Hitchen v Strategic Formwork Pty; Hitchen v RTS Holdings Pty Ltd - [2017] NSWSC 75 - NSWSC 2016 case summary — Zoe

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Hitchen v Strategic Formwork Pty; Hitchen v RTS Holdings Pty Ltd

[2017] NSWSC 75

Supreme Court of NSW|2016-08-29

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-08-29

Catchwords

(1992) 27 NSWLR 665 Hirst v Sydney South West Area Health Service [2011] NSWSC 664 Husher v Husher [1999] HCA 47
197 CLR 138 Lee Transport Co v Watson [1940] HCA 27
(1940) 64 CLR 1 Matthews v Dean (1990) 11 MVR 455
[1990] Aust Torts Reports 81-037 New South Wales v Doherty [2011] NSWCA 225 Pamment v Pawelski [1949] HCA 4

Source

Original judgment source is linked above.

Catchwords

(1992) 27 NSWLR 665 Hirst v Sydney South West Area Health Service [2011] NSWSC 664 Husher v Husher [1999] HCA 47197 CLR 138 Lee Transport Co v Watson [1940] HCA 27(1940) 64 CLR 1 Matthews v Dean (1990) 11 MVR 455[1990] Aust Torts Reports 81-037 New South Wales v Doherty [2011] NSWCA 225 Pamment v Pawelski [1949] HCA 4(1949) 79 CLR 406 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529(1985) ALJR 492(1985) Aust Torts Reports 80-321[1985] HCA 34 Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453[2008] NSWCA 99 Roads & Traffic Authority v Dederer (2007) 234 CLR 330 Sharman v Evans [1977] HCA 8(1977) 138 CLR 562 State of New South Wales v Moss (2000) 54 NSWLR 536 Southgate v Waterford [1990] Aust Torts Reports 81-065

Judgment (82 paragraphs)

[1]

[8]

Witnesses

The plaintiff made a statement dated 14 June 2011 to WorkCover (Ex A) and an evidentiary statement filed 9 February 2016 (Ex B). Benjamin Knox a director of Compliance OH&S provided a statement to WorkCover dated 13 July 2011 (Ex F) and made a handwritten statement dated 3 May 2011 (Ex G), Michael Keogh the manager of Cronulla Beach Youth Hostel ("the hostel") provided a statement dated 12 July 2011 (Ex H) and Graham Van Der Merwe a director of Strategic Formwork made two statements to WorkCover dated 11 July 2011 (D1/3) and 14 July 2011 (Ex D1/4) and an evidentiary statement dated 4 April 2016 (Ex D1/2). Rosanne Appleton (Roxy) provided an evidentiary stated filed 21 June 2016. (Ex C). She is the plaintiff's partner and since the accident she has supported him both in Australia and England. She is a vibrant and responsible young woman. Her credit was not in issue. She was a truthful witness. I unhesitatingly accept her evidence. All witnesses gave evidence and were cross examined.
The plaintiff's mother and father Jean Hitchen and Jeff Hitchen filed evidentiary statements on 21 June 2016 (Exs N and O respectively). They reside in the United Kingdom. Christian Palmer made an evidentiary statement dated 5 April 2016 (Ex M). He currently resides in New Zealand working as a chef. Due to a video link failure these witnesses were not able to be cross examined. Their evidence is uncontentious.
Mrs Anna Claire Van Der Merwe provided a statement to WorkCover dated 14 July 2011 (Ex L). She was not required for cross examination.
Mr Gales the yard manager was ill and tendered a medical certificate. At the hearing I was satisfied that he was physically unable to give evidence. It is my view that it was not reasonably practicable for him to overcome that inability so his statement to WorkCover dated 1 June 2011 (Ex D2/4) and his affidavit dated 24 September 2015 (Ex D1/6) were admitted pursuant to s 63 of the Evidence Act 2005 (NSW). Hence he too was unable to be cross examined.

[9]

Background

The plaintiff's credibility was not in issue. The plaintiff is a determined young man who has persevered to improve his disabilities and has made a remarkable recovery. The plaintiff was an impressive witness who gave straightforward and truthful evidence and I have no hesitation in accepting his evidence. He did not exaggerate his injuries and if anything, he understated them. Senior counsel for Strategic Formwork tendered copies of the plaintiff's Facebook entries. (Ex D1/1). There is nothing in them that shows anything that is inconsistent with the plaintiff's presentation of his case. There is little dispute as to the facts and circumstances as to how the accident occurred.
The plaintiff was born in the United Kingdom in March 1986 and is currently 30 years of age. He presently resides in Deansgate, Manchester. He is currently employed as a neuro rehabilitation assistant for the National Health Service. He lives with his partner Roxy who met him shortly before the accident when they were both backpacking around Australia.
When he was 16 years old, the plaintiff completed high school. He captained schoolboy level football for his college and Lancashire.
In 2003, the plaintiff suffered a fracture of the left distal tibia and was treated at the Royal Liverpool hospital. He was not left with any disabilities.
From 2002 until 2010, while attending university, the plaintiff worked part time as a duty manager and personal trainer with FX Leisure, providing sale promotions and training to gym members. When he was not at university he worked full time at three to four gyms.
In June 2003, the plaintiff completed a course in economics at Winstanley College, Wigan.
In 2004, he completed college and commenced working as a land surveyor. He also coached football part time and was a gym instructor for two years.
From 2005 until 2006, the plaintiff worked as a full time land surveyor for RJP Surveys.
From 2005 until 2008, the plaintiff worked part time as head coach and regional co-ordinator for Proscore Academy providing soccer coaching to school children.
On 7 July 2009, the plaintiff obtained Bachelor of Sport and Exercise Science with second class honours (Division 1) from the University of Lancaster.
During 2008 and 2009, the plaintiff played football for Ashton and Atherton Colliery Football Clubs. He had been playing with Ashton since 2002. He played his last game with Atherton Colliery Football Club on 10 April 2010.
In August 2010, the plaintiff travelled with friends throughout Southeast Asia and then on to Australia. In November 2010, he arrived in Australia on a working visa. While in Australia, the plaintiff performed a variety of work in the construction industry. He also worked farming sweet potatoes in Bundaberg, Queensland and worked for Dyson at the Easter Show for two weeks. During these times he earned roughly $20 to $25 per hour. (T11). About three weeks before the accident, he met Roxy.
After backpacking and upon his return to the United Kingdom the plaintiff had intended to become a PE teacher. (T14).

