stiffness of wrist and fingers. He has diminished dexterity with the fingers and pain about the elbow. 9. He also has mental issues following this accident. 10. He continues on medication including Aspirin and pain relieving medication. He has used patches. He is also on unrelated Coversyl for blood pressure, Lipitor for cholesterol and also Duodart (for bladder - sees urologist Dr Andrew Mitterdorfer)." [210]
Dr Patrick noted that Mr Chapman was right-hand dominant. Of range of motion he reported: "Range of active motion at right shoulder is full and free in all directions and there is no definite abnormality right upper extremity. At the left upper extremity there is significant diminution in range of active motion consistent to repeated goniometer measurement, with at the left shoulder active flexion being to 120 degrees, extension 40 degrees, abduction 130 degrees, adduction 10 degrees, external rotation 70 degrees and internal rotation 60 degrees. No evidence for glenohumeral instability. Impingement sign (Neer test) equivocal." [211] "There is also some mild diminished range of active motion at left elbow in supination and pronation. At the left elbow there is full extension and with active flexion being to 140 degrees, but active pronation 65 degrees, and supination 55 degrees. There is readily demonstrable mild degree excess passive mediolateral instability readily demonstrated at left elbow (probably just ulno-humeral rather than the entire elbow) and with positive upper body sway test. There is marked stiffness at injured left wrist with active dorsiflexion (extension) just to 10 degrees, and palmar flexion 20 degrees, with active radial deviation 5 degrees and ulnar deviation 10 degrees, all consistent to repeat goniometer measurement. There is a long healed slightly curvilinear surgical scar (with traumatic component) over volar aspect left forearm a little laterally (healed) with contour deformity (see attached clinical colour photo print), and there is also significant traumatic scarring over extensor aspect of left forearm more distally as a consequence of his severe crush injury (see further enclosed clinical colour photo print). There is healing but visible contour deformity and with both pale and dark areas of scarring. There is also significant stiffness of all left hand digits, with index finger being the worst. There is considerable limitation to flexion particularly at MP joints of all fingers and there is stiffness also at the thumb. There is diminished sensation all left hand digits more distally (see recorded hand goniometer measurements with regard to the hand on attached AMA5 Worksheets). Peripheral arterial pulses present. No definite evidence for any significant Complex Regional Pain Syndrome Type 1 or 2." [212]
Dr Patrick concluded: "Mr Christopher CHAPMAN'S history is as outlined above as are the detailed findings on clinical examination, including the attached AMA5 Guides Worksheets. I do believe Mr Chris Chapman's complained of continuing symptoms as described now are genuine, consistent with and significantly consequent upon injuries sustained at the time of this work related injury of I September 2014. I do causally relate Mr Chapman's injures and ongoing disabilities and symptomology to the quite serious workplace accident of 1 September 2014. The prognosis is for a significant degree of ongoing residual symptoms into the future. Christopher Chapman is now 65 years of age. He believes that but for this accident there was nothing to prevent from continuing to work even until age 75. He has always carried out physical type work. Unfortunately now, I believe that Christopher Chapman is essentially totally incapacitated for work into the future. I believe he can now be reasonably regarded as totally and permanently incapacitated for work. In my opinion, based on Mr Christopher Chapman's education, training and experience, I do not believe that Mr Chapman has realistic prospects of returning to fulltime or regular employment, taking into account the severity of his disabilities and the limitations imposed upon him. In my opinion, Mr Christopher Chapman's is essentially unemployable because of the severe physical restrictions, disabilities and limitations placed upon without him suffering aggravations or flare-ups performing even very light duty work of a couple of hours per day which I believe would cause him to be unable to attend work on regular days, thereby rendering Mr Chapman essentially unemployable. I do causally relate Mr Chapman's impairments and inability to work now to the effects of injuries sustained at the time of the accident of 1 September 2014. I do believe that his employment was a substantial contributing factor to his significant injuries sustained on 1 September 2014. The prognosis is for a significant degree of symptoms into the future and with likely accelerated post-traumatic osteoarthritic change at particularly shoulder, elbow and wrist (left sided). Also, I do believe that he does have ongoing treatment requirements as a consequence of this accident including general practitioner consultations, approximately at least between 8 and 10 such consultations per year on average, costing $98 per consultation continuing; and also specialist consultations, (e.g. specialist rheumatologist, specialist orthopaedic/ upper extremity surgeon, sports physician etc.), with allowance being made for approximately two such consultations per year on average, costing $220 per consultation continuing. There is also a requirement for medication, mainly simple analgesic/anti-inflammatory medication as necessary, costing approximately $550 per annum continuing. It is essential that he reduce and cease his grossly excessive cigarette smoking to help facilitate healing of injured tissues. I believe that allowance should be made for imaging studies