Craig Riley v Chubb Security Services Ltd and Anor

District Court of NSW|2007-02-20

CITATION: Craig Riley v Chubb Security Services Ltd and Anor (No. 2) [2008] NSWDC 80

HEARING DATE(S): 20 February 2007 - 21 February 2007, 3 March 2008 - 7 March 2008 EX TEMPORE JUDGMENT DATE : 7 March 2008

DECISION: Verdict and judgment for the plaintiff for $266,064.82. I order the first defendant to pay the plaintiff's costs. I order the second defendant to pay its own costs

Motor Accidents Compensation Act 1999 LEGISLATION CITED: Workers Compensation Act 1987 Workplace Injury and Management Workers Compensation Act 1998

Fuller v Reel Trans Pty Ltd [2003] NSWSC 336 Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 Toll Pty Ltd v Dakic [2006] NSWCA 58 CASES CITED: Inasmuch Community Inc v Bright [2006] NSWCA 99 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Sungravure Pty Ltd v Meani (1964) 110 CLR 224 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Nicholson v Nicholson (1994) 35 NSWLR 308

TEXTS CITED: J. Fleming, Law of Torts, 8th Ed.,1992

Craig Riley (Plaintiff) PARTIES: Chubb Security Services Ltd (First Defendant) Allianz Australia Insurance Ltd (Second Defendant)

L. Grey for the Plaintiff COUNSEL: P. Khandhar for the First Defendant A. Stone for the Second Defendant

1 HIS HONOUR: Mr Craig Steven Riley of Canterbury seeks damages for personal injuries sustained by him on 28 July 2003. The plaintiff's cause of action is in negligence. The plaintiff brings these proceedings against Chubb Security Services Limited, who was, at the relevant time, the employer of the plaintiff and the owner of an armoured security vehicle, registered number QDG-125, and was also the employer of the driver of that vehicle, Mr Robert Arnold, and therefore is vicariously liable for the activities of Mr Arnold as the driver of the truck.

2 When these proceedings were commenced, the plaintiff's claim was for damages to be assessed in accordance with the Motor Accidents Compensation Act 1999. The motor vehicle insurer of the defendant disputed the issue as to whether the claim was one under the MAC Act and at its own request, was joined as a second defendant to these proceedings on 2 June 2006, pursuant to s 79 of the MAC Act 1999.

3 The proceedings initially came on for hearing before me on 20 February 2007. On the following day, the plaintiff sought and was granted an adjournment. On 30 January 2007 an approved medical specialist under the Workers Compensation legislation of this State made a medical assessment of the plaintiff, certifying that his whole person impairment was eighteen percent, that is more than fifteen percent and thereby entitling the plaintiff to claim damages under the Workers Compensation legislation. The reason for the adjournment was to permit the plaintiff to make a claim for workplace injury damages. The statement of claim was accordingly amended to make a claim for damages either under s 3 of the MAC Act 1999 or under s 4 of the Workers Compensation Act 1987.

4 The hearing of this matter has been protracted by the dispute as to whether this was a claim under the MAC Act or a claim that should be properly dealt with only under the Workers Compensation Act 1987 and the Workplace Injury and Management Workers Compensation Act 1998.

5 I turn firstly to the question of liability. It is to be noted at this stage that there was a serious attack upon the reliability of the plaintiff's evidence as to the circumstances of the occurrence of his injury. That attack has been successful. The claim has been presented in a very odd fashion. There is no real, contemporary documentary evidence as to the circumstances of the plaintiff's injury. For example, there are no ambulance records made at the time that the plaintiff was transported from the accident site to Hornsby Hospital. There are no medical records in evidence from that Hospital. There is no evidence tendered from the first specialist to treat the plaintiff, Dr Edmonds, who saw the plaintiff at Hornsby Hospital.

6 The accident in question occurred on 28 July 2003. On 31 July 2003 the plaintiff saw Dr Herron, a general practitioner. No report has been tendered from him, nor have his records been tendered. The plaintiff commenced physiotherapy on 7 August 2003, but there is no report in evidence from the physiotherapist. There are in evidence, reports from Dr Neil Berry, a general surgeon, but his report bears the date of 7 August 2006, which was in respect of a re-examination of the plaintiff on 4 August 2006. In that report, Dr Berry refers to his earlier report, but that has not been put into evidence. The plaintiff has also tendered a report of Dr Richard Honner, of 9 August 2006 referrable to a re-examination of the plaintiff on that day, but the report clearly refers to an earlier examination of the plaintiff by Dr Honner in September 2005 and to an earlier report of Dr Honner of 14 September 2005, which has not found its way into evidence. The evidence also discloses that the plaintiff made a claim for workers compensation shortly after the injury in question, but his claim form made at that time has not been put into evidence.

7 The first description of the plaintiff's injury that I have is contained in a report of Professor Peter Hall, who examined the plaintiff on 3 September 2003. The relevant portion of the history obtained by Professor Hall is this: "At approximately 9am on 28 July 2003, Mr Riley was performing his usual duties in the back of an armoured car. In the armoured car at Chubb there is a centre door which weighs possibly 150 kilograms, according to Mr Riley, separating the front from the back of the truck. There is a glass window in the door so that people in the front compartment can see the people in the back, and vice versa. The door is two inches thick. When the truck arrives at a job the door is automatically opened by machine. On this occasion, Mr Riley pulled the door to near closed so that he could put some [vaults] in a bin behind the door. He made the mistake of thinking that they had arrived at a job which was not the case, the car had stopped for traffic reasons and took off so that the door between the two compartments swung open sharply and hit Mr Riley on the right temple. Normally when the truck is driving the centre door is kept open. The impact was experienced across the middle of the right temple because Mr Riley was leaning down to put the [vaults] away. He then felt quite dazed and stood up. He grabbed the door with his right hand and the driver put the brakes on because of a potential collision with a car and this caused the door to close automatically and Mr Riley's fingers were caught in the closing door. His body was also thrown to his left and he hit the bulkhead again and then he was subsequently thrown back with his fingers still trapped. He twisted his arm as he fell and one of the men in the front compartment said that he hit the back of his head on the side of the truck once more (three times in all). At this point, Mr Riley was definitely knocked out and kept coming to and blacking out again. The driver stopped the truck and called an ambulance which took Mr Riley to Hornsby Hospital."

8 On 13 August 2004 the plaintiff, with the assistance of his then solicitor, made a claim for Motor Accidents Compensation. The description of how the plaintiff was injured given in that document, which was certified by a statutory declaration, is this: "I was travelling in the rear of the armoured vehicle as the rear guard. The armoured vehicle pulled up in Balfour Street at Lindfield. There is a doorway which separates the front part of the vehicle from the rear section. I was sitting in the rear section of the vehicle. When we pulled up, I saw the driver pull on the hand brake of the vehicle. When I saw this, I thought we had arrived at our first job, so I twisted to my left whilst remaining seated and placed two coin vaults into a transfer bin next to me. As I was doing this the truck suddenly took off without warning, and the centre door, which is a heavy metal door, swung back and hit me on the right side of my face. As I tried to sit up I felt like I was going to pass out and I grabbed the heavy metal door with my right hand holding onto it. Because I felt I was going to pass out, I slid out of my chair to get onto the floor of the truck. As I was doing this, the armoured vehicle suddenly came to a halt and this caused the door that I was holding to slam shut on my right hand. When this happened my head slammed into the door of the truck and I passed out."

9 On the evidence before me the history obtained by Professor Hall and the description of the accident provided by the plaintiff in his Motor Accidents Compensation claim form of 13 August 2004, are accurate. However, the plaintiff sought to suggest a different scenario. The plaintiff maintained despite being confronted with the history given to Professor Hall and despite the description given in his claim form, and despite being prompted with photographic evidence, that at the time that he was first struck by the door, the armoured vehicle in which he was a passenger had arrived at Lindfield station, which was some 20 metres from him, that it was visible through a window on the right hand side of the vehicle across lanes of traffic, which were obviously the lanes of the Pacific Highway, the vehicle having approached Lindfield from the south along that highway and that the plaintiff could see the Lindfield station through that doorway which led him to the view that he had arrived at the station. Furthermore, the plaintiff said that in addition to this visual cue of arriving at the station, in addition to the cue of the hand brake of the vehicle being activated, there was a cue of the front passenger in the vehicle taking material from the dashboard, which indicated to the plaintiff that that passenger was about to alight from the vehicle. In other words, the plaintiff proffered three cues as to why he had arrived at Lindfield Railway Station, when, on the evidence before me, the vehicle was in Balfour Street, Lindfield and the station was not at all visible from that place.

