Cosmidis v Boral Bricks Pty Ltd

Nature of case and background 1The plaintiff, Mr Orestis Cosmidis, claims damages for personal injuries he sustained whilst in the course of his employment on 18 April 2008 when he was struck from behind by an 8 tonne forklift truck. At that time he was walking on a roadway within brickworks premises situated at Martin Road, Badgerys Creek. He was at those premises for the purpose of delivering a load of bulk fuel to the first defendant, Boral Bricks Pty Limited ["Boral"], on behalf of his employer. The premises were occupied by Boral. The forklift truck was owned by Boral and was being driven by the second defendant, Mr Daniel Mohr, a Boral employee. 2Mr Mohr has not been served with a copy of the statement of claim. He did not enter an appearance in the proceedings. As a result, the hearing proceeded only against Boral. Mr Mohr was not called to give evidence. 3The plaintiff claims the proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"]. In contrast, Boral claims that the proceedings are governed by the provisions of the Civil Liability Act 2002 ["CL Act"]. Boral also claims that for the purposes of damages offset or discount, the provisions s 151Z(2) of the Workers' Compensation Act 1987 ["WC Act"] apply to the proceedings in respect of the alleged notional liability of the plaintiff's employer, DM & BP Wiskich Pty Ltd, an entity, which is not a party to the proceedings. 4By reason of the statutory definition of motor accident, and because the forklift was being operated as a motor vehicle at the time of the accident, I find that the MAC Act applies to these proceedings: s 3(1) of that Act.

Procedural order 5Two sets of factually related but unconsolidated proceedings were listed for hearing at the same time. In the present proceedings, numbered 2011/80368, the plaintiff seeks damages for personal injury. The related proceedings brought by DM & BP Wiskich Pty Ltd, numbered 2010/233111, comprise the workers' compensation insurer's subrogated action brought in the name of the plaintiff's former employer seeking to recover from Boral the payments of workers' compensation payments it has made to the plaintiff as a result of the accident. 6The parties agreed that the evidence given in each of the related proceedings should be taken to have been adduced in each of the other proceedings. An order was therefore made to that effect. Since the two sets of proceedings were not consolidated, there will be two separate judgments.

Issues 7In addition to assessing matters concerning the credibility and reliability of testimony, and identifying the relevant background facts, the liability issues calling for decision in the present proceeding have been identified as follows: Issue 1 : Whether the collision in question occurred as a result of the plaintiff ignoring an obvious risk within the meaning of s 5F and s 5G of the CL Act. My conclusions on this issue appear between paragraphs [118] to [137] of my reasons; Issue 2 : Whether, and if so, on what basis, the defendant Boral was negligent in the circumstances of the plaintiff's injury when he was struck from behind by a forklift truck. My conclusions on this issue appear between paragraphs [138] to [161] of my reasons; Issue 3 : Whether there was any contributory negligence on the part of the plaintiff as alleged, and if so, to what extent. My conclusions on this issue appear between paragraphs [162] to [170] of my reasons; Issue 4 : Whether the plaintiff's damages should be reduced, and if so, to what extent, on account of alleged negligence on the part of his employer. My conclusions on this issue appear between paragraphs [171] to [176] of my reasons; Issue 5 : The assessment of the plaintiff's entitlement to damages. My conclusions on this issue appear between paragraphs [177] to [249] of my reasons; 8Before stating my findings concerning the background facts it is necessary to deal with matters concerning the credibility and the reliability of the testimony of the witnesses who gave oral evidence.

Credit 9Apart from the plaintiff, the only witnesses who gave oral evidence on liability issues were Senior Constable Cavan and Mr Con Roditis, an employee of Boral. Senior Constable Cavan was the police officer who investigated the accident and prepared a police report. His evidence did not involve controversy. The evidence given by Mr Roditis was the subject of challenge on behalf of the plaintiff. He was called to give evidence of an admission allegedly made by the plaintiff on the day of the accident in which the plaintiff allegedly stated he had seen the forklift approach and had assumed the driver would see him crossing the path of the forklift. The plaintiff denied having said this. Mr Roditis said the plaintiff spoke to him in Greek: T216.29; Exhibit "M". Mr Roditis gave his evidence in English and his proficiency understanding and translating the Greek language into English was not explored in evidence. 10I found Mr Roditis' evidence concerning the alleged admission by the plaintiff to be unreliable. His recollection of the sequences in which he had prepared his several statements was uncertain. His statements to his employer were given under circumstances of stress. The alleged admission relied upon by Boral did not appear in one of Mr Roditis' statements dated 18 April 2008. This caused me to doubt the reliability of his oral evidence of the alleged admission. 11Mr Roditis could not recall whether the plaintiff had said anything about the forklift driver after the accident, claiming his memory did not enable him to remember back some 6 or 8 years. He could not recall when it was that he gave his second statement, yet he was prepared to speculate that he had written that statement on the same date: T229.41. He said that he had spent about an hour with the plaintiff assisting him on the day of the accident whilst waiting for the ambulance to arrive. In those circumstances, he could not recall whether or not the plaintiff was wearing a yellow safety shirt of the kind shown in Exhibit "D". In the absence of evidence of Mr Roditis' proficiency in understanding and translating from the Greek language into the English language, I place little weight on his evidence concerning the alleged admission which was disputed by the plaintiff. 12Although I am satisfied Mr Roditis did his best to recount his evidence as truthfully as he understood it to be, I found him to be an uncertain witness and I was unpersuaded that his evidence should be accepted in preference to the evidence given by the plaintiff on disputed factual matters. 13Oral evidence on factual matters concerning damages issues was called from the plaintiff, his sister Mrs Anastasia McVernon, and his nephew, Mr Christopher Lyford. The latter two witnesses gave evidence concerning domestic assistance issues. There were no challenges to the credibility of the testimony of these witnesses. I consider that these witnesses gave truthful and reliable evidence. 14The challenges to the plaintiff's evidence were not supported by persuasive contradictory evidence. I am satisfied that the plaintiff gave his evidence honestly and truthfully. I considered the plaintiff was a credible witness whose evidence could be relied upon. 15There were controversies that arose within the medical opinions. I have analysed those matters in the course of my reasons for my findings concerning the plaintiff's remaining disabilities, the plaintiff's capacity for work and his need for domestic assistance.

Facts 16In the paragraphs that follow, I set out my findings of fact concerning the plaintiff's background, the circumstances of the accident, and the matters that emerged from the medical examinations and assessments of the plaintiff.

Plaintiff's background, work history and health 17The plaintiff was born in 1960. He was injured on 18 April 2008, at a time when he was aged 48 years. At the hearing, he was aged almost 52 years. He left school aged 15 years. Thereafter, he has had an impressive and almost continuous employment history. He has followed a number of skilled physical occupations that involved manual strength and dexterity. 18He worked for a jeweller for a short time. He studied carpentry, and worked in that trade for some years. He then went into the clothing retail industry and managed a store for a business known as Just Jeans for about 10 years. Subsequently, he and a friend opened and successfully operated a café for 12 months. He then worked in his brother-in-law's smash repair business doing maintenance work and driving tow trucks. He also worked as a bus driver. He completed an apprenticeship as a diesel mechanic, working on truck engines and gearboxes. He then worked for his cousin as a diesel mechanic, including managing his engineering workshop for a time. On 8 July 2006 he commenced employment with DM & BP Wiskich Pty Ltd, his pre-accident employer. 19The continuity of the plaintiff's employment with that company was interrupted for a time in 2006. This was because the plaintiff had taken some time off work in that year to look after his ill father until his father's death. He then returned to work with DM & BP Wiskich Pty Ltd and continued in that employment until the accident on 18 April 2008. The plaintiff's pre-accident work duties involved skilled and demanding work which comprised bulk delivery of dangerous fuels by road tanker around the Sydney metropolitan area, as well as carrying out any maintenance work required on his delivery truck. 20The plaintiff was in good health before the accident in question. In 1975, he had suffered a finger injury whilst working with a jeweller. In 1980, he experienced a spontaneous partial collapse of a lung, which healed, also spontaneously. When he worked as a bus driver he experienced a short stress related illness due to the actions of a passenger. None of those pre-accident events left the plaintiff with any significant or lasting impairments, either of a physical or psychological nature. 21Before the accident, the plaintiff pursued his hobby of restoring cars and motorcycles. He had also pursued an active social, recreational and personal life. He had an outgoing personality. He was self-sufficient in his domestic needs. He had taken on the father role for his nephew who had lost his own father. He had no restrictions in his pre-accident earning capacity, as was evident from his work history. It appears from the medical evidence that the plaintiff was overweight at the time he was injured. There is no evidence that this had in any way interfered with his pre-injury earning capacity or his ability to carry out domestic tasks. 22The plaintiff has continued to live in the home of his parents. His 83-year old mother died on the weekend after the second day of the hearing of these proceedings. After the accident, in addition to other members of the plaintiff's family, the plaintiff's mother had been providing domestic assistance to him as a result of his post-accident injuries and disabilities.

