Ellis v Amari Metals Australia Pty Ltd t/as Atlas Steels Pty Ltd

Plaintiff

1. The Plaintiff commenced employment with the Defendant in April 2015 as a warehouse operations clerk. In that role he was responsible for collating orders, getting them ready, taking them into the warehouse and then arranging for them be picked up, afterwards entering them onto the computer system and inventory management. From time to time that role involved going into the warehouse to perform various tasks. [1]
2. On the occasion in question the Plaintiff stated that the Defendant had implemented a new computer system about two weeks earlier and its operations had created some difficulties. [2]
3. The Plaintiff described that he was contacted by the internal sales representative, Ms Deborah Kahill-Michael, at about 10.30 and he was asked to locate a length of rod and arrange for it to be cut in half. She told him that they would provide the material and sort it out later when she had worked out what was being done wrong in the system, but the customer required it now. The Plaintiff stated that he had himself just served the particular customer who needed one more piece of rod. [3]
4. At that point the Plaintiff was at his desk in the despatch office. He stated that he made a note of the material and looked up its location in the system. He then proceeded to head out into the warehouse through the back door, stopping at the gate to check what was around and then headed to the location which he described as "pretty much, almost directly behind the doorway". [4]
5. The Plaintiff described the cantilever racking as a steel bar with shelves coming off it at an angle. He stated that the shelf that comes out was a small piece rather than a full shelf and so about four or five bars came out so a long piece of pipe will sit on it. Each location was numbered, with the location in question being L3A2. L3 referring to the third row along the length and A2 meant second from the bottom where there were ten shelves, with A1 at the bottom and A10 at the top. [5]
6. The Plaintiff described the photos in Exhibit A1 at 329-335 as depicting the area he was in. He described the red marking as indicating the exclusion zone. That can be viewed in Exhibit A1 at 336, which depicts a man looking at crates containing pipe as often delivered. This exclusion marking was present at the time of the accident. According to the Plaintiff's recollection at the time of the accident, the yellow railing on the left did not go around the corner and there was no yellow floor marking to the right hand side of the railing. [6] He stated that the railing stopped near the door at the corner. [7] Exhibit A1 at 336
7. The Plaintiff described that after receiving the message and writing the note, he left the office through the back door of the despatch office across a small walkway that was painted green and through the gate. The Plaintiff stated that this gate was not depicted in the photographs but it was there before the alterations. He checked that there was no movement and then walked straight to the location where the piece of steel rod was located. At the time he was wearing black pants, grey jumper and a high-vis vest, and walked straight to the location where the piece of steel rod was located. He described this as next to where the step ladder is depicted in Exhibit A1 at 337. [8] Exhibit A1 at 337
8. The Plaintiff said that he looked for the piece of material that he had written down on his piece of paper, which was amongst probably "four or five or maybe six" other lots of material which were normally bundled together in bundles. He said that he crouched down and had a look through the others in case it had gotten caught up somewhere in one of the other bundles. He described going backwards and forwards and he was certain it was not there. After three or four minutes he turned around walked back through the gate into the office to go and find what other location it may be in. He said he wrote on the piece of paper turned around and came back out and went through the whole process again. [9] He went and checked what he described as the bulk location. The location he was looking at was knee height. After checking for a second time, he looked at his paper and realised that the bulk location was in the same "tree", meaning it was still in L3 but was at A10 (L3A10 as opposed to L3A2), which was twenty feet in the air. [10] When he realised it was there he stated that he stood up put his right foot back just to look up to see where L3A10 was. As he stood back the forklift collided with him, striking his right shoulder. He stated as this occurred, he looked down and saw his right foot going underneath the bottom of the forklift. He stated that he screamed and the driver, Mr Enosa, reversed off and he fell onto his left shoulder. [11] Prior to being struck the Plaintiff stated that he did not hear anything and nobody had yelled out. [12]
9. In cross-examination, the Plaintiff stated that the types of forklifts used by the Defendant were side loaders that could rotate 360 degrees and were narrow so that they could go up and down the aisles. [13] He stated that it was a reasonably busy warehouse and that in the time he worked there he never saw the forklift move at more than about walking pace. [14] He conceded that staff were warned about the danger of forklifts in the area and stated that the area in which he was injured was near dock 2. [15] He conceded that outside the entrance to dock 2 was a yellow warning sign with a black triangle with a symbol of a forklift inside stating "Forklifts operating in this area." He acknowledged that just below it was a sign "Danger, Keep Out, Authorised Personnel Only." It was further accepted that a similar sign was outside dock 1. [16]
10. By reference to Exhibit A1 at 329 the Plaintiff conceded that it showed the view roughly from the L3 rack area to dock 2. [17] Exhibit A1 at 329
11. The Plaintiff acknowledged that the red diagonal lines bordered by the solid line had a U shape in the middle. This was the area where the side loading forklift would move in and out of the truck to load and unload. [18] The Plaintiff described the red marked area as one which could be accessed by the forklift driver and someone authorised by him. He accepted that as he came out of the office if he was to look to the right he could see the red marked area in the area of dock 2. [19] The Plaintiff estimated the distance from the entrance to the office to the right when looking at Dock 2 was four to five metres. [20] He accepted that if a forklift were in the position shown in Exhibit A1 at 339, if he looked to the right as he stepped out of the office he would plainly see the red marked area and any forklift standing in the red marked area. [21]
12. The Plaintiff accepted that he was wearing safety boots on the occasion in question as a requirement to work on the floor. The Plaintiff rejected a suggestion that as he came out of the office on the first occasion he knew that there was a forklift operating in the area. He said he saw one stationary forklift in its parked spot around the corner to the right of where you come out of the gate towards dock 2 and not inside the red markings on the floor. [22] The Plaintiff reiterated that he looked around and then moved forward to the racking. He described that distance from the office entrance to the racking he walked to as being "three metres maybe." He initially gave estimates of taking six or seven paces adding that he did not know. He thereafter revised the distance stating "maybe a little bit further than that maybe four metres", traversed in maybe three or four paces based on one metre strides. [23] The Plaintiff acknowledged that it was an environment that he knew from experience he had to keep an eye out for forklifts as they were moving around. [24]
13. The Plaintiff conceded that after failing to locate the item the first time he went onto the floor he actually stood up after crouching then rotated around to head back into the office the whole time scanning and looking for forklifts. [25] After returning to the floor the second time he stated that the forklift he had seen before was in the same position it had been in when he initially saw it; in the long products area next to but outside the red lines towards the office wall. [26]
14. After proceeding to the same area, he stated that he crouched down as he had done before and did a full search of the small area taking a minute or two. [27] He conceded being focused on looking for the item but knew that he had to keep an awareness of the situation around him because of the risk of forklifts. [28] After deciding to look up to the A10 level he acknowledged he looked up and then took a step backward with his right foot with the left staying where it was. He accepted that it was his intention to change his view to look at the A10 level. [29] He conceded that he did not stand up and turn around or look for vehicles in the area either to his right or left and accepted that he looked either straight ahead or straight up. [30] He denied taking two steps back. [31] When asked if it was his normal length of step, he stated he didn't recall but accepted that his normal stride was about 1 metre and that his movement was potentially 1 metre. [32] He later accepted that the process of standing up and stepping back occurred quite quickly. [33] Within that time he accepted that instead of stepping back he could have looked around and simply turned around. [34] However, the Plaintiff rejected the suggestion that in acting as he did he failed to take care for his own safety. [35]
15. In cross-examination the Plaintiff marked on Exhibit B at 19 "R" as the spot where his right shoulder was struck and "F "where his foot was struck by the forklift. [36] He earlier rejected the suggestion that his right foot was struck by the right hand wheel as depicted in Exhibit B at 19. [37] Exhibit B at 19
16. The Plaintiff rejected that he completely ignored the sound of the horn from Mr Enosa stating that there was no horn. [38] Earlier in evidence he accepted that the forklifts were battery operated, were very quiet and were bright orange in colour. [39] Whilst he accepted that there was an amber flashing strobe light on the top of the driver's cabin he did not know whether it came on automatically when the vehicle was turned on. [40] He conceded seeing vehicles move around the warehouse on another occasion prior to the date of injury but did not recall seeing the amber flashing light going. [41]

Motor Accident Claim Form

1. Tendered in evidence was a motor accident claim form said to have been completed by the Plaintiff on 8 September 2016. [42] It described the accident as follows:- I was inspecting material in our warehouse & took a step backwards. Was then pushed by a forklift that subsequently ran over my right leg. [43]

Gary Sammut

1. Mr Sammut commenced working for the Defendant in August 2013. Leading up to the accident, he was responsible for employing staff with Mr Matt Offord in what was a new service centre. He stated that once set up, his responsibilities were to oversee the operations of the workplace, being picking and packing, transport logistics, health and safety work instructions, liaising with sales and holding regular meeting with the teams. He also said that he had a hands-on operational role on the warehouse floor from time to time particularly when short staffed. [44]
2. Mr Sammut stated that in May 2016 there were three forklifts in operation. He stated that they were brand new Hubtex forklifts that could go in a forward, backward or sideward motion. He added that he had driven all three and had never experienced any problems with visibility inside them. [45]
3. Mr Sammut stated that Mr Enosa was one of the first persons he employed. This was approximately two to two and a half years before the accident. [46] Mr Enosa was employed as a warehouse storeman who was a ticketed forklift driver able to drive all three forklifts. [47] Mr Sammut stated that after being employed, Mr Enosa was inducted into safe operating procedures of the forklifts including sounding the horn, watching out for pedestrians, travelling with forklift tines, the use of mirrors if available, operating forklifts on tracks in one direction, and beeping horns to make people aware when entering and exiting aisles and warehouse doors, as well as around blind spots. [48] Apart from the training and induction he described that there were also toolbox meetings. [49]
4. On 18 May 2016, Mr Sammut stated that he was in the warehouse attending to a customer in the packing station which was just around the corner from the administration office. He stated that the customer wanted to have a look at the piece of metal himself and he was explaining it to him. All of a sudden he observed the Plaintiff directly in front of him staring at a holding rack. [50] He stated the Plaintiff was roughly between 5 and 6 metres away. [51] He accepted that at the time there was both natural light and downlights. [52] Thereafter he answered his customer's questions in the context of a conversation of some 30 to 40 seconds. [53] He observed the Plaintiff looked to be not where he was before. [54] At that time the forklift was close to him and he never saw the Plaintiff step back forward or anything but by the time he realised he wasn't in the same spot he was struck by the forklift. [55] He said the Plaintiff was struck on the right hand side to the very front of the forklift and he saw it strike him such that his glasses fell to the ground. [56] Prior to that he could not recall hearing a siren or anybody call out before the fall. [57]
5. In cross-examination Mr Sammut conceded that he inducted the Plaintiff into his position which included informing him of the risks involved in working in the warehouse. Mr Sammut was cross-examined at length about a forklift having a blind spot because of the presence of the mast. He rejected this suggestion, stating that based on his experience with those forklifts, having driven both types, he never had a problem or a major problem with poor vision if you are looking at where you are going. [58] He stated that the mast assembly was set forward and it was not really in the way when you were driving around. [59] He stated that of the three forklifts they were of two types, being MQ 30 and 40. He believed that Mr Enosa was driving the MQ 40 which was the larger of the two and was bright orange. [60] He accepted the vehicles as electric and very quiet. [61] To the best of his ability, he recalled a strobe flashing light that came on automatically when the vehicle was turned on and driven [62] , and that he saw the Plaintiff in an area that had both pedestrian and forklift traffic. He stated that he did not see the Plaintiff crouch or step back, but that he remembered that he was looking at the holding rack at eye level. [63]

