Foster v Tolco Pty Limited

Supreme Court of NSW|2012-11-13|Before: Adamson J

Introduction 1By amended statement of claim, filed in court on 12 November 2012, Craig Foster (the plaintiff) claims damages against Tolco Pty Ltd (the defendant) in negligence for injuries to his shoulder and back allegedly sustained in an incident at work on 18 January 2008. 2The plaintiff was employed by Downer Engineering (Downer) as an electrical trades assistant on the Bluescope site at Port Kembla (the Site), where a liquid nitrogen plant was being installed. On 18 January 2008 he was using an elevated work platform (EWP) to lay cable dividers in trays which were attached to the wall at height. He was working with Mitchell Keepin, who was also in an EWP and doing the same task, but further along the wall from where the plaintiff was working. Mr Keepin was in an EWP owned by Downer. The plaintiff was working in an EWP owned by the defendant. 3Although the defendant and its employees had substantially left the Site before Christmas 2007, when the Site closed for about a fortnight, it left its EWP there and permitted its subcontractor, Prokote, to use its EWP to perform painting work. On 18 January 2008, the defendant's EWP was not being used by Prokote. The evidence does not establish that there was any contractual relationship between the defendant and Downer. There is no evidence that Downer was authorised to use the defendant's EWP. 4A Site Safety Management Plan dated 24 April 2007, which appears to be a draft document prepared by the defendant, makes provision, by clause 14, for reporting of injuries or accidents. Clause 25.1 provides that the Site Supervisor has obligations with respect to the safety of plant and equipment.

Duty owed by the defendant and application of the Civil Liability Act 5The Civil Liability Act 2002 (the Act) applies to the plaintiff's claim since it is a claim for damages for harm alleged to have resulted from the negligence of the defendant. 6Section 5B of the Act provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 7The relevant risk for the purposes of s 5B of the Act was that someone using the EWP might suffer injury if there was a defect in the machine which caused the basket to drop suddenly and without warning. The risk was foreseeable and not insignificant. The precautions which reasonable care would require be taken would include proper and timely maintenance in accordance with the manufacturer's requirements and adherence to relevant standards. 8In circumstances where it is reasonably foreseeable that a piece of machinery will be used on a site by others, the owner of the machinery owes a duty of care to persons working on the site who might reasonably be expected to use the machinery. The defendant owed a duty of care to the plaintiff in its capacity as the owner of the EWP. It was not responsible for any system of work, failures by the plaintiff's employer or failures by anyone else on site.

The mechanism of the incident 9The mechanism of the incident the subject of the proceedings is in issue. 10There were two persons present when the incident occurred: the plaintiff and his co-worker, Mr Keepin. The defendant also relied on circumstantial evidence to establish that the incident could not have occurred in the way the plaintiff said it did.

The plaintiff's evidence 11The plaintiff gave evidence that on 18 January 2008, he was working on an EWP at an altitude 1.5 m higher than the EWP being used by Mr Keepin. He said that, at about 1.30 pm -1.45 pm, having worked on the EWP since about 1.00 pm, the basket of his EWP suddenly went into "free fall" and fell some 1.5 m. Its descent was broken as it collided with Mr Keepin's EWP. 12Both Mr Keepin and the plaintiff gave evidence that after the collision, the plaintiff climbed into Mr Keepin's EWP, which was then lowered to the ground. The plaintiff then went to the ground-controls of his EWP and lowered it to the ground. 13The fault which had allegedly caused the EWP to "free fall" could not be replicated, either then or at any other time. 14The plaintiff's evidence was that prior to this incident, he had turned the engine of his EWP off because he was working with the dividers and wanted his EWP to be stationary while he was doing so. He said that his EWP had a dead man's pedal on the floor of the basket and that the machine could not be operated unless he stepped onto the pedal through an opening in the pedal cover and applied pressure. As referred to below, his counsel conceded in final submissions that the EWP that the plaintiff was using did not in fact have a dead man's pedal.