into the future, not on a regular basis, but just as clinically indicated, including plain x-rays as necessary, and also quality MRI left shoulder (not for purposes of any impairment assessment, but to optimise overall clinical management). Further surgical intervention does not appear to be indicated here at this stage, at this stage there is a possibility rather than probability of need left shoulder surgery e.g. therapeutic arthroscopic procedure depending on demonstrated pathology. Cost of such surgery is of the order of $17,000 including surgeon fee, anaesthetist fee, theatre utilisation and hospital accommodation costs. Left wrist arthrodesis/ fusion surgery into the future at this stage is a possibility rather than probability. These abovementioned treatment needs are attributable to injuries sustained on 1 September 2014. I do believe that his condition now has stabilised. Based on AMA5 Guides and in accordance with the attached AMA5 Guides Worksheets, Mr Christopher Chapman now has 33% Whole Person Impairment." [213]
Dr Patrick saw Mr Chapman again on 14 January 2020. He again reported his symptoms similar to previously, and also noted that he has "very limited movement now" in his left wrist, that his left shoulder stiffness was "considerable" and that it had "deteriorated significantly since last seen", that Mr Chapman complains of "unnatural feelings" right through the left forearm, and that the ongoing numbness in the digits of his left hand "causes significant problems for him". Apart from these matters, the report reflects in Mr Chapman a continuation of the symptoms and disabilities described in his earlier report.
Dr Ben Teoh, psychiatrist, was also retained by Mr Chapman for the proceedings. Dr Teoh reported that Mr Chapman "reported depressed and anxious mood". He reported that: "There was no evidence of psychotic symptoms or suicidal ideation. His cognitive functions were intact; there was no evidence of short or long term memory impairment." [214] He found "Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood (DSM 5 Diagnostic Criteria)", which was due to the accident, and that Mr Chapman would benefit from seeing a psychologist fortnightly to monthly for six months, at $250 per session. He considered that Mr Chapman was "totally incapacitated as a result of his physical and mental condition" [215] and that he "is not able to return to his full-time employment". He concluded whole person impairment by reason of his psychiatric condition at 22%.
Jessica Medd, clinical psychologist at the same Concord institution, reported on 16 September 2015 that Mr Chapman is: "homeless and destitute. A workplace accident a year ago which required months of rehabilitation has kept him from returning to that employment, he is also considering suing that employer, but really feels that it's not his style. He feels that he is not entitled to welfare benefits and would prefer not to apply for this or housing assistance." [216]
Other medical records showed Mr Chapman suffered a "pain right eye" injury after "grinding nickel" [217] or "steel" [218] on 12 April 2015, and had a similar experience three weeks later on 2 May 2015. [219]
Dr Virgona, consultant psychiatrist, was retained by the defendants' solicitors. In a report dated 11 April 2019, he recorded Mr Chapman stating: "he stays at a church which has been accommodating him, on and off, for the last year…he doesn't work, has no income, doesn't receive Centrelink benefits and when asked why he stated that he didn't want to take them, saying it was something that he 'can't do'". He said "I just don't want to take it" in reference to the aged pension, because of "pride". He referred to a "legacy from the family", a lump sum of money which he can tap into when needed. Sometimes he sleeps in his car. [220]
In Dr Virgona's report, Mr Chapman said the hand "started to feel like it was good" a couple of years after the accident but it regressed. He described his numbness and reduced dexterity.
So far as Mr Chapman's mental condition, Dr Virgona reported Mr Chapman said, "I'm a bit lost, don't know what I'm doing. There are days where I get motivated but then nothing seems to go right. I feel 'what's the point'". Dr Virgona reported that Mr Chapman became teary when asked about suicidal ideas and stated he had been seeing a psychologist for three years. He stated he has not made attempts on his life. He says sometimes but "not that often" he relives the accident. [221]
After recounting other records, Dr Virgona gave his opinion that Mr Chapman "doesn't report a significant psychological reaction to the accident" but that "he reports being depressed about the negative impact of the accident on his lifestyle and circumstances". He concluded that Mr Chapman: "suffers a personality disorder. This renders him vulnerable to the development of other psychiatric issues in the wake of life stressors, and it is likely he has suffered an Adjustment Disorder with Depressed Mood as a result of the accident and its reported consequences." He accepted that Mr Chapman's left arm manifested "reduced functioning", [222] but his "accident-related psychiatric symptoms" were similar to his pre-accident functioning. [223] He thought Mr Chapman's prognosis was poor and likely to remain chronic [224] and that treatment of accident-related symptoms is not required but ongoing treatment is required for his personality disorder.
Mr Chapman has largely lost the functional use of his left forearm and hand. In addition, he has a psychiatric condition which I would accept to be due to the incident. There was no evidence of a pre-existent psychiatric issue and Dr Virgona does accept that Mr Chapman suffered psychiatric consequences from the injury, and is likely suffering an Adjustment Disorder with Depressed Mood. I accept the conclusions of Dr Teoh.