Accident on 18 April 2008 23The plaintiff was engaged in a system of work on behalf of his employer that required him to deliver bulk quantities of dangerous liquid fuels to industrial premises, including to the Boral brickworks site. Before the accident in question he had been to the Boral site on over a dozen occasions, and had carried out his duties without incident. Before describing the circumstances of the plaintiff's injury it is relevant to describe the background to the manner in which the plaintiff had carried out his duties at the site before his injury as well as on the day of his injury. Background to the work system 24The plaintiff first attended the Boral site in 2006 in the company of his employer's supervisor. On that occasion he had familiarised himself with the requirements of his work on the site. The site arrangements required that he first present himself to the gatekeeper to obtain entry, and to then park his truck near the fuel tank where it was intended he would unload fuel. He then had to walk to a nearby office to obtain a key to the tank in order to unlock and use a dipstick to determine the amount of fuel to be transferred. He was then required to hook up or fit a fuel transfer hose to the tank in order to transfer the fuel as was needed. After completing the transfer process, he would then have to disconnect the hose, lock the tank and take the accompanying paperwork to the office to complete the transaction and then leave the site. This process was repeated on each of the plaintiff's visits to the site. 25Significant to Boral's defence of the plaintiff's claim, on each visit to the site, the assumed system of entry into the premises was that the gatekeeper would obtain the plaintiff's signature on a piece of paper comprising a Visitor's Pass in the form of Exhibit "1". A copy of that exhibit is reproduced as Appendix I to these reasons. The original documents signed by the plaintiff were not tendered. 26Exhibit "1" contained the following words: "10. Forklifts have right of way" 27The plaintiff stated that he had never read what was written on those visitor's passes, and assumed they were simply to be signed and dated as a form of identification. It appears he did not have good unassisted reading vision at the time, and was later found to have needed reading glasses. The significance of Exhibit "1" to Boral was that it was claimed that the document of this type provided to the plaintiff constituted notice or a direction to him that forklift trucks had right of way on the premises. I shall return to this topic in connection with my consideration of the liability issues to be determined. 28The brickworks in question occupied a very large site comprising an undercover mechanical workshop and office areas, open sheds including where the fuel was unloaded on this occasion, multiple brick stacking areas, paved internal roads and trafficable areas: Exhibit "F". There were no dedicated pathways, roads or tracks set aside for the exclusive use of forklifts. Boral safety measures 29Boral had a number of safety manuals in place providing instructions for safe working procedures for forklifts at its site: Exhibit "L" and Exhibit "K". 30Exhibit "L" detailed the requirements for safe traffic management at the Boral site. That manual required that where the operation of mobile plant (including forklifts) had an impeded or blocked view due to a load, a "spotter" must be used to assist the operator: Exhibit "L", p 5. The sole duty of a spotter is to carry out a sweeping visual inspection and to give guidance and advice to the operator of the vehicle in question: Exhibit "L", p 2. 31That manual further provided that all powered mobile plant (which included forklifts) must give way to pedestrians on the site, including by ceasing operations, that is, giving way, immediately if pedestrians entered within 3 metres of the path of travel of the machine. 32That manual also provided for the provision of signage for 3 categories of exclusion zones, red being full exclusion, orange being full exclusion except for competent personnel, and green being delineated for safe access and movement of pedestrians: Exhibit "L", pages 6 - 8. The signs provided for in that manual also included one to delineate a pedestrian only area: Exhibit "L", p 9. There was no evidence of such zones being marked at the site where the accident occurred. It must therefore be assumed that the area was a shared area where forklifts were required to give way to pedestrians. 33Another Boral Safety Procedures manual, Exhibit "K", which was dated 27 February 2007, at p 19, relevantly stated: "5.10Traffic Management Ensuring the safety of pedestrians is a critical aspect of workplace traffic management. PROTECTING PEDESTRIANS AT THE WORKPLACE REQUIRES DECISIVE ACTION TO PREVENT, NOT JUST DISCOURAGE, PEDESTRIANS AND FORKLIFTS FROM COMING INTO CLOSE PROXMITY. Consider the following: o identify all areas where forklifts and pedestrians could come into conflict by carefully studying forklift and pedestrian movements; o provide clearly marked "No Go" or exclusion zones for both pedestrians and forklifts o ... o erect physical barriers to protect all marked pedestrian walkways and/or enclose designated forklift operating areas to prevent pedestrian access; o clearly mark designated pedestrian crossings, ideally with boom gates, and introduce and enforce a right of way procedure, clearly indicating where and when pedestrians and forklifts must give way to each other; o display clear warning signs and traffic management signs; o ... o ensure warning sirens and flashing lights are functioning on all forklifts; o ensure all pedestrians wear high-visibility clothing (eg reflective safety vests), and ensure that all forklifts have high-visibility markings/lights and that the workplace is well illuminated; o ..." 34The plaintiff also tendered additional material suggesting general safety precautions when using forklifts: Exhibit "J". This comprised a 2006 training manual entitled "Forklift Safety Essentials", which at p 7, stated: "A large number of injuries and fatalities result from forklifts and loads colliding with, falling on or crushing pedestrians. Even at low speeds an unexpected movement of the forklift can crush a bystander against a fixed structure or another vehicle. Pedestrians must be excluded from areas where forklifts operate. Always take the time to look in the direction you are going to travel before moving the forklift. Use the horn to notify pedestrians and other traffic that you are turning a corner or before travelling in reverse. Use indicators and warning lights if fitted. Pedestrian pathways and barriers are there to help prevent collisions and accidents. Always keep the forklift in the designated traffic zones and follow the specified routes. Passengers must never be carried on the forklift." The accident in question 35At or about 2.00pm on Friday 18 April 2008, the plaintiff had entered the Boral premises in the manner described, parked his truck in a position adjacent to the fuel tank, went to the office to obtain the key to the unloading tank, carried out his measurements of the fuel in the tank with the dipstick, completed the task of transferring the required 10,000 litres of fuel to the tank over the course of some 30 to 40 minutes, and then returned the keys to the office before preparing to return to his truck in order to leave the site. All of those steps occurred without incident. During these events no-one from Boral came to give the plaintiff any directions or supervision. 36During the time the plaintiff was on the site on the afternoon of the accident he had seen the forklift in question travelling around the site on a total of three occasions, whilst laden with bricks in its carrying compartment and also whilst unladen. He had the impression that on at least one of those occasions the forklift was being driven erratically at speed, and had turned a corner with a tilt because of the speed at which it had been driven. 37The plaintiff knew that the forklift was being used to transport bricks for stacking on the site. When the forklift was laden with bricks, the bottom bar of its carrying tray or cage was about 150mm from the ground. When it was unladen, the bottom bar of the carrying arms or grabs were located in a much higher position up the mast, and over a metre above the ground. 38After completing the transfer of fuel and dealing with the resultant paperwork at the site office, the plaintiff left the office, after being there for about 30 seconds. He then left the office via the door through which he had earlier entered. He then looked to the right and to the left along the roadway immediately in front of him, and then proceeded to turn left and to then walk towards where his truck was parked. He was guided in his path of exit by a series of 3 red safety cones and safety tape which indicated by their placement, that he should not enter upon the road directly. 39At that time, the pumping equipment on the plaintiff's truck was making a noise as it was in high idle mode. He was wearing safety boots, long cotton pants, a long sleeved fluorescent yellow coloured safety shirt (Exhibit "D"), safety glasses, earplugs and a cap. The plaintiff wore ear plugs not only because of the loud noise associated with the pumping equipment on his truck, but also because of noise near the workshop and office where machinery or conveyors were being operated. 40He said that as he left the office building, he looked to his right and then to his left for any signs of moving vehicles as he had seen the forklift moving about in the area earlier on, and did not see any forklift at that time so he proceeded to walk to his left. 41The plaintiff walked on the inside of the row of taped red traffic safety cones as seen in Exhibit "C". He said that when he walked past the third and last cone, he continued to walk on in a straight line within and guided by the line of those cones, which was not far out from the side of the building. He denied that he had veered to the right of that line into the path of the forklift. I accept his denial, which was uncontradicted by other evidence. He said he had taken some three or four casual steps forward, after passing the third safety cone, and as he did so, he was hit from behind by the forklift truck which was travelling in the same direction of travel as he had been walking. 42In cross-examination, the plaintiff denied the suggestion that when he had looked to his right on leaving the office, and before he had turned to walk to the left and towards his truck, he had in fact seen the forklift approach from his right: T123.10 to T123.30. 43I do not accept the evidence given by Mr Roditis in which he claimed the plaintiff had admitted the contrary proposition. Instead, I accept the evidence of the plaintiff to the effect that he had not seen the forklift before he turned to walk to his left after first looking to his right. I also accept that the plaintiff's earplugs, and the noise of the idling equipment on his truck, would have made it unlikely that he would have heard the sound of the forklift approaching him from behind. 44Exhibit "C" comprises a set of 13 coloured photographs taken of the site on the day of the accident. The photographs "C.3" and "C.12" show the area just outside the office exit where the plaintiff turned left to walk on the concrete paved road and the adjacent gas cylinders immediately to the left. The photographs "C.1", "C.10" and "C.13" show the configuration of the forklift and the grabbing bar apparatus that struck the plaintiff. 45Exhibit "2" shows a view of the exit path from the office where the plaintiff walked out and turned to his left. Above the door is an elevated sign stating "Forklifts in use". A closer view of that sign appears in Exhibit "C.2". There was no evidence as to the presence of any other warning signs on the premises. 46Immediately before the accident, the plaintiff's position on the roadway was about 1 metre to the right of an adjacent row of oxy-acetylene gas cylinder bottles at the side of the road to his left, and in line with the safety cones that he had passed those safety cones. The roadway in question was some 8 or 10 metres in width. The roadway covered a distance of about 4 to 6 metres in the plaintiff's general direction of travel. There was no marked walking path reserved for pedestrians beyond the position of the last of those safety cones. 47The forklift approached the plaintiff from behind and the plaintiff had no notice of its approach. The forklift truck was not accompanied by a spotter, or if it was, that spotter was not identified in the evidence. The forklift truck did not stop within 3 metres of the plaintiff before the impact occurred. 48In those circumstances, the forklift continued on its forward journey towards the plaintiff and it struck him from behind, in what to him was without doubt a terrifying incident. After the forklift struck the plaintiff it continued moving on, dragging the plaintiff along with it for several metres under a part of the grab bar of the forklift. The plaintiff's evidence on this event was at T44.6 to T44.32, as follows: "Q. Mr Cosmidis, I will now come to that moment when you told us about a short while ago that you felt something. What happened from then? A. As I was walking, I was hit from behind. I fell down on the ground and I rolled onto my back and I seen the cage coming over my head and I looked at the truck. It was coming closer and I seen the wheel coming towards me and the front of the truck hit me and my face was very close to the wheel and I thought I was going to die. Q. Did you say anything? A. I was - at that time I started to scream. Q. And did the movement of the vehicle continue or did it stop? A. No, sir. It kept on approaching. Q. And you were still underneath? A. Yes, sir. Q. Were you holding onto something? A. At that time, no. When it hit me at the front and I seen the wheel coming, I pushed off and I kicked off and I managed to grab - I had to reach up and managed to grab the bottom of that bar of the cage. Q. And are you able to say how far you travelled in that position underneath the vehicle before it came to a stop? A. I would have been half way between the door and the corner of the building, which is probably about 15 metres. So I'd say several metres." 49After he had been struck, the plaintiff managed to avoid being entirely run over but at that time he was unable to completely get up from the ground. He lay there in considerable pain. He felt he was unable to breathe. He said he was terrified at the time. He became quite upset when having to recount those events in his oral evidence. 50The driver of the forklift, Mr Mohr, was interviewed by the investigating police officers. His statement to the police was tendered as Exhibit "E". A relevant extract from that statement is as follows: "... I was travelling at an estricted (sic) speed of 10km/hr. I drove past the door that leads into the workshop. I got approximately got (sic) 10-15 metres past the door to the workshop when I heard a scream. I stopped the forklift immediately and looked down to the front of the forklift. I could see a yellow sleeve on the bottom of the grabs. I could see a man wedged under the grabs. I lifted the grabs straight away to give him clearance. ..." 51I infer from Mr Mohr's statement that he heard a scream, in the context that there was no mention of the appearance of the plaintiff at the scene beforehand, that he had not seen the plaintiff before the scream, and, it follows, before the impact. 52There was evidence of Mr Mohr being involved in a previous incident in April 2006 in which it is recorded that he had admitted driving a 4-grab forklift too fast in the premises which was the basis of a warning: Exhibit "G". Without more, of itself I do not consider that evidence to be probative of Mr Mohr having driven at an excessive speed on this occasion. 53On 14 July 2009, Mr Mohr's employment with the first defendant was terminated by way of redundancy retrenchment. No forwarding address was noted in the termination records: Exhibit "H".

Injuries and initial treatment 54In the accident the plaintiff suffered a crushing injury to his left chest and his left flank. This was later discovered to have involved fractures to a number of his ribs on the left side. He suffered soft tissue injury to his spine at the cervical, thoracic and lumbar regions. He also suffered abrasion injuries to his left elbow and an injury to his left knee, which involved a mechanical derangement, as was subsequently discovered at an arthroscopy procedure carried out by his treating orthopaedic surgeon. 55In addition to these physical injuries, he was in considerable shock and distress as a result of the accident, as is evident from his thought that at the time, he believed he was going to die. 56The plaintiff was transported to Liverpool Hospital by ambulance. The ambulance transport report shows that shortly after the accident, when the ambulance officers were in attendance, the plaintiff was noted to have been complaining of pain in the regions of the left side of his mid and upper back regions, as well as to the left side of the chest and rib cage. It was noted that the level of his pain increased with intake of breath and with movement. The ambulance report also noted that the plaintiff had abrasions to his left elbow and left knee. Although the plaintiff's neck was initially immobilised with a collar, this had to be removed because it had kept his neck in a position that increased his pain.