Mr Keepin's evidence 15Mr Keepin gave evidence that his EWP had initially been at the same height as the plaintiff's on 18 January 2008. Mr Keepin said that the engine of his own EWP was off at the time but that he was not sure whether the engine of the plaintiff's EWP was off. Mr Keepin had not seen the plaintiff move his EWP to a higher position than his or heard the noise of the defendant's EWP being switched on. The last time he saw the plaintiff, the plaintiff was operating the basket at the same level as his basket. He did not have a conversation with the plaintiff about what had happened until after he had disentangled his basket from the plaintiff's basket. 16Although Mr Keepin says that he assumed immediately that the plaintiff's basket had "free fallen" and had only come to rest when it had become entangled with his basket, I accept the defendant's submission that his subsequent conduct is inconsistent with any such assumption. Despite the risk that the plaintiff's EWP would continue to fall, Mr Keepin merely lowered his basket to the ground, although he thereby withdrew support from the plaintiff's EWP. Had Mr Keepin truly believed the basket had been in some "free fall" prior to lodging on Mr Keepin's basket, he would, in my view, have acted with greater circumspection. 17Mr Keepin said that his EWP had a dead man's pedal at the base of the basket but he was unsure whether the plaintiff's had such a device at the base of its basket. 18In contrast to the plaintiff, Mr Keepin had no particular interest in telling anything except that which he recalled. He bore neither animus or affection towards the plaintiff or the defendant. He made assumptions in favour of the plaintiff but this was borne of his understandable preference for accepting what he was told by a co-worker. His evidence, which was given in a straightforward way, was broadly consistent with a statement he had given on 29 January 2008. 19The differences between his oral evidence and the statement related to assumptions he had made in the plaintiff's favour: including that the engine of the EWP in which the plaintiff had been working had been turned off. Mr Keepin explained that he had assumed that the plaintiff's EWP was off because his own was, and because the machines did not need to be on while the work on the dividers was being done. He said that it was contrary to proper procedures to have the machine on when it was not required to be in motion. The following exchange shows the extent to which Mr Keepin gave the plaintiff the benefit of the doubt: "Q. You had no reason to think at the time, did you, Mr Keepin, that Craig's basket had, using your word, collapsed because you hadn't seen what had happened? A. Well, no, but given the distance that Craig and I were working apart, I wouldn't think he would have turned the control and crashed into me." 20The evidence did not resolve any question of what might have caused the plaintiff to elevate his EWP to a height 1.5 m above Mr Keepin's when they were working on the same cable tray, but I do not find that the plaintiff had no reason to elevate his EWP since this was not put to him. 21Mr Keepin did not consider either of them to be in any immediate danger after the baskets collided and observed that when he was in his basket, the basket of the plaintiff's EWP was stationary. I infer from this observation that any force that had operated on the basket of the plaintiff's EWP had ceased to be operative by this time. 22In his statement, which is dated 30 January 2008, the day after Mr Keepin's, the plaintiff estimated the height at which he was working to have been 16 m. He also referred to a distance of 1.5 m, but in the following context: "The bucket [basket] fell (approx) 1.5 ms down. The bucket came to rest on Mitch Keepin's EWP bucket." 23In this context, the plaintiff's statement is self-serving: if the basket of his EWP fell from a height, then the plaintiff could reasonably attribute blame to a fault in the EWP, which rendered the basket susceptible to the forces of gravity.

