Evans v Ausgrid

The legal issue 29The argument stems from the following provisions of the MACA: "3 Definitions "motor accident" means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control. "use" or "operation" of a motor vehicle includes: (a) the maintenance or parking of the vehicle, or (b) in the case of a motor vehicle that is not a trailer-the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or (c) in the case of a motor vehicle that is a tow truck-the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck." "3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control." 30At this stage I think it appropriate to refer to the following passages from two decisions of the NSW Court of Appeal. 31In Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257 McColl JA said: "39 Section 3A of the MAC Act is the "governing provision for the application of the [MAC] Act (apart from Part 1.2) to a claim for damages by a person injured in a motor accident": Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36 ("Axiak") (at [60]) per Tobias AJA (Beazley JA and Sackville AJA agreeing) (application for special leave to appeal refused: Ingram v Axiak [2013] HCATrans 64). 40 Both parties accepted that Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ("Allianz") was the seminal authority for determining the question whether the appellant's injuries were caused in a manner which fell within s 3A of the MAC Act. This was even though Allianz concerned the question whether an employee's back injury fell within the definition of "injury" in s 3(1)(a)(iv) ("such use or operation by a defect in the vehicle") of the Motor Accidents Act 1988 (NSW) (the "MAA Act"). Allianz was discussed in Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 ("GLG") which also concerned s 3(1) of the MAA Act and to which I refer in more detail below. Tobias AJA held in Whitehead (at [41]), that the definition of "injury" in the MAA Act considered in GLG was relevantly identical with s 3A of the MAC Act. That is also the case for present purposes. While there are some differences between the language of the provisions considered in Allianz and GLG, they are not presently material." 32In TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149 Basten JA said: "26 As explained in the joint judgment of Gummow, Hayne and Heydon JJ in Allianz, in relation to the second part of the definition, "the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances": at [102]. Nevertheless, there is no bright line to be drawn between a cause which is predominant and immediate, rather than one which is "more removed". Similarly, it does not follow that, because one can characterize a fault in terms which appear to be detached from and antecedent to the actual use or operation of the vehicle, the definition is not engaged. For example, where an employer allows a heavy vehicle to be used in the course of the business and injury is caused by the driver losing control of the vehicle, it is appropriate to characterise the fault of the owner as permitting the use of the vehicle by a driver without proper training and thus a fault "in the use or operation of the vehicle". This conclusion is not undermined because the fault can also be characterized as the failure to provide training, which appears to be removed from the use or operation of the vehicle. 27 Where a negligently loaded vehicle loses part of its load on a highway, causing injury to the occupants of a following vehicle, the injury will fall within the scope of the Motor Accidents Compensation Act, not because the manner of driving was negligent, but because the negligent loading operation fell within the phrase "fault ... in the use or operation of the vehicle". 28 In Zurich Australian, the plaintiff was injured when lifting a ramp which was part of a trailer attached to a truck, without mechanical aids. Spigelman CJ addressed the submission as to why the injury fell outside the Motor Accidents Compensation Act, at [29]: "The first submission was, essentially, one of characterisation. The Appellant submitted that the injury was not caused "in the use and operation of" the trailer. The injury was caused by an unsafe system of work or in the design of the trailer. Nothing in the language used, or the scope, purpose or operation of the Act, suggests that a dual characterisation of 'fault' is impermissible. The definition applies so long as the fault may be characterised in the way set out within it. It matters not that some other characterisation may also be appropriate."" 33The first issue to be decided is whether the accident was a motor accident. I think it plain that the accident occurred during the driving of the tow truck. The next question is whether the injury to the plaintiff was caused by the fault of the second defendant in driving the vehicle. This is the major area of contention. 34The third defendant says the accident was caused by a defective system of work. I agree that the system of work was defective. That does not, of itself, entitle the third defendant to success. I think that this is a clear case in which the fault (assuming fault) is subject to a dual characterisation. 35There was an obvious lack of training in dealing with circumstances involving the pulling of ropes on uneven and undulating tracks. Equally the system should have required the operator of the winch truck to remain in the cage and for the freewheeling motion of the spools to be controlled by the dead man's pedal. 36The third defendant pointed to a number of examples of the failure of the work system. It described them, alternatively, as systems or training or hazard identification or safe work method failures. I agree with many of the assertions. However, the above descriptions do not necessarily exclude a separate, and more dominant, description. For example, it was said that the failure of the driver to warn the plaintiff that he was about to start off again was indicative of a defective system of work. It is also, and in my view overwhelmingly so, a failure to drive reasonably by not informing the plaintiff of a potentially dangerous driving manoeuvre that was about to occur. 37However, when one looks for the proximate cause of the accident, it is to be found in the driving of the tow truck in such a manner that caused the jerk to the winch truck and in turn the losing of balance by the plaintiff. When the second defendant came to the hill he knew he was in second gear, he knew the plaintiff was on the platform and he knew the surface on the hill was sandy and might lead to his vehicle being bogged. In addition, when he started to move after stopping his truck he knew of the plaintiff's location and he knew that extra power was required to continue up the hill. He must, assessed reasonably, have known that the extra power would be transmitted through the ropes and in turn have a possibly destabilising effect on the winch truck. It was his driving of the vehicle that caused the plaintiff to lose balance and then be injured. 38Turning now to whether he was at fault. As I have said above this requires consideration of Section 5B of the CLA. The risk of harm was injury to (in effect) a pedestrian situated on another vehicle attached to the second defendant's vehicle and which would be affected by movement of the tow truck. I think this risk was foreseeable in the same way as the driver of a breakdown vehicle would obviously foresee that the manner of his driving would affect any vehicle being towed. 39The first and second defendants submitted that the second defendant was "not required to know or predict every event that may happen to or near his vehicle so as to be able to immediately react to such events". He relied upon Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCS 396 at paragraph 36. I disagree with this submission noting two matters: (a)Mr Linich was not reacting immediately. He was deliberately moving his vehicle forward having brought it to a stop. (b)This passage in Marien is equally important: "Viewed prospectively, the probability of the appellant coming across a pedestrian using the roadway at that time in the early morning, and particularly one who was walking out from the kerb in the same direction as the oncoming traffic and with his back to it, would have been regarded as unlikely. Nevertheless it was one which could not be dismissed as never likely to happen, even at that early hour; and the driver must take account of the possibility of inadvertent and negligent conduct of a pedestrian." (Meagher JA at paragraph 41). 40The facts in Marien were obviously very different. The point of referring to the above passage is to illustrate the breadth of the test to be applied in judging foreseeability. 41The risk of harm was not insignificant having regard to the susceptibility of a person standing on a platform when that platform is forcefully jerked beneath his feet. 42A reasonable person in the position of the second defendant would have taken precautions to avert the risk. The possibility of harm occurring in the absence of precautions is I think obvious and the likely seriousness of harm is equally plain. If a person is caused to lose balance when standing above ground and in the vicinity of moving machinery there must be a likely seriousness of harm. 43I do not think there was any significant burden in taking precautions. The change down to first gear could have been performed before the hill. Even more simply, the second defendant could have signalled to the plaintiff that he was about to restart in circumstances when he would need extra power and therefore possibly cause a jerk on the winch truck. He need have done no more than call out to the plaintiff to get off the truck or at least take hold of the railing. 44I do not think Section 5B(2)(d) is applicable. 45This is an appropriate point at which to comment on the expert evidence that was tendered. The plaintiff relied on reports from Mr Jamieson (part of Exhibit E). The third defendant relied on a report of Mr Griffiths (Exhibit 3D3). Mr Jamieson was cross-examined. He made the point that the issues at stake were more decisions of common knowledge than expert analysis. I agree with him. I also agree with his observation that as an experienced driver the second defendant should have been able to pull away from his stopped position on the hill with a minimum effect (or jerk) on the winch truck. 46Mr Jamieson agreed that it would be difficult not to cause any jerk. The point however is not the fact of a jerk but rather the size of it. He also agreed that in travelling over uneven ground there would necessarily be some periods of slackening of the ropes. However, this does not excuse the second defendant's manner of starting off from the stop position causing the big jerk. As Mr Jamieson emphasised, this effect should have been avoided by a professional driver albeit with difficulty. If it was impossible the driver should have alerted the plaintiff to the possibility of the winch truck being destabilised. 47I think I have already dealt with causation but if it is necessary to specifically deal with Section 5D then I find that but for the actions of the second defendant in causing the "big jerk" to the winch truck the plaintiff would not have been put off balance and then injured. 48It follows that I find that the accident was a motor accident under the MACA and that fault has been established under the CLA.