Post-accident medical treatment and assessments 57Exhibit "B" comprised the plaintiff's bundle of medical reports. Exhibit "5" and Exhibit "6" comprised the first defendant's bundle of medical reports. In the paragraphs that follow, I set out a summary of those reports, letters and results of investigations in chronological sequence. 58The plaintiff did not stay in hospital overnight. The Liverpool Hospital notes indicate that at triage, the plaintiff was alert on his arrival at hospital, but he was in pain. Injuries to the left side of the chest and left elbow were noted. CT scans of the plaintiff's neck, chest and abdomen were arranged, and he was treated as if he had sustained fractured ribs because of the injuries to his left flank. 59A pain diagram was filled out in the hospital notes to show the injured areas to be the left side of the chest and the thoracic area of the back. The hospital notes also recorded details of the abrasions to the plaintiff's left elbow, knee and thigh. Tenderness was noted in the left upper quadrant of the plaintiff's abdomen, as well as tenderness in the regions of T5 to T8 and the thoraco-lumbar junction. He plaintiff was given morphine for pain relief. 60On 18 April 2008, whilst in Liverpool Hospital, the plaintiff underwent CT scans of his cervical spine, chest, abdomen and pelvis. Degenerative changes were seen at the level C5/6 with joint space narrowing and spondylitic ridging. Minor degenerative and plate irregularities were noted in the thoracic spine. The lumbar spine was described as being within normal limits. Following his discharge from hospital, the plaintiff then consulted his general practitioner, Dr Greg Natale. 61A chest X-ray taken on 22 April 2008 at the request of Dr Natale revealed a minor fracture of the plaintiff's left 7th rib. A subsequent bone scan reported on 6 May 2008 revealed findings consistent with acute fractures of the left 4th to 9th ribs anteriorly, and the left 4th, 6th and 7th ribs laterally. The images of the bone scan on pages 34 and 35 of Exhibit "B" provide some graphic indication of the location of those rib fractures. 62The plaintiff was referred to and remained under the long-term follow-up care of Dr Ian Gotis-Graham, a specialist rheumatologist and consultant physician. 63On 26 May 2008, Dr Gotis-Graham provided a report setting out an overview of the plaintiff's treatment to that date. He noted that without Tramadol, the plaintiff was experiencing excruciating pain in his left lateral and anterior chest wall. He noted that imaging studies had identified degenerative changes to the plaintiff's mid to lower thoracic spine segments with slight irregularities, including early paramarginal osteophytes. Dr Gotis-Graham identified the plaintiff's problems to be multiple fractures of the left ribs, exacerbation of previously asymptomatic cervical, thoracic and lumbar degenerative disease, and post-traumatic stress disorder ["PTSD"], characterised by difficulty sleeping and nightmares, and daily concerns over the occurrence of the accident. He stated that if the accident had not occurred, the plaintiff would not have had any of these problems. 64Over the ensuing 3 years, Dr Gotis-Graham provided a further 15 reports. These were dated 19 June 2008; 30 July 2008; 10 September 2008; 13 November 2008; 20 November 2008; 19 February 2009; 28 May 2009; 30 July 2009; 30 September 2009; 2 December 2009; 20 July 2010; 9 November 2010; 15 March 2011; 19 July 2011 and 25 July 2011. These reports were variously addressed to the plaintiff's treating general practitioner, the workers' compensation insurer and the plaintiff's solicitor. 65In essence, Dr Gotis-Graham documented the plaintiff's injuries, supervised and followed through with medication, investigations and treatment recommendations, and documented the progress of the plaintiff's condition over time with Dr Natale. He also observed the plaintiff's reactions to medication and counselled the plaintiff about his resistance to taking medications in favour of a more self-disciplined approach to coping with pain. 66On 27 May 2008, Dr Natale wrote to request that the workers' compensation insurer approve an MRI study of the plaintiff's entire spine, and also approve physiotherapy, hydrotherapy, and a psychological assessment with treatment for his PTSD. These modalities were requested "so that we can move forward with Mr Cosmidis' treatment". On 4 June 2008 Dr Natale reiterated the request to the insurer to approve the cost of treatment by a psychologist. Although the plaintiff received treatment from a psychologist, no report on such treatment was tendered by either party. 67On 12 June 2008 the MRI scan of the plaintiff's spine showed abnormalities in the three regions of the spine. 68In the cervical spine, there was a minor level of circumferential bulging of the C5/6 disc annulus without neural encroachment, and as I interpret the report, cervical vertebral osteophyte development encroaching bilaterally on each neural exit foramen, but without nerve root encroachment. At the level C6/7 there was minor posterior bulging of the disc annulus without encroachment. 69In the thoracic spine, a small posterior midline disc protrusion with minor encroachment of the anterior theca and spinal chord was noted at T3/4. A minimal left paracentral disc protrusion but without encroachment was noted at T4/5. A small posterolateral disc protrusion encroaching on the theca but without compromising the neural structures was noted at T9/10. A minor right posterolateral bulging of the annular disc but without encroachment was noted at T10/11. 70In the lumbar spine, changes of disc desiccation and a small left sided posterolateral disc protrusion without encroachment was noted at L5/6. 71On 4 July 2008, Mr Daniel Wainwright, the physiotherapist who was treating the plaintiff reported to Dr Natale that hydrotherapy and manual therapy was leading to some improvement in the plaintiff's movements, and the plan was for this treatment to continue. 72On 17 February 2009, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Val Kirychenko, of Claims Intervention. He is an injury management consultant holding degrees in medicine, engineering and a diploma in musculoskeletal medicine. Dr Kirychenko's report did not include the acknowledgment of the Expert Witness Code. There was no objection to the tender of his report. After liaising with Dr Natale, Dr Kirychenko expressed the opinion that the plaintiff was fit for light office work where he could get up and move around at will, but with minimum lifting up to 2 or 3kg, with no twisting or bending. After discussions with Dr Natale, it was agreed that the plaintiff would be certified to start work 4 hours per day with those identified lifting restrictions. It appears that nothing came of that recommendation as the plaintiff could not cope with attempts at work training commensurate with those recommendations. 73On 24 February 2009, Mr Wainwright reported to Dr Natale that the plaintiff was making slow but definite progress with ongoing physiotherapy, and that his walking and task tolerances were increasing. The plan was for ongoing hydrotherapy and pool activity to continue. 74On 2 April 2009, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Ian Smith, an injury management consultant with qualifications in occupational medicine. At that consultation the plaintiff reported problems with posture, mobility back pain including referred leg pain, difficulty sitting and driving, and difficulty sleeping. The outcome of that consultation was that it was agreed the plaintiff would attempt a return to work for 20 hours per week or 4 hours per day on 5 days per week with qualifications concerning posture, symptoms and proscriptions for twisting and bending activities. Dr Smith indicated that the plaintiff should be regarded as being permanently unfit for his pre-injury occupation. 75On 19 April 2009, Mr Wainwright wrote a report to Dr Natale to inform him that the plaintiff had not progressed well with self-directed rehabilitative exercises and that a more structured and supervised programme was now in place. 76Between 3 June 2009 and 27 August 2009, at the request of the workers' compensation insurer, the plaintiff underwent a vocational assessment, including 9 related follow-up sessions with Ms Samantha Symes, a vocational specialist with qualifications in psychology and business marketing. Her commentary on the plaintiff's attendances noted that the plaintiff often started crying within those sessions. In other sessions he was noted to have been frustrated and agitated. From the description on page 28 of Exhibit "6", it seems the plaintiff was being assisted to look for work. The outcome of those sessions involved a plan to obtain a work trial and to arrange a case conference to discuss progress and working hours. A review date was suggested, but there was nothing further tendered from this expert. It is not clear from the evidence as to whether that further review took place. 77On 12 June 2009, at the request of his solicitor, the plaintiff was examined by Dr Mathew Giblin, an orthopaedic surgeon. The plaintiff's ongoing complaints in his cervical, thoracic and lumbar spines were noted, including radiated pains in the shoulders and, intermittently, to the legs. Dr Giblin also identified the presence of bilateral carpal tunnel syndrome. He considered all these problems were accident related. Dr Giblin stated that the plaintiff was unfit for work that involved repetitive bending, heavy lifting or prolonged sitting or standing. He recommended a regime of continued treatment and indicated that the plaintiff would need assistance with gardening and domestic tasks. 78On 20 July 2009, at the request of Dr Natale, the plaintiff was tested for carpal tunnel syndrome by Dr David Rail, a consultant neurologist. Dr Rail was of the opinion that there was mild bilateral carpal tunnel syndrome, which was most likely of cervical origin. He suggested continuing with physiotherapy. 79On 20 July 2009, at the request of his solicitor, the plaintiff was examined by Dr Thomas Rosenthal, a consultant occupational physician. Dr Rosenthal noted the plaintiff's ongoing spinal and left leg symptoms. He expressed the opinion that there were significant soft tissue symptoms in the spine and an internal derangement of the left knee. He confirmed there should be restrictions placed on the plaintiff regarding bending, lifting, pulling, pushing, standing, walking, stooping, squatting, crouching, kneeling, manual handling, twisting, and repetitive movements generally. Dr Rosenthal assessed the plaintiff's Whole Person Impairment under the WorkCover Guidelines at 15 per cent. He confirmed that for the foreseeable future, the plaintiff was not fit to return to his former employment as a driver. He also noted there were restrictions with the plaintiff carrying out household tasks. 80On 31 July 2009, Dr Natale provided the solicitor for the plaintiff with an updated summary of the plaintiff's consultations and treatment to that time. This related to some 92 consultations he had with the plaintiff up until that time. His report canvassed the plaintiff's physical and psychological problems since the accident. He confirmed the plaintiff was unable to return to his previous work duties, and was restricted in the duties he could perform. He also confirmed the plaintiff had a need for assistance with domestic tasks. 81On 31 July 2009, at the request of his solicitor, the plaintiff was examined by Dr Michael Diamond, a consultant psychiatrist. In his report of 6 August 2009, Dr Diamond summarised the plaintiff's graphic and agitated account of the events of the accident. He identified the plaintiff's history of feelings of frustration, despair, nightmares, flashbacks, melancholia, tearfulness and pervading sadness at his changed circumstances. Dr Diamond was of the opinion the plaintiff had a melancholic depression, with depressed mood and cognitive impairment. Dr Diamond described the plaintiff as having the conditions of chronic PTSD, and a major depressive disorder with melancholia, needing treatment because these conditions were disabling. He considered that although the plaintiff had been seeing a psychologist for counselling, he needed the assistance of a psychiatrist to deal with the depressive illness that was evident in him. He considered the plaintiff's prognosis to be guarded. 82At page 12 of his report dated 6 August 2009, Dr Diamond summarised the plaintiff's situation as follows: "At present Mr Cosmidis has no capacity to work as a delivery driver. This is largely as a result of his physical and pain symptoms but his psychological state remains significantly impaired to add to that inability. His capacity to work in any other occupation, profession or employment is impaired significantly at present because of his psychiatric condition. This is again over and above any impairment that results from physical disability or pain. The capacity to work in any employment at present is impaired because of his unrealistic expectation of his performance and the obvious frustration he feels because he is afraid of injuring himself further, being humiliated by failing in his job and because he relies primarily for coping upon avoidance patterns of behaviour where he limits his activities to those areas where he feels relatively safe and secure. It is unrealistic for him to think he can cope in the workplace with those limitations upon him. He is well engaged within this (sic) family and circle of friends. He is an affable, pleasant man with a long history of good relationships. He is supported by the relationships that continue in this way. His travel is relatively unimpeded although he is more reliant on his own motor vehicle than on public transport where he feels excessively vulnerable. His ability to carry out activities of daily living is impaired because of his depressed mood state, lack of energy, drive and motivation on a day-today basis despite the fact that he is very keen to demonstrate that he is not an invalid." 83On 10 August 2009 the plaintiff underwent an MRI scan of the left knee which identified subtle cartilage irregularities in the lateral retropatellar facet, which was described as a subtle grade 1 retropatellar chondromalacia. 84On 11 September 2009, the plaintiff was re-examined by Dr Giblin and on 15 September 2009 Dr Giblin admitted him to Sydney Southwest Private Hospital at which time he carried out an arthroscopic debridement of the fat pad of the left knee. The plaintiff was also given steroid treatment to that knee. Dr Giblin continued to review the plaintiff's left knee intermittently until the last appointment on 18 July 2012. 85On 4 December 2009, at the request of his solicitor, the plaintiff was examined by Dr Sheikh Habib, a consultant orthopaedic and trauma surgeon. In his report dated 11 January 2011, Dr Habib diagnosed the plaintiff to have chronic musculo-ligamentous injury to his neck aggravating pre-existing minor degenerative changes, including a discogenic component, chronic musculo-ligamentous injury to the back with a discogenic component at L5/S1, and post-traumatic collateral ligament laxity and patello femoral arthralgia of the left knee. He confirmed the need for the plaintiff to have a range of conservative treatments and for there to be limits on a range of neck, back and left lower limb straining activities. He assessed a Whole Person Impairment at 16 per cent using the WorkCover assessment guidelines. 86On 22 March 2010, at the request of the Motor Accidents Authority, the plaintiff underwent a medical assessment by Dr Angelo Virgona, a consultant psychiatrist and MAS Assessor. Dr Virgona concluded that the plaintiff had suffered a significant psychological disorder following the accident, probably consistent with PTSD. For the purposes of the MAS assessment, Dr Virgona certified the plaintiff to have a chronic adjustment disorder with mixed anxiety and depressed mood. 87On 25 March 2010, at the request of the Motor Accidents Authority, the plaintiff underwent a medical assessment by Dr Bruce Trevitt, a consultant orthopaedic surgeon and MAS Assessor. For the purposes of the MAS assessment process, Dr Trevitt certified that the plaintiff's cervical, chest, thoracic, lumbar and left knee injuries were as a result of the accident in question. He considered the plaintiff's impairments from those injuries to be permanent and unlikely to significantly change. He assessed the plaintiff's Whole Person Impairment to be 12 per cent under MAS assessment guidelines. 88On 16 April 2010, at the request of the worker's compensation insurer, the plaintiff was examined by Dr James Evans, a consultant orthopaedic surgeon. Dr Evans noted the history of current complaints of neck pain and upper and lower back pain, as well as pain in the right knee. Dr Evans thought these areas of discomfort had stabilised, and would not significantly change. Dr Evans disagreed with the suggestion that the plaintiff needed a large amount of future treatment. Dr Evans expressed the view that the plaintiff would be fit for more vigorous activity than was evident at his examination. He said that the plaintiff was fit for work involving driving and lifting up to 10kg. He argued that there was insufficient pathology present to prevent the plaintiff from returning to his pre-injury duties. He noted the plaintiff seemed to have lost his motivation. He considered there were modest changes throughout the plaintiff's spine which are no more than would be expected in a man of the plaintiff's age and doing his type of work. 89The report of Dr Evans refers to "accompanying documentation" that had been provided to him. It is not entirely clear as to what that documentation comprised as there was no accompanying letter of instruction. The body of the report of Dr Evans referred to the series of imaging between 22 April 2008 and 10 August 2009. The context of some comments in the report suggested that Dr Evans had seen materials from Dr Gotis-Graham and Dr Giblin. There is nothing in the report of Dr Evans to suggest that he had been provided with any psychiatric reports from Dr Diamond and Dr Virgona. The comment made by Dr Evans to the effect that the plaintiff seems to have lost motivation for work must be read in that context. 90On 13 April 2011, at the request of the solicitor for Boral, the plaintiff was assessed by Dr Stephen Rimmer, a consultant orthopaedic surgeon. Dr Rimmer stated that his opinion was based entirely upon the objective findings that were identified by him at the time of his consultation with the plaintiff. He observed the plaintiff to be mildly tender to palpation of his cervical and thoracic spines and moderately tender to palpation of the lumbar spine. Dr Rimmer rejected the proposition that the plaintiff's bilateral carpal tunnel syndrome was in any way related to the accident. Dr Rimmer expressed the opinion that the plaintiff was poorly motivated for return to work and exhibited abnormal illness behaviour, a matter that he said was outside his area of expertise. He expressed the opinion that the plaintiff would have recovered from his musculoskeletal injuries by the time of his consultation. He thought the plaintiff was fit to return to his pre-injury employment or was fit to seek any employment of his choice. He considered that the plaintiff was not in need of domestic assistance. 91The report of Dr Rimmer makes no reference to any materials that had been provided to him for the purpose of assisting him with the preparation of his report. Given that Dr Rimmer expressly stated that his opinion was based entirely upon his objective findings, I consider it is safe to conclude that he did not have the benefit of the psychiatric opinions of Dr Diamond and Dr Virgona when stating his own views. His comments to the effect that the plaintiff is poorly motivated and exhibits abnormal illness behaviour have to be viewed in that light, and in the light of the observations of Ms Symes, a psychologist, who documented the plaintiff's distress in her interviews of him. Dr Rimmer indicated that the plaintiff needed support from a psychologist given his view there was nothing physical that prevented the plaintiff from working. 92On 3 May 2011, at the request of the solicitor for the first defendant, the plaintiff was assessed by Dr Ben Teoh, a consultant psychiatrist. Dr Teoh's report of that consultation was not tendered in evidence. There was no explanation regarding the non-tender of that report. 93On 7 July 2011, at the request of his solicitor, the plaintiff was re-assessed by Dr Rosenthal. He recorded a history of continuing neck pain, some hand numbness, back pain, left hip pain and spasm in the left leg, clicking of the left knee, daily nausea, and restrictions with walking and sitting. On examination he noted restricted neck and back movements, marginally restricted shoulder movements, tenderness in the thoracic spine, left knee crepitus, patellar tenderness and medial ligament laxity. He reiterated his previous diagnoses and indicated that Mr Cosmidis had a poor prognosis, with chronic neck, back and left knee problems and psychological problems, all of which were likely to persist. Dr Rosenthal reiterated his recommendations for ongoing treatment. He confirmed the plaintiff had permanent work restrictions and needed some domestic assistance. 94On 18 July 2011, at the request of his solicitors, the plaintiff was reassessed by Dr Giblin who reiterated the previous opinions he had expressed on 29 June 2009 regarding diagnosis, prognosis and treatment. The plaintiff continued to have neck pain, cervico-thoracic pain and low back pain. The plaintiff was noted to have ongoing clicking of his left knee. 95On 5 August 2011, at the request of his solicitors, the plaintiff was reassessed by Dr Diamond. After reviewing some relevant reports and updating his history, Dr Diamond confirmed that the plaintiff now suffered significant chronic impairment secondary to his physical injuries. He revised his diagnosis to that of chronic adjustment disorder with mixed features of depression and anxiety. He thought that substantial recovery would not be achieved. He stated that the psychiatric illness will persist because of the physical impairment, which indicated a poor prognosis, with significant improvement being unlikely over the years to come. 96On 12 August 2011, Dr Natale prepared an updated summary for the plaintiff's solicitor. He confirmed he had seen the plaintiff on a further 26 occasions since his last report. He confirmed that the plaintiff's work, social, sporting, recreational and domestic activities have been curtailed as a consequence of the effects of the accident. 97On 6 September 2011, at the request of his solicitor, the plaintiff was reassessed by Dr Habib, who reiterated his earlier diagnoses and opinions. He added that he felt the prognosis for the plaintiff to further recover from the physical effects of his injuries was being hampered by his mental state.