The plaintiff's credibility 24My assessment of the plaintiff is that he is unreliable. I do not accept the plaintiff's evidence except where it amounts to a statement against interest, is not seriously in dispute or where it is corroborated. I have formed this impression as a result of the following: (1)The plaintiff's confidence in giving evidence about particular facts which were later conceded to be wrong, or contrary to the evidence; (2)The difficulty, if not impossibility, of reconciling his version with objective facts and probabilities (addressed further below); (3)The genesis of the proceedings and admissions made by the plaintiff as to his motive for the proceedings; and (4)The disparity between the plaintiff as he presented in his examination in chief and how he appeared in still photographs and video surveillance when he was unaware that he was being observed. 25I am satisfied that the plaintiff gave the following evidence, which he later conceded either to be wrong, or contrary to other evidence. 26First, the EWP that he was using was blue. I do not regard this error as particularly material to the colour of the machine as evidence of colour is notoriously unreliable. 27Secondly, the plaintiff's senior counsel conceded in final address that, contrary to the plaintiff's own evidence, the defendant's EWP did not have a dead man's pedal. 28Thirdly, prior to the incident, the plaintiff had used the defendant's EWP many times for months, up to 30 hours a week, and that every time he used it he filled in the log book, which, as a ticketed operator, he was obliged to do. The logbook for the EWP shows a continuous record from 23 November 2007 until 17 January 2008. The first time the plaintiff signed the logbook was in respect of 18 January 2008. I do not accept that the plaintiff had ever used the defendant's EWP before 18 January 2008. I am not satisfied that the plaintiff filled in the logbook as he was required to do before he started to use the EWP on 18 January 2008. I do not accept his explanation for the gap between the entries up to and including 17 January 2008. However, nothing turns on this since it is accepted that the plaintiff was using the defendant's EWP on 18 January 2008. 29Fourthly, the plaintiff said that on the day before the incident he had been sharing the Downer EWP with Mr Keepin. Mr Keepin disagreed. I accept Mr Keepin's evidence. 30The other critical parts of the plaintiffs evidence were that he moved the basket above Mr Keepin's, that he turned his EWP off, that he did not touch the controls and that his basket went into a "free fall", that is, fell without warning. I do not accept any of these matters. 31In support of the plaintiff's assertion that the machine was turned off, he called evidence from Mr Keepin. Mr Keepin was asked in chief whether both machines were switched off at the time. He said without qualification that they were. It emerged, in cross-examination, that Mr Keepin: (1)did not know whether the plaintiff's machine was on or off; (2)had not seen it move to a position higher than where he had been working in his own EWP; and (3)despite his evidence in chief that the machine made a loud noise when switched on, he had not heard the machine being turned on. 32The genesis of these proceedings also bears on the plaintiff's credibility. From time to time from 18 January 2008, the plaintiff was paid his wage although he took time off work. He did not at first submit a workers compensation claim. He submitted various medical certificates, which he obtained from Dr Bowman whom he had seen since the Wednesday following the incident. On 10 June 2009, Dr Bowman certified that the plaintiff was fit for his usual duties. 33The plaintiff attended a meeting with representatives of Downer on 12 June 2009, who explained that there had been a downturn in work which resulted in many people being retrenched, including foremen, electricians, boilermakers as well as trades assistants. The minutes of the meeting record that it was explained: "That we have supported Craig Foster throughout his long recovery and return to work but, unfortunately, we have had to let him go." 34Not long after this meeting, the plaintiff submitted a workers compensation claim to Downer which forwarded it to its insurer, Allianz. 35By statement of claim filed on 29 July 2009, the plaintiff commenced proceedings in the District Court, claiming: "Damages in excess of the jurisdictional limit". 36On 27 August 2009, the plaintiff was referred by Allianz to IOH for vocational assessment. The report of the assessment identifies several "psychosocial considerations" including the following: "Compensation issues: Lack of financial incentive to return to work. Mr Foster advised that even though he needs to earn $800/week to keep his house, he has been advised by his Solicitor that even if he is awarded only half of what they are asking for in compensation, he will be able to retire and his wife will receive some payments for the care she needs to provide him, and his daughter will receive some payments until she is 16 years of age to compensate her for her father's lack of ability to teach her certain skills, transport her to and from activities etc Mr Foster has engaged a solicitor who appears to be very confident of a financial wind-fall for Mr Foster and Mr Foster shares this confidence. Treatment and diagnosis ... he consulted a Solicitor to see if it was worth pursuing legal action but decided against it, but now that he has been sacked, he is 'going for the lot!' Return to work Mr Foster is angry about his termination and this, coupled with his perception of mis-diagnosis immediately post injury, has him determined to seek compensation Behaviour Mr Foster explained that he has withdrawn from doing any physical activity around the home for fear that this will jeopardise his claim for compensation. "I know I could mow lawns but the Solicitor has told me even if you feel you can, don't because the Insurance Company is after you" 37I accept the record of the plaintiff's statements in this report as accurate. To the extent to which the plaintiff does not admit that he made the statements, denies that he made them, or does not recall making them, I reject his evidence. 38The undoubted financial motivation the plaintiff has to obtain a "financial windfall", coupled with his desire to take revenge for his dismissal (even against the defendant, who was not in any way associated with it or implicated in it) together with his willingness to conceal his true capacity for work so as to enhance his prospects of obtaining a substantial windfall are amply revealed by these admissions. 39For example, he told Dr Millons in July 2012 that there had been no change in his condition for a long time and adhered to that statement in his evidence in court. He told Dr Ng that he had no prior condition in his right shoulder although the clinical records of his general practitioner record a suspected rotator cuff syndrome some years ago. 40The facts do not accord with the plaintiff's hypothesis. The plaintiff, a relatively slight man, had difficulties with his back, shoulder and knees before the incident, which may well have been made worse by the heavy lifting and bending that he was required to do in the course of his own landscaping business. For example, when he presented to Dr Cheyne on 18 December 2001, he complained of shoulder and knee pain which had been going on for 10 years. Furthermore, he had presented to his general practitioner, Dr Healey, on 4 September 2007, about four months prior to the incident, complaining of depression, for which he was prescribed Zoloft. Dr Haber performed an operation on the plaintiff's right shoulder on 4 July 2008. On review six weeks afterwards, he was found to be making a good recovery. 41The defendant obtained video surveillance of the plaintiff which was taken in June 2012. It showed the plaintiff using his utility to move house. The plaintiff loaded and unloaded the utility three times. He was assisted by his father-in-law and his brother-in-law. The work involved the plaintiff lifting a trampoline and a lawnmower and various other items. On occasions the plaintiff lifted with what he described as "correct posture" and on other occasions he lifted by bending his back which he accepted was not the correct posture. There was no indication on the video that the plaintiff was in any discomfort or that the tasks he was performing caused him any difficulty. 42The plaintiff objected to the film on the basis that it had not been served. I considered that the defendant had a legitimate forensic purpose in not revealing the film: namely, to test the plaintiff's credibility. The capacity of a claimant for compensation to tailor evidence so as to accommodate video surveillance which has been disclosed is well known. As was successfully argued in Australian Postal Commission v Hayes [1989] FCA 176; 87 ALR 283 at 290, per Wilcox J, it is important that: "a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture." 43That the plaintiff, when particular activities were put to him, was prepared to admit that he could undertake them, did not enhance his credibility. Rather it demonstrated that the plaintiff approached this litigation as if it were a contest in which, if he did not get caught out, he would be awarded substantial damages. The significant matter is that in his evidence in chief, he came across as a broken man, who was depressed and disabled and whose life was, effectively, over. After cross-examination, I was left with the impression that the plaintiff could, in large measure, do whatever he wanted to do physically, and to the extent to which he chose not to, this was a result either of the limitations of his natural physique or his fear of exposure before the proceedings had been concluded. 44The plaintiff was evasive, defensive and belligerent in the course of being shown the video surveillance. The following exchange in his cross-examination indicates, but does not fully capture, the extent of his attitude: "Q. That is you driving the ute with the lawnmower in the back, Mr Foster? A. I suppose it was but I don't know if it was a lawnmower. I couldn't tell you that. Q. Didn't you see yourself in the film lifting with another person the lawnmower in the back of the ute? A. I didn't. You can replay it." 45The plaintiff was not prepared to make any admission that he was not required to make. His vagueness about the events of June 2012 was, at best, implausible, as the following exchange illustrates: "Q. Would you agree, Mr Foster, you are loading up your ute again? A. I can't see from - I don't know. Q. Don't you remember? A. I couldn't tell you. Q. Is this your second or third trip for the morning? A. I couldn't tell you that." 46The gross exaggeration of symptoms and incapacity was inconsistent with Dr Healey's interpretation of the MRI and CT scan which showed degenerative changes which manifested themselves in what Dr Healey described as "mechanical back pain" rather than radicular pain, since there was no nerve root involvement. Although Dr Healey considered that the changes were more significant than one would have normally expected of someone of the plaintiff's age, I am not satisfied that these changes could reasonably be attributed to an incident in which the plaintiff was jolted but did not fall; as distinct from other activities including years of working as a landscape gardener in the family business. 47Dr Healey was shown the parts of the video surveillance film, which depicted the plaintiff lifting a lawnmower and a trampoline with the assistance of other men. The following exchange occurred in his cross-examination: "... Is that behaviour consistent with the way the plaintiff has been presenting to you over the past two years? A. I would have thought that Mr Foster would have difficulty with carrying on activity like that with the level of pain that he presents with when he sees me." 48The plaintiff demonstrated in the witness box that he could squat. Still photographs that were tendered show that he is able to crouch and sit on his haunches when having a discussion with people sitting on the grass. 49The plaintiff's evidence did not become more credible by reason of any evidence his wife gave. She was evasive, circumspect and had adopted the same false hypothesis for which the plaintiff contended. For example, she said of her knowledge of any medication the plaintiff was taking prior to January 2008, that the plaintiff was prescribed Zoloft but "never took that medication". The following exchanges occurred in her cross-examination: "Q. Leaving aside that medication what other sort of medication had he been taking in the years before this particular incident? A. Not anything that really I am aware of to be honest. Q. Nothing at all? A. Going back such a long way, I am not sure I am really not. ... Q. You said in answer to a question from Mr Lidden when asked about the period before January 2008 medication you said he never took anything, remember saying that? A. Yeah, not that I was aware of. Q. Weren't you aware of it in terms of Panadeine Forte, Zoloft, you say he didn't take Zoloft, Panadeine Forte and Voltaren, weren't they prescribed mediation he has been taking? A. Yeah, he come home and said he had to take these and I said, okay, fine. I didn't really take much notice to be honest. Q. I am wondering when Mr Lidden asked you before January 2008 your husband had been taking medication, I am just asking your explanation Mrs Foster why you said he didn't take anything, if you knew he had been taking Panadeine Forte and Voltaren? A. I am not sure." 50While this may be an understandable reaction of a loyal spouse, it did not advance the plaintiff's case, because I do not accept her evidence except either where it is against interest or corroborated by a source other than the plaintiff. 51The plaintiff was not a reliable witness. Whether consciously, as the admissions above suggest, or subconsciously, the plaintiff has constructed a hypothesis of his life whereby everything was fine prior to the incident with the EWP and he has been in constant pain since then. 52The plaintiff falls, in my view, into the category described by Lord Pearce in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431: "Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active."