Martini Enosa

1. Mr Enosa gave evidence that he was employed by the Defendant since 2013 as a warehouse storeman/forklift driver. He confirmed that at the Defendant he drove the Hubex side loader. He described this as a having a small cage facing forward and any driving was directed to the right side in all directions. [64] He stated that the side loaders were orange in colour and had a flashing light that came on when it was in drive. [65] They were also equipped with a horn. [66] He confirmed that he received induction into the safety procedures that included pre-operations, pedestrian observation and warnings. [67] Mr Enosa stated that Exhibit A1 at 338 depicted himself in the driver's seat of the forklift he described. [68] In his experience he stated there was a need to keep an eye as the forklift was wider than the normal one and you couldn't always see when you were driving. [69] Accordingly, he stated that he always beeped his horn and kept moving so that his vision was clear and he could see clearly in front. [70]
2. On the morning in question he stated that he started at 8 am and did the pre-operation check at the warehouse. [71] He then commenced booking in the stock. After morning tea he then put away stock utilising the side loader. He stated that the forklift was facing the entrance as indicated in Exhibit A1 at 338. He double checked to see that his visibility was clear in the area he was to work. [72] He then entered the forklift and put on his seatbelt. After turning the forklift on, the lights came on. He accepted that there was a form of light on the cabin which was to show the forklift was driving and this came on straight away and was a turning or flashing light. [73]
3. After turning the vehicle on, he started beeping the horn to signal that he was moving. He then pivoted to the right and started driving towards the bundles next to the rails in front of the despatch office. [74] At that point he said he kept looking back and forth for his vision to be clear. [75] He described this as moving backwards and forwards on his right side to make sure no one was in his way while driving. [76] He saw nobody there. [77] He stated that he drove forward to the right and then heard the Plaintiff's voice and the forklift was stuck. [78] It was put to him that he pivoted, straightened up and then moved forward. He accepted this, adding that he travelled some four to five metres at what he thought was three kilometres or less per hour. [79]
4. After hearing the Plaintiff he believed him to be on the side opposite to driver's cage on right wheel of the forklift. [80] He marked the point of contact on Exhibit 2. Exhibit 2
5. In cross-examination, Mr Enosa confirmed that he had been told by Mr Sammut that when he drove the larger forklift he had to make sure that he was looking left and right of the mast for pedestrians. [81] He accepted that the reason was to make sure that he had the best view of what lies in front. Mr Enosa stated that to the best of his memory, the forklift was in the approximate location marked on Exhibit A1 at 338 before he hopped on. [82] Mr Enosa added that normally the forklift is parked on the other side to keep the exclusion zone clear for trucks, but someone had left through the back to grab something and he (Mr Enosa) came up to use the forklift. [83] He stated that he went to double check the location of the bundles he was to put away coming from the other side of the warehouse. [84] He then came to where the arrow was in Exhibit A1 at 337 to the exclusion zone. [85] Thereafter he pivoted the machine around to the direction where the number 5 with the red circle sign was (which resembled a traffic sign) near the step ladder in Exhibit A at 337. [86]
6. In cross-examination Mr Enosa accepted that as he sat in the forklift on this day there was nothing obstructing his view in front. [87] When the question was recast following an objection, Mr Enosa stated that he had no comment. [88] When put again that there was nothing about the machine that he was on that stopped him from being able to see in front of him as he was driving in this pivoting move around sign number five, he accepted that this was so and that he could see where he was going. [89] He conceded that until he hit the Plaintiff he had no idea that the Plaintiff was working there. [90] Mr Enosa stated that he saw the Plaintiff in the office while he was checking the bundles on the floor to put away. He then walked to the forklift to turn it on and when he turned back he had the accident. Other than in the office, Mr Enosa stated that he did not see the Plaintiff until he was lying on the floor after he struck him. [91]
7. Mr Enosa confirmed that he himself sometimes took stock and when doing so had to ensure that he had the right product he required. He confirmed that that would involve searching up high and low. [92] Whilst he acknowledged that that might require a change of position, it was necessary to bear in mind that the machines are working in the warehouse. [93] Every time he would work on the floor he said he would look around and check that his vision was clear. If he heard the horn beeping then he would move straight away. [94] In re-examination he added that he had been trained that if the forklift driver beeped the horn you need to give way straight away or find a safe place to stand in and give way to the forklift driver. [95]
8. He was questioned at some length about his recollection of using the horn. Mr Enosa was adamant that he used the horn. [96]
9. It was further put to Mr Enosa that the area between the exclusion zone and where the shelves were near the number 5 was quite wide. He stated that the photos show a lot of space "but when actually look at the space, it's only a - not even a big one." [97] At one point, he agreed that he could have turned the forklift so that it was further near the red arrow shown in Exhibit A1 at 337. [98] It was then put that if the Plaintiff had been positioned where indicated in Exhibit A1 at 332 with a fluorescent vest, he could not tell the Court why he had not noticed him before he hit him. Mr Enosa responded no comment. [99]

Paul Nash

1. The Defendant relied on a statement of Paul Nash provided to Terry Flinders licensed private investigator from Verifact Pty Ltd dated 19 July 2016. [100] This was tendered without objection, it being acknowledged that Mr Nash was unavailable to give oral evidence. [101] At the time of the accident Mr Nash worked for Independent Steel as a truck driver. On 18 May 2016 he did not know the Plaintiff by name, although he had seen him at the Defendant's premises.
2. He recalled that at around 11 am on 18 May 2016 he arrived to exchange some steel piping. He stated that it was picked up from the back of his truck and carried inside the warehouse by hand. He stated he came into the warehouse and was standing just inside the door near Dock 2. He then heard the forklift sound its horn once or twice and took off. He said he saw the Plaintiff standing in front of a rack and looking up at the racks and that it seemed as though he was looking for a number or something. He said he saw him take two steps backwards and realised he was stepping into the path of the forklift. He said he didn't have time to sing out to the Plaintiff. [102]
3. Mr Nash stated that he saw the forklift hit the Plaintiff's right leg and he fell on the ground and the right leg was pinned underneath the forklift. He stated the Plaintiff was yelling for the forklift to be taken off him, whereupon the driver stopped and reversed it. He then saw the damage to the Plaintiff's leg. [103]
4. Prior to the collision, Mr Nash stated that he could not state the speed the forklift was travelling at. [104]

Police COPS Entry

1. Police attended the scene of the accident. The COPS entry created by Mr Paul Martin [105] recorded Mr Sammut as the main witness and did not mention Mr Nash. A verbal statement was recorded to have been taken from Mr Enosa as he was not able to provide a notebook statement at the time due to being too shaken up. The narrative recorded:- … About 11.10 am on 18/6/16 the victim was standing at the end of arrow of stacks (Stack L2) looking at the stock on the stacks. He was facing the stacks looking up, with his back to the main office area. There is a pathway between the stacks and the office, about 5-6 m wide which the forklift drives down to access other rows of stacks. The victim was standing about 1m into this pathway. At this time, ENOSA was driving one of the forklifts down the row of stacks next to where the victim was standing (Stack L3). ENOSA drove the forklift out of the row and into a large area (dock 2) where he was able to turn the forklift around so he could drive up the pathway where the victim was standing. The way the forklift was positioned, ENOSA would have had his back to the victim as he drove out of the row. ENOSA turned the forklift around and beeped twice on a device on the forklift to warn people nearby that he was about to move forward. ENOSA began driving forward, turning to the left as he did to drive down the pathway between the stacks and the office. As ENOSA was driving forward, the victim moved backwards about 1 metre to look at the stock higher up the stacks. The victim inadvertently stepped into the path of the forklift, resulting in the front corner of the forklift colliding with the victim. The victim was knocked to the ground and his right leg was pulled under and crushed by the front right hand wheel. The victim was dragged about 1 - 1.5 m before ENOSA was able to stop the forklift. The entire incident was witnessed by Gary SAMMUT, who was standing about 3-4 m away at the corner of the main office… [106]

Plaintiff's Submissions

1. The Plaintiff submitted that it was relevant in the context of this case that the relationship between the Plaintiff and the Defendant was that of an employee/employer. Reference was made to Boral Bricks Pty Ltd v Cosmidis (No 2), where McColl JA stated that in the context of an occupier/visitor relationship, perhaps somewhat more emphasis might be placed on the obligation to take reasonable care for one's own safety compared to that of an employee/employer. [107]
2. The Plaintiff further relied on McLean v Tedman [108] and Ghunaim v Bart [109] to contend that questions of contributory negligence must have regard to the nature of the relationship that subsists between the Plaintiff and the Defendant for whose employee it is vicariously liable. [110] It was submitted that what was required was to take into account the kind of duties that the Plaintiff was required to perform and his preoccupation with the task at hand. That was said to be apparent by the frequency with which the Plaintiff is required to go to go to the floor being at least 30 times a day looking for things. Furthermore the tasks was said to involve preoccupation as it required looking for specific products that were not easy to find, as was evident in the case at hand where the Plaintiff had to look at various locations for a while. [111]
3. The Plaintiff contended that in this instance Mr Enosa was aware, by having performed similar duties, that people such as the Plaintiff would go from the office into the warehouse to these places up to 30 times a day. It was contended that as he entered the forklift he must have appreciated the very real risk that one or more persons may be present and looking for stock, in the way that the Plaintiff was looking for stock. Any reasonably prudent driver of a forklift in the knowledge of Mr Enosa would have expected to encounter people in various processes in various positions including crouching, standing, including complete distraction from what was going on around them, because of the nature of the task they were performing. [112] This was said to clearly fit in with what was said in McLean.
4. The Plaintiff submitted that two things in this case were clear:- 1. There was nothing obstructing Mr Enosa's view; and 2. Mr Enosa failed to see that which was plainly there to be seen, being the Plaintiff wearing a fluorescent vest in whatever position he was in. [113]
5. Beyond that, the Plaintiff contended that although Mr Enosa did not see Mr Sammut conversing, it could be inferred from the statement of Mr Nash that this is what occurred. [114]
6. The Plaintiff submitted that Mr Nash's statement although untested was relatively contemporaneous. He stated that he heard the forklift sound once or twice and saw the Plaintiff take two steps back. It was submitted that the Plaintiff's account of taking a step having been tested and delivered on oath should be preferred. [115]
7. Notwithstanding this, it was submitted that Mr Nash didn't see the Plaintiff crouching and it would be difficult to take a step back from a crouching position. It was said to be more likely something you would do if you were standing and looking up at a higher part of the products and you would step back to get a better view of that which is in front of you. This was said to be classically something to be expected of a person preoccupied with their tasks, making a slight adjustment to their position to further their task, traversing a little further into the walkway which was an area known to be frequented by pedestrians. [116]
8. So far as the width of the area behind the shelves and adjacent to the office, it was submitted that the Plaintiff's evidence indicated that he doesn't really know the precise width. Rather, reliance was advanced on the contents of the COPS entry which supported a pathway width of between 5 to 6 metres with the Plaintiff standing 1 metre into the pathway, consistent with his taking one stride. [117] This was said to be based on the author's own observations and contemporaneous representations. [118]
9. So far as the injury was concerned, the Plaintiff drew attention to the evidence in the Ambulance records (discussed below) which indicated that the Plaintiff had been dragged 3 metres.
10. The Plaintiff submitted that the Plaintiff's evidence indicated that he had been in the area for a number of minutes and Mr Enosa had failed to see his presence and Mr Sammut's as well as the customer he was speaking to as he was navigating the forklift. It drew attention to the fact that Mr Enosa stated that there was nothing that obstructed his view but he failed to see the Plaintiff prior to the collision. [119]
11. In the circumstances, the Plaintiff's contention was that on the totality of the evidence Mr Enosa failed to keep a proper lookout and failed to take notice of the people that were present in the area that he was proposing to go to. This was said to be even more relevant in circumstances where Mr Enosa knew from his own experience that people were regularly coming and going from the area to the stock. The situation was said to be analogous to a driver going past a school at 3 o'clock in the afternoon. Based on the evidence of Mr Enosa and Mr Sammut it was submitted that there was no established blind spot, it was a "red herring" and had no part to play on the facts of the case as it was on the wrong side of the forklift. There was furthermore no expert evidence as to lines of vision as the extent to which it would have impeded a driver's vision when travelling ahead. [120]
12. The Plaintiff submitted that nothing in Boral Bricks overrode the common law principles in respect of inadvertence. [121]
13. In the event that the principal submission was not adopted by the Court, it was submitted that taking into account the nature of the relationship and applying principles of contributory negligence, there would be no basis for a finding in excess of 10%. [122]