Surveillance evidence 98The first defendant tendered a surveillance report in relation to observation of the activities of the plaintiff on Saturday 21 April 2012 and Sunday 22 April 2012, which was the weekend before the commencement of the hearing: Exhibit "4". This document shows that the main periods of observation of the plaintiff's activities on those days totalled some 15 hours. Some of the activities observed on those days resulted in a total of 30 minutes and 38 seconds of non-continuous recording of video footage: Exhibit "3". 99The main video sequence recorded on Saturday 21 April 2012 showed the plaintiff attending the Botany Cemetery where he met some friends and family members. He had attended the cemetery to clean and bless the graves of his grandfather and his cousin. The activities shown on this sequence comprised the plaintiff variously tending to a grave by intermittently wiping down the marble surface, assisting others to light a candle or incense, sitting for short periods, leaning forward whilst he tended to the grave and arranged flowers. He was seen to have leaned forward at times without carrying or lifting anything. He had also carried a six-pack of beer to the site. He is shown making the sign of the cross and, together with his companion, having a salutary drink at the grave. In my view none of the activities shown on the DVD comprising Exhibit "3" embarrassed the plaintiff's evidence or his case. In my view the video footage does not contradict the plaintiff's evidence or his case in any material way. 100The video evidence does not support the comments from Dr Evans and Dr Rimmer to the effect there was a component of exaggeration in the plaintiff's presentation concerning his level of disability. I do not consider the video footage to have had any deleterious impact upon any aspect of the claims the plaintiff has made in these proceedings. Moreover, the activities shown on the DVD footage do not support the proposition that the plaintiff is able to work. 101According to the surveillance report, there was no relevant sighting of the plaintiff on Sunday 22 April 2012.

Remaining disabilities 102My findings concerning the plaintiff's remaining disabilities are based on my acceptance of his evidence given in the proceedings and upon the summarised accounts of his post-accident disabilities as appears in the reports of the various medical practitioners who have examined him: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 103I find that the physical disabilities from which the plaintiff continues to suffer involve pain, discomfort and restriction of movement of the cervical, thoracic and lumbar areas of his spine. This has resulted in the plaintiff experiencing referred pain in the leg from the back. These problems have arisen because the injury in question has been superimposed upon underlying but previously asymptomatic degenerative changes that were present in the plaintiff's spine that have been rendered symptomatic as a consequence of the pushing crushing and dragging injury sustained by the plaintiff. 104The plaintiff also has a consequential restricted ability to lift weights, to bend and twist, and to carry objects. These matters have had a deleterious impact on the plaintiff's capacity to carry out the physical requirements of his pre-accident work. In this regard, I accept the plaintiff's answer to the challenge that he was capable of greater activity, that such activities aggravate his condition, leading to subsequent deleterious consequences for him: T160.6 to T161.41. I also accept the plaintiff's evidence that he is limited in his ability to carry out domestic tasks: T174.5 to T174.13. 105In addition, the plaintiff suffers from pain, discomfort and restricted movement of his left knee due to an internal derangement of that knee and chondromalacia of the patella caused by the accident. These problems cause the plaintiff difficulty with mobility and agility, and have resulted in the plaintiff suffering from a consequential reduced tolerance for standing, walking and sitting. 106An issue emerged within the medical evidence as to the cause of the plaintiff's bilateral carpal tunnel syndrome. Dr Rimmer was of the view the problem was "in no way related to an accident" whereas Dr Rail and Dr Giblin thought it was. The absence of oral evidence from these experts to more fully explain their conflicting opinions makes it difficult to form a concluded view of that issue. Nevertheless, I must undertake that exercise as best I can on the available evidence. 107In considering those conflicting views, I prefer the test-based considered opinion of Dr Rail to the blanket rejection of the proposition as expressed by Dr Rimmer. I take that view because Dr Rail's reasoning was based upon the results of neurological tests he had carried out on the plaintiff which led him to the reasoned view that the origin of the plaintiff's bilateral carpal tunnel problems were most likely to be cervical. In this regard it is significant to note that Dr Rail is a neurologist who administered neurological tests which he then interpreted. There is no evidence that Dr Rimmer, an orthopaedic surgeon, was qualified to interpret the tests contrary to the views of Dr Rail. I also accept Dr Giblin's view because it is consistent with the opinion of Dr Rail on this issue 108The plaintiff has also incurred psychological disabilities from the effects of his accident. These have been caused by his obviously terrifying experience when he thought he was going to die when he was struck, crushed and dragged by the forklift truck. That experience, and the psychologically debilitating and disabling effects of flashbacks, tearfulness, feelings of despair, pervading sadness and melancholia have caused the plaintiff to suffer from chronic PTSD, and a major depression also characterised as a chronic adjustment disorder with features of depression and anxiety. The plaintiff has a fear of traffic, and he suffers from headaches. A significant difficulty the plaintiff faces is that his mental state is influenced by his experience of physical pain, which is unlikely to abate. As a result, he has experienced a personality change. 109These chronic conditions indicate the plaintiff has a poor prognosis for the resolution of such problems in the foreseeable future, with unlikely scope for improvement in the years to come.