Expert evidence: the mechanisms of the incident 53Dr Shafaghi, who was retained by the plaintiff, and Mr Stewart, who was retained by the defendant, prepared reports which were tendered. They gave concurrent evidence. They were both qualified to give opinion evidence as to the cause of the alleged malfunction of the EWP. Mr Stewart's qualifications, however, were more germane since he is, and was, an active member of and represented the Institute of Engineers on numerous relevant working committees for aspects of the principal relevant standards: AS1418 and AS2550. 54The plaintiff's version of the incident, which formed the basis of the experts' opinion, was reduced to four fundamental propositions: (1)There was a dead man's pedal on the base of the basket of the EWP; (2)The engine was off; (3)The plaintiff was not operating the controls; and (4)The basket of the EWP went into "free fall" for 1.5 m. 55As referred to above, (1) is conceded to be wrong and I am not satisfied of any of (2), (3) or (4). 56The experts agreed that: (1)There are various ways in which the incident could have occurred if, contrary to the plaintiff's evidence, he had been operating the controls of the EWP, including operator error; and (2)There is no credible and available hypothesis which can explain the incident occurring in the way the plaintiff described it in circumstances where the plaintiff was not operating any of the controls. 57The differences between the experts were not substantial. Mr Stewart opined that it was impossible for the incident to have occurred in the way the plaintiff described. Dr Shafaghi opined that although he could not conceive of a hypothesis which was consistent with the plaintiff's version he did not consider that he had made sufficient enquiries or conducted sufficient investigations to say that it was impossible. 58Furthermore, Dr Stuart has identified, in a positive way, why the incident could not have occurred as the plaintiff maintained. There is a check valve which is a failsafe device. There is no evidence that the check valve was not working at any time prior to the incident or not working after the incident. There is no evidence of any defect being discovered with the check valve. If the EWP was turned off, the check valve prevents movement of the boom and hence the basket. There is no foundation in the evidence for the allegation in the particulars of negligence of pockets of air in the hydraulics system, or a failure to bleed the hydraulic system of air.