[11]

The relevant telephone call - 27 April 2011

On 27 April 2011, Mr Keogh received a telephone call from Mr Gales about work at Strategic Formwork. He does not recall whether it was in the morning or afternoon. Mr Gales told Mr Keogh that he had casual jobs in the yard for up to four guys for three weeks with a pick up available from Gymea train station at 6.00 am. Mr Gales informed Mr Keogh that if anyone was interested in the work they could contact a person called Leigh to make arrangements for pick up. Mr Gales provided Mr Keogh with Leigh's mobile phone number. Mr Keogh wrote details of this phone call in his diary. (Ex K).
The plaintiff, Christian Palmer, George Imlach and Michael Stockwell were staying at the hostel.
On the same day (27 April 2011), Mr Keogh informed Christian that there was a labouring job available, requiring four workers for three weeks on a full time basis. Mr Keogh gave Christian a number to call. Christian rang the number and spoke to a person called Wayne, whose surname he did not know. (Ex M [12] and [13]).
Christian Palmer, George Imlach and Michael Stockwell all took up the opportunity to start work on Thursday, 28 April 2011. The plaintiff did not start work on that Thursday as he had worked 14 days straight with Dyson and was too tired. On arrival Christian, George and Michael were greeted by Mr Gales. Christian says that the name Wayne Gales sounded familiar, but he could not be 100 per cent sure of the surname. He described Mr Gates as being a large guy, about six foot in height, in his mid to late forties, with black curly hair. (Ex M [14]). It appeared to Christian that Mr Gales was the site manager and oversaw all the activities of workers at the yard. None of them were informed of the company hierarchy or staffing structure. (Ex M [25]). The yard was a mess with formwork and timber lying around in disorganised piles. There was a warehouse at the front of the site with signage of Strategic Framework and a makeshift office that was made from unused shipping containers.
Christian Palmer's evidence is not controversial and corroborates the plaintiff's version of events. He was working with the plaintiff both on the Friday prior to the accident and on the day of the accident.
Prior to commencing work at the yard, Christian had some prior experience with labouring and landscaping. He did not hold any qualifications in any trade, nor did he have his "White Card" or any industry related OH&S training. He assumed that the plaintiff was in a similar position. (Ex M [19] and [20]).
Prior to the plaintiff starting work with RTS Holdings, he had not spoken to anyone from RTS Holdings. From the other lads the plaintiff knew that his working hours would be from about 7.00 am to 7.00 pm. He also knew where they were getting picked up from and that they would be paid $20 per hour.
RTS Holdings was in the process of moving from the Helensburgh yard to the Corrimal yard. There were large shipping containers that had been moved to the Corrimal yard by an independent truck company. (Gale Aff [33]).
On Friday, 29 April 2011, the plaintiff, Christian and George caught the train to Gymea (Michael was ill, in hospital, so did not attend work). They were picked up at Gymea station and given a lift by Leigh who worked at the Corrimal yard. When the plaintiff first started work, he spoke to Mr Gales. The plaintiff thought he was the foreman of the yard.
Mr Gales told the plaintiff and Christian to go up to the shipping container at the top of the yard. It was already opened and loaded full of beams. The shipping container had been in that location for approximately a month. Mr Gales had arranged for it to be installed there. The container was about 40 foot long, about 3 metres high and about 2 metres wide. About a week before the plaintiff's accident, Mr Gales noticed that the shipping container was not level on the ground (D2/4 Q&A264 and 265) but he did not take any action to level it because "we were busy." (D2/4 Q&A 267). Mr Gales came to the area and walked them through what had to be done, giving verbal instructions and demonstrating by gestures. Mr Gales showed the plaintiff and Christian the timbers beams (laminated veneer lumber or LVL beams) ("beams" also variously referred to as timbers and wood in evidence) that are used to make shutters. The shutters are used as formwork on constructions sites. The beams are 3.6 metres in length, 130 millimetres in width and a thickness of about 50 millimetres. (D2/4 Q&A 275). Each beam weighs about 17 kilograms.
Mr Gales provided verbal instructions that they were to unload the beams from the shipping container, and stack them neatly into piles of 125 lengths high and eight beams wide in an area just outside the shipping container. Mr Gales placed two blocks in the area outside the shipping container and explained that he wanted the beams bundled that way because that was how wide the prongs on the forklift were. The plaintiff says that this was the extent of the instructions. Christian's evidence is that the beams did not appear to be unstable, but as they were not lashed Christian could not describe them as being stable either. The plaintiff gave evidence that there were some stacks with gluts on the right hand side of the shipping container but they started work on the left hand side. (T44.4-15).
After Mr Gales had given them the brief verbal instructions he left them to it. At no time did Mr Gales identify any dangers or hazards to them, nor did he provide them with any technique or system by which to move the beams from the container into the required piles. Christian says that they took it upon themselves to work out a system.
The plaintiff and Christian worked out a system whereby the plaintiff would walk past the stacked beams to the end of the shipping container. The plaintiff would then reach up (above head height) and grasp a single beam at its end and at the same time Christian would grab the beam at its front. They would then place that beam on their shoulders (Christian's left) and walk it out of the container, where it would then be placed onto the pile. They continued this exact process 125 times until a stack was completed.
Once they had completed a pile of 125 they called for one of the other employees who drove the forklift. A Manitou forklift would then come and move the pile where it would be taken to a nearby area to be wrapped with plastic lashing and prepared for transportation.
The plaintiff and Christian commenced unloading the timber from the container and continued this task for the entire day, stopping only for smoko and lunch break. The day went by without issue, with them unloading most of a large pile on the left (looking into the container) of the shipping container but the container was still not close to being unloaded. (EX M [34] to [43]). They finished early at 2.45 pm as it was raining heavily.
The plaintiff was provided with gloves in case he got splinters. He was not asked about his previous work experience; safety matters were not discussed nor was it demonstrated how Mr Gales wanted him to carry out the work. The plaintiff was not given an induction into the company nor shown the facilities at the yard. He was not provided with any specific instructions or training about the work he would be doing nor the company's policies and procedures. The plaintiff was not given any documents that related to workplace safety or safety procedures to read through and he did not sign any documents during the time he was working for RTS Holdings. He only provided his bank statement and tax file details.
As previously stated the plaintiff's evidence as to the circumstances giving rise to and of the accident itself, are not in dispute and are corroborated by Christian, whom he was working with on the day of the accident.
The plaintiff and Christian returned to work at about 7.00 am on Monday 2 May 2011. When the plaintiff arrived at the yard he, Leigh, George and Christian put their bags in the smoko shed. Mr Gales told Christian and the plaintiff that they were to do exactly the same thing that they had been doing on the previous Friday. They went up to the same shipping container at the top left hand corner of the yard and began stacking the beams from the left hand side of the shipping container into piles of 125. They continued to carry out that process until the smoko break. After smoko they carried on with the same thing. The accident happened at about 10.30 am that morning. After the plaintiff had finished moving the beams from the left hand side of the shipping container, he began moving the beams from the right side. The plaintiff says that he was going to the rear of the shipping container to get the bottom end of the beam. Christian was getting the end closest to the front of the shipping container. The plaintiff had lifted off one of the beams from the pile that was at the bottom right. He had worked the beam off, because the stack was quite high, and lifted it onto his left shoulder using both of his hands. Christian was doing the same but on the front end. As soon as the beam was on their shoulders they started to walk it out. The plaintiff had barely walked a couple of paces when he heard the beams start to fall.
The plaintiff looked around and realised that a pile of beams had already started to fall down on top of him. He tried to curl up in a ball but he could not move forward because the pile was falling down and it pressed him against the side of the shipping container. The first thing the plaintiff remembers is being pressed sideways against the shipping container and the beams starting to fall onto his head. He had his hands up over his head in an attempt to stop them hitting his head.
The plaintiff remembers shouting at Christian, just screaming "help" and trying to move, but he was unable to move anything. He realised that his legs were really dead. He could not feel anything and had shooting pains up and down his back. The plaintiff says he tried to keep still but the pain got worse and worse. He knew that Christian was there and that Christian was removing the beams from on top of his head as he could see more light. More people arrived to help. While all of this was happening the plaintiff says the pain was just getting worse by the second. After some of the beams were removed, the plaintiff says he was looking at everyone saying "help please" and they were just looking at him. The plaintiff says that this was the worst bit. There was someone on the phone to the ambulance services who came in and said "don't move him". The plaintiff had to stay there and wait. He had people around him holding certain beams off him. He did not know who they were. He thinks he slipped in and out of shock a few times. Photographs (in particular photographs 18 and 19 (Ex U 257 and 258) show the fallen beams in the shipping container. Ex U, 258
The plaintiff remembers the ambulance officer coming in and recalls the officer asking him several questions. The plaintiff just kept saying to him "please get me out" but the ambulance officer kept asking him questions like "do you know where you are?" The plaintiff says that he was in so much pain that eventually the officer gave up and he was given the green whistle to help him breathe. He thinks that he might have been given some morphine injections in his leg. The plaintiff thinks that fire brigade officers also helped to get him out. When the plaintiff was removed he was in the same position that he was in when the pile of beams fell onto him, that is the sitting position. When he was lifted out he says that the pain was nearly as bad as when the beams fell onto him. He thinks that he may have blacked out because he does not remember getting into the ambulance.
The next thing he remembers is that he was in Wollongong hospital speaking to a nurse, who asked him questions like, "can you feel this, can you move this?" He just wanted to know what had happened and why he could not feel or move his legs. He recalls his friends turning up at the hospital. He remembers seeing his mate Jonathon Halliwell and Roxy. After he spoke to them he remembers being told that he was going to be moved by helicopter to the Prince of Wales hospital, Sydney.