Employment effects 110The preponderance of the medical evidence is that the plaintiff's capacity to work has become very substantially and permanently impaired due to the effects of the accident. This arises as a result of his physical problems and the related chronic and entrenched psychological problems. In that regard, understandably, as has been observed by a number of experts, the plaintiff seems to have lost his motivation to work, unlike his pre-accident abilities and independent drive. 111In my view, the extensive but unsuccessful post-accident attempts made by Ms Symes to try and assist the plaintiff to obtain work are tellingly supportive of a finding of a significant physical and psychological impairment in the plaintiff's earning capacity. 112The evidence against that proposition comes from the opinions of Dr Evans and Dr Rimmer who appear not to have taken into account the counter-balancing views of the expert psychiatrists, Dr Diamond and Dr Virgona. To that extent, the reports of Dr Evans and Dr Rimmer which suggest the plaintiff has a greater earning capacity than he asserts, lack balance. For that reason, I prefer the opinions to the contrary, which take those important psychological considerations into account when assessing the impairment of the plaintiff's earning capacity. 113The plaintiff has not returned to work since the accident. He has been unable to resume his pre-accident employment duties. The unsuccessful attempts to assist him in obtaining lighter duties were bound to fail in view of the combined and inter-related effects of his physical and psychological conditions upon him. The plaintiff has effectively had his earning capacity destroyed by the accident in question.

Domestic effects 114Before the accident the plaintiff was self-sufficient in fulfilling his domestic needs. Although before the hearing he lived with his aged mother and he attended to a range of his domestic tasks without difficulty. That position has changed significantly after the accident. 115I find that the plaintiff's need for domestic assistance has arisen specifically as a consequence of the physical and psychological effects of his injuries. I find that this emergent need for domestic assistance is likely to continue and remain indefinitely. The significance of this finding to the quantum of the claim for domestic assistance is analysed separately in my assessment of the plaintiff's entitlement to damages for domestic assistance.

Mitigation 116Exhibit "N" shows that between 11 June 2008 and 11 April 2012 the workers' compensation insurer paid for several hundred medical, pharmaceutical and rehabilitation items of expenditure, which in my view confirms that the plaintiff has properly attended to his obligation to pursue mitigation. 117The plaintiff has followed all forms of treatment other than taking certain medications that have been recommended to him. He provided a reasonable explanation for declining some of the medications that had been suggested to him. He appears to have co-operated with all other suggestions for his treatment. I do not consider that it can be reasonably said that the plaintiff has relevantly failed to mitigate his losses, or that he has failed to observe his obligation to mitigate his damages as provided by s 136 of the Mac Act, or otherwise.

Findings on Issue 1 - Claimed defence of obvious risk - CL Act, s5F, s 5G 118I have already stated my finding that the plaintiff's accident was a motor vehicle accident within the meaning of s 3(1) of the MAC Act. It therefore follows that the CL Act does not apply in respect of civil liability for a motor vehicle accident: s 3B(1)(e) of the CL Act. 119However, lest I be wrong in this conclusion, in the paragraphs that immediately follow, I propose to deal with Boral's claimed defence of obvious risk. 120By paragraph 5 of Boral's defence, it is claimed that if there was a collision between the plaintiff and the forklift, then this was solely as a result of fault on the part of the plaintiff as he ignored an obvious risk within the meaning of s 5F and s 5G of the CL Act, including allegedly deliberately ignoring all warnings alerting him to such an obvious risk in the events leading to the accident. 121There were four elements relied upon by Boral in asserting that the plaintiff had relevantly ignored an obvious risk. These involved a claimed "direction" within the Visitors Pass that "Forklifts have right of way" as a condition of the plaintiff's entry onto the site; having seen that forklifts operated in the area where he was "allegedly struck", he allegedly ignored that risk by "failing to properly monitor the area for Forklifts when returning to his vehicle"; a claimed failure to heed a "Forklift in Use" sign "immediately prior to being allegedly struck by the Forklift", and in the alternative, a claim that he had seen the forklift and ignored the risk of danger posed by it as he allegedly walked in its path. 122In my assessment, for the reasons that follow, each of those components of the defence are flawed and should be rejected. 123First, I am not persuaded that in the lead-up to the accident, the plaintiff was relevantly aware of the risk of being struck from behind by the forklift: s 5G(1) of the CL Act. 124In this regard, for the reasons identified at paragraphs [10] to [12] above, I do not accept as reliable, the evidence given by Mr Roditis when he recounted an alleged admission he claimed the plaintiff had made to him to the effect that he had seen the forklift coming from some distance back and had assumed the driver of the forklift would see him. 125Secondly, there was no reliable evidence that the plaintiff had a perception that the forklift was approaching him from behind as he was walking towards his truck. Therefore, it cannot reasonably be said that he was aware of such a risk. The plaintiff was not required to speculate as to the possibility of being struck from behind in circumstances where he was walking on a course close to the building and that was in line with the extension of the pathway created by the taped safety cones located near the workshop or office door. In those circumstances, it was reasonable for him to assume that any vehicles approaching him from behind would be driven on a safe course and not on a collision course with him. He was also entitled to assume that the driver of such a vehicle would sound a warning to alert him of the approach of such a vehicle. Accordingly, in the circumstances, it cannot be reasonably said the plaintiff was aware of, and ignored, an obvious risk. The risk was not obvious to him at the time because he had no notice of the approach of the forklift truck. 126Thirdly, Boral's claim that the plaintiff was given a "direction" as "a condition of his entry onto the site" overstates the true position. There was no evidence called by the first defendant to base a claim that a direction or condition was conveyed to the plaintiff as claimed. 127The first defendant has not tendered an actual copy of the visitor's pass that the plaintiff signed on the day of the accident. When the sample of the Visitor's Pass comprising Exhibit "1" and reproduced in Appendix I, is examined, it is readily understandable from its layout, format and colouring, that the plaintiff's understanding of it as a pass authorising entry was a reasonable one. 128The word "Visitor" and "Visitor's Pass" appear prominently in bold capitalised lettering. The form is a pale yellow colour with black lettering, it has a red number and white fields for the completion of details of the date and time of the visit, along with the name of the visitor, the company involved, the purpose of the visit, as well as the vehicle registration number and the pass number. The most prominent and eye-catching parts of the pass comprise the two places where the Boral company logo prominently appears. 129The pass contains a text box that is headed "IMPORTANT", that heading is followed by a statement to the effect that signature of the document indicates understanding of the fifteen numbered points that then followed. Items four and nine of those points are in bold text. Item ten, which was not in bold text, states "Forklifts have right of way". 130In my view, the document does not contain what could be reasonably understood to be conditions of entry onto the site. The word "conditions" is not found anywhere in the document. The only inclusion of the word "warning" is in juxtaposition with the admonition to keep clear of machinery because of considerations to do with the automatic starting of some machinery without prior warning: Item 4 of Exhibit "1". 131To the extent that the Visitor's Pass is said to have operated as conditions for the plaintiff's entry onto the site, I do not accept that proposition, without evidence to show that the plaintiff's attention was specifically drawn to the content of what was printed on the Visitor's Pass, and that such printed matter constituted conditions of entry. It seems that evidence would ordinarily have had to come from the gatekeeper rostered on duty at the time of the accident. That person was not called to give evidence. In my view, the first defendant's claimed construction that this document contained conditions of entry onto the premises should be rejected. 132The claim that the Visitor's Pass directed the plaintiff to the statement that forklifts had right of way in all circumstances has to be considered in context. There was no evidence that the plaintiff was given such a document in the form of a "direction". Without evidence to that effect, I consider the proposition that the Visitor's Pass contained a direction to the plaintiff, is an unreasonable inference, and I therefore do not draw the inference that was submitted on behalf of the first defendant. 133Even if, contrary to my finding, it is assumed that the Visitor's Pass was a "direction" to yield right of way to a forklift, for such a direction to be effective, it would have been necessary for the plaintiff to have been aware of the approach of a forklift from behind. I am not persuaded that he was so aware in the interval of time between when he left the office and when he was struck from behind. Therefore, I am not persuaded that he failed to give right of way to the forklift in this instance. 134Fourthly, the assertion that the plaintiff had earlier seen the operation of the forklift, and had nevertheless ignored the risk of injury from a collision with it, because of a claimed failure to monitor the area for forklifts, is misplaced, and not supported by the facts. On leaving the office, the plaintiff looked to his right before turning in order to walk to his left. He saw no forklift approaching, and I have accepted his evidence in that regard. There was nothing in the vicinity for the plaintiff to further monitor the scene to look out for the approach of a forklift from that point until the time when he was struck by the forklift. In the absence of notice of the approach of the forklift, as I have found to have been the case, there was no reason for the plaintiff to monitor the position to the right of the exit door again until he had a need to change his direction of travel from the prolongation of his path immediately to the left of the safety cones. This was because whilst he was walking straight on that path, there was no reason for him to consider that a forklift might encroach into the area where he was walking. 135Fifthly, the argued failure of the plaintiff to heed the "Forklift in use" sign immediately before being struck misstates the true position. Although the plaintiff conceded he probably saw that sign when he made his exit from the workshop or office area, in my view his conduct from that point in looking to his right, when he ascertained there were no forklifts approaching, and before turning to walk to his left, was a sufficient discharge of his duty of self-care at that point so far as the heeding of any warning signs was concerned. 136Sixthly, other than the evidence of Mr Roditis, which I have not accepted on this point, there is no evidence that the plaintiff had seen the approach of the forklift and ignored the risk of a collision with it, or had ignored the risk of danger by walking into the path of the forklift. Instead, I consider that the plaintiff acted prudently, when he continued to walk close to the building and close to the gas bottle storage area, and not into the path of the forklift, as was claimed in this component of the defence. 137I now turn to a consideration of the question of whether or not the first defendant was negligent.