Defendant's Submissions

1. The Defendant submitted that save for denying that he in fact took two steps back, the whole of the Plaintiff's evidence was consistent with the version of Mr Nash. It was submitted that Mr Enosa's evidence was credible and should be accepted as he gave his evidence in a straightforward and honest manner. His evidence was said to demonstrate that he went to the parked forklift, looked for pedestrians, got in (activating the flashing amber roof light) sounded the horn, pivoted, scanned for pedestrians, went ahead and continued to scan for pedestrians, drove at about 3 km per hour, heard a scream and then realised the collision occurred. It was submitted that he was adamant that he sounded the horn before driving and while driving and was watching for pedestrians. [123]
2. It was submitted that Mr Sammut's version of events was inconsistent with the Plaintiff and should be rejected. He did not see the Plaintiff crouch which was incorrect and that his main focus was on his customer. It was contended that he was belligerent and evasive on the issue of whether there was a blind spot created by the forklift centre mast which was inconsistent with the Plaintiff's evidence and the Plaintiff's counsel questioning. [124]
3. The Defendant submitted that the factual dispute centred on whether the Mr Enosa looked for pedestrians and sounded his horn such as to have acted reasonably within the terms of s 5B(1)(c) of the Civil Liability Act 2002 (NSW) (the 2002 Act) in the circumstances. It submitted that he did. [125]
4. It was argued that the Plaintiff's evidence was that he crouched down for about a minute then stood up did not look around took a step back and then felt the collision. The time from standing up from the crouch to the collision was 1-2 seconds. The fact that he was crouched was said to be consistent with him not being observed by Mr Enosa due to the blind spot which it was said was towards his forward and right location. [126] This evidence in this regard was said to be consistent with him stepping into the path of the forklift as Mr Enosa was nearly past him. [127]
5. It was submitted that it should be found that Mr Enosa sounded the horn before moving and while driving the forklift. This was consistent with his practice and the evidence of Mr Nash who heard the horn sounded. The evidence of Mr Sammut that he could not recall was said to be neutral at best as his attention was focused on other matters. It was contended that the Plaintiff's evidence that he did not hear the horn should be rejected. [128]
6. The Plaintiff's evidence as to the point of collision was that he was caught at the centre rear of the vehicle meaning he was at the rear or behind the driver. This was argued to be inconsistent with Mr Sammut who said the forklift struck the Plaintiff on the right. It was submitted that the uncertainty as to the point of collision and whether the Plaintiff was behind Mr Enosa was crucial as it meant the Plaintiff had not discharged its evidentiary onus. [129]
7. The Defendant submitted that the Court would accept Mr Enosa's evidence that there wasn't much room to move as that was entirely consistent with the width of the aisle between the office and L3 shelving as 3 metres, and contended that the forklift was between 2 and 2.5 metres. [130]
8. In summary, the Defendant submitted that Mr Enosa acted reasonably as he sounded his horn, turned his forklift and sounded his horn again. As the Plaintiff was crouched down at a position to the forward right of the forklift as it was travelling after the pivot, then it was reasonable to infer the Plaintiff was obscured from view. [131]
9. Alternatively, it was submitted that the Plaintiff was contributory negligent for his injuries. It submitted that on the second occasion the Plaintiff looked for the item, his attention was focused forward and up, and as he stood up and stepped back he did so without looking for forklifts. It submitted that in this moment he departed from his training and his earlier actions of looking for forklifts, despite knowing there was a forklift near Dock 2. It was submitted that this was not mere inadvertence but rather was a complete failure to have regard for his own safety by failing to observe and heed his surroundings despite being aware of the dangers of forklifts. It was submitted that he also failed to have regard to the sounding of the horn by Mr Enosa. On this basis, it was submitted that liability should be shared. [132]
10. The Defendant conceded that that s 5R of the 2002 Act only applied if there was contributory negligence not mere inadvertence. [133] However, submitted that this was not a case of mere inadvertence:- This was not simply losing attention briefly, this was a 30-second pattern of squatting down, failing to pay attention, standing up, disregarding all previous practices and all previous knowledge about safety procedures and necessity to take care for himself, and stepping back without looking for a forklift that he knew was in the area, and contrary to his previous knowledge, and experience and training. [134]
11. The Defendant argued that the Plaintiff's reference to [64] of Boral Bricks involved a dissenting decision of McColl JA whereas the ratio of the decision is to be found in the decision of Basten JA at [99]-[100], with which Emmett JA agreed. The Defendant also pointed out that McLean was determined prior to the 2002 Act coming into force.

Findings

1. At the outset of oral submissions the Defendant stated it had no cavil with the Plaintiff's presentation as a witness. It acknowledged that he recalled what happened and made appropriate concessions even if they were against his interests, particularly with respect to what it submitted amounted to contributory negligence. [135] I accept that the Plaintiff was a truthful witness who was by in large reliable and did his best to recount the circumstances of the accident as he recalled them.
2. The Defendant was critical of the evidence of Mr Sammut based on what was described as his belligerence and somewhat evasiveness on the issue of whether the mast of the forklift created a blind spot, his inability to recall the Plaintiff crouching and his main focus being in the service of his customer. I do not accept this submission. [136] Mr Sammut's evidence in respect of the mast not creating a blind spot was in the context of the forklift being driven in a forward direction as at the time of the accident. [137] Otherwise Mr Sammut, in my view, was careful to state what he observed was as best as he could recall it.
3. Whilst I am not satisfied that Mr Enosa was deliberately untruthful, I did not find him always reliable. I accept that he is a man of limited education and had some difficulties with propositions put to him in cross-examination. However, there were times that, in my view, he refrained from responding to questions in circumstances where he said he understood the question put to him. [138]
4. Despite the familiarity with the site by both the Plaintiff and Mr Enosa, their estimates of the distance between the office and the shelving opposite lacked precision. The estimate recorded by police of between 5 and 6 metres wide is more likely to be accurate; bearing in mind it was prepared in the context of and attendance for official purposes which included the opportunity to make observations. It is also consistent with Mr Sammut's evidence that from the packing station, which was around the corner from the administration office, he first observed the Plaintiff 5 to 6 metres away.
5. It is not in issue that the relevant forklift driven by Mr Enosa was a Hubtex MQ 40. Exhibit A1 at 340 gives some context to the size of the machine relative to the width of the pathway. The Plaintiff accepted that its width was about 2.5 metres maybe 3 metres. [139]
6. I accept that at the time that the Plaintiff was performing his task he was under some pressure. He had previously served a customer who wanted an additional length of steel rod. He was asked to locate it and have it cut to size with entry work to be carried out later. His unchallenged evidence in light of the request made of him by Ms Kahill-Michael was that that the customer needed it now.
7. It is not in issue that the Plaintiff made his way to the location where he believed the steel rod was located which was next to where the step ladder was in Exhibit A1 at 337. At that point he was wearing a high-vis vest. The Plaintiff acknowledged in his evidence that the warehouse was a busy one and he had been warned about the dangers of forklifts. As he came out of the warehouse he observed a forklift which he said was in its parked spot around the corner to the right of where you come out of the gate towards dock 2 and not inside the red markings on the floor. Mr Enosa stated that when he boarded the subject forklift it was parked in the exclusion zone as the person using it previously had left went through the back to grab something from the back. The Plaintiff's evidence on this issue emerged in cross-examination and was not challenged. Nor for that matter was that of Mr Enosa. The exclusion zone was not a parking area for forklifts but rather for trucks accessing the warehouse. It seems unlikely that an unattended forklift would be parked there at around 11am a time the warehouse was open to vehicular traffic. Mr Nash's statement recorded bringing his truck to the warehouse adding that a pipe was collected by the Defendant employees from the back of the truck and carried inside the warehouse. Where Mr Nash parked and where he first saw the forklift were not identified. In questioning, the Plaintiff's counsel accepted that nothing turned as to precisely where the forklift was parked before Mr Enosa boarded it. [140]
8. Mr Enosa's evidence was that prior to the accident, he last saw the Plaintiff in in the office not the warehouse. The Plaintiff's evidence was that after he was unable to locate the item he was seeking, he went back into the office checking for vehicular traffic. After noting the location on a piece of paper he stated that he went back to the same area, observing that the forklift was still parked in the same position he had observed earlier. On this evidence I am satisfied that Mr Enosa did not mount the forklift until some point after the Plaintiff returned to the rack area he was checking. I am also satisfied prior to the collision Mr Enosa last observed the Plaintiff inside the office area.
9. The Plaintiff's evidence was that he was crouched down as before and did a full search of the small area taking a minute or two, and was focused on looking for the item but conscious that he had to keep awareness of the situation around him because of the risk of forklifts.
10. After deciding to look up to the A10 level, he acknowledged taking a step backward with his right foot with the left staying where it was to look up.
11. The evidence of Mr Nash was that he observed the Plaintiff standing in front of the rack and looking up at the racks for a "number or something" and took one or two steps backwards before being struck. [141] He makes no mention of the Plaintiff crouching. Mr Sammut did not recall the Plaintiff crouching or stepping back, but did recall observing him standing and looking at eye level, and after 30 or 40 seconds saw him be in a different spot to where he had been before, but was not him diagonal in any way. [142] In cross-examination he stated that the Plaintiff changed his positon. I accept that the Plaintiff crouched as he was looking low on the rack. I accept that it is likely that the Plaintiff did at one point stand after crouching before taking a step back. Accepting that the Plaintiff had strides of around one metre, I would accept that it was most likely that he took one step back. That is consistent with Mr Sammut seeing him in a different position and corresponds with what the Plaintiff recorded in his Motor Accident's Claim form.
12. Mr Enosa stated that the forklift he mounted had a strobe light that was active when the forklift was in motion. Mr Sammut stated that to the best of his ability he recalled a strobe flashing light that came on automatically when the vehicle was turned on and driven. Mr Nash gave no evidence as to the presence of a strobe flashing light. The position of the light can be viewed as being on the top of the cabin. Even accepting that it was active during the forklift's operation, it was not submitted that in the circumstances of its travel and the position of the Plaintiff, it ought to have been observable by him with the vision he had available. The Plaintiff's evidence that he didn't recall seeing it was not directly challenged.
13. So far as the use of the horn was concerned, the Defendant conceded that apart from the evidence of Mr Enosa there was no evidence to support that he activated his horn whilst the forklift travelled after it had departed from the parked position. [143] Whilst it sought to contend that Mr Nash supported the Plaintiff's account, Mr Nash's evidence was that he heard the forklift sound the horn once or twice and then took off. Neither the Plaintiff nor Mr Sammut gave support to this occurring. The Plaintiff's evidence was that he did not hear the horn and Mr Sammut's evidence was that he did not recall hearing it. These accounts are consistent with it not having been activated whilst travelling. On the balance of probabilities, I would accept that the horn was sounded as the vehicle was preparing to travel but not whilst it was travelling. I also accept the Plaintiff's evidence that he did not hear it. In my view, had it been sounded with the frequency that Mr Enosa asserted then it would be unlikely that it would not have been heard and recalled by the Plaintiff and Mr Sammut.
14. So far as the direction of travel Mr Enosa took, it appeared accepted that this involved a clockwise movement from where it was positioned and then pivoted to the right.
15. I accept the Plaintiff's submission that the contention that Mr Enosa's vision was obstructed by a blind spot due to the presence of the mast on the right forward side must be rejected. The accident happened on the cabin side of the forklift. I am not satisfied that there was any blind spot that obstructed Mr Enosa's view on the journey he took towards the Plaintiff. This is consistent with Mr Sammut's evidence who had experience with the forklift in question. To the contrary, Mr Enosa failed to exercise a proper lookout and did not sound his horn whilst driving in circumstances where the Plaintiff would have been observable whether in a crouched position or standing.
16. The Plaintiff's evidence that he was struck on the right shoulder, that he then he fell on the left side and his right leg was caught in the forklift as marked on Exhibit B at 19. The right shoulder being the first point of contact was not in issue between the parties. It is consistent with what the Plaintiff described in his claim form being that he was pushed and his right leg was subsequently run over. Where precisely the alignment of the right shoulder was relative to the right leg was not apparent however the Plaintiff's evidence, which I accept, was that he did not move his left leg. I am satisfied that Mr Enosa was unaware that he struck the Plaintiff until after the collision. Nor did he give any evidence of sighting Mr Sammut who was nearby. Mr Sammut gave evidence of seeing the striking by the front of the forklift. It appears to me that the Plaintiff was in the best position to feel the impact and see what had occurred, and I accept his evidence in this regard.

Liability

1. It is not in issue that this was a motor accident [144] and by reason of s 151E(2) of the Workers Compensation Act 1987 (NSW) (the 1987 Act), s 3A of the Motor Accidents Compensation Act 1999 (NSW) (the 1999 Act), s 3B(2)(a) of the 2002 Act applies. Consequently, Divisions 1-4 and 8 of Part 1A of the 2002 Act applies to the proceedings.
2. The Defendant conceded that being vicariously liable for the actions of Mr Enosa, it owed a duty of care to the Plaintiff in the driving of a forklift.
3. For the purposes of s 5B(1) of the 2002 Act, the risk of harm was the risk of being struck by a forklift whilst carrying out warehouse duties. Pursuant to s 5 B(1)(a) and (b), I am satisfied that the risk was foreseeable and not insignificant. The Defendant did not contend otherwise. The precaution identified by the Plaintiff was for Mr Enosa to keep a proper lookout and in embarking on a journey, to have regard to the presence of people present in the area he was proposing to travel. In such circumstances the probability of harm if care were not taken was high and the likely seriousness of the harm was also significant. The burden of taking the precautions to avoid the risk was low. The social utility was the driving a forklift for commercial purposes. Taking all these matter into account, I am satisfied that a reasonable person in Mr Enosa's position would have taken the identified precautions and breach of duty has been established.
4. Within the terms of s 5D(1) of the 2002 Act, I am satisfied that the negligence of Mr Enosa was a necessary condition of the harm and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused.