[15]

Anna Claire Van Der Merwe

Mrs Anna Claire Van Der Merwe provided a statement to the WorkCover Authority dated 14 July 2011 (Ex L). She was not required for cross examination. As at the date of the accident, she was the director of RTS Holdings. While she had been a director of RTS Holdings since 2007, she became a working director in 2009, with her husband Graham Van Der Merwe. She holds shares in RTS Holdings and is paid by RTS Holdings annually. She has not redeemed any dividends.
RTS Holdings had 10 employees at the time of the accident. Its annual turnover in 2011 was $1,200,000. She played little or no relevant part in the OH&S issues of the yard. Mrs Van Der Merwe says that she has no level of influence with Strategic Formwork, nor did she have any involvement with the day to day operations of Strategic Formwork. She says that Strategic Formwork does not provide any financial support to RTS Holdings. Overall she played little or no part in the activities and management of RTS Holdings, other than as an accountant. She did not play any role in relation to OH&S (or its lack thereof) at the yard.
After 2011 Mr Van Der Merwe was no longer an employee of RTS Holdings but remained the point of contact for Mr Gales. Mrs Van Der Merwe describes it as like a transition so Mr Gales was comfortable knowing that if he needed Mr Van Der Merwe he could call him.
It is common ground that Mr Gales was allowed to order any stock or any items that he required to almost any value from authorised suppliers that they had a credit application with. There was also a $500 limit for out of pocket expenses so that Mr Gales could buy brushes or paint or the like. (T164.39-42). Mr Gales was also authorised to order and make payments from suppliers if there was an established account in place. He was not authorised to sign cheques. The range of the credit limits were anywhere from $5,000 to $20,000. If he wanted to spend a sum of say $50,000 he would have to get approval.
Mrs Van Der Merwe attended the yard about two to three times a year. The purpose of her visits was to show her face, to see the yard and assess it. She says that her safety concerns were usually in the nature of housekeeping and the untidy yard. However, I find that it was Mr Van Der Merwe who identified the untidy yard. Mrs Van Der Merwe did not specify any other safety concerns. In response to those concerns, if any, she says that she would discuss them with Mr Van Der Merwe, review them and check that action had been taken.

[20]

The salient features of the relationship between RTS Holdings and Strategic Formwork