Findings on Issue 2 - Negligence of the first defendant 138Essentially, the particulars of negligence relied upon by the plaintiff are that Boral failed to implement and failed to maintain an adequate system of managing pedestrian and vehicle traffic at the site; failed to fit devices to the forklift to enable a warning to be sounded for pedestrians; failed to designate areas for the movement of vehicles and pedestrians and permitted the forklift to be driven when the driver had an obstructed view. 139As to the provision for an adequate system of managing traffic, Boral did in fact have such a system, albeit a cumbersome one, as identified in Exhibit "L", and summarised at paragraphs [29] to [32] above, and which provided for the deployment of a person described as a spotter, to advise and guide the forklift driver when the view ahead was obstructed. 140In my view, Boral's designated system of requiring a forklift to cease operating immediately and to give way to a pedestrian if the forklift was within 3 metres of a pedestrian, and for the deployment of a spotter to work in conjunction with the forklift, was an appropriate one for the site given the nature of the operations on site. Those operations included the transfer of bulk quantities of stacked bricks from the kilns to various stockpiles that were located on the premises. I gained the impression from the evidence of Mr Roditis that the site conditions were rather crowded so far as the density of location of brick stacks on the premises was concerned: T222.25. 141In the absence of specified or designated traffic areas providing for the separation of pedestrians and vehicular traffic, including the provision of crossing points for pedestrians and vehicles where necessary, the requirement that forklifts give way to pedestrians was a sensible appropriate one, as was the requirement that forklifts not travel closer than 3m to pedestrians: Exhibit "L". 142Instead, it appears that the problem that emerged in this case was one of ensuring that the above systems were implemented and adequately maintained on the site, where forklifts were being driven about by drivers with a restricted view of what was ahead, whether this was because of the nature of the loads or because of the position of the grabbing mechanism and forklift masts. 143Although Boral's safety manual Exhibit "L" provided for the deployment of a spotter in such circumstances, for some unexplained reason, this was not done at the time of the accident. It is plain that if a person in the role of a spotter had been deployed, as was envisaged by the site operations manual to which I have already referred, the plaintiff's accident would have been an unlikely occurrence. I consider that the non-deployment of a spotter in the circumstances of the movement of the forklift about the site where the driver had a restricted view, and the subsequent occurrence of the plaintiff's accident, fulfilled all the requirements of s 5B and s 5D of the CL Act to properly base a finding of negligence. 144Whilst the busy site arrangements for brick stacking that prevailed at the time, as was explained by Mr Roditis, may well have made it impracticable to separate pedestrian areas from areas dedicated for forklift traffic, there was no explanatory evidence from either party directed at that issue. 145In that regard, the risk of injury to pedestrians even when the forklift was driven at low speed was prospectively foreseeable, not insignificant, and one which a reasonable person would have taken precautions to prevent. This is confirmed by the terms of the training manual comprising Exhibits "J" and "K". There was a high probability of a forklift colliding with a pedestrian and causing serious injury to the pedestrian if the forklift was driven in the premises in circumstances where the driver had a restricted or obstructed view of the way ahead, especially where he proceeded to drive forward without the aid of a spotter. 146The burden on Boral in deploying a spotter does not seem to have been an onerous one in the circumstances. Boral operated a large industrial site requiring the movement of forklifts from one location to another, on roadways where pedestrians were not restricted from having access, and where there could be foreseeable encounters between pedestrians and forklifts. I infer from the fact that Boral's manual provided for a spotter to be deployed, that this was a cost consideration that had already been factored into Boral's commercial costing arrangements on the site, and was therefore not unduly burdensome. The evidence was that the site operated 24 hours per day in four shifts in which four teams of 10 workers were deployed. With that level of organisation and labour in place at the site, the deployment of a spotter does not seem to be an undue burden for the described system of work where a safety issue had been foreseen and had to be addressed. 147In the circumstances that prevailed at the site, there were no relevant or applicable considerations concerning social utility as envisaged by s 5B(2)(d) of the CL Act. There would appear to be no social utility in exposing lawful visitors onto the site to the risk of injury for some greater overall social utility objective. 148The site was clearly one where it was envisaged that both pedestrians and forklifts would use the trafficable areas of the paved internal roadway near the office. This is confirmed by the placement of the red safety cones, and the fitting of safety warning tape on those cones in the vicinity of the workshop or office door. 149Whilst that measure might have been adequate for securing the separation of a pedestrian area from passing forklifts in the immediate environment where the safety cones and tape had been placed, it was still an inadequate response to the risk of an encounter between pedestrians and forklifts. This is so in several respects. 150Exhibit "J" required that pedestrians be excluded from all areas where forklifts operated. This safety requirement was not implemented. 151Exhibit "K" required that there be clearly marked "No go" or exclusion zones for both pedestrians and forklifts. This safety requirement was not implemented. 152Reliance on the placement of cones and safety tape depended upon the exercise of commonsense by pedestrians in ensuring they stayed to the left of the cones after turning left on leaving the office. However, that measure made no provision for delineating a safe and segregated pathway for pedestrians who had a need to continue walking beyond the point of the last of the row of safety cones, as was required by Exhibit "K". 153It is difficult to understand why only three such safety cones were deployed. The plaintiff needed to walk on for a further distance beyond the last of the row of safety cones in order to cross to his truck, which was located some 15 - 20 metres away at the fuel tanks. He had no choice in the matter as he needed to get to his truck located in the fuel tank area. He had to walk to and from the office in order to deal with the required paperwork associated with his delivery of fuel to the site. For Boral, this was a foreseeable activity that demanded the consideration of safety measures given the fact that forklifts were required to frequently moved about the site to move or stack loads of bricks on a regular basis. 154Whilst it could be said that the plaintiff was aware, from his earlier observations, that the area in question was one where forklifts were being driven from time to time, it was reasonable for the plaintiff, when walking from the workshop or office to his truck, to maintain a straight path beyond the location of the last safety cone, especially where he had no notice of a forklift approaching him from behind as he walked along that way. This is so especially where there were no marked exclusion zones for pedestrians. 155In those circumstances, absent any signage alerting or warning pedestrians against walking on the roadway, including by the side of the roadway, it was reasonable for the plaintiff to assume that the driver of any vehicle approaching him from behind would not only see him, and ensure an adequate distance of separation was maintained, but would also take action to sound a horn or a siren to warn him of the risk of an impending collision, if that was a likelihood. 156No such warning was given to the plaintiff on this occasion. If that was because no warning device had been fitted to the forklift, that would of itself constitute a relevant breach of duty of care in the circumstances in which the forklift was being used on that site. This is so particularly where it was known to Boral that the driver would, at times, have had obstructed or only limited views of what was ahead of the moving forklift. 157If there was such a warning device fitted, and it was not used to sound warnings of the approach of the forklift, given the driver's restricted view, then I consider that the failure to operate the warning device to provide warnings of the approach of the forklift in such circumstances, would also be a relevant breach of duty of care. 158On either of these two latter scenarios, I consider that the requirements of s 5B of the CL Act have been satisfied, and that Boral was negligent because there was no warning given to the plaintiff concerning the impending collision. 159In coming to the conclusion that Boral, as the employer of Mr Mohr and vicariously responsible for his driving, was negligent, I record that I have excluded from my consideration, the evidence given of Mr Mohr's alleged earlier erratic driving as described by the plaintiff, or for that matter, the 2006 incident involving his driving of a forklift, and for which he was given safety counselling by Boral. 160Assuming for the purpose of analysis that there was a paramount right of way for forklifts at the site, that right of way could only arise and prevail if the plaintiff had been made aware of the presence of an approaching forklift immediately prior to the accident. This has not been demonstrated on the evidence. Therefore, any mention of the right of way of forklifts in the visitors pass does not absolve Boral or its employees of the obligation to take reasonable care for the safety of pedestrians on the site. 161In this case, the plain fact is that the plaintiff was struck, knocked down and dragged along by the forklift because Mr Mohr had not seen him. In my view, those circumstances bespeak a clear failure on the part of Mr Mohr to keep a proper lookout whilst driving the forklift in circumstances where he must have known it was likely that persons such as the plaintiff could be walking about on site. This clearly amounted to negligence where Mr Mohr's view of the path ahead had been obscured. In these circumstances I am comfortably satisfied that Mr Mohr was negligent, and that as his employer, Boral is vicariously responsible for Mr Mohr's negligence in his manner of driving the forklift.

Findings on Issue 3 - Alleged contributory negligence 162Boral relies on a pleaded defence of contributory negligence: s 5R and s 5S of the CL Act. 163In asserting that defence, Boral relies upon four elements of alleged contributory negligence particularised as a failure on the plaintiff's part to keep a proper lookout for the forklift, as he had been made aware that it was operating in the area; failing to take care for his safety generally; failure to place safety cones or an A-frame warning sign around his vehicle to warn others on site that he was in the immediate vicinity, and having allegedly made a conscious decision to walk across the path of travel of the forklift after he left the workshop or office area to walk to his truck. 164In my assessment of the evidence, for the reasons that follow, each of the elements of the defence of alleged contributory negligence should be rejected as Boral has not demonstrated or proven that a reasonable person in the position of the plaintiff, would have taken the precautions claimed, or that the plaintiff had failed to observe such precautions: s 5R(2) of the CL Act. 165First, I do not consider that a reasonable person in the position of the plaintiff, wearing earplugs on a noisy industrial site, after looking to his right on leaving the workshop area, and not seeing any forklifts approaching, could reasonably be said to have known or ought to have known, that whilst walking close to the nearby building within a line of safety cones, that a forklift would without warning, be likely to strike him from behind in those circumstances. 166Secondly, I do not consider that it can be reasonably said that the plaintiff had failed to take care for his own safety in any material respect. Although the plaintiff was on notice that there were forklifts being used in the area, I do not consider that there is any evidence that he had failed to pay due heed to their presence. That conclusion would have been very different if the plaintiff had been walking outside the line of demarcation identified by the placement of safety cones and tape. 167Thirdly, it was not necessary for the plaintiff to place safety cones and an A-frame near his vehicle to alert Boral employees to the fact of his presence on the site. The presence of the plaintiff's truck on the site at the fuel tank area would have been sufficient indication to Boral employees that an additional person or non-Boral employee was on the site. Furthermore, the placement of safety cones and an A-frame near the plaintiff's truck had no nexus with the location where the plaintiff was walking and struck from behind by the forklift. That event occurred only because the forklift driver did not see the plaintiff. 168Fourthly, as I have already found, the first defendant has not established, through reliable evidence, that the plaintiff had walked across the path of the forklift. I do not accept Mr Roditis' evidence in which he stated that the plaintiff had said words to him to that effect in the Greek language. Furthermore, I do not accept that it has been reliably demonstrated, or capable of reasonable non-speculative inference, that the plaintiff had made a conscious decision to walk across the path of the direction of travel of the forklift. 169I therefore reject the first defendant's submissions that there was contributory negligence on the part of the plaintiff. 170I now turn to consider the defence raised by the first defendant pursuant to s 151Z of the WC Act: paragraph 7 of the defence filed:

Findings on Issue 4 - Alleged negligence of plaintiff's employer 171Boral alleges that the plaintiff's employer was negligent and therefore it seeks a reduction in the damages awardable to the plaintiff after taking such alleged negligence into account: s 151Z of the WC Act. Paragraph 7 of the defence filed in the proceedings was in the following terms: "7. Further, and in the alternative the First Defendant says that in the event it is liable to the Plaintiff (which is denied) then any damages so payable should be reduced by the Plaintiff's employer's negligence and the First Defendant relies upon s 151Z of the Workers Compensation Act 1987 (NSW) as a defence to the Plaintiff's claim for damages." 172On 24 April 2012, which was the second day of the hearing, objection was taken to the first defendant seeking to expand upon an unparticularised s 151Z defence. 173That defence was clearly deficient due to the absence of particulars as required by UCPR r 15(1)(a). An application by the first defendant during the course of the hearing for late amendment was refused, as was the subsequent consequential application by the first defendant for an adjournment. Separate reasons were given for those rulings: T87; T96. 174The proposed particulars of the alleged negligence of the plaintiff's employer were marked as MFI "2", and were in the following terms: (a)Failure to advise the plaintiff that the site he was attending was one where forklifts had right of way; (b)Failure to undertake a risk assessment at the site the plaintiff was attending; (c)Failure to induct or ensure that the plaintiff was inducted in relation to the site he was to attend; (d)Required the plaintiff to use earplugs in circumstances where it was inappropriate and unsafe to do so; (e)Failure to adequately train the plaintiff, and in particular, instruct him in how to move around a site where forklifts were in operation; (f)Failure to ensure that the first defendant had in place a satisfactory system for the plaintiff to move about the site without being exposed to the risk of being struck by a moving forklift. 175On the evidence adduced, I see no basis upon which to apply the provisions of s 151Z of the WC Act to reduce the plaintiff's entitlement to damages on account of the alleged liability of the plaintiff's employer. 176I now turn to the assessment of the plaintiff's entitlement to damages.

Findings on Issue 5 - Assessment of damages 177The plaintiff makes a claim in respect of the following10 identified heads of damage: (a) Non-economic loss (b) Past loss of income (c) Fox v Wood (d) Past loss of superannuation (e) Future loss of earning capacity (f) Future loss of superannuation contributions (g) Past domestic assistance (h) Future domestic assistance (i) Future treatment (j) Past out-of-pocket expenses 178Although I have assessed damages under the MAC Act scheme, where relevant, I have also identified the assessment I would have made had I been required to assess damages under the scheme of the CL Act, in order to allow for the possibility that I may be found to have erred with regard to the application of the MAC Act scheme to this case. In this regard, the only relevant head of damage requiring a differential assessment is non-economic loss. The other heads of damage are assessable in the same manner, whether under the MAC Act scheme or the CL Act scheme.

Plaintiff's probable life span 179In assessing the plaintiff's entitlement to damages there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses. At age 52, the plaintiff has a probable life span of 33 remaining years. The 5 per cent multiplier for 33 years is 855.7.