Contributory negligence 49The fundamental allegation of contributory negligence is that the plaintiff stood on the platform, unsecured, while the ropes were being pulled out from his truck. To this must be added his knowledge that the tow truck was proceeding up a hill on uneven ground raising a reasonable possibility that it would encounter problems which might in turn lead to extra tightening of the ropes and consequent jerking of the winch truck. Taking into account his position near the spools he should have reasonably anticipated the possibility of the winch truck being jerked and his loss of balance. He could have stood on the ground or held onto the railing. 50The plaintiff submitted that there should be no contributory negligence because he was performing his employment in the manner he had been instructed and it was not for him to have taken steps outside of his instructions. While I agree with this proposition in general terms it does not take into account that, at the very least, the platform had a handrail which was part of the equipment provided to the plaintiff to perform his job. 51I think there was contributory negligence on the plaintiff's part because of the matters set out above. In the same way that the second defendant should have anticipated the effect of his driving on the winch truck the plaintiff should have recognised the possibility that the driving of the tow truck might have affected the stability of the platform upon which he was standing. 52The fact that he may not have been visible to the second defendant, for purposes of signals, if he was in the cage, is not significant because he would have been visible if he was on the ground. In any event, he could have remained on the platform but taken hold of the railing as the tow truck travelled over the uneven surface and up the hill. 53The plaintiff's negligence lies in his lack of consideration of the possibility of a destabilising jerk. It is not to the point that there was only a very short period of time between the reels stopping and the tow truck starting off again. The plaintiff was aware that the track was uneven and as a basic matter of caring for his own safety should have at least held on to the rail. To the extent that it was submitted that this failure was not particularised I think it falls within the overall submitted failure to stand on the platform. I note the plaintiff was specifically cross-examined about the railing (T 34.30). 54The second defendant's negligence lies primarily in his manner of driving up the hill and in particular in his application, without warning to the plaintiff, of extra force to get his vehicle going after it had stopped. His negligence must be seen as substantially greater than that of the plaintiff. On this basis I assess contributory negligence on the plaintiff's part at 15%.