10 Evidence was adduced in the plaintiff's case from Mr Robert Arnold, the driver of the armoured vehicle in question at the time of the plaintiff's injuries, and where there is any inconsistency between the plaintiff and Mr Arnold, I prefer the evidence of Mr Arnold, confirmed as it, by the plaintiff's own claim for Motor Accident Compensation and the history he gave to Professor Hall. However, no matter how unreliable the plaintiff might be on the question of liability, the facts of the matter are, in my view, relatively clear and no submission was put to me by counsel for either of the defendants that the plaintiff was not entitled to a verdict in his favour in one form or another, subject to a deduction for contributory negligence.

11 The plaintiff had commenced working for Chubb Security Services Pty Limited, which I shall hereafter refer to as the defendant on 5 December 2002. The plaintiff's job classification was as an armoured vehicle operator, or to use the acronym used in that industry, an AVO. At the time that the plaintiff commenced working for the defendant, the defendant's armoured vehicles were manned by three people. Those were the driver of the vehicle and the person who sat next to him in the front of the vehicle was known as the transactioner, and when the transactioner left the vehicle, the driver followed him and acted as a guard to the transactioner. The person in the back of the armoured vehicle was known as the rear guard. At the time of the accident in question, the plaintiff was working as the rear guard.

12 The armoured vehicle is divided into two parts by a metal bulkhead in the middle of which is a door communicating between the driver's compartment and the rear compartment of the vehicle. The door is hinged on the left hand side of the vehicle and swings when opening, from right to left. On the left hand side of the rear compartment immediately behind the bulkhead, is a cabinet which has been described as the transaction bin. The transaction bin has an open square aperture within the vehicle. Within the transaction bin is a rotating drum divided into two parts. Articles can be placed into one side of the rotating drum through the open aperture within the vehicle and the drum is then turned by a handle so that it faces towards the outside of the vehicle. On the left hand side of the vehicle, opposite to the place to which the drum is turned, is an electronically operated door or window which permits a person on the outside to either take from the drum what is contained therein, or if the drum is empty to place within the drum something which can then be turned by rotating the drum, towards the interior of the vehicle, so that what has been placed within the drum can be taken from it through the open aperture within the vehicle.

13 On the right hand side of the bulkhead doorway, immediately behind the bulkhead, and clearly on the driver's side of the vehicle is a desk. Behind that desk is a seat. On that seat the rear guard travelled when the vehicle was in motion. On both the left hand side of the vehicle above the transaction bin and the right hand side of the vehicle between the desk and the rear guard seat were windows. To see through a window the rear guard would have to stand up or raise himself out of his seat to peer through the side windows. Within the bulkhead door itself was a small window which clearly contained thickened armour quality glass. On each side of the bulkhead doorway, within the bulkhead, were also windows, but again one needed to raise oneself from the rear guard seat to peer through the window on the right hand side and on my view of it, one would have to leave the rear guard seat to peer through the bulkhead window on the left hand side of the vehicle.

14 The plaintiff had been given training by the defendant to work as the driver of the armoured vehicle, as the transactioner and as the rear guard. For completely understandable human reasons, the job of rear guard was the least preferable of the three jobs. The driver and the transactioner clearly had comfortable seats and a view through the front window of the vehicle. They left the vehicle a number of times each day in order to collect or deliver money being transported by the armoured vehicle. The rear guard, when sitting in his seat, if the bulkhead doorway were shut, had no view and no person with whom to communicate, to converse, to chat, to have social interaction. Furthermore the rear guard did not leave the rear compartment of the vehicle other than when it returned to the depot.

15 In order to communicate between the rear compartment of the armoured vehicle and the driver's compartment of the vehicle, there were intercoms in the two compartments. The three members of each armoured vehicle team also had two way radios. However, use of the two way radios within the vehicle was impractical because, as they were so close together, and divided by a metal bulkhead, there was considerable feedback, which made them an cumbersome method of communication. On the evidence before me the intercoms in these armoured vehicles were generally not operative. In order therefore, to enable communication between the rear guard and the two persons in the front of the vehicle, the bulkhead doorway was left open. Theoretically however, it was supposed to be kept shut.

16 There was a mechanism to hold the bulkhead doorway open, but it was ineffectual. It was described to me by Mr Arnold as being a rubber apparatus containing a male and a female part, but that it was not sufficient to hold the bulkhead doorway open when, for example, turning a corner or during heavy braking or any sudden or unexpected movement. Mr Arnold indicated that these male and female mechanisms were rarely effective, but more effective in the vehicle normally driven by him which is the vehicle in question, registered number QDG-125. There was at least one and probably two signs within the vehicle telling the occupants of it that the bulkhead doorway should be kept shut whilst the vehicle was in motion. The formal position of the defendant was that the bulkhead doorway should be kept closed whist the vehicle was in motion.

17 Exhibit 18 is the defendant's, "Armoured Vehicle Operator's Handbook", which appears to have been printed on 1 July 2003, shortly prior to this accident. Clause 7.6 of that document is in the following terms: "Whenever the CSS vehicle is stopped during a run and crew remain in the vehicle, all external doors must be locked. Bulkhead doors will be secured at all times when a vehicle is operational and left unattended."

The last sentence of that instruction is not felicitously expressed. However, I interpret it as meaning that the bulkhead door should be kept shut at all times when the vehicle was in use and also kept shut when the vehicle was unattended.

18 It is clear to me that both the plaintiff and Mr Arnold knew that the formal position of the defendant was that the door be kept shut whilst the vehicle was in use. However, the practice was exactly the contrary. It was in that practice that the plaintiff had been trained. The plaintiff gave evidence in cross-examination that he was provided with four days training essentially in a classroom and then one day's practical training on the road. The plaintiff gave this evidence about part of that training: "Q. The day's practical experience, did that involve you and some other people travelling in one of these trucks doing delivery rounds? A. In the training?

Q. Yes? A. One day, yes. Q. During that time did that include some training being the rear guard? A. Yes.

Q. Did that training incorporate the method of jamming the door open with your foot whilst the truck was in motion? A. Yes. Q. That's what you were trained to do by Chubb? A. Yes. Q. Was the truck that you did your training in, did the intercom work on it? A. No. Q. So as far as you were concerned, it was the Chubb approved method to keep the communication door open with your foot whilst the truck was in motion? A. That's correct."

19 I cite here also further evidence given by the plaintiff about training referrable to the issue of seatbelts: "Q. To return to your training, was there any part of your training that instructed you to wear the seatbelt on the rear right seat? A. Not that I'd read, no.

Q. You went out with the instructor in the truck for a day. Did the instructor instruct people to wear the seatbelt on the rear right seat? A. No and he never wore one either. Q. So as far as you were concerned, it was the Chubb method that nobody in the rear right seat wore a seatbelt, if there was one? A. No-one wears seatbelts in our job, no.

The plaintiff said that and this is not disputed by Mr Arnold, and I accept that he was trained to and did in fact keep the bulkhead doorway open whilst the vehicle was in motion by propping it open with his foot, namely his left foot. The reason for that is as I have already pointed out, the human one, being able to see where he was going with some greater ease than having to raise himself out of his seat and to communicate with the other two members of the team, both for employment purposes and for social purposes.

20 One of the attacks on the plaintiff's credibility was the plaintiff's assertion that the door was kept open merely for work purposes, for essential communications in the doing of the job, but that evidence is completely unacceptable. It is the evidence of Mr Arnold, and I accept, the major reason was to allow the three members of the team to communicate for social purposes, to gossip and chat, whilst driving around the city doing their work.

21 Whilst the formal documented system of the defendant was to have the bulkhead doorway shut at all times when the vehicle was in motion, the practice taught to the plaintiff and the practice adopted by the defendant's employees was to keep the bulkhead doorway open. Mr Arnold clearly accepted that was the practical system of work and he had been a member of armoured vehicle teams since 1991. He had some twelve years of experience as an AVO at the time of the plaintiff's injury, when the plaintiff had merely some six months experience in the job. I say six months advisedly, because the evidence suggests that the plaintiff did little if any work in the month of January 2003. That is consistent with his oral evidence and with the wage records that are before me.