Contributory Negligence

1. In Ghunaim, McColl JA stated (with Giles and Ipp JJA agreeing) at [61]-[68]:- "[61] The notion of "thoughtlessness" referred to in Bourke v Butterfield is also expressed in synonyms such as temporary inadvertence to danger, lapse of attention, taking of a risk, carelessness by an employee due to confusion, fatigue or natural slackening of attention or preoccupation in what he or she is doing. In Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 176, [62] Lord Wright, speaking of the degree of want of care which constitutes contributory negligence, said '[t]he jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins'; see also John Summers & Sons Ltd v Frost [1955] AC 740 at 777.62 Lord Wright's metaphorical reference to drawing the line should not obscure the fact that the question whether an employee has been guilty of contributory negligence is one of degree. The authorities upon which the appellant relies are useful illustrations of how the court should approach the task of distinguishing between thoughtlessness and negligence. [63] The fact that there is no clear demarcation between an act done without reasonable care for one's own safety and an inadvertent, thoughtless act was emphasised in Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ. Referring to a submission on behalf of the respondent (plaintiff) that he had merely acted thoughtlessly or inadvertently and not negligently and that in those circumstances a finding of contributory negligence should not be made, the majority said (at 33): "An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration of the tribunal of fact." [64] Windeyer J set the matter in context, saying (at 36-37): "A safe system of work is one that is safe for the 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.... 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." [65] In Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, Jacobs J emphasised that it was not sufficient for an employer seeking to establish that an employee was guilty of contributory negligence merely to demonstrate that the employee knew the task at hand was "highly dangerous." In such circumstances, the employer had to establish that the employee also knew that what he did, even though highly dangerous, "was not required of him in the performance of his duty." Murphy J said (at 420) in a passage upon which the appellant relied: "Judicial mitigation of the harshness of the contributory negligence rule in its application to injured workers is illustrated by statements such as those in Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238. Mr Justice Herron said, after referring to a number of authorities: "The result of those pronouncements is that a mistake made by a workman will not usually be a good defence to an action if it was due to inadvertence, hurry, absorption in work or fatigue" (at p 249). In Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 Lords Atkin and Wright, adopting Mr Justice Lawrence's words, stressed that, in considering this question: "... `the tribunal of fact has to take into account all the circumstances of work in a factory and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence'" (at p 214). Even more so, it is not for every risky thing that a worker may do in his unfamiliarity with the work that he ought to be held guilty of contributory negligence. Contributory negligence by an employee is not to be determined on the same basis as negligence. Carelessness by an employee due to confusion, fatigue, or natural slackening of attention or preoccupation in what he is doing need not, and ordinarily should not, be regarded as contributory negligence (see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722). (Emphasis in original) [66] Commissioner for Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563 emphasises the necessity, in considering contributory negligence, to pay careful regard to the nature of the work the employee was undertaking in order to assess the significance of the employee's conduct. Gibbs J (with whom Stephen J agreed) observed (at 568) that "in deciding whether the [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man's preoccupation with the matter in hand". Mason J pointed out (at 572) that "... the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence." [67] Murphy J (at 576 - 577) emphasised the risk to which preoccupation with the task at hand exposed the employee, saying: "Employees often become so absorbed in their work that they are inattentive to their own safety. Momentary carelessness is not likely to be prevented or diminished by rules like contributory negligence or even by safety codes (statutory or otherwise) ..." [68] In Murphy J's view (at 577 - 578) before an employee could be found guilty of contributory negligence, there must be "wilful misconduct", having regard to "the cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or preoccupation in what he is doing, is not to be regarded as contributory negligence (see Halley's Case; Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238, at p 249; Flower v Ebbw Vale Steel, Iron & Coal Co Ltd [1936] AC 206, at p 214; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152). It is not enough to show mere knowledge of the risk; the onus is on the employer to prove that the employee knew and fully appreciated the danger at the time and yet went on to incur it."
2. Ghunaim was a case involving consideration of s 151N of the 1987 Act. Although s 138(1) of the 1999 Act parallels s 151N(1) of the 1987 Act, the enacted law in relation to the later does not include the 2002 Act provisions earlier referred to.
3. Pollard v Bauderstone Hornibrook Engineering Pty Ltd [145] was a case involving contracted worker under the 2002 Act. In the context of discussing the question posed by s 5R of the 2002 Act, McColl JA stated (with Mason P and Beazely JA agreeing):- [16] The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 (at [30]) per Gleeson CJ, McHugh, Gummow and Hayne JJ." (emphasis added)
4. More recently in Williams v Metcash Trading Ltd, [146] White JA (with whom Meagher JA and Meagher JJA agreed) considered s 5R of the 2002 Act in the context of a case involving a work injury to a contracted worker stating at [77]:- ….. a finding that a plaintiff was or was not contributorily negligent is a finding of fact. Insofar as the cases cited establish a principle, it is that a plaintiff is not guilty of contributory negligence if his or her conduct amounts to mere inadvertence, thoughtlessness, inattention or misjudgment having regard to all the circumstances, including whether the employee had no real choice but to adopt an unsafe system of work (Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-4; Ghunaim v Bart at [82]-[83]; Boral Resources at [59]-[60]; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315; Pollard at [15]-[16]; J Blackwood & Son at [116]; Jurox at [86]).
5. I am satisfied that these principles apply in the instant case. Although the Plaintiff's case was brought on the basis of a casual act of negligence, its pleading as well as the case in contributory negligence, raised the employment context in which the accident occurred.
6. In this case, the Plaintiff was carrying out his duties for his employer in looking for an item in the warehouse. There was some immediacy attached to what he was doing, in circumstances where a request had been made by a customer, the fact that his previous attempt to locate the item was not successful and he was told the customer needed it now. He was focused on the task at hand, looking for an item amongst others and in the course of doing so, made an adjustment to his position to observe shelving higher up. It was an area frequented by staff looking for products on shelves. He had last seen the forklift in a parked position and I am satisfied that he was otherwise unaware of its presence up until it struck him. Consistent with the aforementioned authorities, I am satisfied that the Plaintiff's actions in failing to check his surroundings amount at most to an inadvertent thoughtless act.
7. The Defendant conceded that in circumstances of inadvertence the question of apportionment under section 5R would not arise. [147] Had it been relevant the approach referred to in Boral Bricks would no doubt be correct. It was followed in Gordon v Troung. [148] Although in Nominal Defendant v Ross [149] a different approach appears to have been taken, Boral was followed in T & X Company Pty Ltd v Chivas [150] and has since been adopted by the ACT Court of Appeal in Steen v Senton. [151] Whilst more recently in Boateng v Dharamdas [152] the Appellant submitted both Boral Bricks and Chivas were incorrectly decided, the Court of Appeal ultimately found that it was unnecessary to deal with such an issue in the context of that case.

Treating Doctors

1. Following the accident the Plaintiff was treated by ambulance who obtained a history that he had been dragged for 3 metres and was removed from under the forklift by a bystander. The ambulance notes recorded a traumatic partial amputation of the right lower leg. A formal tourniquet was applied to replace one put by a bystander. The Plaintiff was given ketamine it being observed that he was confused and agitated. [153]
2. The Plaintiff was thereafter taken to Liverpool Hospital whereby Dr Harris performed a through knee amputation it being assessed that the severed limb was not salvageable. Dr Harris described the injuries to the right lower limb as severe. He noted no other obvious injuries.
3. On arrival he observed extensive open wounds extending from the mid-thigh down to the foot. He observed extensive muscle damage between the knee and the ankle and when he released the tourniquet there was no significant bleeding.
4. Dr Harris reported that the Plaintiff was haemodynamically unstable with a very low blood pressure and extreme pallor likely due to blood loss at the scene. He had a rapid transfusion of blood and was taken immediately to the operating room for exploration of the leg and further resuscitation. He was reported to remain hypertensive in theatre but stabilised somewhat. The right lower limb was observed to have a complete degloving with multiple dislocations and multiple fractures of the foot and ankle. The tibia was broken in its mid-shaft and open from the knee to the ankle. Given the extensive area of damage the limb was considered non-salvageable. The Plaintiff's wounds were cleaned and debrided and due to haemodynamic instability a through knee amputation was performed as this was able to be performed quickly and without significant blood loss or exposed muscle. [154]
5. Dr Harris recorded that there was a good haemostasis and the patella ligament was tied to the PCL [155] stump. The skin was debrided as were the remaining soft tissues, but there was insufficient skin to cover the stump adequately and the skin that was used was of doubtful viability. Dr Harris recorded that in order to extradite resuscitation, the wound was left open posteriorly but the distal end of the femur was covered. A VAC [156] dressing was applied and the patient was returned to theatre every 48 to 72 hours until the wound was clean enough to finally close an above knee amputation. [157]
6. The Liverpool Hospital discharge summary records treatment on 20 May 2016 by way of washout and debridement and VAC of the right thigh wound by Dr Raymond Chin. [158]
7. On 23 May 2016, the Plaintiff had a right above knee amputation performed. Dr Harris reports that this course was taken after discussion with plastic surgeons who felt that giving a formal above knee amputation with primary skin coverage would be better than trying to skin graft or flap over the Plaintiff's defects.
8. Dr Harris described that new flaps were made excising all skin edges and area of ischaemic skin. The deeper layers were also excised. The hamstrings were excised except for one medial hamstring and the adductors were excised except for adductor longus. These were sutured to the femoral stump at the end of the procedure. The femoral artery was double ligated. The sciatic nerve was cauterised and cut high and allowed to retract. The saphenous nerve was also isolated, cut high and cauterised. The femur was transected transversely 15 cm from the distal end. The vastus medialis was excised and the remaining quadriceps were sutured to the posterior fascia covering the adductor and hamstring myodesis which was performed using nylon sutures through drill holes. The skin was then noted to match reasonably well and this was closed with interrupted nylon sutures and staples. A pressure dressing was then applied and the Plaintiff was kept on intravenous antibiotics for 72 hours due to the high risk of infection. [159]
9. Post operatively, the discharge summary records that the Plaintiff made good progress with the physiotherapy and occupational therapy. He was then linked with an amputation rehabilitation team. He was discharged on 2 June 2016 to follow up with Dr Harris and his general practitioner. He was prescribed various medication including Ciprofloxacin, Targin, Pregabalin, Paracetamol, Coloxyl and Senna and Endone. [160]
10. Following discharge, the Plaintiff was seen by Dr Harris on 5 July and 27 September 2016. On 4 October 2016, Dr Harris opined that the prognosis for the Plaintiff was for him to be able to walk unaided with prosthesis. He expected the Plaintiff to have difficulty with any occupation that involved heavy work or prolonged standing and walking. [161]
11. The Plaintiff was seen by Mr Paul Bowron and Mr Scott Foster, physiotherapists from South Western Sydney Local Health District, for prosthetic gait training and rehabilitation between 4 October 2016 and 25 January 2017. [162] As at the later date, the Plaintiff was noted to be independently mobile with the genium meridian prosthetic system. He was noted to be able to mobilise indoors and outdoors greater than 500 metres and was able to independently traverse a flight of stairs with a rail and a walking stick as well as being able to get on and off the floor. At that point his impairments were recorded as:- …reduced lower limb strength and muscle imbalance, reduced cardiovascular endurance, reduced balance, reduced mobility, reduced walking speed, altered circulation, limb shortening and impaired with weight shift and transmission. He has ongoing impairment of phantom sensations, reduced sensation and proprioception and increased energy costs for functional mobility. [163]
12. The Plaintiff was seen by Dr Harris again on 13 November 2018. He observed that he had been coping very well with his prosthesis and has been back at work for some time. He reported some intermittent pain, which on examination Dr Harris noted was localised to a hard bony lump just behind the end of the femur. He recorded that the x-rays showed a large heterotopic spur behind the distal end of the stump which corresponded with the palpable injury. He also noted that the ultrasound showed some fluid collection around the stump but he did not consider this to be productive of symptoms. Dr Harris thereafter arranged for the bone spur to be excised at Liverpool Hospital in December 2018. [164]
13. On 9 January 2019 the Plaintiff was reviewed by Dr Harris who noted that the procedure went well and the wound healed well. Sutures were removed and it was recommended that he try and fit his old prosthesis again over the next few weeks to "see how it goes". [165]
14. On 26 February 2019, the Plaintiff saw Dr Harris again and reported being happy with the result. The swelling and pain had subsided and he was now able to wear his normal prosthesis and walk around quite well. The wound was noted to be clean and dry and there was no recurrence of the lump such that he was discharged from Dr Harris' care. [166]
15. On 17 July 2019, the Plaintiff had an MRI performed on referral from his general practitioner Dr Ross McKay with a history of chronic lower back pain with gait disturbance. Dr Rahul Rustogi reported multilevel mild disc disease and L5/S1 mild to moderate posterior disc disease with a broad-based disc bulge together with facet arthrodesis causing mild to moderate right foraminal stenosis which may abut/impinge the right L5 nerve. [167]
16. On 31 October 2019, Dr Richard Parkinson reported on the Plaintiff on referral from Dr Mackay. He recorded the Plaintiff presenting with dysaethesia phantom pain travelling into the amputated right foot which was intermittent and also pain in the left leg on sitting down which radiates mainly into the left trochanteric region, anterolateral shin and dorsal foot in an L5 tyope distribution. Dr Parkinson reported that the Plaintiff did not stand for long periods and rated his pain as 7/10 on a visual analogue. On review of the MRI scan of the lumbosacral spine he stated he did not completely agree with the report. On the left hand side he noted some foraminal stenosis at L5/S1 and to a lesser degree at L4/5 which may be affecting the L5 nerve root. He suspected that the Plaintiff's pain was predominately due to foraminal stenosis at L5/S1 due to the change in gait. Dr Parkinson opined that the Plaintiff required a comprehensive pain management programme and a repeat MRI of the lumbosacral spine and stump. [168]
17. On 11 December 2019 Dr James Yu, consultant anaesthetist and interventional specialist, reported on the Plaintiff following referral from Dr Parkinson. In view of persistent right phantom leg pain, left leg radicular pain and lower back pain with psychological issues, and physical deconditioning, he recommended an intensive and integrated multidisciplinary pain management consisting of intensive medical, pain psychology and physiotherapy treatment in an integrated pain management approach. He also booked the Plaintiff in for a right L4 and L5 DRG pulsed radiofrequency to address his right phantom limb pain and also his left L4/5 and L5/S1 transformational block for his left leg radicular pain. In the meantime he replaced Lyrica with Gabapentin and increased the dosage of Endep for his neuropathic pain. [169]