Non-economic loss 180On behalf of the plaintiff it was submitted that non-economic loss should be assessed in the sum of $200,000. In contrast, the first defendant submitted that the plaintiff's damages for non-economic loss should be assessed in the range of $50,000 to $75,000, a range which I consider to be manifestly inadequate as compensation for the significant ongoing physical and psychological impairments the plaintiff has suffered, and which will continue to substantially interfere with the enjoyment and amenity of his life. 181The first defendant's submission concerning the assessment of non-economic loss is based on an acceptance of three propositions, first, that the plaintiff has exaggerated the extent of his problems, secondly, that he has recovered from his several rib fractures "reasonably quickly and no longer cause a problem", other than that he has suffered non-specific soft-tissue injuries, and thirdly, medical assessors appointed by the first defendant have certified him to be physically fit for full duties without restriction. 182In my view, the first defendant's submissions in this regard should be rejected for the reasons that follow. 183The submission that the plaintiff has exaggerated the extent of his problems is not borne out by the evidence, or by the nature of the challenges to the plaintiff's evidence in cross-examination. I do not regard the comments from Dr Evans and Dr Rimmer to the effect that the plaintiff exhibits abnormal illness behaviour to be reliable evidence of exaggeration where those opinions do not give consideration to the psychiatric issues. Those opinions are based on the stated absence of pathology and, it seems, they completely ignore the significance of the plaintiff's complaints. 184As to the surveillance evidence, I consider that the first defendant has overstated its significance. For the reasons I have already outlined at paragraphs [98] to [102] of my reasons, the surveillance evidence does not reasonably permit a conclusion that the plaintiff has exaggerated his problems. In my view the plaintiff's evidence concerning his ongoing problems was given in a restrained or understated manner, with an element of embarrassment, rather than with exaggeration. 185To the extent that the first defendant's submission relies upon the opinions of Dr Evans and Dr Rimmer, it is important to observe that neither of those opinions have taken into account the important psychological considerations that affect the plaintiff and the plaintiff's undisputed psychiatric diagnosis. Accordingly, those opinions do not represent a fair or proper basis for the finding contended for by the first defendant. In my view the first defendant's submission does not come to grips with the undisputed psychiatric diagnosis and this represents an insurmountable obstacle for the acceptance of that submission. 186In my view the plaintiff's physical and psychological injuries and disabilities, which I have summarised at paragraphs [102] to [109] above, and the impact of those problems on the plaintiff's working and domestic life, and the plaintiff's need to tolerate constant pain, call for a much higher award of damages for non-economic loss than that submitted by the first defendant. 187The plaintiff remains permanently afflicted by the physical and psychological problems that have been identified. There is little basis within the evidence to provide hope of any substantial improvement in these interrelated physical and psychological problems in the foreseeable future. This calls for a substantial award for non-economic loss. For these reasons, I consider that the submission made on behalf of the plaintiff concerning the quantification of the claim for non-economic loss appropriately reflects the plaintiff's post-accident circumstances and should be accepted as representing reasonable compensation that is fair to both parties. 188I therefore assess the plaintiff's entitlement to damages for non-economic loss in the amount of $200,000. 189In my view, non-economic loss assessed pursuant to s 16 of the CL Act would be to the extent of 45 per cent of a most extreme case, which would be the equivalent of $230,400.

Past loss of income 190On behalf of the plaintiff it was submitted that damages for past loss of income should be assessed in the net sum of $170,695. That sum was calculated on the basis of a continued loss of earnings from the date of injury until the commencement of the hearing, with the periodic rate increments identified in the supporting schedule submitted on behalf of the plaintiff in MFI "6". 191The underlying premise of those calculations was the submission that in practical terms, the plaintiff has been rendered incapable of gainful employment. On behalf of the plaintiff it was submitted that the nature of the restrictions that have been imposed upon his return to work would preclude him for all types of work for which he was suited by his experience, aptitude and age. 192In contrast, the first defendant submitted that damages for past loss of income should be assessed in the sum of $119,795. That sum was calculated on the basis of an allowance of loss of income for a closed period between 18 April 2008 and 20 April 2011. The rationale for that submission was the content of the opinions of Dr Evans and Dr Rimmer, respectively dated 16 April 2011 and 20 April 2011, which were to the effect that the plaintiff was fit for driving and for lifting up to 10kg, and was fit for suitable duties and full hours of work without restriction (in the case of Dr Evans), and was fit to return to his pre-injury duties or to seek any employment of his choice without permanent impairment (in the case of Dr Rimmer). 193The reconciliation of these disparate submissions is dependent upon a consideration of the evidence of the plaintiff and the expert medical evidence. 194The plaintiff has said he can't work. The effect of the preponderance of the medical evidence, both physically, and psychologically, is that there are great difficulties in the path of the plaintiff returning to the workforce. Not only does he have chronic pain in his spine and left knee, but he also has an associated psychiatric diagnosis of adjustment disorder with features of anxiety and depression. These latter features have not been considered in the reports of Dr Evans and Dr Rimmer. For that reason, I do not accept their opinions concerning the plaintiff's fitness to return to work. 195Instead, I consider that Dr Diamond has aptly summed up the position regarding the plaintiff's earning capacity on page 8 of his report dated 8 August 2011, in which he cites the psychological factors of anxiety and excessive caution in traffic, and worrying about protecting his injured back, as the reasons for his opinion that on psychiatric grounds, the plaintiff is unlikely to work again in his pre-accident employment. That opinion was in addition to, and confirmatory of Dr Diamond's earlier opinion dated 6 August 2009, where at page 12, Dr Diamond expressed the view that the plaintiff had no capacity to work as a delivery driver because of his physical pain and his psychological impairments, which I find to be related to the plaintiff's experience of pain. Furthermore, these conditions have remained unabated, despite extensive unsuccessful attempts at rehabilitation. 196It is significant that the first defendant has had the benefit of a psychiatric examination of the plaintiff from Dr Teoh on 3 May 2011. A report from that examination has not been tendered. In the absence of an explanation for the non-tender of Dr Teoh's report, I infer from the circumstances, that if Dr Teoh had held views that were relevantly different to those of Dr Diamond and Dr Virgona, then his report would have been tendered in the first defendant's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 197The psychiatric evidence as to the plaintiff's fitness for work is obviously influenced by the plaintiff's physical disabilities. In this regard, the plaintiff's claim for inability to carry out a range of otherwise ordinary work tasks is supported by a substantial body of medical opinion that is contradictory of the opinions of Dr Evans and Dr Rimmer. 198Those supportive opinions can be found in Exhibit "B". Dr Gotis-Graham stated that a return to the workforce would be difficult: Exhibit "B", p 157. Dr Smith's suggestion for part-time work proved unsuccessful: Exhibit "B", p 60 and p 65. Dr Habib thought the plaintiff was unfit for his pre-accident employment and there were significant restrictions placed on other forms of employment for the plaintiff: Exhibit "B", p 188. Dr Giblin described the plaintiff as being unfit for work involving repeated bending, heavy lifting, prolonged sitting or standing, squatting or kneeling: Exhibit "B", p 170. Dr Rosenthal noted a poor prognosis with permanent restrictions and unfitness for his pre-injury employment: Exhibit "B", p 164 and p 165. Dr Natale also supported a claim for unfitness for pre-injury employment: Exhibit "B", p 183. 199In my view, this substantial body of medical opinion supporting the plaintiff's claims for loss of earning capacity is to be preferred to the opinions of Dr Evans and Dr Rimmer. That body of supportive reports is reasoned, and based on consistent observations over time, including observations by some treating doctors who were in a better position to make an assessment than the more isolated opportunities that the first defendant's medico-legal examiners had, in identifying the plaintiff's work restrictions. 200As to any residual earning capacity, in my view, the plaintiff aptly summed up the impracticability of returning to his earlier vocation in the retail industry, as the following passage of his evidence at T166.14 to T166.25 shows: "Q. You've got this experience in retail, it appears to be in clothes and men's fashion. You've got a number of years' experience doing that sort of work? A. Yes sir. Q. Is it the case that you haven't applied for that sort of work because you don't have a passion for it? A. No sir, it's long hours on your feet, it's a lot of bending, it's a lot of things. It's not just standing there serving customers sir. You know, I've been in retail for that long, knowing what it takes. Knowing that yeah, if you're going to be good in the shop, that you have to pull down whole walls and remerchandise and do a lot of lifting and do a lot of moving, do a lot of bending and I don't think I'm up to that sir." 201In view of the evidence I have outlined, I am satisfied that the plaintiff has lost income as claimed. 202I therefore accept the calculations for past economic loss that were submitted on behalf of the plaintiff and I assess the plaintiff's entitlement to damages for past economic loss in the amount of $170,695.

Fox v Wood 203The amount of past tax deductions made from payments made to the plaintiff for workers' compensation payments has been agreed in the sum of $11,906.76. I therefore assess the plaintiff's entitlement to damages for reimbursement of tax deducted from past workers' compensation payments in the amount of $11,906.76.

Past loss of superannuation 204On behalf of the plaintiff it was submitted that damages for the loss of past employer funded superannuation benefits were in the sum of $18,776. This amount represented the conventional calculation of 11 per cent of the past economic loss assessment of $163,495. In contrast, the first defendant submitted that this head of damage should be assessed in the amount of $13,177.45. 205The difference between these two submissions can be accounted for by the shorter closed period of past loss of earnings to 20 April 2011 based on the opinion of Dr Rimmer, which I have not accepted. Consistent with that approach, I accept the plaintiff's submission concerning this head of damage. 206I therefore assess the plaintiff's entitlement to damages for past loss of employer funded superannuation contributions in the amount of $18,776.

Future loss of earning capacity 207On behalf of the plaintiff it was submitted that damages for future loss of earning capacity should be assessed in the sum of $424,575. That sum was calculated on the basis of a projection of $900 per week net at 5 per cent for the remaining 15 years of his working life (x 555) less a discount of 15 per cent for possible adverse vicissitudes. 208In contrast, the first defendant submitted that damages for future loss of income should be assessed in the form of a buffer sum of $50,000. 209In my view, for the reasons that follow, the plaintiff's submission should be accepted, and the first defendant's submission should be rejected. 210The medical opinions of Dr Evans and Dr Rimmer which refer to a lack of motivation on the plaintiff's part, or abnormal illness behaviour should not be read as operating to discredit the plaintiff's claim for loss of earning capacity because these opinions do not deal with the psychiatric issues that continue to affect the plaintiff as a consequence of his physical discomforts. 211Furthermore, where the opinions of Dr Evans and Dr Rimmer conflict with those of Dr Natale, Dr Gotis-Graham and Dr Giblin, I prefer the opinions of the latter three doctors to those of Dr Evans and Dr Rimmer as to the disability nature of the plaintiff's ongoing complaints for the reasons I have already identified at paragraphs [106], [107] and [112] of my reasons. 212In my view, the medical opinions that I have accepted indicate that for practical purposes, in the four years since the accident, and despite extensive attempts at rehabilitation, the plaintiff has no significant prospect of obtaining work in either his pre-injury work in its various forms, or in any of the positions identified by the first defendant's vocational psychologist, Ms Symes: Nominal Defendant v Livaja [2011] NSWCA 121. The plaintiff's performance in those work tests, including him periodically breaking down and crying, when considered in the context of the uncontradicted opinions of Dr Diamond and Dr Virgona, indicate that for practical purposes, he should be considered to be unemployable: Mead v Kearney [2012] NSWCA 215, at [34]. 213Effectively, the plaintiff's future capacity to work has been completely destroyed. Despite persistent attempts to rehabilitate him into some form of employment, those attempts have been unsuccessful. The reasons for this are both physical and psychiatric. It is unlikely that the plaintiff's condition will improve during the remaining years when he would have otherwise been expected to continue working. 214In considering the claim for future economic loss I am satisfied that if it were not for the accident, the plaintiff would have been fit for, and would most probably have continued with, his pre-accident employment, or like employment: s 126(1) of the MAC Act. I base that view on the plaintiff's consistent history of pre-accident employment and his evidence that he had no impairments that contra-indicated such continued employment. 215Other than an allowance for the conventional discount of 15 per cent for potential adverse vicissitudes, I see no basis upon which there should be any further adjustment of the plaintiff's damages for future loss of earning capacity: s 126(2) and (3) of the MAC Act. 216I therefore assess the plaintiff's entitlement to damages for future loss of earning capacity as submitted by the plaintiff in the amount of $424,575.