Maintenance of the EWP 59The plaintiff's case was advanced on the basis of failure by the defendant to maintain the EWP adequately in circumstances where it was reasonably foreseeable that such machinery would be used on site by the plaintiff. 60The defendant relied on evidence of the maintenance history and provenance of the EWP as well as the defendant's response to the incident.

Evidence as to the provenance of the EWP 61The evidence established the following: (1)The relevant EWP was purchased from its manufacturer, Haulotte, for $77,700 by Millennium Access Rentals (MAR) in March 2004; (2)Periodic maintenance inspections were conducted on the EWP while it was owned by MAR and records were kept. The last such record was a record of a quarterly maintenance inspection conducted on 16 April 2007; (3)In May 2007, MAR sold the EWP to Genie Australia (Genie) for $58,300; (4)The defendant purchased the EWP at an auction conducted by Pickles Auction House on 16 November 2007 for $22,000; (5)The maintenance records for the EWP were not made available at the time of purchase or auction, or subsequently, although the defendant had requested them; (6)The logbook which accompanied the EWP when it was sold to the defendant recorded that a quarterly inspection had been carried out by MAR on 10 May 2007 at 1707 hours and an annual inspection had been carried out on 30 October 2007 at 1770 hours. There is no maintenance inspection resport that corresponds with the logbook entry for 10 May 2007. The report most proximate in time is a report dated 16 April 2007 which records the hourmeter at 1899. (7)A document entitled "Risk Management Report" was provided to the defendant by Pickles Auctions upon purchase of the EWP. It contained warnings that the item was sold in an "as is" condition with known and unknown safety hazards. Included amongst numerous caveats was the following, which was said to have a "date due" of 14 November 2007: "This item of plant is not to be used until a structural engineer inspects this item for mechanical soundness and certifies this item of plant safe to be used for its intended purpose. It is recommended that before any sale of this item of plant a new inspection and certification take place by a qualified and competent structural engineer." (8)An inspection of the EWP was conducted by Mr Chinnock, an engineer engaged by Bluescope, on 21 November 2007. The report of the inspection noted: "Partial inspection only due to failure of units battery, no functionally [sic] testing was carried out. The unit has recently undergone and [sic] annual inspection with no problems detected"; I accept on the basis of this business record that the EWP had, as at 21 November "recently undergone" an annual inspection and that no problems were detected. There were discrepancies in the record of the hourmeter of the EWP which are evident from a comparison of the maintenance reports kept by MAR and the logbook which accompanied the EWP; (9)An annual inspection was, at least for the first ten years of an EWP's life, the most rigorous safety and maintenance inspection to which an EWP would be required to be subjected; (10)By memorandum dated 23 November 2007, Bluescope wrote to the Defendant in the following terms concerning the EWP: "The rectification work listed in the attached report is required to bring the unit up to satisfactory operating standard. As detailed in the 1998 revision of the Mobile Crane Entry and Operating conditions, a re-inspection would normally be required. However in the option of the Crane Engineer, the items listed do not appear to significantly conpromise [sic] the unit's safety. You are hence given the opportunity to undertake these repairs without the need for a re-inspection. To avail yourself of this opportunity, it is necessary to return the attached declaration WITHIN FOUR WEEKS of the date of this letter. If the declaration, or an acceptable explanation requesting an extention [sic] is not received within this period, a re-inspection will be required with an additional fee paid"; (11)By memorandum dated 12 December 2007, Mr Paine, the defendant's operations co-ordinator/manager, on behalf of the defendant, certified as follows: "All items listed on the attached inspection report have been effectively repaired and subsequently inspected by a qualified person. The unit is now in serviceable condition and complies with safety requirements"; (12)A Bluescope Crane Incident Investigation Report, dated 9 March 2010, referred to the incident as having occurred on 11 January 2008 (although it obviously concerns the subject incident). The report recorded the testing to which the EWP had been subjected and that no problems had been detected; (13)In may 2009, it was reported that the EWP had a fault "as boom creeping down". This was unable to be replicated. As neither expert considered this to be of any significance, I propose to disregard it as irrelevant.