Dr Min Fee Lai

1. On 21 March 2017 the Plaintiff saw Dr Min Fee Lai, a General Surgeon who also practices in plastic and reconstructive surgery. In a report of the same day, [170] Dr Lai recorded that the Plaintiff was now attending physiotherapy with rehabilitation three times a week for an hour each time. He was learning to strengthen his right lower limb amputation stump strength as well as walking with his new above knee prosthesis. He recorded that the Plaintiff was getting around mostly in a wheelchair although in the house he walked with sticks. He could walk for up to 80m before getting tired. He still experienced 'minor' phantom pains thirty times a day but with no nocturnal symptoms. The pain lasted for a few seconds and felt like electric shocks.
2. Dr Lai observed that the Plaintiff had a positive mindset and aimed to get back to restricted light duties like clerical duties at his place of employment by mid-April 2018. So far as the scarring on the posterior thigh, he observed that this was transverse in direction and ragged with multiple folds in appearance. The Plaintiff, however, was recorded as being not too fussed as it was well hidden when the prosthesis is fitted. [171]
3. Overall Dr Lai found a 49% whole body impairment which included scarring. [172]

Dr Stephen Buckley

1. The Plaintiff saw Dr Stephen Buckley, Consultant Physician in Rehabilitation Medicine at the request of his solicitors on 17 June 2019. He reported on 8 August 2019 as being a physician managing acute trauma patients (brain and orthopaedic injuries). [173]
2. Dr Buckley recorded that the Plaintiff complained that the stump of his amputation becomes sore and the edge of the socket presses in causing pain in his groin particularly when it sits. His left leg tires easily when he is walking and he is gaining weight which he believes is partly due to Lyrica medication which he is taking for the phantom pain in the missing leg and foot. The phantom pain is just medial to the prosthetic foot as a dull ache with a slightly prickly feeling. There is also a phantom pain of sudden shocks of pain in the missing big toe or alternatively the arch of the foot which it feels as though "a bunch of needles" is being stuck in. This occurs 25 to 30 times a day but lasting on each occasion only seconds. Lyrica reduces this however, when attempting to cease this, the pain is much worse. [174]
3. Dr Buckley recorded that the Plaintiff was mainly independent in personal care, although requires assistance getting into and out of the shower as well as drying himself. He requires assistance in donning his underpants and his left leg shoe and sock. He used to share household chores but avoids them because of his impaired mobility. He noted that the Plaintiff used to do the outdoor chores such as mowing and gardening but has ceased these chores.
4. So far as the Plaintiff's capacity for work is concerned, Dr Buckley opined that the Plaintiff has demonstrated a capacity to return to work in a warehouse but not accessing the factory floor. He further stated the use of the artificial limb places great restriction on seated work because the edge of the socket digs into the groin and in his opinion it is unlikely that he will be able to continue working in any capacity beyond the age of 60 years. [175]

Associate Professor Michael Robertson

1. At the request of his solicitors, the Plaintiff saw Associate Professor Michael Robertson, Consultant Psychiatrist, on 24 February 2020 who reported the same day. [176]
2. A/Prof Robertson noted that the Plaintiff quantified neuropathic pain on a severity scale of 7-9/10. He recorded a combination of phantom pain experienced in an ache and lancinating pain of the foot with occasional calf cramps. Consequently, the Plaintiff and his wife have had to modify their vehicles to left foot accelerator and braking. He also requires assistance with showering.
3. A/Prof Robertson recorded that the Plaintiff was aggrieved at his 30 kg weight gain which has also destabilised his back pain. The Plaintiff reported that he plays golf less frequently and is restricted in his previous pastime of gardening. His various physical and lifting restrictions are a source of frustration with his employment.
4. A/Prof Robertson noted that the Plaintiff reported that he experiences frustration in response to his pain and its associated limitations and at times is irritable and at odds with his wife. It was reported that the Plaintiff has a sense of diminished self-worth, variable levels of motivation, at times felt guilty about his limitations and has a propensity to anxiety, particularly in unfamiliar areas, uneven ground or on public transport for fear of falling. He further reported variable levels of capacity for enjoyment and interest in activities. Whilst he denied post-traumatic stress disorder, he acknowledged that he had suffered some panic episodes with more severe manifestations of pain.
5. Overall, A/Prof Robertson found that the Plaintiff described symptoms consistent with adjustment disorder with anxiety and depressed mood. He described the Plaintiff as having a masked presentation beneath which he is psychologically disturbed. A/Prof Robertson opined that psychological therapy through a multidisciplinary framework would be the best initial approach to managing the Plaintiff's adjustment disorder. Whilst he did not consider that there were psychiatric restrictions affecting his preinjury activities such as golf, he observed some anxiety in unfamiliar areas arising from fear of falling. Overall he opined that the Plaintiff had a guarded prognosis. However, if he could achieve a better measure of control over his pain and benefit from his psychological therapy there was a reasonable prognosis for restitution.

Professor Bruce Brew

1. The Plaintiff saw Professor Bruce Brew Consultant Physician and Neurologist on 3 March 2020. In a report dated 29 March 2020 [177] he recorded that the Plaintiff experiences pain in the right leg which has been present ever since the amputation. The pain is an aching type pain intermixed with needle-like pains that mostly occur in the phantom foot. He recorded that the needle like pain occurred approximately 40 times a day lasting seconds. On average, the pain is 5/10 but when severe can be 9/10. This pain is independent of activity. It was noted that the Plaintiff benefited from Lyrica but it was complicated by weight gain. More recently he derived benefit from Gabapentin and Endep.
2. Professor Brew also noted that the Plaintiff described pain in the lower back and left leg in a L5 distribution. This was particularly difficult when he sits for periods longer than an hour. Whilst noting the pain management treatment recommended by Dr Yu, pain specialist, the phantom limb pain had not significantly changed. The left leg pain was approximately 4/10, occurring every few weeks and related to activity.
3. Professor Brew recorded that the Plaintiff experienced difficulty with activities of daily living. This includes showering and dressing, limited walking to no more than 250m, and not managing steps or a ladder. He noted the Plaintiff can do some gardening but not mowing. Since the accident, he has put on some 30kg of weight and developed sleep apnoea and hypertension.
4. Professor Brew accepted a direct relationship with the accident leading to phantom limb pain and secondary issues including L4/5 radicular pain on the left, weight gain, hypertension and obstructive sleep apnoea. He considered the ongoing back pain with radiation to the left leg to be related to the accident as a consequence of mechanical strain on the back through the above knee amputation on the right causing him to favour the left leg. He considered the condition stabilised and the phantom pain permanent. He could not determine the prognosis for the L4/5 radicular pain. He hoped weight reduction could assist or possibly correct the hypertension and the sleep apnoea.

Defendant's Medico Legal

1. At the request of the Defendant's solicitors, the Plaintiff saw Dr Roger Pillemer Orthopaedic Surgeon on 12 September 2019 and he reported the same day. [178] Dr Pillemer stated that the Plaintiff's main concern was phantom pains that get severe and last for 2 seconds approximately 30 to 40 times a day. He recorded the Plaintiff telling him that it feels like acupuncture in the arch of the foot and these symptoms go as high as 7-9/10. [179] Dr Pillemer observed that it might be worthwhile for the Plaintiff to see a pain specialist to see if there was anything that could be done in addition for the phantom pain. [180]
2. So far as activities of daily living were concerned, it was recorded that his maximum walking distance was 200 to 300 metres and then he would have to rest. He has difficulties with stairs and navigates them one at a time. He uses a trolley when shopping. Otherwise it was noted that he still plays golf but does little by way of house work and requires some assistance with personal care.
3. The Plaintiff also reported intermittent discomfort from the prosthesis itself but otherwise being well. On examination Dr Pillemer found no obvious discomfort, the Plaintiff walked with a limp on the right side and uses a stick in the right hand. He observed a well healed stump and a good range of right hip movement. [181]
4. Dr Pillemer noted that the Plaintiff was back to fulltime work doing normal duties and saw no reason this could not continue. Whilst he observed that the Plaintiff's work was not physically stressful and he was able to cope. Any restrictions were a direct result of the injury. [182]
5. In a supplementary report dated 2 March 2020 [183] Dr Pillemer noted the comments of Dr Buckley that the Plaintiff would be unlikely to be able to work in any capacity after 60. Dr Pillemer opined that he did not feel any reason why the Plaintiff could not continue in his normal job after the age of 60 years and that the most significant factor in considering whether he would be able to work would be motivational. Nevertheless noting the ongoing symptoms and difficulty with mobilisation he stated that if the Plaintiff elected to stop working at the age of 60 this would be very reasonable although not due to physical reasons.

Plaintiff's Evidence

1. The Plaintiff gave evidence that he met his future wife Linda through working at the Commonwealth Bank in 1981 and in 1990 moved in to live with her parents in Punchbowl. He married in 1992 and continued to reside with his wife's parents until 1994 when he moved to his present address in Camden, South. This was a four bedroom house with two bathrooms, living room, dining room, lounge room and kitchen. The property had significant grounds both front and back. [184]
2. The Plaintiff gave evidence that he started playing golf at age 10 or 11 before becoming a member of Marrickville Golf Club at age 14. He played there from 1976 to 1992 including playing representative golf in a number of teams. [185] He had some success in golf reducing his handicap, winning pennants and a couple of championships. His playing diminished following his marriage, but he stated that he got back into it in 1997 joining Campbelltown Golf Club for a couple of years before joining Antill Park at Picton in 1999. [186] Up until the accident he stated that he played every Saturday and occasionally on Sunday and mid-week. [187] The Plaintiff described that he derived a great deal of pleasure from playing golf deriving some success. [188]
3. The Plaintiff's wife accompanied him occasionally at golf. Apart from golf, the Plaintiff described how they had travelled together on holiday both domestically and in Hawaii and New Zealand. [189] The Plaintiff and his wife also had an interest in horse racing, particularly harness racing. Apart from local meetings they would align holidays to coincide with race meetings and golf. [190]
4. Following the accident, the Plaintiff described that after the surgery he had wound care and learnt to walk on a walker. [191] When he returned home he found it extremely difficult getting around and coming to terms with what lay ahead. He learnt to get around in a wheel chair and his pain was contained through pain killers. [192] His sleep however was disturbed. [193] He was confused as to what lay ahead but said he was accepting of his circumstances. [194] The Plaintiff gave evidence that he tended to spend his time in the front area of the house sitting, watching television and seeing visitors. [195]
5. In September/October 2016, the Plaintiff described that he had to learn to walk with an interim socket, knee and foot prosthesis. For six weeks he gave evidence of attending Camden Hospital for physiotherapy every morning. [196] The Plaintiff gave evidence of some adjustments, however, his socket broke in early February whilst in Melbourne, resulting in him returning to Sydney and receiving what he described as a "proper" socket and "own" knee and foot. [197]
6. The Plaintiff described that in December 2016 he attended a rehab on road driving assessment and learnt to drive a modified vehicle with his left foot. [198]
7. The Plaintiff stated that in preparation for his return to work he wore his prosthesis that he could gradually build it up over time and become more comfortable. He stated that initially it was very uncomfortable to sit on, however, that situation has improved with experience. [199] Up until he returned to work the Plaintiff described himself as still dependent on his wife to a large extent for personal care. [200]
8. In May 2017 the Plaintiff said he returned to playing golf following the accident on the days he was not working. He manoeuvred using the aid of sticks and making adjustments on his swing on account of his disability. Whereas he previously had had a handicap of 2 he returned on a handicap of 14 which is now at 11. Following a hernia operation at the end of 2019 and other unrelated reasons, he has only played two games in 2020. [201]
9. The Plaintiff also described having resuming travel with his wife principally to visit his parents at Northhaven. He described sharing the driving, although previously he would have driven entirely. [202] He described his wife as assisting him when they were there in the same way she would when at home. He had also been on business trips to New Zealand, Brisbane and Melbourne having assistance arranged through work, his wife and also the airport particularly with luggage. [203]
10. The Plaintiff stated that in the 3 months leading to December 2019 he experienced pain due to a spur which was causing pain and discomfort 20 times a day. It was operated on 19 December 2019. Post-surgery he stated that he was probably able to attend to toileting himself [204] but still required assistance with showering. [205]
11. Since the accident, the Plaintiff stated that despite a relationship of over 40 years with his wife, he was now unable to share intimacy with her, a matter which has caused him disappointment and frustration, and a sense of being less of a man. [206]
12. Apart from one fall at work, he described having around five or six falls outside. He described that the cause of these falls was due to him assuming that he still had his leg. [207]
13. Apart from his right leg, the Plaintiff described experiencing back pain twice a week when sitting too long for which he occasionally took Voltaren. He also experienced shooting left leg pain which he attributed to sitting for any length of time. [208] He described some improvement following a procedure recently undertaken at Waratah Private Hospital that he understood was similar to a cortisone injection. [209]
14. The Plaintiff stated that his biggest issue at the moment was tiredness he experienced from about 3pm onwards. [210]
15. He has also experienced phantom pains since the amputation, where he believes his original leg is still there. [211] He described the phantom existence as being there the whole time but the pain component was there 30 or 40 times a day involving a sensation in the arch of the foot where it was like sticking a number of needles. He said it lasted for 2 or 3 seconds and was sometimes excruciating. [212] He further gave evidence affirming the description of the pain recorded by Professor Brew. [213]