Damages 55The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss (including lost superannuation benefits and 'Fox v Wood' damages), out of pocket expenses, future medical expenses and past and future domestic assistance. 56Ultimately the parties agreed on all but two heads of damage. These were non-economic loss and future economic loss. 57The plaintiff exceeds the 10% threshold necessary to receive non-economic loss under Section 131 of the MACA. The maximum amount that may be awarded is $492,000. 58The plaintiff submitted non-economic loss should be $425,000. The defendants suggested $325,000. The plaintiff is a relatively young man who has not only suffered the massive trauma of a below the knee amputation but will live with its effects for the rest of his life in practically every sphere of his life. That he has done remarkably well is not a basis for reducing his damages but rather for recognising the courage with which he has approached his disability. He suffers from phantom pains and no doubt the inconvenience and irritability associated with wearing a prosthesis. 59I think the parties' respective figures set the appropriate range of damages and I think it fair to award a sum that represents the midpoint between their assessments. Accordingly I award non-economic loss of $375,000. 60The plaintiff asked for $525,000 for future economic loss. This figure was arrived at by comparing the plaintiff's wages over a period of years since the accident with other similarly qualified employees. The defendants' figure was $243,102 ($372 net per week) which was produced by calculating the difference between the plaintiff's wages and Mr Pralica's wages over the last year. This approach was used in the light of the evidence about the diminishing amount of overtime that is currently available to Ausgrid workers. The plaintiff was also said to benefit from a reduced reduction of his salary sacrifice. All parties calculated the loss to age 67 and reduced it by 15%. 61My first task is to make findings in accordance with Section 126 of the MACA. I find that but for the accident the plaintiff would have continued working with Ausgrid or in similar employment to age 67 and would have been subject to the normal rate of vicissitudes of 15%. 62I think the defendants' approach is valid to the extent that it recognises the currently lower availability of overtime work. I think it is deficient in that it does not appropriately take into account that the plaintiff may well face periods of unemployment in the future when he will be at a significant disadvantage on the open labour market. As true as it is that his employer is large and loyal it must be recognised that Ausgrid may not remain a state run organisation and if sold, or partly sold, private enterprise might take a different approach to the continuing employment of the plaintiff. 63I also recognise, however, that the plaintiff's creditable history so far is likely to see him striving for and gaining employment even with obstacles including having to find a new employer. Balancing all of these considerations I think an allowance of $500 net per week to age 67 less 15% should be allowed. The calculation is: 768.7 x 500 x .85 = $326,697.50. 64The parties agreed that future lost superannuation benefits should be assessed at 13% of the net loss. This produces a figure of $42,470.67. 65A summary of the damages that I have allowed, or have been agreed, is as follows: Non-economic loss $375,000.00 Past economic loss (agreed) $100,000.00 Past lost superannuation benefits (agreed) $11,250.00 Future economic loss $326,697.50 Future lost superannuation benefits $42,470.67 Out of Pocket Expenses (agreed) $178,698.00 Future out of pocket expenses (agreed) $538,500.00 Future commercial care (agreed) $94,725.00 Fox v Wood (agreed) $11,000.00 Total $1,678,341.17

66The above total must be reduced in accordance with my finding of contributory negligence of 15%. The result is $1,426,590. 67I make the following orders: (1)Judgment for the plaintiff against the first and second defendants in the sum of $1,426,590. (2)Judgment for the first and second defendants on the cross-claim against the third defendant in the sum of $1,426,590. 68I will hear the parties on the appropriate costs orders.

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