Strategic Formwork and RTS Holdings have the same registered principal place of business, Mr and Mrs Van Der Merwe's home. Strategic Formwork and RTS Holdings share a number of administrative functions. Strategic Formwork is a client of RTS Holdings and hires formwork equipment from RTS Holdings. (Ex D1/2 [9]).
The commercial lease of the yard is between Albert Street (NSW) Pty Ltd as landlord and RTS Holdings as tenant that commenced on 1 November 2009 for a period of two years with rent payable of $5,000 per calendar month. Mr Van Der Merwe guaranteed the lease of the yard. (Ex D1/9).
There is a standard hire agreement between RTS Holdings and Strategic Formwork dated 19 June 2010. (Ex D1/13). It relevantly states: "By signing this Hire Agreement you are entering into a legal contract with us and confirming that you accept the following: A Hire will commence upon despatch of equipment to the pre-assembly yard and shall cease when all the components have been stripped, thoroughly cleaned and returned to our yard. …"
Interestingly, on 1 May 2001, RTS Holdings hired to Strategic Formwork, 68 jackets for the supply of Coremaker Equipment to "Supreme Law Courts" (Invoice RTSH3425, Ex D1/15).
Mr Gales was the yard supervisor of RTS Holdings at the time of the accident (Ex D2/4 Q&A 26 and 27) having been promoted to yard manager when Mr Van Der Merwe left RTS Holdings in 2009.
Mr Van Der Merwe designed the system of work implemented which was the operative system of work at the time of the plaintiff's accident (D1/4 Q&A 122).
When Mr Van Der Merwe was interviewed by Inspector Michael Duncan, he said: "The main thing that would have prevented the incident from occurring is if the timbers had been stored with gluts, second to that the container should have been levelled, thirdly a more senior person would be assigned to work with a less experienced person, regular uploads of how the yard looked like should be forwarded to upper management." (D1/4 Q&A 138).
Mr Van Der Merwe agreed that RTS Holdings did not have an overriding safety document because: "I had a strong belief in the other areas of safe working, which had been influenced by my time on construction sites. Very much a believer in communication with lads using pictures and diagrams and satisfying myself that they knew the scope of works and risks that go with that. The idea is that there is a fulltime supervisor, there is constant communication and there is on the job training monitoring and also leading by example for example getting the first aid box on site, providing facilities, educating that if a tool is broken you just buy a new one you don't try to repair it." (Ex D1/4 Q&A 102)
Mr Van Der Merwe visited the yard on at least two occasions between January 2011 and May 2011 and noticed that the yard was untidy
Mr Van Der Merwe explained that the work being done was not difficult and he did not believe in weighing down the employees with paperwork relating to OH&S procedures. Further, as a result of enquiries he made after the plaintiff's accident, as far as he was aware, beams were put in that position without the use of gluts approximately four weeks prior to the accident by a longer term employee. He confirmed that Mr Gales, the yard manager was aware of that but took no immediate action to correct it. However, Mr Van Der Merwe was unable to say categorically whether he was aware of this issue or not, although it is his belief that he was not aware as it would have been in his nature to take corrective action immediately. Mr Van Der Merwe had previously spoken with Mr Gales about the need to stack beams with gluts and provided him with a photograph of what he expected." (Ex D1/5 [29]).
The premises at Corrimal were described by Strategic Formwork as the "Strategic Yard". On 16 March 2011, Mr Van Der Merwe sent an email from his Strategic Formwork email address to "SF Luke Day" at Strategic Formwork and also the yard at Strategic Formwork. The photograph is attached to this email. (Ex K).
Mr Van Der Merwe said that after he ceased to be the general manager of RTS Holdings for the period of January 2011 to 3 May 2011 he "carried out several yard inspections" and after he left RTS Holdings he had regular discussions with Mr Gales. (Ex D1/4 Q&A 97). He observed that the yard needed housekeeping. "I asked Wayne (Mr Gales) to get some extra labourers in to attend to this issue. Daniel, George and Christian were specifically employed to come in and deal with the housekeeping issues." (Ex D1/5 [31]).
After Mr Van Der Merwe left RTS Holdings and before the plaintiff's accident, Mr Gales reported directly to Mr Van Der Merwe on OH&S matters. (Ex D1/3 Q&A 67). Mr Van Der Merwe deposed that on his last inspection of the yard evidence he did not observe any incorrectly stacked beams. (Ex D1/5 [31]). This is surprising because Mr Van Der Merwe knew that the beams had to be stacked with the gluts in position to ensure the stability of the beams. He also knew before the plaintiff's accident that beams were emanating from the yard without stabilising gluts. This is because he recalled talking to Mr Gales about gluts that were missing on the truck of beams when it arrived in Canberra. (T190.2-3).
Mr Van Der Merwe had been was using shipping containers in the yard (and the prior yard at Helensburgh) to store beams for approximately seven years. The shipping containers were to be level. Mr Van Der Merwe acknowledged that Mr Gales had never participated in the actual levelling of them. (Ex D1/5 [34]).
It is my view that Mr Van Der Merwe was aware: (a) that if the stack of beams was not stabilised by the use of gluts it was likely to collapse and injure an employee engaged in the task of unloading it; (b) that if the shipping container was not on a level base, it was more likely that the beams would collapse; and (c) that those employed in the yard were likely to be inexperienced, unfamiliar and untrained in the work they were required to perform.
On the day of the accident, Mr Van Der Merwe received a call from Mr Gales who explained that there had been an accident at the yard. WorkCover was there and had stopped work in the yard. This was of major concern to Mr Van Der Merwe as RTS Holdings would not be supplying the equipment that they already had in the pipeline. Hence, it was important to get RTS Holdings running and moving. His wife contracted an OH&S specialist Ben Knox. He assisted to explain to RTS Holdings and Mr Van Der Merwe what needed to be done to lift the notices. (T130).
Of critical importance in the relationship between Strategic Formwork and RTS Holdings is that Strategic Formwork is reliant upon RTS Holdings to supply products to Strategic Formwork on time. As Mr Van Der Merwe explained in evidence, he would go to the yard to ensure that the products Strategic Formwork required from RTS Holdings were on schedule because if Strategic Formwork did not get the products as scheduled,, the supply to clients became a problem. It was of critical importance that RTS Holdings were delivering stock promptly and getting it right. (T128). To my mind the supply of products was of commercial imperative to Strategic Formwork and central to the relationship between RTS Holdings and Strategic Formwork. In my view Strategic Formwork exercised control over the day to day running of RTS Holdings.

[21]

After the accident - Ben Knox

On 3 May 2011, Ben Knox made a handwritten document. (Ex G). On 13 July 2011 Ben Knox, was interviewed by Stephen Cooper on behalf of WorkCover. (Ex F). Mr Knox is the director of Compliance OH&S. He has Bachelor of Applied Science in Occupational Therapy and a diploma in Occupational Health and Safety. He is a certified occupational health and safety auditor. He holds a white card which is a construction induction certificate. Mr Gales was obliged to report to Mr Day, the general manager of Strategic Formwork every day as to the progress of a particular job. In the absence of Mr Day, Mr Gales would report to Mr Van Der Merwe.
On 3 May 2011, Mr Day contacted Mr Knox by telephone and told him that he was employed by Strategic Formwork but was assisting RTS Holdings with compliance of improvement and prohibition notices it had received. Mr Knox arranged to meet with Mr Day the next day at the office of Strategic Formwork.
On 4 May 2011, a meeting was held at the office of Strategic Formwork at Sutherland. Mr Knox, Mr Day, Mr Van Der Merwe and Mrs Van Der Merwe were in attendance. At the meeting, Mr Knox took handwritten notes and it was explained to him that there had been an incident at RTS Holdings where a worker had been injured. He discussed the final costs of his services with Mr Van Der Merwe who Mr Knox believed was the director of Strategic Formwork. Mr Knox says that he only had one discussion with Mrs Van Der Merwe who he understood was the sole director of RTS Holdings. All other instructions were provided verbally by Mr Van Der Merwe. There was no written authorisation in relation to the services Mr Knox was to provide although he thought there could have been emails. (Ex F Q&A 82).
On 4 May 2011, Mr Knox attended the yard with Mr Van Der Merwe, Mr Day and Mr Gales so he could review the needs of RTS Holdings in relation to OH&S. He had, like Mr Gales and Mr Van Der Merwe, observed that the yard was untidy. He became aware that there were limited policies and procedures in place and amongst other safety concerns, some materials were stacked in an unsafe manner.
Mr Knox's evidence is that there were some management systems in place. The extent of the management system was that there were verbal instructions and staff were supervised until deemed they were competent to perform their work tasks. There were also some photographs that showed the appropriate procedure for stacking beams. Apart from the verbal instructions and photographs Mr Knox says that there were no documented policies or procedures in place at the yard.
After consultation with Mr Gales and Mr Day, Mr Knox reviewed RTS Holdings' operations including the yard. Detailed OH&S policies and procedures were developed based on this review and a training programme was completed with all employees on the new policies and procedures. The training has now been documented. Mr Gales and Mr Day were responsible for providing the training. The unloading of trucks and the stacking of beams is now covered in the documented procedures.
About one week after the plaintiff's accident, in compliance with the notices issued by WorkCover, the yard was completely tidied up, all equipment restacked, waste removed, pedestrian access provided, tools tagged, pot holes filled, containers re-levelled, signage erected, chemicals stored correctly, waste areas defined, amenities cleaned, material re-strapped and policies and procedures developed. Mr Knox now attends the yard on a regular basis to review OH&S procedures and ensure that they are being followed.