Non-Economic Loss

1. The Plaintiff has suffered a serious injury requiring above knee amputation to his right leg. He has required multiple operative procedures as detailed above and has undergone significant rehabilitation which involved the fitting of prosthesis and learning to walk with it. He carries significant disfigurement and scarring. I accept that wearing the prosthesis has created some discomfort and pain particularly in the groin when sitting. After experiencing some discomfort he had a further operative procedure to remove a spur in December 2019. I accept that the injury has affected his work and home activities as well as his leisure. I accept that the injury has affected his sleep and his ability for intimacy.
2. His ability to attend to most household tasks and in his capacity for personal care is restricted in the way outlined above. Although he has been able to return to drive, he has required a modified vehicle and more rest breaks on longer trips. I accept that he continues to experience phantom pains and tiredness. I accept that he experiences pain in his low back and left leg emanating from altered gait. I also accept that his back and left leg discomfort have contributed to a gain in weight and associated hypertension and sleep apnoea.
3. The evidence indicates that the Plaintiff has on occasion had difficulties with his balance and this has led to a small number of falls. Although the Plaintiff and his wife share a close relationship, the increased burden now placed on Mrs Ellis since that the accident has impacted on that relationship. Despite that, the Plaintiff has shown a remarkable resilience returning to work now on full duties and many of his leisure pursuits. Nevertheless, I accept the evidence of A/Prof Robertson who found that the Plaintiff described symptoms consistent with adjustment disorder with anxiety and depressed mood.
4. The Plaintiff's schedule has claimed non-economic loss in the sum of has claimed $500,000. In oral submissions the Plaintiff submitted an amount certainly in the order of $450,000 was appropriate.
5. The Defendant's schedule asserts that non-economic loss should be $226,000.
6. Pursuant to s 134 of the 1999 Act, the maximum amount the Court can award for non-economic loss is $565,000. [214] Unlike s 16 of the 2002 Act, the 1999 Act does not state that the maximum amount payable is reserved for the "most extreme case." Accordingly common law principles are to be applied in determining the award of damages for non-economic loss subject to the statutory cap. [215]
7. The Plaintiff has suffered a significant injury as earlier described. I have borne in mind his age of 54 at the time of the injury. Despite a commendable recovery, the accident will nevertheless have a lasting and significant impact on him. I would award $350,000.

Plaintiff's Evidence

1. The Plaintiff was born in August 1962 and is 58 years of age. He was born with no sight in his left eye consequent to a hereditary condition that led him to have a number of operations. According to his evidence he has no sight in his left eye. [216] After completing school to year 10 he left school in 1978.
2. Between 1978 and 1998 he worked at the Commonwealth Bank, working his way from customer service work, personal assistant to a general manager of a department, purchasing officer and manager of the purchasing area for the last 12 months. [217] From 1999 he worked with Sands Print Group as an account manager for 18 months before returning to the Commonwealth Bank as a category manager in 2000. [218] He gave evidence that in 2002 he was headhunted to work for Moore Australasia as senior account manager. He worked there for 9 years in a role that included management and allocating workloads to staff, coordination of Tabcorp venue orders and purchasing of outsourced products from preferred suppliers. [219] In 2011, Moore Australasia was put under voluntary administration and the Plaintiff's employment came to an end. In 2012, he worked for Dataroll in a homebased role looking after key accounts on the eastern seaboard for an employer based in Western Australia. [220]
3. In September 2014 the Plaintiff said he was made redundant. [221] In cross-examination, however, the Plaintiff conceded after being referred to his tax returns, that he must have left Dataroll sometime in late 2013 meaning that for the whole of 2014 he was out of work. [222] Between being made redundant and 13 April 2015 the Plaintiff said he applied for jobs without success. [223] During that period he described the printing industry as being in a diabolical position and it was very hard to obtain a decent position. [224] In cross-examination he stated that most often when unsuccessful he was advised that there was a more experienced applicant. He said he applied for approximately 150 jobs and had 20 interviews. [225]
4. The Plaintiff described that through a friend he applied and obtained a job with the Defendant doing warehouse logistics. In cross-examination he referred to it as a warehouse operations clerk. [226] He described his role as collating orders, taking it to the warehouse ready for it to be picked up and entering it in the computer system and inventory management. [227] The Plaintiff stated that he took the job as it was a job, although he expressed some hope for a more senior positon. Whilst there he became involved in the setup of a new computer system for the business. The Plaintiff stated that his intentions were to stay there for a short period and to continue to apply for other positions predominately in the "printing industry or like industry". [228] In cross-examination he stated that he made 12 applications and obtained five interviews for roles as an account manager in the printing industry but was unsuccessful. [229]
5. In general the Plaintiff described his position with the Defendant as a significant step backwards. The Plaintiff stated that initially there wasn't a whole lot of job satisfaction although he did enjoy setting up the computer system from October 2015. At this point he stopped applying for other positions working instead on the implementation of the new computer system. [230]
6. The Plaintiff returned to work following that accident on 3 April 2017 working 4 hours a day for 3 days a week on restricted duties. [231] That was increased to 6 hours a day for 3 days a week from 4 June 2017. [232] From 4 August 2017 the Plaintiff worked 8 hours a day for 4 days on restricted duties before progressing to 5 days from 12 April 2018. The Plaintiff was unfit for work from 19 December 2018 to 7 March 2019, during which period he was operated on in respect of the spur. On 11 March 2019 the Plaintiff returned to work 8 hours a day for 3 days a week. [233] He said it was the same job and there was no warehouse component just office and paperwork. [234] On 11 April 2019 he upgraded to 5 days a week working from 9am to 5pm. [235]
7. When he first returned to work, he stated that he was able to drive and had a spot right in front of the factory. He stated that he needed sticks to get out of the car and walk to the front door. Initially, his major difficulty was sitting as the socket of the prosthesis would push into the groin and became very uncomfortable. [236] He described some impact of his concentration and memory at this time. [237] He had a difficulty balancing at the early stages and experienced a fall at work. Apart from the discomfort, he also had an initial apprehension in dealing with staff who had witnessed the accident, but otherwise did not experience psychological issues. [238]
8. When the Plaintiff returned to work full time in April 2019, he conceded that he was performing just about all his old job. [239] From July/August 2019, the Plaintiff conceded wearing a steel capped boot thereafter enabling him to access the warehouse floor in the course of his duties. [240]
9. At work he has a desk that is adjustable. He stated that his work involved getting up and sitting down, moving short distances and consequently he had no fluidity. He stated it would be better if he could walk for 5 minutes than getting up and down. [241]
10. The Plaintiff described that he had always planned to retire at 60 years of age. He referred to a number of factors that were different both before and after the accident. One of the main factors was that he was never going to retire if that meant moving away whilst his father in law was alive. He stated that he passed on in January 2019. [242] Another factor was that he wasn't going to move whilst his dog was alive however he acknowledged that she had now died. Other factors were the state of the property market to facilitate the sale of his house and the state of his superannuation. [243] So far as the latter is concerned he stated that he though thought his superannuation was reasonably okay, that you never really know whether "you have enough". He identified it as a factor to encourage him to get a higher position and continue working. [244] Finally the Plaintiff stated that his and his wife's grand intention was to move to be close to his parents on the mid north coast as they were getting older and need a bit of help. [245]
11. The Plaintiff stated that his intentions now would be to retire fairly soon, as it was becoming more difficult every day to carry his leg around and his weight has increased significantly because of medications and his lack of activity such that he did not feel he could go another two years let alone past 60 years. [246] One difficulty he described at work was balancing in the toilet. He stated that he sought to go to the toilet at home because of the difficulties at work.
12. In cross-examination the Plaintiff stated that his preconditions for retiring at age 60 were not things that were independent of the accident. He rejected the suggestion that he always intended to resign at the age of 60. [247]
13. Further in cross-examination it was put to the Plaintiff that he could if he wanted to work beyond the age of 60 doing account management work from home. He stated it would be highly unlikely and that he would not do it from home. He conceded being physically able to work from home but asserted that there was a difference between wanting to and able to.
14. In cross-examination the Plaintiff also gave evidence that between October 2016 and October 2017 he was a voluntary director of Antill Park Golf Club at Picton. He stated that he performed director's duties including things like examining mathematical records, including profit and loss accounts. He conceded organising golfing contests that involved reviewing bookkeeping records and documents. He also stated that he had involvement in the publication of annual or quarterly reports of the club for its members and attending board meeting. [248]

Vocational Capacity Centre

1. Tendered on behalf of the Defendant were reports from Vocational Capacity Centre. [249]
2. The accompanying Functional Capacity Evaluation Summary Report completed by Ms Stewart on 26 August 2019 stated that the Plaintiff was suited to the selected tasks in his current role adding:- The results of this assessment identified ongoing dysfunction as a result of the injuries Mr Ellis sustained in the subject accident. He demonstrated the ability to perform unrestricted sedentary work with occasional light tasks performed at optimal height with his right hand only. He should continue to use a walking aid in the left hand until his gait has improved. He demonstrated the ability to perform selected tasks in his pre-injury role but the manual handling on the floor is not appropriate. He is suited to occupations he has performed in the past such as Accounts Manager. As well, he is suited to a range of occupations within the sedentary classifications on a full-time basis. [250]
3. The Vocational Report finalised on 27 August 2019 by John Raue, Vocational Psychologist observed:- Cognitive tests show that Mr Ellis has strong intelligence. In particular his abstract or logical planning skills are very strong as are his mathematic skills. His literacy skills are somewhat lower but are still well into the average range. His cognitive profile and his work experience suggest he has capability for work far more demanding that the work he is doing currently and it seems that this had only come about as a fill-in. Since the accident however it does seem to give him some security to remain connected with the job and people he is familiar with rather than seeking more demanding work at this stage. He does seem genuinely anxious about stretching himself at the present time. It does seem that he is still adjusting to the impact of his injuries from a psychological perspective. It also seems physically that he is still not certain that there will not be setbacks in terms of pain or difficulty with prosthetic devices and the like which might impact on his ability to focus his energies reliably on a new job. He does have the capacity for more advanced logistics or account management type work however. Over time it would seem in his interest to move into something a bit more demanding as that may also assist him focus his attention outwards whereas doing work which is less than his actual capacity may add to his sense of loss rather than being able to focus on what he has to offer in a more positive aspect. That is not to underestimate the severity of his injuries and the impact of the accident and the fact that it is likely to continue to have an ongoing daily impact in terms of making almost all everyday tasks something that requires more physical and cognitive effort than would be the case without the injury. Nevertheless, Mr Ellis is an intelligent man, with strong transferable work skills and sound work experience. If he does not remain with his current employer, a range of options would seem open to him but he does need to be at a stage where he can present himself energetically and positively to potential employers to achieve this. Some counselling support while he goes through what may be an anxiety provoking and frustrating period seeking other work options may be of some assistance. [251]
4. Against a number of specific options proposed by Mr Raue, gross pay rates for these positions were provided in a Job Match Report prepared by Mr Raue and Ms Stewart dated 29 August 2019. [252] They were:- [253] Position Award [254] (gross) Market in Age Group 45+ (gross) Warehouse/Order Clerk $999.50 $1191.00 Sales Representative (Business Services) $865.40 $1,857.00 Warehouse Administrator $995.50 $1,424.00 Despatching and Receiving Clerk $995.50 $1,403.00 Purchasing Officer $995.50 $1,430.00 Office Manager N/A $1,357.00

1. On 2 September 2019 Ms Liz Atteya, Mental Health Social Worker, completed a Labour Market Analysis Report. [255] Her analysis concluded that the potential for the Plaintiff to secure work in the listed job options in his local labour market was above average. [256]

Past Economic Loss

1. The Plaintiff's claim for past economic loss acknowledges that he has been paid his pre-accident wage since the accident and seeks repayment of his annual leave and sick leave entitlements quantified as being in the order of $15,000. During submissions, I was informed counsel for the Plaintiff that there was no evidence of the extent (if any) that the Plaintiff used his sick leave and annual leave outside of the payments made to him by and on behalf of the Defendant. [257] The Defendant's counsel did not elaborate in this regard.
2. There is evidence that the Plaintiff did in fact take holidays after returning to work and had some time off due to what appears to be an unrelated hernia operation in December 2019.
3. During submissions the Plaintiff's counsel contended that the Plaintiff would have been entitled to a buffer for the loss of opportunity to earn significantly more than what he was earning in another position outside of the Defendant. No claim in this regard was particularised in the past either in the Plaintiff's filed Statement of Particulars or Schedule of Damages. Indeed no claim for any past economic loss was particularised in the Statement of Particulars.
4. In the circumstances I would make no allowance in this regard. Similarly no claim was advanced for past loss of superannuation.