Future loss of superannuation contributions 217On behalf of the plaintiff it was submitted that damages should be awarded for the loss of future employer funded superannuation benefits in the sum of $46,703. That amount was derived by the projection of an amount of $90 per week on the 5 per cent tables over 15 years (x 555) less 15 per cent discount for possible adverse vicissitudes. In contrast, the first defendant submitted that no allowance should be made for this head of damage, consistent with the submissions it made in respect of the claim for future economic loss. 218I propose to adopt the conventional approach to assessing this head of damage by taking 11 per cent of the damages assessed for future loss of earning capacity of $424,575, and applying a 15 per cent discount on account of possible adverse vicissitudes. This yields the discounted amount of $39,697. 219I therefore assess the plaintiff's entitlement to damages for future loss of employer funded superannuation contributions in the amount of $39,697.

Past domestic assistance 220On behalf of the plaintiff it was submitted that damages for past domestic assistance should be assessed in the sum of $32,066.52. This amount was calculated on the basis of a two-stepped assessment of domestic assistance, first, at 7 hours per week to 20 April 2009, and then 6 hours per week from 21 April 2009. In contrast, the first defendant submitted that no allowance should be made for this head of damage. 221The first defendant's submissions proceeds upon the premise that the domestic assistance provided to the plaintiff does not satisfy the threshold for an award of such damages, namely, 6 hours per week for 6 continuous months, whether this is considered to arise under s 128(3) of the MAC Act, or s 15 of the CL Act. 222In my view the first defendant's submission should be rejected on a factual basis, for the reasons that follow. 223The evidence discloses that in the period up to the hearing, between the plaintiff's sister and her husband, and the plaintiff's nephew, as well as for a time, the plaintiff's late mother, domestic assistance of between 6 - 8 hours per week has been provided to the plaintiff in respect of domestic tasks he would have otherwise carried out himself. In this regard, I accept the evidence of the plaintiff, Mrs McVernon and Mr Lyford. The medical evidence supports the nexus between the accident and the plaintiff's need for such services. There was no other reason why the plaintiff needed such domestic assistance as he was self-sufficient in this regard before his accident. 224Although the evidence of Dr Evans and Dr Rimmer does not support the plaintiff's need for domestic assistance, the overwhelming preponderance of the medical evidence supports such a claim. 225In this regard, Dr Rosenthal noted the plaintiff's restrictions for domestic tasks. His description at pages 165 to 166 of Exhibit "B", bespeaks a need for significant domestic assistance. Dr Giblin expressed the view that the plaintiff was unfit for activities involving repeated bending, heavy lifting, prolonged sitting or standing, squatting or kneeling. He supported a claim for 6 hours per week of combined assistance for domestic tasks plus gardening: Exhibit "B", p 170. Dr Natale noted the plaintiff was only able to perform light household tasks for short periods at a time: Exhibit "B", p 183. Dr Habib supported the provision of such services for 6 hours per week: Exhibit "B", p 188. 226I prefer the detailed opinions of these doctors to the less discursive opinions of Dr Evans and Dr Rimmer. It seems that Dr Evans and Dr Rimmer looked at objective factors alone without any emphasis or context provided by the plaintiff's credible subjective complaints. I consider that as a consistent body of evidence, the reports of Dr Natale, Dr Rosenthal, Dr Habib and Dr Giblin provide a more accurate picture of the plaintiff's disabilities and restrictions over time, including his restrictions for domestic tasks that he could previously have undertaken without assistance. I find that the change in the plaintiff's circumstances in that regard has been brought about by the accident in question. 227The plaintiff's submission for this head of damage which makes a claim for a two-stepped calculation of 7 hours per week and then for 6 hours per week for the different periods that I have identified in paragraph [220] above seems to me to be unwarranted given that the evidence indicated that the times involved were average estimates. In those circumstances I propose to allow damages pursuant to s 128(4) of the MAC Act for a more conservative average of 6 hours per week to the time of the hearing. 228The mandatory requirement of s 128(4) of the MAC Act is that such damages should not exceed the rate that is prescribed by statute. The Appendix II to these reasons identifies the calculation of the value of the claimed domestic assistance services at the prescribed statutory rate over the period claimed, in the amount of $30,420.94. 229I therefore assess the plaintiff's entitlement to damages for past domestic assistance in the amount of $30,420.

Future domestic assistance 230On behalf of the plaintiff it was submitted that damages for future domestic assistance should be assessed in the sum of $279,711. The first defendant submitted that no allowance should be made for this head of damage. 231The first defendant's primary submission was that in this case the evidence does not satisfy the threshold test of 6 hours per week for a continuous period of 6 months into the future, thus precluding an award of damages for this head of damage. 232In the alternative, the first defendant has submitted that as the plaintiff's family has assisted him in the past, this is unlikely to change, indicating that any consideration of future care should be undertaken on the basis of the rates that are applicable for gratuitous care rather than for care costed on a commercial basis: Miller v Galderisi [2009] NSWCA 353, at [14] to [25]. 233I consider that the first defendant's submissions on this head of claim should not be accepted for the reasons that follow. 234The first defendant's submissions also rely upon an assumption drawn from within the plaintiff's evidence to the effect that the plaintiff's family will continue to provide him with domestic assistance as they have done in the past, and without change: T173.25 - T173.43. 235In my view that assumption is unsound. It is based on the plaintiff's belief, without any evidentiary input from those who have provided him with assistance to date. The matter of whether Mrs McVernon and Mr Lyford would be willing and able to continue to provide such assistance was not canvassed with them in their evidence. Given that the plaintiff's mother passed away during the hearing, and given she had provided some of the care, and given that the plaintiff's nephew who provides a significant part of the assistance, was expecting a child in the weeks following the hearing, and by inference, would therefore have other family responsibilities and priorities for his spare time, these changed circumstances render the first defendant's assumption unsound and unsafe. 236In my view, the decision in Miller v Galderisi is distinguishable from the circumstances of this case. In that case, the plaintiff had a spouse living with him and who provided some of the care that was claimed. In the present case, the plaintiff does not have a spouse and there is no sound basis from the evidence to confidently predict, on the balance of probabilities, that the plaintiff would continue to receive domestic assistance on a gratuitous basis in the same way as he has in the past. The position might be different if he had a long time spouse or other family members living with him on a permanent basis. 237In my view there is ample support for the plaintiff's claim for future domestic assistance. I have accepted his need for such assistance as an accident created need. I have also accepted the evidence of Mrs McVernon and Mr Lyford as to the nature of the assistance required. I have also reviewed the medical evidence which I have accepted and which supports this component of the plaintiff's claim, at paragraphs [223] to [226] of my reasons. 238The plaintiff's submission was initially based on a claim for 4 hours of home care at $53.69 per hour and 2 hours per week of gardening and lawnmowing at $56.06 per hour, totalling $326.88 per week, which, when projected at 5 per cent over 33 years (x 855.7), yields the amount of $279,711. 239In final submissions, it was accepted that the appropriate hourly rate should be the single $38.68 rather than a rate that was blended from the hourly rates of $38.68, $53.69 and $56.06. This change in rate yielded the weekly sum of $232.08 for 6 hours of assistance per week for projection. The projected amount over 33 years is then $198,590. 240I consider that the revised submission of the plaintiff should be accepted subject to the application of a discount for potential vicissitudes, including the possibility that the plaintiff's living circumstances may change so as to require a lesser degree of assistance. I consider that the conventional discount of 15 per cent is a sufficient discount on account of that factor. The discounted amount becomes $168,801. 241I therefore assess the plaintiff's entitlement to damages for future domestic assistance in the amount of $168,801.

Future treatment expenses 242On behalf of the plaintiff it was submitted that damages for future treatment expenses should be assessed in the sum of $50,488. In contrast, the first defendant submitted that an allowance should be made for this head of damage in the more limited amount of $4500. 243The first defendant's submission concerning future out-of-pocket expenses is based on the proposition that the cushion amount submitted should be sufficient damages. I do not accept that submission in light of the plaintiff's chronic physical complaints and the psychiatric diagnosis, and having regard to the total amount that has already been reasonably expended to date on the treatment of the plaintiff. Instead, I consider that a more substantial allowance should be made. 244The plaintiff's submission is based on the 7 elements of treatment identified in MFI "6", namely, general practitioner consultations, specialist consultations with the treating rheumatologist, physiotherapy, hydrotherapy, consultations with a psychiatrist, together with anti-depressant and other medication. The plaintiff's claim for $50,448 assumes a projection of $54.40 per week for recurring treatment over the plaintiff's remaining life span, plus $3900 for more short term psychiatric consultations and anti-depressant medication. 245In my view, although the plaintiff's submission represents a reasonable and useful guide to the assessment of quantum for future treatment, in this case, I consider a lump sum buffer approach is indicated. In that regard, I consider than an allowance of $40,000 represents a proper sum which allows for the possibility that some of the treatments may involve less intensity over time, or may assist the plaintiff to reach a point of better tolerance of his disabilities with a treatment regime of lesser intensity. 246I therefore assess the plaintiff's entitlement to damages for future treatment expenses in the amount of $40,000.

Past out-of-pocket expenses 247On behalf of the plaintiff it was submitted that damages for past out-of-pocket expenses should be assessed in the sum of $70,022.14. In contrast, the first defendant submitted that this head of damage should be assessed in the amount of $66,742.59. I see no proper basis for preferring the amount submitted by the first defendant in the face of evidence that the amount claimed by the plaintiff was incurred for his reasonable treatment and rehabilitation. 248I therefore assess the plaintiff's entitlement to damages for future domestic assistance in the amount of $70,022.14.

Summary of damages assessment 249My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $200,000.00 (b) Past loss of income $170,695.00 (c) Fox v Wood $11,906.76 (d) Past loss of superannuation $18,776.00 (e) Future loss of earning capacity $424,575.00 (f) Future loss of superannuation $39,697.00 (g) Past domestic assistance $30,420.00 (h) Future domestic assistance $168,801.00 (i) Future treatment $40,000.00 (j) Past out-of-pocket expenses $70,022.14 Total $1,174,892.90

Disposition 250The plaintiff has succeeded on all issues between the parties which called for decision. He is therefore entitled to a verdict and judgment in his favour in the amount of $1,174,892.90.

Costs 251As the plaintiff has obtained a verdict and judgment in his favour against the first defendant, it follows that he is entitled to have his costs paid on the ordinary basis unless an entitlement to some other order can be established.

Orders 252In proceedings numbered 2011/80368 between Cosmidis v Boral Bricks Pty Ltd, I make the following orders: (1) Verdict and judgment for the plaintiff, Orestis Cosmidis against the first defendant, Boral Bricks Pty Ltd, in the assessed amount of $1,174,892.90; (2) The first defendant is to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered; (3) The exhibits may be returned; (4) Liberty to apply on 7 days notice if further orders are require. APPENDIX I APPENDIX II CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 128 (6 hours per week between 19 May 2008 and 23 April 2012) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.128 s.128 7 HOURS PER RATE RATE WEEK 1 19.04.2008 to 16.05.2008 03.71 $937.80 $23.44 $521.77 2 17.05.2008 to 15.08.2008 12.85 $921.60 $23.04 $1776.38 3 16.08.2008 to 21.11.2008 13.85 $933.50 $23.34 $1939.55 4 22.11.2008 to 20.02.2009 12.85 $938.50 $23.46 $1808.76 5 21.02.2009 to 15.05.2009 11.71 $946.40 $23.66 $1662.35 6 16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $1951.19 7 22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $1849.63 8 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $1868.13 9 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $1907.45 10 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $1902.06 11 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $1898.97 12 20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $1920.56 13 19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $1976.84 14 21.05.2011 to 23.04.2012 48.28 $1026.00 $25.65 $7430.29 TOTAL $30,420.93

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: 13 September 2012