(a) Non-economic loss

Mr Chapman's non-economic loss is determined according to an assessment of the percentage that his injuries and disabilities bear to a most extreme case. I take into account his relatively advanced age of 67, that in some respects his daily activities have not substantially changed as a result of the injury. Yet the trauma of the serious injury, the pain at the hospital, the various operations he was required to undergo, and the residual loss of function of his left arm and diminished mental functioning as a result of his psychiatric condition all must be considered.
The defendants submit that Mr Chapman is 23% of a most extreme case, whereas the plaintiff submits an amount of 30%. Given the serious nature of the injury and its permanent and significant effects on him physically and mentally, I conclude that Mr Chapman's non-economic loss should be regarded as 28% of the most extreme case. In accordance with s 16 of the Civil Liability Act, this percentage equates to an amount of $96,000.

(b) Economic loss

Mr Chapman said he would have continued to assist until all the yards had been cleared, but for his injury, [225] and understood he would not be paid if he did not assist. He accepted that he had lost his driver's licence on one or two occasions.
Mr Chapman received some funds from his mother's legacy, in an amount not disclosed. [226] In times past he seemed to make money from buying and selling at auctions. Although no details of his returns from these endeavours emerged, I am not persuaded that he has lost this income by reason of his injury, both because any amount of income is undisclosed, and because he still is able to and sometimes does attend auctions. That leaves for consideration any money made or paid from his assistance of Ms Patrick. The evidence was that a "considerable amount", perhaps half of it, of the cleaning up of the Kingswood yard had been completed at the time of the injury. [227]
Mr Chapman accepted that since the accident he could have taken scrap metal to scrappers, and done some welding, [228] and that he did rub some rust off a truck for Ms Patrick, for which he received some money. [229] He accepted that since the accident he could attend auctions and load and deliver light items. [230] He accepted he could do some general handyman work from about 12 months after the accident, by which time his injury had improved. [231] He had done some grinding after the accident, but on both occasions he was admitted to hospital with an eye injury. [232]
Mr Chapman accepted that he had not lodged a tax return for seven years because he "tended to drop out of society…and sort of lived in a parallel [universe]". [233]
Mr Chapman until recently resided in a storage unit he rented in Homebush. [234] He presently resides in a granny flat similar to a shed. [235] He has not been in paid employment for the past 20 years, and was only ever in paid employment from ages 16 to 20. [236] In 2018 he was living for a period in a Uniting Church having moved from a storage facility. [237]
Mr Chapman received in excess of about $18,000 from Ms Patrick before the injury. He received some unidentified amount afterwards.
Mr Chapman's living circumstances did not indicate any substantial income, and he is now 67 years of age. Dr Patrick thought that Mr Chapman is limited as to what he can do. [238] I accept that but for the injury, Mr Chapman would have continued to assist in the clean-up and would have received some payments for so doing. I think it likely that he would continue to receive funds whilst the site was being cleaned, but perhaps not much thereafter.
The defendants submitted that I should allow a buffer of $10,000. The plaintiff submitted $50,000, bearing in mind Mr Chapman's age. I allow a sum of $20,000, which I infer approximates the additional amount he may have received from the ongoing clean-up of the sites, had he remained able to use both his arms.

Past out of pocket expenses are agreed at $382.90.