Submissions

1. The Plaintiff's Statement of Particulars asserted that it would be unlikely the Plaintiff would be able to continue work in any capacity beyond the age of 60 years. The Statement of Particulars referenced this to working in sales which it is said would have increased his salary by $15,000 to $20,000 extra per year, at $350 per week. The Plaintiff's Statement of Particulars sought $350 per week to the age of 60 and thereafter sought $980 net per week based on an inability to work beyond that age. Beyond the age of 60 it is asserted that he would have lost $980 per week net to age 70. These claims are reiterated in the Plaintiff's Schedule of Damages.
2. Despite the claims based on weekly amounts during submissions, the Plaintiff claimed that some allowance by way of buffer for the loss of chance would be appropriate based on what I interpret is to s 126(2) of the 1999 Act. Attention was drawn to the contents of the Vocational Assessment Report prepared by Mr Raue which were said to identify a capability for more demanding work than that he is performing, assuming he was physically capable and mentally capable and sufficiently motivated by reason of everything he has been through. It pointed out that that the positions identified indicated that he would be able to get employment at a higher rate.
3. The Defendant drew attention to the Plaintiff's previous unemployment from late 2013 to 15 April 2015 and his inability despite active efforts to obtain another higher paid position until October 2015 when he stopped looking some 7 months before the accident. The Defendant submitted that the Plaintiff made multiple attempts to obtain a position as a sales person or accounts manager but without success such that the Court would find that the Plaintiff accepted that his position was not temporary and that he lost the opportunity to obtain another position.
4. The Defendant submitted that the Plaintiff was accommodated by his employer and no evidence has been adduced that his employment was under threat because of his incapacity. It pointed out that he is able to wear steel capped boots and since July/August 2019 was able to go onto the warehouse floor and do in effect his pre-injury job.

Consideration

1. In embarking upon the assessment of damages for future economic loss, I am required to apply the provisions of s 126 of the 1999 Act.
2. The task required was described in Nominal Defendant v Livaja [258] as follows:- 39 The assessment of future economic loss involves a hypothetical calculation, with the need to balance a number of variables: see the recent discussion in Amoud v Al Batat [2009] NSWCA 333 at [22]-[28]. One purpose of s 126 is to require a structured approach to such a calculation. Subsection (1) is expressed in terms which emphasise the need for the plaintiff to satisfy the Court as to certain "assumptions" in respect of future earning capacity. The Court must only act upon such assumptions as are established to its satisfaction on the balance of probabilities. Those assumptions must accord with the plaintiff's "most likely future circumstances" on the basis that the injury for which he or she seeks compensation had not occurred. There is nothing obscure about the nature of the findings so required: they must be sufficient to establish a baseline of earning capacity, extending into the future, from which diminution caused by the injury may be calculated: see State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [83]-[84] (Beazley JA, Allsop P and Macfarlan JA agreeing). Further, the assumptions must be stated and there is authority for the proposition that failure to do so would render the judgment invalid: sub-s (3); Zahra v Brown [2006] NSWCA 162 at [71] (Beazley JA, Santow JA agreeing). 40 The purpose of sub-s (2) is less clear. There is a missing step between sub-ss (1) and (2). An essential part of the calculation is the assessment of the consequences for the claimant's earning capacity as a result of the injury. Subsection (2) requires adjustment of the amount of damages "by reference to the percentage possibility" that "the events concerned might have occurred but for the injury". Reference in sub-s (2) to "those assumptions" must be a reference to the assumptions about future earning capacity, absent the injury, referred to in sub-s (1). Subsection (1) refers to both assumptions and "other events": it might appear that the reference in sub-s (2) to "the events concerned" was intended to mirror the reference in sub-s (1) to "other events", although the language is somewhat obscure. 41 The assumptions or events upon which a baseline may commonly be calculated include: (a) identification of the skills, training and experience of the plaintiff, as at the date of the accident; (b) the work he or she was undertaking immediately prior to the accident; (c) the likelihood that he or she would have continued in such employment, but for the accident; (d) the possibility that he or she might have obtained promotion or other benefits, but for the accident; (e) the age to which he or she was likely to have worked in that employment, and (f) the possibility that the employment would not have been continuous. 42 Each of these factors is liable to variation, depending upon the circumstances of the case. For example, the likelihood of improved earning capacity for a skilled or professional person, who was at the beginning of a career when the accident occurred, may be high. The possibility of unemployment for periods may be low in some occupations and higher in others. It is common under the general law to allow a reduction in the order of 15% (depending on the circumstances) for "vicissitudes", to allow for the possibility that some event other than the injury would have adversely affected earning capacity. Assuming that length and continuity of employment are treated as "events concerned", for the purposes of sub-s (2), that provision may be seen as allowing for variation for such vicissitudes.
3. The Plaintiff is working in the same position as the one he occupied prior to the accident.
4. Whilst the Plaintiff gave evidence that he did not believe he would be able to continue any work in the future to age 60, no submission was advanced on this basis. Beyond that, the evidence of Dr Pillemer, Ms Stewart and to some extent Dr Buckley satisfy me that the Plaintiff would be likely be able to continue working to that age.
5. The Plaintiff gave evidence that he had always intended to retire at age 60 years subject to some preconditions, some of which have been met as earlier discussed. The Plaintiff also expressed a desire to move to Northhaven to be closer to his aged parents in order to be of assistance to them. He also stated that his intention was also subject to sufficient superannuation and market conditions for the sale of his house. So far as the former is concerned his evidence was that his superannuation was reasonable. Overall, I am satisfied that assessing future loss retirement at age 60 accords with his most likely future circumstance but for the injury. I accept, however, that that likelihood has increased consequent to the accident and some adjustment should be made for the possibility that that may not have occurred and that he may have retired later. Whilst I have noted Dr Pillemer's view that any decision to retire at 60 would not be due to physical reasons, he acknowledges the effect of ongoing symptoms and difficulty with mobilisation would make a decision to retire at that age reasonable. Overall I would accept Dr Buckely's evidence that the Plaintiff would not be able to continue working after 60 in any capacity.
6. I have noted the statements by Mr Raue referred to earlier as to the Plaintiff skill and capacity. The attributes there referred to are still possessed by the Plaintiff. The question is whether the Plaintiff would, but for the accident, have sought to have realised that additional working capacity.
7. I accept the thrust of the Defendant's position that there was a level of acceptance by the Plaintiff of his employment with the Defendant at the time of the accident. He had made numerous applications both prior to and subsequent to commencing employment with the Defendant without success and stopped applying some 7 months prior to the accident. The position that he obtained with the Defendant was sourced through his own network after a period of unemployment. Whilst I am satisfied that it is most likely that the Plaintiff would have remained in his present role but for his injury, some allowance should be made for the possibility that he may have at some point obtained a higher paying positon before retirement.
8. That aside, the evidence is that his employer has been most accommodating of his circumstances. I accept that there is no identified threat to his position, although were that to change he would suffer the consequences of diminished earning capacity consequent to the accident
9. In my view the difference between the economic benefits of the Plaintiff's future earning capacity but for the injury cannot be determined other than through broad approach of a buffer. [259] I would allow $55,000.

Past Domestic Care

1. The Plaintiff gave evidence that prior to the accident he would go to play golf on Saturdays and his wife would do the washing. On Saturday afternoons or Sundays they would share the household cleaning and vacuuming. His wife would do the cooking but he would sometimes assist. Otherwise he would attend to setting, packing and washing up. He would attend to the outdoor maintenance including mowing and raking.
2. Following the accident the Plaintiff stated his wife would attend to all household tasks including his personal care and attendance at appointments. With time his capacity to provide some personal care improved. [260] Outside maintenance work was contracted to Jim's Mowing. [261]
3. Following returning to work in April 2017, the Plaintiff stated he was still dependent on his wife for most of his personal care, although he was able to dress the upper part of his body and put on his prosthesis. [262] From April 2017 to April 2018, the Plaintiff said that his need for assistance with toileting dropped off but he still required some assistance with showering. [263] The Plaintiff stated that his wife attended to internal tasks except washing which were attended by his father in law. [264] The Plaintiff described that from 2019 his wife undertook all the internal household tasks herself as her father died in early that year. [265]
4. The Plaintiff's evidence in this regard was supported by his wife Linda.
5. A report was also prepared at the request of the Plaintiff's solicitors by Ms Marie Lucas dated 20 June 2019 and it was relied upon to support the Plaintiff's claim as reasonable and necessary. [266]
6. Past care was quantified as at that date at $125,836.98. [267]
7. The Defendant did not dispute Ms Lucas's calculations for past domestic care as amounting to what was reasonable and necessary. It was not suggested that the hours since 20 June 2019 are dissimilar. There will be some adjustment of the rate from 20 June 2019, as it should be $32.19. As essentially the parties are in agreement as to this head of damage it is appropriate to leave the final calculations to the parties. [268]

Future Domestic Care

1. A claim for the future has been advanced base on Ms Lucas' report in the sum of $686.78 per week until age 70. This comes to a figure of $325,465.04 using the 5% multiplier (473.9).
2. From age 70 on a sum of $906.48 per week for 16 years thereafter (based on a remaining life expectancy at that point according to the 2020 life tables) utilising the 5% multiplier (579.5) deferred for 12 years using 5% multiplier (0.557), the Plaintiff claims $292,594.97.
3. The Defendant did not dispute the Plaintiff's calculation but allowed for a period of only 12 years and asserted that a reduction of 15% was appropriate for vicissitudes. This was resisted by the Plaintiff.
4. The 16 years life expectancy claimed by the Plaintiff appears to be based on the expectancy at age 70 years whereas at the Plaintiff present age of 58 the expectancy is 26.79 leaving 14.79 years after 12 years.
5. In the circumstances I propose to adopt a life expectancy at 70 of 14.79 years rounded to 15 years. On this basis using the 5% multiplier (555) and deferring for 12 years using 5% discount rate (0.557) the calculation would be $280,225.69. Otherwise the Defendant's submission as to a deduction for vicissitudes is contrary to authority and is to be rejected. [269]
6. Accordingly I would allow the sum of $605,690.74 for future domestic care.

Future Rehabilitation and Equipment Needs as per Ms Lucas' report

1. The Plaintiff described that his current residence had some minimal modifications since the accident, comprising a couple of handrails, a ramp leading to the bathroom, handrails in the bathroom and toilet and rubber ramps wither side of the shower. [270] The residence had previously had some modifications to accommodate the Plaintiff's late father-in-law when he resided there. [271]
2. The Plaintiff stated that upon retirement to the mid-north coast he would likely buy a property and would have it modified to meet his needs, particularly as to the bathroom. [272]
3. Since November last year he sees his general practitioner every three months to get a work certificate.
4. The Plaintiff described that he had two prostheses; one for wet activities and a standard one. His standard one is not waterproof and it suffices to play golf in. He is not overly confident of the waterproof one as it involves a different way of walking however he uses it on occasions to shower and for water activities. [273]
5. He stated he had a standard wheelchair at home but does not know its lifespan. [274]
6. Based on Ms Lucas' report [275] I would allow the following for future Rehabilitation and Equipment needs:- 1. Rehabilitation once-off (occupational therapy and exercise physiology) (once off): $9600 2. Rehabilitation ongoing (occupational therapy and exercise physiology) at $59.45 per week (multiplier 783) [276] : $46,549.35 3. Equipment to age 70 (manual wheelchair with pressure cushion, air comfort recliner, wheeled shower commode, and crutches, pick up frames and single point stick) at $83.62 per week for 12 years (using 5% multiplier of 473.9): $39,627.52. 4. Equipment from age 70 (manual wheelchair with pressure cushion and smart drive, air comfort recliner chair, wheeled shower commode, crutches, pick up frames and single point stick, clothing, mobility scooter and tailgate for scooter) at $135.40 per week for 15 years (555 multiplier) deferred for 12 years (0.557): $41,856.88
7. Subject to the amount in (4) being based on a 15 year life expectancy from 70 as earlier explained, I have accepted the Plaintiff's calculations.
8. The Defendant's Schedule appeared to conflate before and after 70 equipment claim into a single figure for 12 years and sought a 15% reduction for vicissitudes. Similarly, it conceded an amount of $67.14 for future rehabilitation needs for 12 years seeking a 15% reduction for vicissitudes. How these figures were composed was not explained. As in the case of future domestic assistance, the submission in respect of vicissitudes I regard as contrary to authority and would make no deduction.
9. The Plaintiff's claim of $40,000 for bathroom modifications and front and rear access modifications was based on the Plaintiff's evidence of moving to Northhaven to reside nearby to his aged parents and buying a house that may require modifications. It is not in issue that his current residence has already been modified and no additional modification is necessary. In my view this sum is not reasonable and necessary. The Plaintiff already has suitable accommodation and any desire to move, assuming it is realised, is unrelated to his injuries.
10. In all the Plaintiff's claim based on Ms Lucas' report comes to $137,633.75.

Past Out of Pocket Expenses

1. The Plaintiff's past out of pocket expenses have been paid by the Defendant's Workers' Compensation Insurer. In addition, the Plaintiff sought to claim a Medicare Notice of Charge in the sum of $1,264.55 and what it claims as a private health fund reimbursement of $4,988.78.
2. The Defendant's Schedule acknowledges an amount of $563,872.06. It is not apparent whether this incorporates the additional claims which the Plaintiff asserts are owing.
3. It is not clear that all the private health fund reimbursement claim relates to the subject accident. The parties should endeavour to reach agreement on these amounts in advance of judgment being formally entered.