[24]

The plaintiff's pleaded case against Strategic Formwork

The plaintiff pleads that on 2 May 2011 Strategic Formwork:

Strategic Formwork had the care, control and management of the yard. It carried out a business and/or occupation at the yard which required it to engage in the process of supplying, moving and/or preparing laminated veneer lumber planks (beams) which were supplied to the plaintiff's employer RTS Holdings. (ASC [2] and [3]).
By its servants and/or agents was aware and/or ought to have been aware that the shipping container was not level and that it had the beams stacked on one side of it which were likely to fall due to the way in which the shipping container was seated on the yard; and that Strategic Formwork ought to have been aware that in the absence of taking appropriate precautions there was a risk that the plaintiff would sustain serious and life threatening injuries and that appropriate steps were available which would have prevented such injuries being sustained by the plaintiff. (ASC [8] and [9]).
Was under a duty to ensure that appropriate steps were taken to ensure that persons entering the shipping container were not likely to be injured by the beams falling as a result of the container not being level and/or as a result of the manner in which the container had been stacked with the beams. (ASC [10]). Strategic Formwork denies these allegations. (D [7]).

The plaintiff adopted RTS Holdings' submission that Strategic Formwork firstly, failed to provide supervision of all employees including the plaintiff working at the yard; secondly, failed to ensure that the shipping container was placed upon a level surface; thirdly, failed to inspect the shipping container before allowing the plaintiff to enter the shipping container to determine that it was safe for him to do so; fourthly, failed to ensure that the plaintiff and/or other personnel working at the yard had been appropriately instructed and/or trained in the performance of their duties; fifthly failed to carry out occupational health and safety management audits; sixthly, failed to provide assistance and/or ensure that assistance was provided to the plaintiff in the performance of his duties; seventhly, failed to provide to the plaintiff and/or ensure that appropriate equipment was provided to him to perform the duties at the yard; eighthly failed to inspect the inside of the shipping container to ensure that it was safe for persons to enter and remove timber without the risk of injury; and finally, failed to ensure that a safe system of work was in place at the yard. (ASC [11A]).
Finally, in the alternative the plaintiff pleads and RTS Holdings adopts the allegation that Strategic Formwork by its directors, servants and/or agents had the power to control, direct, instruct and/or train all personnel that were employed by Strategic Formwork and/or RTS Holdings at the yard. (ASC [11B]).

[25]

Strategic Formwork's submissions

Firstly, Strategic Formwork submitted there is no evidence that it conducted a business at the yard. The fact that any of its employees, such as Mr Day and Mr Van Der Merwe, may have attended the yard from time to time while they were employed by Strategic Formwork (that is, during the period between January 2011 and the date of the accident on 2 May 2011), does not mean that Strategic Formwork was conducting a business at the yard.
Secondly, Strategic Formwork submitted that if it conducted a business at the yard then the next question that arises is whether it was the occupier of the yard and Strategic Formwork says that there is no evidence that it was. There is a commercial lease between RTS Holdings and the owner of the yard. Strategic Formwork says that there is no evidence that it was in control of the yard and the evidence of Mrs Van Der Merwe does not suggest or lead to any inference that RTS Holdings shared occupation with Strategic Formwork. (Ex L). I place little weight on this submission as quite frankly Mrs Van Der Merwe had little understanding of what her responsibilities as director of RTS Holdings entailed.
Assuming I accept what Strategic Formwork understands to be the focus of the cross examination of Mr Van Der Merwe, Strategic Formwork submitted that all that has been established is that Mr Van Der Merwe had some authority in respect of financing matters and of occupational health and safety and that Mr Van Der Merwe would have expected Mr Gales, who used to work for him, to follow any instructions he might give. I agree that situation would not be surprising but overall it is my view that Mr Van Der Merwe and Mr Day exercised de facto control of the day to day running of RTS Holdings.
Thirdly, Strategic Formwork submitted that there is no suggestion that the arrangements between Strategic Formwork and RTS Holdings are a sham. The Court has always upheld the sanctity of the corporate structure but that does not determine whether or not the corporate structure owes a duty of care to the plaintiff.
Finally, Strategic Formwork says that so far as paragraph 11(B) of the ASC is concerned the plaintiff's alternate argument is a novel one and is based on simply ignoring the different corporate structures and focusing on Mr Van Der Merwe's status as the husband of Mrs Van Der Merwe and the founder of the business. In 2011, Mr Van Der Merwe was no longer employed by RTS Holdings. Strategic Formwork submitted that despite this fact, the plaintiff alleges that Mr Van Der Merwe must still have had some power and authority. Therefore Strategic Formwork owed a duty of care to the plaintiff merely because Mr Van Der Merwe could still go to the yard and Mr Gales would do what Mr Van Der Merwe asked him to do.
Strategic Formwork further submitted that even if it proved that Mr Van Der Merwe had some power and authority it does not impose a duty on Strategic Formwork. Strategic Formwork says that even if the Court accepts that Mr Van Der Merwe may have had authority in respect of certain financing matters, may have done things that one might have expected Mrs Van Der Merwe to do and that Mr Van Der Merwe may have inspected the yard on perhaps two occasions between January and May 2011, it does not give rise to some duty of care in favour of the plaintiff. According to Strategic Formwork words such as authority, reporting, responsibility and power were used during cross examination of Mr Van Der Merwe but the fact remains that RTS Holdings who was in occupation of the yard and employed the plaintiff does not suggest through its own director that Strategic Formwork as a separate legal entity had any such role or responsibility.
Senior counsel for Strategic Formwork pointed out that it was never put to Mr Van Der Merwe, and there is no evidence to this effect, that he ever directed or instructed any labourer, backpacker or employee on the site during the period from January 2011 to 3 May 2011. According to Strategic Formwork is not surprising because Mr Gales must have known that Mr Van Der Merwe was the original founder of the business as Mr Gales used to work for Mr Van Der Merwe and a close examination of all of the emails in the name of Strategic Yard (which Mr Van Der Merwe explained) does not suggest Mr Van Der Merwe was directing and controlling Mr Gales.
Strategic Formwork further submitted that as Mr Van Der Merwe's stated that Mrs Van Der Merwe played a role. She says that as a director of RTS Holdings, Mr Van Der Merwe did not perform the functions suggested to him in cross examination. Mr Gales says the same thing (Ex D1/6). There were dealings between Mr Gales and Mr Van Der Merwe during that few months period from January 2011 to 3 May 2011 and in cross examination there was no attempt to distinguish between the period when Mr Van Der Merwe was employed by RTS Holdings up to January 2011 and when he stepped in after the accident to again work for RTS Holdings. Strategic Formwork submitted the fact that Mr Van Der Merwe attended the yard on a couple of occasions and noticed some housekeeping issues and spoke to Mr Gales about them, does not mean that Strategic Formwork owed a duty of care to the plaintiff. According to Strategic Formwork there was no relationship between the plaintiff and Strategic Formwork and whether or not Strategic Formwork had a power to instruct Mr Gales to do something does not give rise to a duty of care on the part of Strategic Formwork in favour of the plaintiff. I disagree for reasons explained later in this judgment.