22 On the day of the accident, 28 July 2003, the armoured vehicle team of which the plaintiff was a member, comprised of Mr Robert Arnold as driver, Mr Ken McKenzie as transactioner, and the plaintiff was the rear guard. The vehicle in question, QDG-125, was one that appears to have been regularly, although not exclusively, driven by Mr Arnold. It is common ground that the vehicle left the defendant's depot in Lane Cove at 8.30am. The purpose of the run on that day appears to have been to collect takings from commuters at railway stations, takings that were made by both ticket vending machines and takings made at a humanly-operated ticket offices.

23 The first stop in question for the team on the day of the injury was the Lindfield railway station. The plaintiff said it took one hour to travel from Lane Cove to Lindfield. Mr Arnold thought it took half an hour. Whilst it is a notorious fact in this city that traffic can be often gridlocked, the estimate of an hour to travel between Lane Cove and Lindfield, even in peak hour, appears to me to be excessive. I accept the estimate of Mr Arnold that it took about a half hour. However, little turns on that discrepancy.

24 The vehicle travelled up Mowbray Road and then turned left onto the Pacific Highway. It then travelled along the Pacific Highway to Lindfield and passed the Lindfield railway station and the first section of the Lindfield shopping centre. The vehicle then turned left into Balfour Street and proceeded part of the way down the hill down which Balfour Street travels and turned right into the carpark of the Coles supermarket. Within the Coles carpark the armoured vehicle turned around and then re-entered Balfour Street, on this occasion travelling on its northern side up the hill towards the Pacific Highway in order for their vehicle to make a right-hand turn back onto the Pacific Highway.

25 I accept that the intended route of the vehicle was in a southerly direction along the Pacific Highway to enter the cul de sac made by the north-eastern end of Beaconsfield Parade where the vehicle would be parked in order for the transaction of collecting cash from the Lindfield railway station to be made. The accident in question happened in, essentially, Balfour Street.

26 Having turned out of the Coles carpark onto the northern side of Balfour Street and proceeding up the hill, the vehicle stopped in a line of traffic in obedience to a red traffic light preventing traffic travelling over the Pacific Highway. This was a hill which, on the photographic evidence before me, appears to be somewhat steep. The driver of the vehicle, Mr Arnold, engaged the handbrake when he became stationary in the line of traffic. The plaintiff, on the evidence that I accept, assumed he had reached the destination, namely the Lindfield railway station. The only cue which I can accept that prompted the plaintiff to reach that conclusion was the engaging of the handbrake.

27 The plaintiff had at all material times been seated on the right-hand rear seat within the vehicle. He had on the floor beside him two "vaults", which were merely metal collection boxes which were to be inserted into the automatic ticket vending machines at the railway station. When the vehicle stopped in Balfour Street, the plaintiff leaned forward and placed those two vaults within the transaction bin. It was not necessary for the plaintiff to either stand up or leave the seat, merely to lean forward, but to lean within the path of the bulkhead doorway should the bulkhead doorway go from the closed position to the open position.

28 I have omitted to indicate thus far that in order to put the vaults within the transaction bin the bulkhead door had to be closed or mainly closed because when fully opened it covered the aperture in the transaction bin that was within the cabin.

29 I accept that up until the vehicle stopped the door was propped open by the plaintiff with his foot, that he then closed but not wholly closed, only partly closed, the central doorway. Then he put the two vaults within the transaction bin. However, before he could either reopen the door or fully close it or move himself from the path of the doorway should it swing from the semi or partially closed position to the open position, the vehicle was driven off by Mr Arnold.

30 Mr Arnold told me that he was acting in response to the traffic light turning green, but it is more probable that he acted in response to the car in front of him moving off in obedience to the traffic signal. Most motorists make the same shorthand way of describing their reaction.

31 It is significant, in my view, that Mr Arnold knew what the plaintiff was doing because he heard sounds indicating to him that the plaintiff was putting vaults within the transaction bin. It is also significant that he heard those sounds because it appears to me unlikely that he would have heard those sounds had the door been wholly closed. It is to be recalled that this is an armoured vehicle. The bulkhead wall was of armour-plated steel and was thick, and the door itself was thick and armour plated. The metallic sound of placing empty metal boxes within the transaction bin is hardly likely to be audible should the bulkhead doorway be securely shut. That finding, in my view, is significant in light of the fact that Mr Arnold conceded that the door was either shut or partially shut. He told me that he looked to his left and he could see that it was either shut or partially shut. The fact that he could hear this sound indicates to me that it is partly shut only and Mr Arnold ought to have known that.

32 It is common ground that when Mr Arnold moved the vehicle forward in Balfour Street that he gave no warning of doing so to the plaintiff. It is also clear from his evidence that he did not allow any time to enable the plaintiff to regain his seat or, more accurately, to take his body out of the path of the doorway should the bulkhead door start to move.

33 Clearly, when the vehicle moved forward the door on its hinge was inert and swung backwards. As it did so, it struck the plaintiff in the head and hit him on the right side of his face, as set out by the plaintiff in his claim form. The plaintiff clearly was stunned. I accept that he thought he was going to faint and he grabbed the bulkhead doorway in his right hand in order to steady it. I accept essentially what is stated in the plaintiff's claim form that he then slid from the chair onto the floor of the truck.

34 When the vehicle reached the corner of Balfour Street and Pacific Highway and it had ascended the hill, the vehicle in front of the armoured vehicle braked suddenly and for no apparent reason, according to Mr Arnold. Mr Arnold was not challenged in that regard. He had to bring the armoured vehicle to a sudden halt and apply the brake with sudden and maximum engagement. To use the vernacular, he "propped". Before or as he was seeking to do that Mr Arnold called out a warning, but I accept that the plaintiff did not hear it because of his stunned state. But in any event, it would have been of no utility to him had he heard it. When the vehicle braked suddenly, the armoured bulkhead door acting on its own momentum slammed shut, trapping the plaintiff's right hand and dragging the plaintiff towards it and causing it to again strike the plaintiff on the head.

35 The second event within the vehicle was the immediate result of the first event in the vehicle. In my view, it is necessary to look to negligence in the first event, that is when the vehicle was driven off whilst within Balfour Street, rather than at the time of the sudden braking at the corner of Balfour Street and the Pacific Highway. There is no suggestion in the evidence that when Mr Arnold did what he did at the corner he was being in any way negligent.

36 In my view, Mr Arnold was negligent when he drove off in Balfour Street without giving the plaintiff any warning. As I have mentioned, he knew that the plaintiff was placing objects within the transaction bin. He must have known or ought to have known that the bulkhead doorway had not been wholly closed. He ought to have known that when he took off the momentum of the vehicle would be greater than that of the door and it would swing open, posing a risk of injury to the plaintiff. He could have called out to the plaintiff that he was about to take off or for him to return wholly to a seated position on his rear seat, or to have paused to give the plaintiff sufficient time to recover the normal seated position on the rear seat, rather than the leaning forward position to obtain access to the transaction bin.

37 Part of the evidence in this case was addressed to the issue of the plaintiff's acting prematurely and not waiting till they had arrived at the ultimate parking place on the Pacific Highway. However, as I have pointed out, Mr Arnold had twelve years experience. The plaintiff had six months experience. It is clear from the plaintiff's evidence, which I am prepared to accept in this regard, that he was completely unfamiliar with the route that the team was taking on this day and with the job to be performed. If there be any dispute about the plaintiff's unfamiliarity with this job and with the route in question and with where, for example, Lindfield station was and how it was to be accessed, one can have regard to p 46.05 of the transcript of the evidence given on 20 February 2007 and also p 47.04, p 55.17, p 60.25 and p 66.08.

38 Furthermore, this evidence was given by the plaintiff in cross-examination, which I accept: "Q. In the course of your hour's conversation with Ken leading up to this job, had you established whether he was a keys-on-him man or a keys-passed-through-the-[transaction]-bin man? A. No. I hadn't done that yet because the conversation was a lot between Ken and Bob. Ken and Bob are good mates. I'd only met them once before."

The end of that last answer is recorded on p 51 of the transcript of 20 February 2007.

39 Furthermore, it is clear from further evidence on that page and over onto the next page that there was a general conversation about what work the plaintiff had done for the defendant which might indicate to an experienced man such as Mr Arnold, who had only met the plaintiff once before, that he was inexperienced.