(d) Future medical expenses

Mr Chapman accepted that he is seeing no medical specialist in relation to his injury, [239] and since 2015 he had received no physiotherapy or rehabilitation, and was taking no medication for the injury. [240]
Future out of pocket expenses are asserted by the defendants of $5,000 and by the plaintiff of $59,462. There is no real indication of any continuing treatment expenses for Mr Chapman in respect of the injury, and none have been incurred since 2015. I think the buffer submitted by the defendants is reasonable to cover psychiatric and orthopaedic consultations in respect of his condition. I would also allow a further $4,000 against the limited possibility of surgery as reported by Dr Patrick, a figure that assesses that prospect at about 25%.

(e) Care

Mr Chapman conceded that prior to the accident he did little or no domestic duties, cleaning, sweeping, vacuuming, washing, making a bed or cooking. [241] Mr Chapman said he could do some of those tasks even now. [242] He has received no domestic care from any friends or family. He has no family in New South Wales.
The plaintiff claims a buffer in the amount of $20,000 for future care.
In my view, an amount must be allowed in respect of future care, in particular because Mr Chapman's mental and physical disability will likely necessitate a need for a greater level of care sooner than age would normally compel. There is no evidence of Mr Chapman receiving care in the past, gratuitous or otherwise, and there is little likelihood of gratuitous care in the future, as he has no family locally. As he may likely require commercial care, I would allow a buffer of $10,000.

(f) Conclusion $ Non-economic loss 96,000.00 Economic loss 20,000.00 Past out of pocket expenses 382.90 Future medical expenses 9,000.00 Care 10,000.00 Subtotal 135,382.90 Less 10% contributory negligence 13,538.29 Total 121,844.61

In accordance with these reasons, there should be judgment in favour of Mr Chapman for $121,844.61.

K. Costs

The parties have asked that I reserve costs.

L. Orders

The orders of the Court are: 1. Judgment for the plaintiff against the defendants in the sum of $121,844.61. 2. Costs reserved.