[27]

Section 5B

Section 5B of the Act reads: "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."
The plaintiff referred to Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 ("Endeavour Energy"), where Basten JA (with whom Macfarlan JA and Sackville AJA agreed) in relation to the breach of duty of care found that given the long-standing practice of conducting aerial inspections of power lines in rural areas, combined with the public campaigns advertising such inspections, Telstra, the second defendant, ought reasonably to have foreseen the possibility that a helicopter may operate in the vicinity of its wire and thus come in contact with a not readily detectable wire. The risk which arose was not insignificant. Hence Telstra owed a duty of care to the owner of the helicopter and its occupants.
In Endeavour Energy Basten JA stated at [29]: "The first two elements in s 5B(1), foreseeability and significance of risk, will usually constitute matters to be considered in determining whether a duty is owed in particular circumstances to a class of persons including the plaintiff. That does not mean that duty is to be addressed by application of s 5B and 5C; as explained by Beazley P in Grills v Leighton Contractors Pty Ltd, such an approach would be erroneous. The existence of a duty of care depends, in part, upon a prospective determination that physical injury to a class of persons which would include the plaintiff was reasonably foreseeable in circumstances where the defendant did not take reasonable care in conducting its affairs. As Gageler J stated in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288: 'A duty of care at common law is a duty of a specified person, or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid specified loss to another specific person, or to a person within another specified class.'"
The next question to be determined is whether the risk was not insignificant. In Endeavour Energy, Basten JA noted at [32]: "The significance of a risk involves two main variables, namely the seriousness of the consequence should the risk materialise and, secondly, the likelihood of the risk materialising."
The plaintiff submitted that as set out in Endeavour Energy the likelihood of the risk materialising may have been very low, though not insignificant and the consequences, if they did materialise, were likely to be catastrophic. This scenario existed where the likelihood of the beams falling onto somebody within the shipping container (such as the plaintiff) was likely to result in significant injury.
In Endeavour Energy, Basten JA at [33] explained the third question raised by s 5B of the Civil Liability Act as follows: "The third question raised by s 5B asks what "precautions" a reasonable person would have taken in those circumstances. The reference to "precautions" is a reference to conduct which might minimise or remove the risk of harm which has been identified as not insignificant. The factors referred to in s 5B(2) recognise that both the chance of the risk materialising and the likely seriousness of the harm should be addressed. The section also identifies the burden of taking precautions and the social utility of the activity creating the risk. The last two factors cannot operate against a finding of negligence in the present case…"
Senior counsel for RTS Holdings referred to Caltex Refineries (Queensland) Pty Ltd v Stavar [2009] 75 NSWLR 649 ("Stavar") which dealt with what was termed a "novel circumstance" and identified the salient features that were relevant to the determination of the existence of a duty of care in such circumstances. At [103] Allsop P set out the salient features which include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect himself or herself; (e) the assumption of responsibility by the defendant; (f) the nature of the activity undertaken by the defendant; and (g) the nature or the degree of the hazard or danger likely to be caused by the defendant's conduct.
In Stavar the Court of Appeal continued at [104] to [106]: "[104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. [105] The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody (at 579 [49]). The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment. [106] I have described "foreseeability" as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as "proximity" or "fairness" do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility."
Senior counsel for Strategic Formwork submitted that for the purposes of any negligence action, it is necessary for the plaintiff to plead and identify the basis upon which Strategic Formwork owed a duty of care to him. As has been said in cases such as Roads & Traffic Authority v Dederer (2007) 234 CLR 330 ("Dederer"), a duty of care is not owed in a vacuum. It is dependent upon a defined class of relationships. Normal relationships include occupier and entrant, employer and employee, head contractor and principal. There was no such relationship between the plaintiff and Strategic Formwork. The existence of a duty of care is not determined or dependant on the belief or mind of a person in terms of foreseeability.
RTS Holdings referred to CSR Limited v Wren (1997) 44 NSWLR 463 ("Wren"), where the Court of Appeal considered the argument that CSR did not fall within any recognised category in which a duty of care is owed. The Court of Appeal stated (at 483): "This of course is no barrier to the existence of a duty of care. The leading cases of the last fifty years have been concerned with novel and emerging circumstances where a duty of care has been held to exist. The mere fact that something is not beyond argument does not deny the existence of a duty of care. The question in all cases is to determine, whether, in a particular set of circumstances, a duty of care arises."
And finally, in relation to breach of duty of care, the Court of Appeal in Wren (at 487) referred to the well known passage from Wyong Shire Council v Shirt [1980] HCA 12 (at 47-48) where Mason J stated: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

[28]

Did Strategic Formwork owe the plaintiff a duty of care?