40 It is also clear from the plaintiff's evidence that he was relying on information to be conveyed to him by the transactioner, Mr Ken McKenzie, as to what route would be taken after they left Lindfield railway station. It is clear to me that the plaintiff's lack of familiarity with the job in question would have been known to both the driver, Mr Arnold, and the transactioner, Mr McKenzie. The fact that the plaintiff might act prematurely must have been something that Mr Arnold could foresee.

41 Largely, the defendant relies on the fact that the plaintiff ought to have asked the question generally asked by a toddler to a parent who is driving a vehicle, "Are we there yet?" However, equally, Mr Arnold ought to have told the plaintiff not to do anything until he told him that they had arrived at the transaction site, by which I mean the place where the vehicle needed to be parked in order to carry out the transaction in question.

42 In my view, Mr Arnold was negligent in the manner that he drove this vehicle. Subject to questions of contributory negligence, the plaintiff is, therefore, entitled to a verdict in his favour.

43 I then turn to the question of whether this was an injury sustained by the plaintiff within the meaning of the Motor Accidents Compensation Act 1999. "Injury" is defined in s 3 of that Act in the following terms: "Injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:

(i) the driving of the vehicle, or (ii) the collision or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle ..."

44 I have been referred to and have carefully read the following decisions: Fuller v Reel Trans Pty Limited [2003] NSWSC 336 Emad Trolley Pty Limited v Shigar (2003) 57 NSWLR 636 Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 568 Toll Pty Limited v Dakic [2006] NSWCA 58 Inasmuch Community Inc v Bright [2006] NSWCA 99 Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529

45 It has been submitted on behalf of the motor vehicle insurer, Allianz Australia Insurance Limited, that the defect here was in the system of work and was not a defect in the driving of the vehicle. I am unable to accede to that submission. The vehicle was in motion at the time the plaintiff was first struck. The vehicle was being driven by the defendant's servant, Mr Arnold. Mr Arnold was negligent in driving the vehicle when it was not safe to do so. He ought to have waited until the plaintiff returned wholly to his seat. He could have given the plaintiff a warning that he was about to take off which would have permitted the plaintiff to move his body or at least the upper part of his body out of the path of the partially opened bulkhead doorway.

46 In my view, this case is wholly analogous to, for example, a driver driving his vehicle when he knew or ought to have known that there was somebody standing on the roof doing the manoeuvre known as "car surfing" or driving off when a back seat door was open, permitting, for example, a child or young person to fall from the back of the vehicle.

47 To use the words of the definition of "injury" within the MAC Act, the plaintiff's injury was caused by the fault or negligence of the driver, Mr Arnold, in driving, which is obviously a use or operation of the vehicle, and "if and only if" meaning a proximate cause, the driving in this case being the proximate cause and clearly within subparagraph (i) the driving of the vehicle.

48 It has been submitted on behalf of the plaintiff that in addition the injury was caused as required by the Act by a "defect in the vehicle" but I am not so persuaded.

49 The first defect alleged was the failure of the intercom between the front and the back seats of the vehicle. That was not here, in my view, the proximate cause of the injury in question.

50 It is also stated that the defect was the failure of the defendant to have a mechanism for holding the door open but there was, in this vehicle, such a mechanism but the fact was the door had been partially shut by the plaintiff in order to access the transaction bin and, therefore, was not a proximate cause of the injury. The plaintiff also maintained that the defect was a failure on the part of the defendant to attach to the door a mechanism such as a small arm with a rubber shoe which could be engaged to hold the steel door open in any one position. However, there is no evidence that such a mechanism would be operative to prop open a heavy armoured bulkhead doorway in an armoured vehicle which clearly was of very significant weight, much greater weight than any door in, for example, a courtroom or a house.

51 Furthermore, one could understand that at times, in, for example a steep ascent or steep descent or a violent turning or a violent braking to avoid collision, there would be enormous force placed upon such an armoured door and there is no evidence as to whether such a mechanism could hold the door. If it did not hold the door, it would be giving to the users of the door a false hope by having such a mechanism attached to the door.

52 In my view, this is not an appropriate case in which to allege that there was a "defect" in the vehicle which was the operative cause of the injury in question.

53 The plaintiff is accordingly entitled to damages assessed in accordance with the provisions of the MAC Act. However, before turning to the question of damages it is necessary to consider the question of contributory negligence.

54 The particulars of contributory negligence alleged by the first defendant are these: "(a) Failure to take any or any adequate [precautions] for his own safety. (b) Failing to remain seated whilst the vehicle was in motion. (c) Failing to wear a seatbelt. (d) Failing to keep clear of the centre door."

The defence filed on behalf of the second defendant gives these particulars of contributory negligence: "(a) Failing to keep a secure position in his seat. (b) Failing to keep seatbelt applied. (c) Failing to keep partition door fully closed and latched."

In the first set of particulars of contributory negligence that I have given the word "precautions" was omitted from the particulars supplied by the first defendant. Clearly, that was intended. The allegation really is merely a reiteration of the allegation of contributory negligence, not a particular at all. However, I have been addressed at length, and no demur was made in reply by learned counsel for the plaintiff, that the plaintiff was guilty of contributory negligence in failing to enquire as to whether they had arrived at the transaction site before seeking to place the vaults in the transaction bin. As I have described it earlier, the toddler's question to the driver, "Are we there yet?"

55 The plaintiff was clearly confronted with that scenario at pages 61.56 to 62.36 and also page 66.10 of the transcript of 20 February 2007.

56 Before dealing with that submission, which clearly would be encompassed within the first particular of negligence pleaded by the first defendant, I will deal with the other allegations of contributory negligence.

57 The plaintiff did remain seated whilst the vehicle was in motion. He leaned forward to access the transaction bin when the vehicle was stationary. The injury occurred not because he was not seated whilst the vehicle was in motion but because the vehicle took off or was driven forward when the plaintiff was leaning forward from his seat.

58 As to the allegation the plaintiff failed to wear his seatbelt, the plaintiff admitted that there was a lap seatbelt on the rear seat but he never used it because no one in an armoured vehicle ever used a seatbelt, no matter in which position the AVO was and when he was taught how to do the job by Mr Garry Cramp. Mr Cramp himself did not wear a seatbelt. However, there is no evidence before me that had the plaintiff worn a seatbelt the injury now in question would have been avoided or its impact in some way diminished.

59 A submission was put that if the plaintiff had worn his seatbelt he could not have turned to his left but that was not the subject of any cross-examination of the plaintiff, nor the subject of any evidence, let alone expert evidence. It was merely the submission of counsel.

60 One can lean sideways wearing a lap seatbelt, as anyone who has ever travelled in a plane ought know. Once the plaintiff's head was struck the plaintiff felt the need to get to the floor. If he had been wearing a seatbelt at the time he may then have disengaged the seatbelt, however, the relevant negligence occurred when the plaintiff was first struck not when he was struck the second time.

61 Under section 138 of the MAC Act a finding of contributory negligence must be made where the injured person, not being a minor, was at the time of the motor accident not wearing a seatbelt when required by law to do so. Under subsection (3) the damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

62 Significantly, the Act itself makes no provision for a scenario where the failure to wear a seatbelt was not a relevant cause of the injury or the extent of the injury.

63 For example, it would be absolutely bizarre for there to be a finding of contributory negligence where a person failed to wear a seatbelt as a result of which that person was ejected from the vehicle in circumstances where all those who were in the vehicle wearing a seatbelt were incinerated when the vehicle caught fire and the person who was not wearing the seatbelt brought an action for damages for injuries sustained when he or she was ejected from the car.

64 In written submissions provided to me by the plaintiff which are MFI 7, I was referred to a number of authorities in which it is established that in the absence of proof of a correctly functioning seatbelt no finding of contributory negligence could properly be made. I also had my attention drawn to authority which suggested that the presence of a properly fitted and functioning seatbelt could not be inferred by the court, in this case because there did not appear to be any specific seatbelt legislation applicable to armoured vehicles of the type here in question.

65 Clearly, the plaintiff admitted that there was a lap belt at one time but then another time said he had not even looked for it and when an expert examined a similar vehicle he found no seatbelt at all.

66 However, in my view, the appropriate way to approach the current case is that there being no evidence of any causal relationship between the failure to wear a seatbelt and the plaintiff's injury, it would not be just and equitable to make any deduction at all, that therefore the deduction be zero in accordance with the decision of Nicholson v Nicholson (1994) 35 NSWLR 308 at 317 to 318.