Evidence as to the defendant's response to the incident 62After the incident, Mr Blackman, the project manager engaged by the defendant, attended the Site. As far as he could see, there was no damage to the EWP. There was no oil spill or anything that he could observe. 63The EWP was subsequently taken off site and delivered to the defendant's premises. It was inspected and tested by Mr Paine. No defect was found and the alleged fault could not be replicated. 64The EWP remained at the premises of the defendant until it was inspected by Bluescope and Haulotte. Also at this time, Haulotte undertook its yearly inspection. 65According to extracts tendered from its logbook, which I accept to be accurate, this EWP had had an annual inspection on 30 October 2007. Nonetheless, it underwent another annual inspection and safety check, carried out by Haulotte on 8 February 2008 at the defendant's request on the defendant's premises. Dr Shafaghi accepted that Haulotte would be the most expert and suitable organisation to carry out any inspection of the EWP. Of the matters identified in the course of the inspection, none was related to anything that could be associated with the incident involving the plaintiff. No fault or defect could be found which would explain the type of event suggested by the plaintiff. 66Nor did Haulotte, in the report of the annual machine inspection, note that any modification had been made to any aspect of the EWP. I infer from the absence of comment in the report that that no modifications had been made to the machine since its manufacture. The significance of this finding is that the plaintiff's case, up until final address, depended on there having been a dead man's pedal in the base of the basket (that being his unequivocal evidence) which had been removed before 8 February 2008 and the fault which allegedly caused the incident having been repaired prior to that time.

Expert evidence: maintenance of the EWP 67Dr Shafaghi and Mr Stewart both gave evidence as to the degree of maintenance required of a recently acquired EWP such as the one used by the plaintiff on the day of the incident. 68There is no evidence of failure to comply with any standard or regulation in respect of servicing and maintenance. All that has been alleged was that the service records were somehow deficient. The documents as to prior servicing came from subpoenas rather than from the defendant. Mr Paine said his attempts to get them at the time of purchase were unsuccessful. The defendant has not been shown to be aware of any deficiency in maintenance records at the time of purchase. 69The extracts of the log book refer specifically to a service in May 2007 and the annual inspection having been carried out in October 2007, shortly before the defendant purchased it. As is evident from the Bluesope inspection and report dated 21 November 2007, the reference to the recent annual inspection was sufficient for Bluescope's purposes. I reject the plaintiff's submission that the defendant, by its staff, was either naïve or foolish to accept what was recorded in a logbook. 70Mr Paine was very familiar with these types of machines, having 28 years of relevant experience. He tested the operation of the machine before sending it to the Site. He knew that Bluesope's Mr Chinnock was an engineer and that Bluescope would not allow it to be used on the site without it carrying out its own assessment. He knew that Bluescope had approved its use. In my view, nothing more was reasonably required of him. 71In any event, the EWP had its annual inspection by the manufacturer in February 2008. No fault was found which could explain what the plaintiff says happened. As such, it must follow that, even if such annual inspection or some special inspection had taken place in November or December 2007, no such fault would have been found. The experts agreed with this. It further follows that, even if the battery was not flat when Bluescope tested the machine in November 2007, no such fault would have been found. The defendant does not bear the onus of proving a negative. The plaintiff bears the onus of establishing all facts relevant to causation: s 5E of the Act.

Res ipsa loquitur 72The plaintiff submitted that the principal of res ipsa loquitur applied and that I ought infer negligence from the freefall of the EWP. There are two fundamental difficulties with this submission: first, the maxim is not applicable in the case of complex machinery: Shellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121. Furthermore, I am not, for the reasons given above, satisfied that the engine of the plaintiff's EWP was off. Unless the machine was off, there are many ways in which the basket could have dropped, which do not involve negligence on the part of the defendant.

Credibility of the plaintiff's case 73Aside from the plaintiff's own lack of credibility, there were aspects of his case which were unsatisfactory.

Concession that there was no dead man's pedal 74As referred to above, the plaintiff maintained, until addresses, that the defendant's EWP had a dead man's pedal, at which point it was conceded that the EWP did not. While forensic decisions ought involve proper considerations in the course of litigation, the presence of a dead man's pedal as at 18 January 2008 and its later removal formed a substantial consideration in the expert's evidence and in the plaintiff's allegation that the defendant had behaved in an underhanded way. 75The plaintiff engaged three experts: Dr Gillies, Dr Adams and Dr Shafaghi. He relied only on one, Dr Shafaghi. Dr Shafaghi was instructed that the incident occurred as alleged by the plaintiff and that the defendant had removed the dead man's pedal after the incident. 76The belated concession that there was no dead man's pedal revealed, in my view, the extent to which the plaintiff's case was a construct borne of opportunism.

Allegations of dishonesty for which there was no substantial basis 77The plaintiff's counsel made several serious allegations of dishonesty against the defendant and others in support of various of his submissions, none of which had any substantial basis.