Endnotes

WIM Act, s 4.
T279/15-35.
T279/35-50.
T252/5; T279/35-50.
T254/15-20.
T254/18-22; T287.
T286/15-20, T286/43, T481/10-15.
T481/16-21.
T482/7-12.
T472/35.
T482/30, T483/15-37.
T291/30-44.
T292/47.
T293/18.
T295/1-6.
T252/37.
T252/42-46.
T253/1.
T255/1.
T255/4.
T326/35.
T326/31.
T280/25-35.
T280/35.
T281/8.
T254/1-10.
T472/17.
T472/17.
T473/1.
T472/4, T481/23-30.
T473/8.
T473/18.
T473/22, T474/18.
T474/46.
T486/13.
T474/23.
T474/27.
T256, T322-3.
Cf Exhibit B, pp 520-521.
T337/12-27.
T259/10-13.
T281-2.
T282/40-50.
See T327/46-T328/2.
T339/32-37.
T341/25-35.
Exhibit 3; p 520 of Court Book.
T258/10.
T259/1, T475/47.
T336/32.
T259/33.
T332/12-42.
T260/35-45.
T260/45-T261/5.
T278/17.
T278/19.
T278.
T298/30-T299/8.
T299/14.
T299/16.
T299/34.
T300/1-17.
T300/25, 48.
T435/49.
T301/34.
T301/38-40.
Exhibit 4; p 559 of Court Book; T436/1-10.
Exhibit 4; p 562 of Court Book.
T301/45-50.
T302/49.
T303/1-6.
T303/45-T304/10.
TT306/35-40.
T306/40-T307/4.
T307/8-20.
T308/48/50.
T309/12.
T313/29.
T314/11; T316.
T318/48; T320/24.
T275/11.
T475/18.
T476/33.
T176/36.
T476/45.
T477/25.
T477/28-30.
T477/33.
T485/25
T485/50-T486/10.
T486/26
T486/25-32.
T486/38-49.
T487/5.
T487/9.
T487/16
T487/20.
T487/25.
T487/46-T488/4.
T488/25-37
T488/50.
T489/45.
T492/28.
T492/40.
T493/35.
T493/50-494/2.
T494.
T495/1-14.
T502/49-T503/2.
T499/37.
T500/23.
T502/11-21.
T502/41.
T503/10-18.
T478/25.
T478/45-50.
T479/13.
T479/20.
T364/48-T365/1.
T366/4.
T366/48.
T367/5, 49.
T368/1-10.
T369/13-33.
T369/32.
T373/40.
T374.
Exhibit E; pp 252-255 of Court Book.
T251/32.
Exhibit A.
Exhibit 4; pp 537-564 of Court Book.
Exhibit 4.
Exhibit 7; p 388/10-26 of Court Book.
Exhibit 7; Court Book p 416/13-16.
Exhibit 7; Court Book p 434/9-14.
T492/10-24.
Exhibit D, p 64 of Court Book.
Exhibit 1; Court Book p 104.8.
Exhibit 1; Court Book p 174.8.
Exhibit 2; Court Book p 467.9.
Exhibit 2; Court Book p 490.9.
Exhibit 2; Court Book p 494.6.
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], Mason v Demasi [2009] NSWCA 227 at [2].
(2001) 117 FCR 424; [2001] FCA 1833 at [369], see also GC NSW Pty Ltd v Galati [2020] NSWCA 326 at [85] et seq.
See GC NSW Pty Ltd v Galati at [87].
See GC NSW Pty Ltd v Galati at [88].
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105-106; [2002] HCA 8.
South Australia v The Commonwealth (1962) 108 CLR 130 at 154 per Windeyer J, Ermogenous at [24].
Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, 428.
See GC NSW Pty Ltd v Galati at [89].
Branir at [369].
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, 228.
Pavey & Matthews Pty Ltd at 227.
Ermogenous at [24], Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 457, per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ.
See Pavey & Matthews Pty Ltd at [11], [12].
See Pavey & Matthews Pty Ltd at 227-228, 255-257, see also Mann v Paterson Constructions Pty Ltd [2019] HCA 32 at [14], [60], and Roude v Helwani [2020] NSWCA 310 at [36]-[42].
[2001] HCA 44 at [48]-[57].
[1950] VLR 44; (1949) 79 CLR 389 at 401.
T557/40-T559/13.
T257/16.
T262/11.
T384/23-34.
T262/45.
T263/36.
T263/37, see also T382/36-50.
T396/35-50.
T264/37-50, see T388/49-T389/12
T393/15, 39.
T266/19, see also T388.
T266/29.
T390/40; T392/28; T395/35-T396/26.
T267/49.
T267/1.
T267/11.
T267/19.
See Exhibit 3; p 521 of Court Book.
T398.
T383/26.
T383/15-30.
T385/10-11.
T391/5-7.
T389.
See Civil Liability Act 2002, s 5H.
See Civil Liability Act 2002, s 5I.
(1959) 101 CLR 298; [1959] HCA 8.
Civil Liability Act 2002, s 5R.
See generally Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10], Grills v Leighton Contractors Pty Limited [2015] NSWCA 72 at [161], Nominal Defendant v Rooskov [2012] NSWCA 43 at [142]-[144], Verryt v Schoupp [2015] NSWCA 128 at [27], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [31], March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, cf Wallace v Kam [2013] HCA 19 at [11].
See paragraph 80 above.
T268/40.
Exhibit F; pp 256-257 of Court Book.
Exhibit D; p 65 of Court Book.
T439/15-30.
Exhibit D; p 65 of Court Book; see also Exhibit A.
T268/50.
T269/11.
Exhibit A.
T270/2.
T269/30.
T270/6.
T270/42.
T271/1.
T271/34-45.
T429/5.
Appears in the plaintiff's chronology (Exhibit A), the source report appears not to be in evidence.
Exhibit 3; p 528 of Court Book.
Exhibit D; p 82 of Court Book.
T271/50.
Exhibit D; p 85 of Court Book.
Exhibit D; pp 88-89 of Court Book.
Exhibit D; p 66 of Court Book.
Exhibit D; p 66 of Court Book.
Exhibit D; pp 66-67 of Court Book.
Exhibit D; pp 67-68 of Court Book (emphasis in original).
Exhibit D; p 87 of Court Book.
Exhibit D; p 88 of Court Book.
Exhibit 2; p 477.5 of Court Book.
Exhibit 2; p 478.7 of Court Book.
Exhibit 2; p 479.1 of Court Book.
Exhibit 2; p 482.6 of Court Book.
Exhibit 3; pp 523.5 of Court Book.
Exhibit 3; p 523.3 of Court Book.
Exhibit 3; p 527.3 of Court Book.
Exhibit 3; p 528.2 of Court Book.
Exhibit 3; p 529 of Court Book.
T425/50.
T372/2.
T260/4-18.
T402.
T403.
T404.
T405.
T405-6.
T414/20.
T273/46.
T275/18.
T275/36.
T371/26.
Exhibit D; p 65 of Court Book.
T412/45-T413/5.
T413.
T407.
T409-10. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2021

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