67 The next particular of contributory negligence pleaded by the first defendant is a failing to keep clear of the centre door.

68 It would of course be impossible to be always clear of the centre door. When the vehicle was stationary, it appears that the centre door did not provide any danger to anybody. For example, there is no suggestion that when the plaintiff partially closed it when the vehicle was stationary in Balfour Street, it was still likely to cause him any injury, that is, likely to swing back and hit him anyway because they were on a slope. It was only when the vehicle was moved that the centre door provided a danger. The fact that it was moved is the fault of the defendant by its servant Mr Arnold and in my view, the background contributory negligence has not been made out.

69 The first two particulars of contributory negligence pleaded by the second defendant merely reiterate those pleaded by the first defendant. The third particular, failing to keep the bulkhead door fully closed and latched must fail in light of the de facto system of work adopted by the defendant. I return therefore to the first consideration of contributory negligence, the plaintiff's acting prematurely and not seeking advice as to whether they had arrived at the worksite or not.

70 This issue has caused me the greatest difficulty in this case. In Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152, Lord Wright said at 178 that it was important to adapt the standard of contributory negligence to the facts: "And to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention, which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in which he is doing at the cost perhaps of some inattention to his own safety."

71 In Sungravure Pty Limited v Meani (1964) 110 CLR 224 Sir Victor Windeyer with whom Kitto, Menzies and Owen JJ concurred said commencing at 36: "Of course, in considering whether there was contributory negligence by a workman in a case in which his employer is sued for negligently failing to provide a safe system of work, the circumstances and conditions in which he had to do his work must be borne in mind. A safe system of work is one that is safe for an average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders. It is probably true that the attitude of courts to what amounts to contributory negligence has varied with changes in the law. It has depended somewhat upon whether contributory negligence provides a complete defence, preventing the plaintiff from recovering at all, or merely leads to an apportionment of damages; see Stapley v Gypsum Mines Limited [1953] AC 663 per Lord Porter. But whether in a particular case there was negligence, where the primary negligence or contributory negligence, is a question of fact. It depends upon all the facts of a particular case. But it was argued for the respondent that Caswell's case [supra] had laid down some special rule of law as to the nature of negligence when the matter sued upon was an occurrence in a factory; and also that it established or recognised a rigid distinction in law between a heedless or inadvertent act and negligence. In my view that case gives no support to either of these remarkable propositions.

Nothing said since 1856 has made less true the simple statement of Alderson B in Blyth v Birmingham Waterworks Company (1856) 156 ER 1047: 'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or do something which a prudent and reasonable man would not do.'

Whether a person was negligent in that sense must be determined in every case in the light of all the circumstances. Where a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of the circumstances have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's pre-occupation with the matter in hand, and other prevailing conditions. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man. But I quite fail to see how considerations of setting and circumstances can produce any rule of law or any general principle applicable to activities in factories that is not also applicable to activities elsewhere, in a coalmine, a musterer's camp, a shearing shed, upon a highway or anywhere else. In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care." [My emphasis].

72 The matter of contributory negligence of a worker was visited by the High Court again in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301. For anyone in legal practice at the time the case will go down in history as the quintessential case of what was popularly known as, "CMO", claims manager outrage. There had been a suggestion by the judges of the Court of Appeal, in particular by McHugh JA (as he then was), that the liability of the employer was bordering upon strict liability. The then members of the Court of Appeal disavowed such a concept. At 310 Mason, Wilson and Dawson JJ said this: "A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage; see Podrebersek v Australian Iron and Steel Pty Limited [1985] 59 ALJR 492 at 493-494. In Podrebersek, the Court said:

'The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstance of the acts which must be subjected to comparative examination.'"

73 More recently the late Professor Fleming summed up recent developments concerning contributory negligence in an industrial accident case in his book Law of Torts, 8th edition, 1992, thus at page 516: "In step with the rising standard of care demanded from employers has been a trend to take a more charitable view of the mistakes and slips of employees. For instance, a worker is today entitled to assume that his employer's system of work will provide reasonable protection, and he is not required to stop his work and imagine possible risk unless they become obvious to him. All the more are learners entitled to rely on adequate instruction and supervision. Again, the conditions of industrial employment are given due weight in determining whether an occasional lapse is sufficiently heinous to attract the quality of contributory negligence, and a generous view is taken in drawing the line where, 'mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence', begins. Admittedly, apportionment has weakened the incentive to continue quite the same measure of indulgence; but a worker is still, if no longer wholly, at least largely excused for inattention to his personal safety when absorbed in his work or taking a risk in the interest of his employer or taking it for granted that dangers have been eliminated by those charged with that responsibility".

I have not set out the footnotes of the learned author nor the authorities which he cites in those footnotes.

74 Here the plaintiff was a learner. He had not done this route before. He was relying on the expertise of the driver Mr Arnold and the transactioner Mr McKenzie. As I already pointed out, he was unfamiliar with the topography of Lindfield and with what was required on this run in the armoured vehicle. The plaintiff in doing what he did was taking a risk in the interest of his employer. He took for granted that the vehicle would not be moved once it had become stationary. He made an error of judgment. Did that error of judgment amount to negligence? In my view it did not. To so find in my view would negate the greater duty upon the driver of the vehicle Mr Arnold to drive the vehicle with safety and negate the finding that I have made that Mr Arnold knew that the plaintiff was accessing or had accessed the transaction bin by placing vaults within it and that he ought to have known, if he did not know, that the door was partially open and to have realised that once he took off without warning, the door was likely to swing open.

75 It has been submitted, for example, by the defendants that the plaintiff was in pari delicto with Mr Arnold or in fact more greatly responsible for this injury than was Mr Arnold. On my view of it, is quite the contrary. That the plaintiff was a learner or inexperienced, must have been known to both Mr Arnold and Mr McKenzie from the conversation with the plaintiff on the trip to Lindfield and from the fact that they had not previously worked with him or if they had, that it was only on one occasion. It is clear reference to the plaintiff's having met Mr Arnold and Mr McKenzie once before but there was no reference to his having worked with them before.

76 In any event it is clear that from evidence of the plaintiff, which was not contradicted by any evidence from Mr McKenzie because he was not called, that the plaintiff was told by Mr McKenzie that Mr McKenzie would put on the run sheet which was provided to the rear guard, the sites to be visited on the run on the day of the injury after they had arrived at Lindfield railway station. That is a clear acknowledgment by Mr McKenzie that the plaintiff did not know how the run was to be done and therefore that he was inexperienced. I am not satisfied on the balance of probabilities that the plaintiff was guilty of contributory negligence.

77 I should indicate on the question of contributory negligence that I accede to the submission put to me on behalf of the defendant that the plaintiff sought to make out a case that he was acting as a matter of urgency by stating that they arrived or maintaining that they had arrived at Lindfield railway station. In other words, the plaintiff was seeking to establish before me that the task was urgent because, "they had arrived". However I accept that they had not arrived but I do accept also that the plaintiff assumed that they had arrived.

78 The assumption that they had arrived is clear from the admission made by the plaintiff to Professor Hall and is implicit in one answer given by the plaintiff on 20 February 2007 at page 60.22: "Q. And so you'd have realised the primary importance of keeping yourself seated in the van whilst it was in motion, correct? A. Well yes. Q. And you'd want to be sure that you've arrived at your destination before you get up and start moving about? A. Well I was - I was of the impression that we were, yes. Q. But let me suggest to you that the ultimate destination of the van was the cul-de-sac on the eastern side of the city highway right next to the entrance to the railway station. Were you aware of that? A. Well I hadn't done the job before. I hadn't been there before."

The answer to the second of those three questions accepts the proposition that the plaintiff merely believed that he arrived at the transaction site, in respect of which he was mistaken but having accepted that the plaintiff honestly but erroneously, believed he arrived at the transaction site it was proper for him to have placed the vaults in the transaction bin.

79 Much time was spent in questioning the plaintiff as to the door not having been fully closed and how easy it would have been for him to do that. The evidence discloses that there is an electronic mechanism or it might be a hydraulic or mechanical mechanism, I am not sure, which prevents the transactioner and the guard leaving the vehicle via the transactioner's passenger door, that is the near side passenger door, unless the bulkhead doorway is shut. At page 89 of the transcript of 20 February 2007, the following evidence was given: "Q. If they're about to jump out of the truck, why wouldn't you completely close the door? A. Because I've still got the keys to give them".