Allegation that the defendant had concealed or deliberately destroyed the logbook 78The plaintiff's counsel submitted that I ought infer that the EWP's original logbook had been disposed of or concealed by the defendant and that only certain pages had been made available because the balance would harm the defendant's case and that I ought draw inferences against the defendant on that basis. The plaintiff relied on the defendant's obligation imposed by reg 143(1) of the Occupational Health and Safety Regulation 2001 to keep records of "any tests, maintenance, inspections, commissioning or alteration of plant relevant to controlling risks arising from the plant", since its employees used the plant. 79Had there been evidence that the defendant's destruction or non-production of the original logbook was deliberate, such an inference might have been available. However, not only is there no evidence to support this proposition, there is some evidence to the contrary. The defendant tendered a facsimile cover sheet dated 30 January 2008 from Paul Sunshine of Downer to Mr Blackman, the defendant's project manager to which was attached photocopies of certain pages of the EWP's logbook. These pages are the same pages that have been tendered in these proceedings. I infer that the original logbook, as at the time of the facsimile, was not in the possession of the defendant and was in the possession of Downer. Since Downer was the plaintiff's employer, Downer had a legitimate interest in examining the logbook for its own investigations. Approximately 18 months had passed from the time of the incident until the plaintiff commenced proceedings against the defendant. Until that time, the defendant had no forensic interest in the location of the original logbook. Although it is possible that the defendant was in breach of reg 143(1) by not retaining the log book, whether by inadvertence or any other reason, the obligation imposed by reg 143 does not, in terms, require retention of a log book per se. Other evidence indicates that the defendant kept maintenance records in respect of the EWP since its acquisition. 80In these circumstances I do not consider there to be any basis to draw the inference for which the plaintiff contended.

Discrepancy in the record of hourmeter and date of quarterly inspection 81The plaintiff also submitted that the defendant ought to have inferred that the EWP was defective because there was a discrepancy in the date of the most recent quarterly inspection when it was transferred from MAR to Genie and that there was a record of the hourmeter showing the number of hours decreasing rather than increasing, which the defendant ought to have assumed was fraudulent. I accept the defendant's submission that there is no evidence that the defendant was aware of the discrepancy at the time of purchase, or indeed at any time prior to the date on which the documents subpoenaed from MAR were produced. 82The plaintiff also submitted that I ought infer that the defendant had secretly altered the EWP between 21 January 2008 and 8 February 2008 when it was inspected at the defendant's premises by its manufacturer. It was common ground between the experts that any such alterations as had been suggested would require an electrical engineer to perform them. 83I do not consider there to be any basis on which I could draw such an inference. The bases for the allegation that the machine was altered was: first, that the dead man's pedal had been removed before the time of the inspection on 8 February 2008; and secondly, that the incident could not have happened if the EWP had been as it was on inspection on 8 February 2008. The plaintiff is not only generally unreliable in respect of many aspects of his evidence, but he is also wrong about several matters germane to the EWP. Furthermore, to accept the allegation I would have to find that the defendant's witnesses lied in their evidence. Such a finding would be contrary to my impression of each of them: namely that they were honest and reliable witnesses who, though they were, or had been, associated with the defendant, were relevantly disinterested.

Findings on liability 84I am not satisfied that the incident occurred as the plaintiff described. I am not satisfied that the engine of his EWP was off at the time of the collision. 85For the reasons set out it is possible that the plaintiff had omitted to turn the engine of the EWP off when he started to work on the dividers in the cable tray. He may have endeavoured to move his EWP sideways and made an error of judgment which led his basket to collide with that of Mr Keepin's. However, since the plaintiff has not established his version of how the incident occurred, it is not only unnecessary to speculate how it happened, but also it would be inconsistent with the nature of adversary litigation were I to do so. 86In any event, even were I to accept the plaintiff's version of events, which I do not, the EWP complied with all standards and regulations. 87The plaintiff has not established that the defendant failed to take care. Nor has he established what the defendant should have done in the exercise of reasonable care which would have prevented the injuries to the plaintiff as required by s 5D of the Act. The plaintiff has established neither negligence nor causation.