The alleged duty of care owed by Strategic Formwork to the plaintiff derives from the relationship between Strategic Formwork, RTS Holdings and employees of RTS Holdings. While Strategic Formwork argued that the Court has always upheld the sanctity of the corporate structure, this of itself does not absolve it from owing a duty of care to the plaintiff.
I shall briefly summarise the set of circumstances to ascertain whether a duty of care arises.
Mr Gales said he reported to Mr Van Der Merwe and Mr Day. Mr Van Der Merwe personally trained Mr Gales. (Ex D1/4 Q&A 93-94).
Mr Van Der Merwe was the managing director of RTS Holdings. He is currently the director of Strategic Formwork. Mrs Van Der Merwe is the director of RTS Holdings. Mr Van Der Merwe explained the way in which the businesses were established, why they were established and the separate functions of the businesses.
Mr Gales said of the management structure of RTS Holdings "Graham or Luke would be in charge and they would let me know what was needed and what was needed at different times." Mr Gales also explained that he was answerable to Mr Day, who was his direct supervisor. (Ex D2/4 Q&A 39, Q&A 48-53). Mr Gales was obliged to report to Mr Day, the general manager of Strategic Formwork, every day as to the progress of either a particular job or particular jobs. In the absence of Mr Day, Mr Gales would report to Mr Van Der Merwe.
As I explained earlier in this judgment, the relationship between Strategic Formwork and RTS Holdings was a commercial one. Strategic Formwork was reliant upon RTS Holdings to supply products to it. As Mr Van Der Merwe explained, he would go to the yard of RTS Holdings so as to ensure that the products Strategic Formwork required from RTS Holdings were on schedule because if Strategic Formwork did not get the products on time, the supply to clients became a problem. It was of critical importance that RTS Holdings were delivering stock to Strategic Formwork on time and getting it right. (T128). To my mind this was a commercial imperative and central to the relationship between RTS Holdings and Strategic Formwork. In fact Mr Van Der Merwe exercised a lot of control over the day to day running of RTS Holdings.
Casual employees, often backpackers, were obtained from the hostel. It was Mr Van Der Merwe's practice to ring the hostel to secure casual labour. He hired staff directly and directed Mr Gales to employ staff. (Ex D1/5 [31]). On 8 April 2011 Mr Van der Merwe requested two men who were to be employed by RTS Holdings, who needed to have a car. On 27 April 2011, Mr Gales rang Mr Keogh, the manager of the hostel, to request employees for "Strategic". (Ex J).
As to dealings with Mr Van Der Merwe, Mr Keogh said: "Yes over the past 5 years or so Graham has rung up personally and spoke to me on occasions seeking labourers for work in their yard to sort and stack timber and formwork stuff… about a year ago when I found out it was at a new yard in Corrimal. Q ….who did you understand was the company that was seeking these causal workers? A Strategic Formwork." (Ex H Q&A 21-22)
Mr Keogh believed the proposed employer of the backpackers to be Strategic Formwork. (Ex H Q&A20). Also, the workers who attended the yard were dressed in T-shirts bearing the name "Strategic" and there were bins at the yard with "Strategic" written on them.
In my view the salient features in the relationship between RTS Holdings and Strategic Formwork are: 1. It was foreseeable that an untrained casual employee would be injured by collapse of the beams. 2. There was a foreseeable risk of harm to the plaintiff inherent in the task of unloading the beams from the shipping container. 3. The harm alleged is physical harm. 4. Strategic Formwork had day to day control of the system of work, at the yard and of Mr Gales who was controlling the actual workflow on the day of the plaintiff's accident. 5. The plaintiff was "vulnerable". He was untrained and unskilled in labouring. He was likely to suffer injury if Strategic Formwork failed to take reasonable care to provide, or cause RTS Holdings to provide, a safe system of work. 6. The plaintiff, as a casual employee, relied on both Strategic Formwork and RTS Holdings. 7. Strategic Formwork, through Mr Van Der Merwe and Mr Day, assumed responsibility for the system of work, the premises at which the work was performed and the supervision through Mr Gales of the plaintiff's employment. 8. There was proximity between the physical injury to the plaintiff and the actions of Strategic Formwork. 9. The operation of Strategic Formwork required it to have a yard where materials were present that were essential for its business. Strategic Formwork through Mr Van Der Merwe adopted the practice of using shipping containers and employing casual "backpacker" employees. 10. The plaintiff was an employee of a business essential to Strategic Formwork's entrepreneurial activity. 11. There was a high degree of hazard and danger in the task being undertaken. 12. Mr Van Der Merwe knew or ought to have known that: 1. if the stack of beams was not stabilised by the use of gluts it was likely to collapse and injure an employee engaged in the task of unpacking it; 2. if the shipping container was not on a level base it was more likely that the beams would collapse; 3. those engaged in the work were likely to be inexperienced, unfamiliar and untrained in the work being performed; and 4. beams had emanated from the yard without stabilising gluts being used because Mr Van Der Merwe recalled talking to Mr Gales about gluts that were missing on the beams when the truck arrived in Canberra. 1. There is no issue of indeterminacy of liability. 2. There are no countervailing factors such as individual freedom, conflicting duties arising from statute or the need for coherence in the structure and fabric of the common law inconsistent with a duty of care owed to the plaintiff being imposed on Strategic Formwork.
Similarly, RTS Holdings submitted that the reasons Strategic Formwork owes a duty of care to the plaintiff is because: (i) of the conduct of Strategic Formwork through Mr Van Der Merwe and Mr Day; and (ii) it brought itself into a relationship with the employees of RTS Holdings. It placed its staff in the role of the management of RTS Holdings.
In these circumstances RTS Holdings submitted that a duty of care arises in Strategic Formwork in favour of the employees of RTS Holdings including the plaintiff. According to RTS Holdings, the plaintiff was a person so closely affected by Strategic Formwork's acts and omissions it ought to have reasonably had him and co-workers in contemplation as being affected by those acts and omissions outlined earlier in this judgment. I also agree with these submissions.
My conclusion is that all of these factors above establish the existence of a duty of care owed by Strategic Formwork to the plaintiff.

[29]

The risk of harm - Was it foreseeable and not insignificant?

Counsel for the plaintiff submitted that the risk of harm which was known or ought to have been known to Strategic Formwork was that the plaintiff would sustain not insignificant injury in the event that the beams collapsed during the course of unloading them from the shipping container.
As previously stated, Strategic Formwork through Mr Van Der Merwe knew or ought to have known that the lack of gluts stabilising the beams in the shipping container, the lack of assistance of experienced personnel and the fact that the shipping container was not level were all causative of the fall of the beams which caused the plaintiff's injury.
In my view the risk of harm as defined in s 5B of the Civil Liability Act was foreseeable to Strategic Formwork, or ought to have been foreseen by Strategic Formwork, because Mr Van Der Merwe and therefore Strategic Formwork knew that:

The beams in the shipping container were liable to collapse unless the stack was stabilised by the position of gluts.
The shipping containers were being used to store the beams.
The beams that were being delivered to RTS Holdings and on-delivered to Strategic Formwork job sites were on occasions delivered without gluts. Mr Van Der Merwe directed Mr Day and the yard at Strategic Formwork that "gluts must be used period".
The delivery of beams without gluts represented "safety to everybody. The delivery of beams like that onto the site flagged up a change in material handling on site to resolve that issue." (D1/4).

The plaintiff submitted that:

Each of these facts were known to Strategic Formwork and had been known for a prolonged period of time.
Strategic Formwork had the capacity to control the accident site, to direct the system of work which should have been engaged and to have implemented by way of directions to Mr Gales a means of carrying out the duties without the risk of injury.
Strategic Formwork was in a position to monitor, direct and enforce the system of work which was adopted at RTS Holdings' premises. (T263.5-9).

The evidence establishes that Mr Van Der Merwe, on behalf of Strategic Formwork:

Visited the Corrimal site and inspected it on at least two occasions from January 2011 to 3 May 2011, issued instructions and gave directions to Mr Gales as to what should happen.
Had prior to January 2011 provided Mr Gales with hands on instructions and training as to how he wanted the yard managed and tasks done; this included stacking the beams. (D1/5 [39]).
For the month prior to the plaintiff's accident (when the shipping container was delivered) Mr Van Der Merwe knew of the risk associated with the shipping container not being on a level surface.