The evidence discloses that in addition to vaults being necessary to be used by the transactioner at least for this job, that the transactioner needed to have keys clearly to enable him to open the ticket vending machines on the railway station to remove the vaults in them that were full of cash. The evidence discloses that there was one key which was common to all Cityrail ticket machines and a key that was unique to each ticket machine or perhaps unique to each station but the keys could be given to the transactioner and carried by him in his pocket or they could be placed with the vaults in the transaction bin and passed with the vault to the transactioner via the transaction bin.

80 On the day in question the plaintiff had not yet enquired of Mr McKenzie whether he was a man who liked to carry the keys in his pocket or wanted the keys passed to him via the transaction bin. Not only was it necessary not to close the door on this occasion fully because the enquiry still had to be made as to whether Mr McKenzie wanted the keys either given to him personally, presumably through the open bulkhead doorway, or passed to him with the vaults through the transaction bin. In other words failure to close the door when the vehicle was stationary was not in my view, itself negligent. It was the moving of the vehicle when the door was open that was the negligent act of the driver of the vehicle.

81 I turn now to the question of damages. The plaintiff was born on 28 April 1965. He is currently forty-two years of age and will next month achieve his forty-third anniversary. At the time of the accident in question he was thirty-eight years of age. The plaintiff is a single man with no dependents. The plaintiff has a good work history. The plaintiff completed the School Certificate at Ashfield Boys' High School in 1981. He then entered the workforce.

82 His first job was as a labourer in a paper recycling business. He worked on and off for that company and at the same time travelled up and down the east coast of Australia in order to pursue his sport and hobby of surfing. In the period to 1985 in addition to working at the paper recycling business he did a lot of fruit picking and worked at a company known as Zodiac Inflatables. Also during that period he worked as a forklift driver for Woolworths. With Zodiac Inflatables he was working in the repair of inflatable rubber boats. From, it would appear 1985 until 1992, the plaintiff worked full time for Australia Post as a postal officer delivering mail on foot in the Waterloo area.

83 In 1992 he obtained work as a security officer with the Sydney City Council as a special constable. He provided security at functions at the Sydney Town Hall and also provided security at council meetings. Whether that required him to keep the councillors from each other's throats, the evidence does not disclose. During that period the plaintiff was living with his mother. His mother was diagnosed with a terminal illness and he left his job to care for his mother during that illness. Eighteen months later his mother died. That clearly upset the plaintiff and according to a history obtained by Ms Christine Lever the plaintiff "isolated himself", living in a van. He lived in the van for two years and was basically a loner. Then he obtained work as a delivery driver for a tile company and then went to a technical college and did security training work and applied for the job with Chubb Security which he obtained on 5 December 2002.

84 I should have indicated that antecedent to working with the tile company as a delivery driver he had worked for a labour hire company doing work involving landscaping at the Sydney Olympic Games site. According to the plaintiff's evidence, some of his work for the labour hire company also involved demolition work which required him to use a sledgehammer and there was a lot of "clearing and unloading, taking out rubbish from the demolitions jobs." He described that as heavy work.

85 That work is of significant interest because of an antecedent medical problem. At about the age of twelve, in 1977, the plaintiff suffered a fracture of his right wrist after falling out of a tree. The plaintiff tells me, and I accept, that thereafter he had no ongoing symptoms in his right wrist, although clearly there was a medical deformity. The plaintiff did all the work I have described without any problem; indeed, did heavy demolition work using a sledgehammer and indeed played rugby to first grade Colt's level without any suggestion of any ongoing problem in his right wrist or right upper limb. In 1987 the plaintiff had suffered an injury to the scaphoid of his left wrist which eventually required surgery, but again the plaintiff appears to have made a recovery from that and again worked after that, inter alia, for the Council and as a labourer with the labour hire company doing demolition work to which I have referred without any seeming problem in his left upper limb.

86 In the injury now in question the plaintiff sustained injuries to his right hand and wrist. Fingers three and four, that is, the long and the ring fingers of his right hand were injured. In addition there was stitching to all of the four fingers, but not to the thumb. The original injury according to Professor Hall was in a line over the proximal interphalangeal joints. It appears that those lacerations have healed without any major ongoing problem. However, as a result of the previous injury to his right wrist, the plaintiff was left with a deformed distal radio-ulnar joint. A bone scan taken some time prior to 21 August 2003 indicated that the deformed wrist was "hot", consistent with it having been recently injured. Professor Hall refers to severe degenerative changes at the site of the prior injury. It is clear that in the injury in question the plaintiff disrupted the previously injured radio-ulnar joint.

87 The plaintiff was off work from the day of the injury until returning to work on light duties on 1 November 2003. The light duties were in the defendant's office assisting a lady who was balancing amounts taken from automatic teller machines. The plaintiff was working on a computer, learning how to use it, and essentially using his left hand to operate a number keyboard in connection with the lady's calculations. The plaintiff did that work for six hours per day for five days per week.

88 Because of ongoing problems with the plaintiff's right wrist, he needed further surgery. That was performed by a Dr Gumley, a hand surgeon, at the Sydney Adventist Hospital, on 17 March 2004. Dr Gumley describes that procedure as a "distal ulnar resection of the right wrist". The plaintiff was able to return to work on light duties on 7 May 2004. The light duties he returned to were those assisting the lady in the office which I have already described and it appears that the plaintiff did those for about a further two months.

89 Some time in probably August of 2004 the plaintiff was given a job by the defendant as a driver on a courier run. The plaintiff explained that a man who had been doing that work had had an injury and the plaintiff was asked to do that work. The plaintiff was required to drive an ordinary Toyota Hilux vehicle around Sydney. He would go to various places and collect takings in cheques and bank them and also he would pick up blood samples taken from racehorses and take those to a laboratory.

90 The plaintiff did that for forty hours each week. He worked alone. It was not necessary for him to carry a firearm, which was a requirement of working in an armoured vehicle. Essentially it is accepted by all that the plaintiff cannot now use a firearm with his right arm, which is his dominant arm, and therefore on that basis alone he is unfit for his pre-injury duties as an AVO. In addition that work would also appear to involve some carrying of heavy bags of money when the plaintiff was a transactioner or indeed a rear guard and the plaintiff is essentially unfit to do that as well. It appears that the plaintiff enjoyed the work as a courier for the defendant. Although working alone, he was essentially his own boss and had the company of a car radio. There was, however, no opportunity to do overtime as there was when the plaintiff worked as an AVO.

91 The plaintiff continued doing the work as a courier until 9 May 2007. On that day there was some interaction with a supervisor, Chris Davenport, and the plaintiff was stood down. Some time prior to that the plaintiff was diagnosed with a condition which was thought to be a cancer. It has been referred to in the evidence as the "cancer scare". The plaintiff required surgery for that condition and the surgery was performed on 17 May 2007. The interaction between the plaintiff and Mr Davenport came about as the plaintiff was insistent upon obtaining from his employer, the defendant, through Mr Davenport, a letter saying that he was only employed on a casual basis and therefore not entitled to sick leave. The defendant's position was that the plaintiff was not seeking to obtain such a communication, but rather a letter certifying that his services had been terminated.

92 Whatever the nature of the letter, it was required in order to obtain from the Department of Social Security sickness benefits during the plaintiff's period of hospitalisation and his recovery therefrom. The plaintiff clearly underwent the surgery on 17 May 2007 and the lesions found were not malign, but benign. The plaintiff accepted that he was incapacitated as a result of that surgery and necessary convalescence for a few months post surgery. The plaintiff makes no claim for economic loss between 9 May 2007 and 31 July 2007.

93 It would appear that in late June 2007 the plaintiff sought some assistance from the defendant as to whether his services had been terminated or not and as to his returning to work. An initial meeting to sort out those differences was cancelled because the defendant had an armed hold-up which required the personnel manager to be absent from his office. Eventually there were meetings in October and November of 2007. The investigation of the circumstances of the interaction between the plaintiff and Mr Davenport appears to have been satisfied by the defendant's being prepared to again offer the plaintiff employment.

94 The meeting in October was held on the 24th and the meeting in November was on the 8th. On 8 November 2007 the plaintiff was offered a job at the defendant's cash/coin facility at Smithfield. He was offered that job, but at the rate of pay applicable for an AVO. The offer of being paid at the higher rate was no doubt in order to fulfil the defendant's obligations under the Workers Compensation Act 1987.