Future Out of Pocket Expenses

1. Since the trial of this matter and pending judgment, the Plaintiff has reached the age of 58 years such that his life expectancy is now 26.79 years, which I would round to 27 years.
2. Subject to that matter the parties' schedules as to calculations are largely in agreement, based on an acceptance of Dr Buckley's report dated 8 August 2019, the report of Mr David Howells, Senior Prosthetist, from APC Prosthetics dated 22 May 2019 and A/Prof Robertson's report dated 24 February 2020.
3. There were two areas of disagreement
4. The Plaintiff sought replacement provision of what it described were three artificial legs [277] by way of a standard walking prosthesis, although only two were identified.
5. The Plaintiff has claimed the cost of a standard walking prosthesis every six years. The Defendant's schedule proposed that the Plaintiff's claim for the standard walking prosthesis be reduced by a third, [278] although in written submissions this was clarified as a reduction by two thirds. The only cited explanation was that the Plaintiff's main hobby was golf that he is able to play using the one main dual purpose prosthesis. As I understand the report from APC the cost on which the Plaintiff's claim is constructed is for the everyday prosthesis and the waterproof/recreational prosthesis is a second prosthesis. In these circumstances I see no basis to otherwise reduce the Plaintiff's claim on this account.
6. So far as the claim for the waterproof/recreational prosthesis, the Plaintiff claimed the replacement cost every three years The Defendant claimed that this should be reduced by half as there was no evidence that the Plaintiff swam regularly before the accident or did any other water activities. On this basis it proposed that the claim be reduced to half. I would accept this submission.
7. The second area of disagreement concerns future medications. The Plaintiff claimed $25,000. The Defendant asserted that there was no evidence and the claim should be reduced to $10,000. The Plaintiff gave evidence of taking Gabapentin and Atacand in the mornings and Endep and Atacand at night. [279]
8. I propose to allow a buffer of $16,000 broadly based on $20 per week for 27 years.
9. Again I would make no reductions for vicissitudes in respect of any of the aforementioned amounts for reasons earlier stated.
10. The parties should calculate the future out of pocket expenses in accordance with these reasons.

SUMMARY

1. Accordingly the damages proposed to be awarded will be as follows:- Head of Damage Amount Non-economic loss $350,000.00 Economic loss $55,000.00 Past Domestic Care To be calculated by the parties Future Domestic Care $605,690.74 Future Rehabilitation and Equipment Needs $137,633.75 Past Out of Pocket To be calculated by the parties Future Out of Pocket To be calculated by the parties

ORDERS

1. I make the following orders:- 1. There will be a verdict and judgment in favour of the Plaintiff in an amount to be calculated. 2. I defer entry of final orders to enable the parties to confer, check my calculations and advise of any outstanding figures, with a view to presenting proposed consent orders that accord with this judgment and any agreement as to costs within 14 days. 3. Parties have liberty to lodge with my Associate in Chambers any agreed Consent Order. 4. In the event of any disagreement, the parties are to approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days.

Endnotes

1. T 40.18-.34.
2. T 51.15-.18.
3. T 51.15-.23.
4. T 51.01-.32.
5. T 51.43-52.01, depicted in Exhibit A1 at 329.
6. T 52.15-.28; T 53.30-.47.
7. T 54.01-.06.
8. T 54.32-55.03.
9. T 55.09-.45.
10. T 56.25-.29.
11. T 56.34-57.22.
12. T 57.47-58.01.
13. T 113.05-.09.
14. T 113.15-.19.
15. T 113.24-.30.
16. T 113.35-114.29. See also Exhibit A1 at 345.
17. T 114.40-.42.
18. T 115.17-.38.
19. T 116.15-.27.
20. T 116.37-.39.
21. T 116.41-117.13.
22. T 118.31-119.08.
23. T 119.14-.30.
24. T 119.32-.35.
25. T 120.27-.40.
26. T 120.50-121.34.
27. T 122.15-.24.
28. T 122.26-.34.
29. T 123.05-.15.
30. T 123.17-.38.
31. T 123.40-.44.
32. T 123.46-124.09.
33. T 128.21-.26.
34. T 128.28-.30.
35. T 128.32-.35.
36. T 127.31-128.01.
37. T 126.05-.09.
38. T 128.37-.42.
39. T 109.46-110.16.
40. T 108.02-.09.
41. T 108.11-.20.
42. Exhibit A1 at 482-491.
43. Exhibit A1 at 488.
44. T 157.44-158.03.
45. T 158.21-.38.
46. T 158.40-.46.
47. T 158.48-.159.05.
48. T 159.07-.44.
49. T 159.25-.28.
50. T 160.01-.11.
51. T 160.21-.22.
52. T 160.38-.41.
53. T 160.45-.47.
54. T 160.48-.50.
55. T 161.01-.04.
56. T 161.06-.13; T 172.44-173.11.
57. T 161.15-.19.
58. T 170.07-.17.
59. T 166.05-.11.
60. T 163.28-.35.
61. T 164.02-.04.
62. T 163.37-.50
63. T 163.8-.9
64. T 178.39-179.02.
65. T 179.09-.37.
66. T 179.39-.44.
67. T 179.15-180.14.
68. T 180.16-.29.
69. T 180.36-.41.
70. T 180.36-181.16.
71. T 181.26-.27.
72. T 182.39-.41.
73. T 181.22-183-.07.
74. T 182.39-.41.
75. T 184.01-.02.
76. T 184.07-.11.
77. T 184.13-.14.
78. T 184.25-.30.
79. T 183.09-185.09.
80. T 185.30-.34.
81. T 189.16-.19.
82. T 190.15-.21.
83. T 191.07-.19.
84. T 191.45-.48.
85. T 192.40-.42.
86. T 193.01-.20.
87. T 194.48-.50.
88. T 195.25-.27.
89. T 196.01-.06.
90. T 196.44-.46.
91. T 197.15-.26.
92. T 198.41-.47.
93. T 198.49-199.02.
94. T 199.10-.15.
95. T 203.23-.32.
96. T 199.28-201.08.
97. T 201.27-202.03; T 202.30-.50.
98. T 201.39-.41.
99. T 203.12-.15.
100. Exhibit A1 at 320-2.
101. T 1.40-.45.
102. Exhibit A1 at 321, [10].
103. Exhibit A1 at 321, [11].
104. Exhibit A1 at 321, [12].
105. Exhibit A1 at 382-7.
106. Exhibit A1 at 383-4.
107. [2014] NSWCA 139 at [64] (Boral Bricks), citing Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234 at [40]. It should be noted that McColl JA was in the dissent.
108. (1984) 155 CLR 306 (McLean).
109. [2004] NSWCA 28 (Ghunaim).
110. T 240.30-241.13.
111. T 241.23-.35.
112. T 241.37-242.02.
113. T 242.10-.16.
114. T 242.14-.16.
115. T 242.18-.36.
116. T 242.38-.243.09.
117. T 243.11-244.01.
118. T 244.01-.04.
119. T 247.15-.23.
120. T 247.47-248.12.
121. T 251.42-.45.
122. T 253.10-.18.
123. T 220.26-.31.
124. T 221.29-.36.
125. T 222.30-.32.
126. T 223.15-.16.
127. T 223.45-.50.
128. T 221.05-.36.
129. T 231.15-.26.
130. T 222.25-.30.
131. T 233.16-.19.
132. T 236.08-.18.
133. T 257.06-.10.
134. T 236.11-.18.
135. T 214.31-.35.
136. T 221.43.
137. T 165.08-.44.
138. See T 187.27-.36; T 195.25-.45; T 202.39-.50.
139. T 111.20-.22.
140. T 191.13-.15.
141. Exhibit A1 at 321 [10].
142. T 160.43-161.04.
143. T 218.17-.22.
144. T 28.11-.17.
145. [2008] NSWCA 99.
146. [2019] NSWCA 94.
147. T 257.06-.23.
148. [2014] NSWCA 97.
149. [2014] NSWCA 212.
150. (2014) 67 MVR 297; [2014] NSWCA 235 at [52] (Basten JA, with whom Barrett JA agreed).
151. (2015) 73 MVR 336; [2015] ACTCA 57 at [26]-[38].
152. [2016] NSWCA 183 at [122]-[124].
153. Exhibit A1 at 86.
154. Exhibit A1 at 95.
155. Posterior Cruciate Ligament.
156. Vacuum Assisted Closure.
157. Exhibit A1 at 92.
158. Exhibit A1 at 88.
159. Exhibit A1 at 96.
160. Exhibit A1 at 88.
161. Exhibit A1 at 104.
162. Exhibit A1 at 106.
163. Exhibit A1 at 107.
164. Exhibit A1 at 119.
165. Exhibit A1 at 120.
166. Exhibit A1 at 121.
167. Exhibit A1 at 124.
168. Exhibit A1 at 126-7.
169. Exhibit A1 at 129.
170. Exhibit A1 at 108.
171. Exhibit A1 at 110.
172. Exhibit A1 at 112.
173. Exhibit A1 at 130.
174. Exhibit A1 at 133.
175. Exhibit A1 at 138.
176. Exhibit A1 at 181.
177. Exhibit A1 at 190.
178. Exhibit A1 at 220.
179. Exhibit A1 at 221.
180. Exhibit A1 at 224.
181. Exhibit A1 at 222.
182. Exhibit A1 at 223.
183. Exhibit A1 at 218.
184. T 44.09-45.34.
185. T 48.20-.25.
186. T 48.26-.37.
187. T 48.42-49.-01.
188. T 49.03-.25.
189. T 49.46-50.08.
190. T 50.13-.36.
191. T 60.38-.45.
192. T 61.05-.24.
193. T 61.26-.33.
194. T 61.35-.41.
195. T 63.38-.44.
196. T 67.27-.40.
197. T 68.05-.11.
198. T 68.29-69.21.
199. T 69.45-70.30.
200. T 69.26-.37.
201. T 80.19-81.20.
202. T 81.31-.42.
203. T 82.10-.19.
204. T 78.30-.33.
205. T 78.35-.37.
206. T 90.41-91.02.
207. T 84.44-85.10.
208. T 91.32-.41.
209. T 91.43-92.09.
210. T 79.25-.32.
211. T 75.45-76.09.
212. T 76.29-.35.
213. T 85.12-.27.
214. As varied by reg 4 of the Motor Accidents Compensation (Determination of Loss) Order 2009 (NSW), which was marked as MFI 2.
215. Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 at [33]-[39]; Darke v El Debal; El Debal v Network Welding Pty Ltd (In Liq) ;el Debal v Kari and Ghossayn Pty Ltd [2006] NSWCA 86 at [67]: Brown v Lewis [2006] NSWCA 87; 65 NSWLR 587 at [21] per Mason P (with Santow and McColl JJA agreeing.
216. T 33.18-.48.
217. T 35.07-.12.
218. T 36.08-.33.
219. T 36.39-37.14.
220. T 38.33-.45.
221. T 39.33-.35.
222. T 98.05-99.05.
223. T 99.17-.100.24.
224. T 39.40-.46.
225. T 100.01-.05; T 101.18-.23.
226. T 103.02-.05.
227. T 40.18-.35.
228. T 41.29-.30.
229. T 103.15-.49.
230. T 42.16-.21.
231. T 73.39-.42.
232. Exhibit A1 at 393.
233. Exhibit A1 at 394; T 79.37-.40.
234. T 79.42-.45.
235. Exhibit A1 at 394; T 79.47-80.08.
236. Exhibit A1 at 394; T 75.03-.15.
237. T 75.46-.47.
238. T 75.17-.24.
239. T 130.13-131.05.
240. T 129.06-.32.
241. T 84.13-.26.
242. T 41.35-42.05.
243. T 90.27-.45.
244. T 42.07-.14.
245. T 87.46-88.05.
246. T 838-24.
247. T 130.41-131.41.
248. T 95.08-.50.
249. Exhibit A1 at 224A-247Z.
250. Exhibit A1 at 234.
251. Exhibit A1 at 246.
252. Exhibit A1 at 247A.
253. Exhibit A1 at 247A-247D.
254. Referring to the Clerks - Private Sector Award 2010 (Cth).
255. Exhibit A1 at 247H.
256. Exhibit A1 at 247N.
257. T 255.10-.19.
258. [2011] NSWCA 121 (Basten JA, Campbell JA and Rothman J).
259. Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84] (McColl JA with whom Mason P and Beazley JA agreed).
260. T 63.16-.36, 64.32-.38, 65.04-.66.09, 69.26-.37.
261. T 66.15-.22.
262. T 69.26-.37.
263. T 78.08-.22.
264. T 77.28-.39.
265. T 80.10-.17.
266. Exhibit A1 at 145-80.
267. Exhibit A1 at 147.
268. See T 254.46-255.01.
269. Bresatz v Przibilla 108 CLR 541 at 546 (Windeyer J with whose reasons McTiernan J agreed) and Sharman v Evans (1977) 138 CLR 563 at 587 (per Gibbs and Stephen JJ).
270. T 87.21-.41.
271. T 64.45-.47.
272. T 88.07-.20.
273. T 86.39-87.07.
274. T 87.09-.19.
275. Exhibit A1 at 175-6.
276. Based on life expectancy of 26.79 years, rounded to 27 years.
277. See Second Amended Statement of Particulars at D, 4(b).
278. Exhibit A1 at 398.
279. T 85.29-.34. 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: 05 November 2020