Damages 88I am obliged to assess damages on the basis that liability has, contrary to my findings, been established: Wolfenden v International Theme Park Pty Ltd (Trading As Wonderland) and Anor [2008] NSWCA 78 at [6], per Giles JA. The assessment is largely influenced by the impression I have formed of the plaintiff. 89The plaintiff was born on 29 July 1967. He left school in Year 10. His work history was not continuous. He joined the Army in June 1987 but was discharged in October 1988. In 1989 he obtained subcontract labouring work. In 1990 he set up his own landscaping business which he conducted from 1990 until 2003. It was conducted in association with other family members: his father, a builder, and his brother-in-law, a horticulturalist. He reported in the course of a vocational assessment, and I accept, that he: "Closed [the] business because he grew tired of chasing money and long, physical hours." 90Since 2003, the plaintiff has not engaged in heavy physical work. 91The plaintiff was employed by Downer from August 2004, but not continuously. He had periods off work due to coccyx bruising and lumbar back strains in 2005. 92The plaintiff suffered from pre-existing problems in his right shoulder. He did not inform any of the doctors that he saw for the purposes of this case, including for treatment, of this earlier right shoulder problem. The problem attributed to the incident was in the same area as prior complaints. The plaintiff admitted in evidence in chief that his shoulder was not much of a problem and that he had regained 95% use of it. In cross-examination he admitted that he had no problems with his right shoulder. That was borne out by the film. 93Notwithstanding my reservations about the plaintiff's credibility, I accept that the plaintiff sustained the injury to his right shoulder in the incident. Dr Haber performed an arthroscopic surgery on his right shoulder on 4 July 2008. I find that he made a full recovery from his right shoulder injury prior to the termination of his employment in June 2009. 94On the basis that the plaintiff complained of back pain when he first saw the doctors five days after the incident I accept that the plaintiff injured his back. 95The plaintiff's employment was terminated in June 2009 when he was certified fit to return to full duties by Dr Bowman. I find that any residual incapacity post-termination arises from the plaintiff's back complaint. 96Dr Healey, the plaintiff's general practitioner, does not consider that he needed to be referred to a specialist for treatment. His pain is mechanical rather than radicular. The plaintiff grossly exaggerated his level of complaint. The film showed the plaintiff to be able to load and unload and carry heavy objects. I assess the plaintiff's back problem to be relatively mild. 97I reject the plaintiff's submission that I am bound to accept the medical evidence when it is based on a false, inaccurate or incomplete history. Whether the disparity renders the opinion of no utility or whether the opinion still has value is a question for the court's judgment: Ramsay v Watson [1961] HCA 65; 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844. Insofar as the plaintiff submitted that Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419 is to the contrary, I reject his submission. 98There is no obligation on the defendant to request that all the medical practitioners consider a different set of facts or a different history or different level of complaints. Whether to call practitioners in reply to put a more accurate foundation to them is a forensic decision for plaintiff's counsel. Plaintiff's counsel obviously decided against that course in the instant case. 99The defendant conceded, properly in my view, that the evidence does not establish that the plaintiff suffered from any pre-existing back condition of such significance that any back problems can be attributed to any earlier incident, or to a pre-existing condition. Accordingly, it has not discharged the Watts v Rake [1960] HCA 58; 108 CLR 158 onus. 100On this basis, I find that the plaintiff, as a result of the incident, suffers from an ongoing diminution in earning capacity and that he is, and will be, unable to perform heavy manual work. The extent to which this diminution has produced, or is likely to be productive of, economic loss is difficult to determine. 101As at the date of the incident, the plaintiff was already 40 years old. I do not consider that there was a substantial prospect that he would, but for the incident, have undertaken heavy physical work on any sustained basis. However, his reduced ability to do so sounds in some measure of damages.

Non-economic loss 102I assess non-economic loss at 25% of the most extreme case.

Past loss of earning capacity 103It is agreed that before the incident the plaintiff earned $929 net per week. 104In the period from the date of the incident to the date of trial, the plaintiff earned a total of $153,883: $102,435 by way of workers' compensation payments and $51,448 by way of income for work performed. He did not perform any remunerative work for anyone other than Downer and he has not performed any remunerative work at all since he was dismissed in June 2009. 105I allow, from 18 January 2008 to June 2009, $35,000 for past loss of earning capacity including superannuation, which is broadly equivalent to an average loss of $400 net per week for that period plus superannuation. 106I allow, from June 2009 to present, an amount of $30,000 for past loss of earning capacity including superannuation to an average loss of $150 net per week plus superannuation at 11%.

Future loss of earning capacity 107For future loss of earning capacity and future superannuation, I allow a buffer of $60,000 since I consider the prospects of the plaintiff doing heavy work, but for the incident, to be even more reduced as he gets older than they were up to this time. This figure is broadly equivalent to an average loss of $100 per week using a multiplier of 666.4, and deducting 15% for vicissitudes. 11% is allowed for superannuation. 108The Fox v Wood [1981] HCA 41; 148 CLR 438 component is agreed at $20,487.

Out of pocket expenses 109The past out-of-pocket expenses are agreed at $60,068.67. Of this total, $16,000 is referable to rehabilitation and relates to expenses incurred by the workers' compensation insurer in purported discharge of its statutory obligation. The plaintiff's evidence was that the services provided were of little, or no, utility. I am not satisfied that such services were reasonably required or that those amounts were reasonable expended. Accordingly, I allow the amount of $44,068.67 for past out-of-pocket expenses. 110I make no allowance for future out-of-pocket expenses. In my view, the plaintiff does not require any future consultations with medical practitioners or service providers as a consequence of the injuries sustained through the incident. Nor am I satisfied that he requires any pain relief as a consequence thereof.

Domestic assistance 111I make no allowance for care. The evidence of both the plaintiff and his wife was not sufficient to overcome the statutory threshold set out in s 15 of the Act (at least 6 hours per week and solely caused by the incident.) The plaintiff is not entitled to any allowance for care merely because his wife may have spent a month caring for him after the operation. That does not satisfy the 6 month test. In any event I do not accept that he had any such reasonable requirement for care.

Summary of damages Head of damages Amount ($) Past economic loss, including superannuation 65,000 Future economic loss, including superannuation 60,000 Fox v Wood component 20,487 Past attendant care services 0 Future attendant care services 0 Out of pocket expenses - past 44,068 Out of pocket expenses - future 0 Total 189,555

Orders 112For the foregoing reasons, I make the following orders: (1)Judgment for the defendant. (2)Plaintiff to pay the defendant's costs of these proceedings. 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: 22 November 2012

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