95 One issue which I must in due course turn to is the plaintiff's hours of work. When the plaintiff was doing restricted duties for the defendant other than as a courier driver, it only offered thirty hours per week work because that was the defendant's assessment of the plaintiff's average hours antecedent to his accident. When the offer of employment at Smithfield was for the thirty hours per week, the plaintiff in his evidence disputed the defendant's assessment of his average hours antecedent to his accident.

96 According to the defendant, the plaintiff refused the offer of employment at Smithfield for two reasons: firstly, that he did not wish to work indoors and, secondly, that he did not wish to commute via public transport from his home at Canterbury to the depot at Smithfield. The plaintiff told me that that would require two train journeys and two bus trips each way, and would take some two hours travel to and from work. The evidence was unclear as to whether that was two hours to get to work and two hours to get home, or whether the journey to and from entailed two hours total travel.

97 The plaintiff accepts that he gave those reasons for declining the job offer. The plaintiff also says that he gave a third reason for declining the offer, that the job would involve his carrying or lifting or moving heavy bags or containers of, for example, coin which were beyond the limitations imposed by the injuries he sustained in the accident now in question.

98 The meeting was attended by Ms Johanna Birgersson, the human resources manager of the defendant, and also by Mr Steven James Thomson, the regional branch manager of the defendant for the Sydney metropolitan area. Both Ms Birgersson and Mr Thomson gave evidence. They confirm that the plaintiff gave two reasons for rejecting the job offer at Smithfield, but denied that the plaintiff raised a question of his physical incapacity to do the work.

99 There was really no reason for me to reject the evidence of Mr Thomson and Ms Birgersson, and I have already pointed out that the plaintiff's evidence on liability is unreliable. I therefore have to prefer the evidence of Ms Birgersson and Mr Thomson on this issue. However, in my view nothing much turns upon that.

100 Neither defendant sought leave to amend its defence to plead a failure by the plaintiff to mitigate his loss. Furthermore, the damages I propose to award to the plaintiff will not be based, for example, on awarding him full economic loss from, for example, 8 November 2007 to today's date but will look at the plaintiff's ability to earn on the open labour market reasonably accessible to him.

101 It is also clear from the evidence of Mr Thomson that whatever duties were to be found for the plaintiff at Smithfield would be determined in consultation with the plaintiff's rehabilitation provider, or perhaps I should have said the defendant's rehabilitation provider, and it is clear that the job to be offered to the plaintiff was a "make-work" job, meaning a job that was in fact surplus to necessary requirements at Smithfield, a job as a supernumerary, and no doubt a job that was to be provided to him to comply with the defendant's obligations under the Workers Compensation Act. If the plaintiff had accepted such a job, it is hard to see that it would have been continued to be offered to him after he had recovered damages from the defendant and the defendant's obligations under the Workers Compensation legislation had been discharged.

102 I have already made some comments about the plaintiff's evidence on liability, but in essence the plaintiff's evidence relating to damage, leaving aside the offer of the job at Smithfield, has been largely unchallenged. The question arises as to whether I should take into account in assessing damages the plaintiff's unreliability on issues relating to liability. In my view, I should not and shall not do so. Despite the unreliability to which I have referred, the plaintiff made a favourable impression upon me and I thought that he is actually trying to tell me the truth.

103 Furthermore, I have closely read the medical evidence and there is really no suggestion of any exaggeration or simulation of disability by the plaintiff at all. Furthermore, that medical evidence suggests the plaintiff's complaints are consistent with the pathology that has been identified.

104 Furthermore, in my view the reason for the plaintiff's unreliability on the question of liability is because the plaintiff has largely reconstructed the matter. For example, the armoured vehicle in question had to have driven past the entrance to Lindfield railway station before it could be turned left into Balfour Street. The plaintiff may have looked up and have seen the station on the journey to Balfour Street and perhaps the vehicle may have become stationary at some stage on the Pacific Highway outside the station. The plaintiff could have telescoped that memory into the circumstances of his injury.

105 The essential admission of reconstruction is contained at p 92 of the transcript of evidence given on 20 February 2007. The plaintiff was being pressed by learned counsel for the second defendant as to whether the truck was facing uphill or downhill and, if so, whether it was in Balfour Street or on the Pacific Highway. The answer recorded at line 26 when the plaintiff was pressed about his recollection is this: "A. Well, I don't remember much. I got whacked in the head very hard. I've never been in that area before, never been to that exact area. So these photographs, to me, they could be anywhere. I have no recollection of the area at all."

Nothing could be more obvious than that for the fact that the plaintiff had been reconstructing events relating to liability when his recollection was in fact scant. That, in my view, explains the plaintiff's unreliability on the question of liability, together with a certain intransigence in failing to move from the position initially adopted in evidence. However, on the question of damages I accept what the plaintiff has had to tell me.

106 There are a few things I should say about the medical evidence. The plaintiff has been examined by Dr Alan White, a psychiatrist. Dr White assures me, and I accept, that the plaintiff has no psychiatric illness. However, Dr White maintains that the plaintiff's current orthopaedic problems are due to the childhood injury at the age of twelve rather than the injury of which I am now dealing. That is completely outside a psychiatrist's expertise.

107 Dr Nall, a consultant orthopaedic surgeon retained by the Workers Compensation insurer, examined the plaintiff on 6 February 2006. Dr Nall said that he thought there had been an aggravation of a pre-existing condition, no doubt the condition of the plaintiff's right wrist, and that the "aggravation has now ceased". How the doctor could say that when antecedent to the injury now in question the plaintiff could do heavy work without any problem and since the injury has not been able to do that work at all is unintelligible.

108 It is accepted that the plaintiff has a greater than 10 per cent whole person impairment such that he is entitled to general damages or, should I say, damages for non-economic loss. The evidence before me contains a medical assessment certificate issued on the stationary of the Workers Compensation Commission that the plaintiff has a whole person impairment of 18 per cent. That assessment was made by Dr Ivan Lorentz, a neurologist. In addition to the right arm problem to which I have already referred, Dr Lorentz accepted that the plaintiff had a mild uncontrolled neuralgic pain, an altered sensation in the distribution of the first division of the right trigeminal nerve which was accounting for the plaintiff's complaints of headaches from time to time.

109 I am prepared to accept that in addition to the right arm injuries the plaintiff has been left with residual uncontrolled neuralgic pain in his head accounting for his headaches, for which he has been treated at times and which has been investigated at times.

110 If he has a normal life expectancy, he can expect to live for a further thirty-seven years. The plaintiff is, subject to two matters, a fit and healthy man. The two matters are, of course, the injuries he sustained in this accident and the bowel problem which led to the "cancer scare". The plaintiff has to undergo colonoscopy each year, no doubt for the investigation for polyps or growths. However, none so far has been found to be cancerous and regular colonoscopy should prevent any malignancy occurring. I therefore accept the plaintiff can expect to live for a further thirty-seven years. He will carry the injuries that he suffered for the rest of his days.

111 The plaintiff antecedent to this accident played golf, eighteen holes, two or three times per week; three times per week, it would appear, in summer. He is now prevented from playing golf. He was a keen surfer, and now cannot use a surfboard because paddling places too much stress on his injured right upper limb. The plaintiff was also a swimmer for exercise and, whereas he used to be able to swim for twenty laps at a time, he could only do about five now. Surfing is merely going to the beach and "getting wet", perhaps doing a little bit of bodysurfing but not being able to do any board surfing. The plaintiff also used to play touch football prior to the accident and can no longer do so. I accept that has caused a severe dent in the plaintiff's social and sporting life, and has interfered with the amenity of the plaintiff's life.

112 It has been submitted on behalf of the plaintiff that his general damages should be assessed at $90,000. The first defendant has said that that is outside the range and the award should be well below that. The second defendant has submitted that it was "top of the range" and that a figure of $70,000 to $80,000 might be more appropriate.

113 Doing the best I can, I accept that the plaintiff's damages for non-economic loss should be assessed at $80,000.

114 The plaintiff has annexed to his written submissions, which are MFI 7, a schedule of damages. No dispute was raised between the parties about the calculation of economic loss between 29 July 2003 and 6 May 2004. The total of the plaintiff's nett economic loss during that period is $12,051.35. The plaintiff claims since 1 August 2007 $535 per week. That was the plaintiff's calculation of the plaintiff's average earnings during the period of his employment prior to the accident now in question. That brings into play, of course, the issue as to how many hours per week the plaintiff did work and how many hours per week he would have worked.

115 According to my calculation from Exhibit N, a printout of the plaintiff's earnings antecedent to the injury, his average hours over the total period in question were 26.9 hours per week. However, the plaintiff has also calculated the plaintiff's average hours since 26 January 2003 and that calculation is Exhibit O. That was because there was a drop-off of work, in particular in January 2003. During the period between 26 January 2003 and the date of the accident the plaintiff's hours were 33.125 per week. That led the plaintiff to calculate that his average earnings during that period was $614.72. However, that calculation is made after the plaintiff's schedule of damages was prepared and debated in the socratic fashion, as things often are in my Court. In those circumstances, one can see that the defendant's assessment of the plaintiff having worked an average of 30 hours per week antecedent to the injury has been an average between what can be gleaned from Exhibit N and what can be gleaned from Exhibit O.

116 However, what would have happened to the plaintiff had he not been injured? The evidence is undoubted because it was all given in cross-examination and not challenged, that the plaintiff was happy working with Chubb and planned to stay there. Evidence to that effect can be found at p 38.57, 41.55 and 94.5 to 95.35 of the transcript. The plaintiff also said that he wished to work to the age of sixty five and the plaintiff also gave evidence of wanting to do overtime and that he enjoyed doing the work of an AVO and would prefer doing that work to working as the courier because that gave him colleagues with whom to work and with whom he could socialise and also earned him more money because the job involved overtime and a higher rate of pay.

117 I have considered the plaintiff's employment history because it does show that he was well motivated to work. In my view the probabilities favour that the plaintiff would have stayed with Chubb uninjured and that he would have been offered full time work, that is, a permanent position, working full time and that some overtime would have been available to him. It is clear from wage records the plaintiff's base rate when he last worked and the base rate of an AVO was $24.8664 per hour. If he worked forty hours per week that would give him a gross income of $994.65. If he worked two hours overtime per week, that would give him a further three hours pay per week as overtime was worked at the rate of one and a half pays. That leaves a gross earnings of $1,069. The matter could be approached in the alternative on the basis of thirty-eight hours per week and three and a half, or thereabouts, hours overtime per week. I should add that Mr Arnold gave evidence that he was in fact working fifteen to twenty hours overtime a week. Gross earnings of $1,069 per week mean nett earnings of $822 a week. I proceed on the basis that had the plaintiff not been injured he would have been earning, since 1 August 2007, $822 per week nett.

118 The question then arises: to what work could the plaintiff do and what could he earn since that time? In evidence is a vocational assessment report from the Vocational Capacity Centre prepared by Ms Christine Lever and Mr Trevor Hawkins. That assessment is the plaintiff could work as a security officer in shopping centres earning $474.80 per week nett, or in the security industry generally, earning $518.50 nett. However, I do not accept the plaintiff would be fit for such work. Security officers often have to detain and restrain offenders, or persons thought to be offenders; often have to grapple with members of the public who might be involved in an altercation or the like, and generally are called upon to perform many activities that the police are sometimes called upon to perform. With a weak dominant right arm, I do not accept the plaintiff is fit for such work.

119 However, the assessment also indicated that the plaintiff was fit for work as a meter reader, earning $475 per week nett, as a parking inspector, earning $598 per week nett, or as a console operator earning $462.50 per week nett. The ideal job of course, for the plaintiff, would be back working as a courier operator doing the work he did for the defendant, between August 2004 and 5 September 2007. However, as has been pointed out by learned counsel, work as a courier is often work as a "sub-contractor" and any award rate cannot be indicative of the true remuneration of the courier driver.

120 I accept that the nett earnings of a meter reader, a parking inspector and a console operator, are indicative of the plaintiff's ability to earn on the open labour market reasonably accessible to him. The average of those three nett figures is $551. That assessment was made on 29 August 2006, eighteen months ago. I have increased that amount by fifteen percent to allow for CPI increases since that time and changes in taxation rates which would increase those earnings. In my view the plaintiff's ability to earn should be seen as $633 per week. The difference is $189. I therefore add to the plaintiff's past economic loss, $189 for thirty-one weeks between 1 August 2007 and today, that is an amount of $5,859. The total of the plaintiff's past economic loss is, if my mathematics be correct, $17,910.35.

121 On the question of economic loss, I would allow the plaintiff $189 per week using the appropriate multiplier, and discounting by fifteen percent for the vicissitudes of life. That amounts to a lump sum of $113,065.47.

122 The plaintiff makes a very modest claim under Griffith v Kirkmeyer. His claim is for six hours per week for 14 weeks, based on an average weekly earnings of $800. That amounts to the sum of $3,154.

123 The plaintiff was and is a close friend of Mr Darren Rowley and Mrs Anita Rowley, who also live in Canterbury. Mrs Rowley gave evidence. She has known the plaintiff for some twenty years. During a period that she assessed to be three or four months, post-injury, and also a period that she assessed to be three or four months post the second operation, she regularly prepared the plaintiff's evening meal, which the plaintiff either took home and consumed at his home, or ate with her and her family and she regularly prepared for the plaintiff something to eat for lunch on the following day. In addition, she would do the plaintiff's washing and a small amount of ironing for him, which would take about a half an hour. She also told me that she would clean the plaintiff's apartment once a week and that would take her about a half hour. Mrs Rowley estimated that cooking for the plaintiff took up about three quarters of an hour a day. When challenged, Mrs Rowley admitted that she was preparing a meal not only for the plaintiff, but also for herself and her husband and her three children. However, I accept that someone had to cook for the plaintiff and if a person was required to cook only for the plaintiff, it would take some three quarters of an hour. I am therefore prepared to accept the plaintiff's modest claim under Griffith v Kirkmeyer as claimed in the plaintiff's schedule of damages that, as I said, amounts to $3,154.

124 The plaintiff's past out of pocket expenses are agreed, that being $29,494. The plaintiff claims future out of pocket expenses in the sum of $4,424, based on an allowance of $5 per week for future treatment and medication. I believe it appropriate to award a cushion and I would allow the sum of $4,000.

125 The next amount to be added is the amount deducted by the Workers Compensation insurer from weekly payments of compensation paid to the plaintiff because the plaintiff must repay out of his damages the gross amount of workers compensation paid. The Fox v Woods payment is $6,653.

126 If my mathematics be correct, the total of the seven items that I have identified is $254,276.82.

127 However what I have omitted from that sum is past and future superannuation. Nine percent of past economic loss, namely nine percent of $17,910.35 is $1,612 rounding up. Nine percent of future economic loss, that is nine percent of $113,065.47 is $10,176, rounding to the nearest dollar. The total of the amounts for lost superannuation is $11,788. When I add that to the earlier total, I reach the figure of $266,064.82.

128 Under s 151A (4), the workers compensation payments already made to the plaintiff which I am told amount to $92,561.83 are not a pro tanto defence, but will have to be deducted from the damages that are awarded in this judgment.

129 The only remaining matter on which I ought comment is the question of costs. When the matter was adjourned on 21 February 2007, I ordered the plaintiff to pay the costs of each other party thrown away by the adjournment. What those costs are, can be assessed by a costs assessor. I propose that the order will be that the first defendant pay the plaintiff's costs and the second defendant pay its own costs. The reason the matter was adjourned was to add a claim under the Workers Compensation Act 1987 for workplace injury damages. That was done because the motor vehicle insurer maintained, ultimately completely unsuccessfully, the plaintiff was not entitled to MAC Act damages. As a matter of prudence, any plaintiff when faced with such an asserted defence, would take the precaution of adding, if possible, an alternative claim upon which he might succeed.

130 That alternative claim could only be made once a medical assessor appointed under the provisions of the Workers Compensation legislation had issued a certificate certifying fifteen percent or more whole person impairment. That only happened on 30 January 2007 and the matter was initially listed for hearing on 20 February 2007, some three weeks later. In the circumstances, the plaintiff should have merely a general order against the first defendant. I do not see why I should further limit the plaintiff's costs in light of the history of this matter.

131 I have enquired of the solicitors for each party whether any further reasons for judgment are required, I am told that none is so required. For those reasons there will be verdict and judgment for the plaintiff for $266,064.82. I order the first defendant to pay the plaintiff's costs. I order the second defendant to pay its own costs.

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Judgment (157 paragraphs)

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Cases Cited (9)