It is my view that Strategic Formwork, through Mr Van Der Merwe, knew or ought to have known that the risk of harm was foreseeable and not insignificant. Further, the risk of harm is not insignificant and therefore s 5B(2) of the Act is satisfied. It is my view that s 5B(1)(a) of the Act is satisfied on the above facts.
So far as the reasonable precautions are concerned, on Mr Van Der Merwe's evidence, the beams collapsed because: 1. the gluts were not in position; 2. the shipping container was not level; and 3. the plaintiff was an inexperienced employee.
The injury to the plaintiff would have been avoided if Strategic Formwork had provided proper direction to Mr Gales by means of a documented safe work method statement. Also injury to the plaintiff would have been avoided if Mr Van Der Merwe and Mr Day took reasonable care to provide an adequate system of supervision and inspection of the yard.
Strategic Formwork was required to take reasonable care to prohibit the plaintiff from working in the shipping container in circumstances where no inspection had been undertaken to ensure that the load was stabilised by the presence of gluts and the shipping container was on a level surface. It is my view that s 5B(1)(c) of the Act is satisfied in that Strategic Formwork failed to take the precautions a reasonable person would have taken against the risk of harm.
In terms of the analysis required by s 5B(2) of the Act, the plaintiff submitted that: 1. There was a high probability that the beams would collapse and harm be sustained if the precautions outlined in the particulars identified above were not taken; 2. The consequence of the collapse on a worker in the position of the plaintiff was likely to result in serious harm. Indeed it is likely to result in catastrophic harm; 3. There was no great burden in taking the precautions suggested above. There is no reason why the shipping container could not have been placed on a level surface, the gluts in position as required and an experienced employee available to provide instruction, guidance and assistance to the less experienced plaintiff prior to the commencement of the work; and 4. There is nothing in the activities of Strategic Formwork that justifies the creation of the risk of harm.
It is my view that a reasonable person, in the circumstances outlined above would have taken precautions. They were firstly, to ensure that the beams were on a level base; secondly, gluts had to be used to stabilise the beams; and finally, a proper inspection should have been carried out by an experienced person (not the inexperienced Mr Palmer and/or the plaintiff) to ensure these precautions had been complied with. Putting a worker in the position of the plaintiff where he was unloading unstable beams in an enclosed shipping container where those precautions were not taken posed a significant risk that was likely to result in serious harm. There was no additional burden placed on Strategic Formwork because, as Mr Van Der Merwe acknowledged, these steps were always meant to have taken place. I should add that there is no social utility in the activity of unloading beams from a shipping container that creates the risk of harm. In my view s 5B(2) of the Act is satisfied. Strategic Formwork owed the plaintiff a duty of care and that duty of care was breached. Section 5B of the Act is satisfied.

[30]

Causation - s 5D of the Act "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

To establish causation, the plaintiff is required to prove on the balance of probabilities that had Strategic Formwork taken the steps identified, the injury to the plaintiff would not have occurred or would have been avoided.
If Strategic Formwork had taken reasonable care to ascertain whether the beams were stable before permitting the plaintiff to commence unloading them, the accident would have been avoided. As previously stated, all that needed to occur was for a reasonable inspection to take place before the plaintiff commenced work inside the shipping container. On the balance of probabilities, this would have ascertained that the gluts were not in position and the shipping container was not level. If a more experienced employee than Mr Palmer or the plaintiff had done so, there is a substantial prospect that he would have detected the potential danger. In that event, an instruction that the work was not to proceed until the beams were stabilised and the shipping container made level would have completely eliminated the risk of harm.
It is my view that Strategic Formwork's breach was a necessary condition of the occurrence of the injury to the plaintiff (factual causation) and it is appropriate that the scope of Strategic Formwork's liability extends to the harm so caused (scope of liability) for the reasons earlier expressed. I do not consider the circumstances of the occurrence of negligence to be an exceptional case. Section 5D of the Act is satisfied in relation to Strategic Formwork's breach of duty of care.
In summary Strategic Formwork has breached its duty of care it owed to the plaintiff and is negligent. Both RTS Holdings and Strategic Formwork are liable to the plaintiff for damages.
The next issue for determination is apportionment.

[31]

Apportionment between RTS Holdings and Strategic Formwork

RTS Holdings as the employer is liable for its failure to provide the plaintiff with a safe system of work and for this RTS Holdings has admitted its liability.
If Strategic Formwork has a liability, then the Court must assess apportionment according to what is just and equitable in accordance with the principles set out in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34 ("Podrebersek").
In Podrebersek, the High Court stated (at 10): "… comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage: ... . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
In Endeavour Energy, Basten JA at [165] stated: "Apportionment of liability on a just and equitable basis does not provide clear standards or permit precise calculation. It involves a weighing of various causative factors, resulting in relevant loss…"
RTS Holdings seeks that Strategic Formwork indemnifies it under s 151Z(2) of the Workers Compensation Act. A determination must be made as to the respective responsibility of RTS Holdings and Strategic Holdings.
Section 151Z(2) of the Workers Compensation Act relevantly reads: "(2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, …"
The assessment of apportionment depends on assessing the culpability and causal potency of the negligent acts. The plaintiff's accident resulted from three contributing factors: 1. the instability of the beams due to the absence of the gluts; 2. the fact that the shipping container was not level; and 3. the inexperience of the plaintiff and the absence of an experienced employee able to detect that there was a risk of the beams collapsing.
Strategic Formwork submitted that RTS Holdings is primarily liable for the following reasons: 1. RTS Holdings employed Mr Gales. By Mr Gales' own admissions in his statements there were a number of failings attributed to him; 2. RTS Holdings employed the person who put the beams into the shipping container without gluts in the first place. Such as, RTS Holdings created the problem; 3. the primary obligation to supervise, instruct, train and monitor the plaintiff rested with RTS Holdings as the employer. The plaintiff was working at the RTS Holdings worksite, at premises occupied by RTS Holdings, under the direction and control of Mr Gales; 4. it has not been shown that anyone from Strategic Formwork knew that the beams had not been properly stacked inside the shipping container, knew of the absence of gluts or even knew that the shipping container was not level; 5. it has not been shown that anyone from Strategic Formwork, that is Mr Van Der Merwe, was on site at any time and in a position to observe those problems which caused the accident, prior to the accident; 6. if it is accepted that in some way the alleged power or authority of Mr Van Der Merwe during those few months gave rise to a duty of care and in some way he had power or authority to instruct Mr Gales, then there is still no evidence that any issue was raised between Mr Gales and Mr Van Der Merwe which required such instruction. Again, the fundamental problem is that Mr Gales never raised the alleged unlevel shipping container or the lack of gluts and as far as Mr Van Der Merwe was concerned, this was an issue that had been well and truly discussed with Mr Gales in earlier years; 7. the alleged failures of Strategic Formwork are plainly secondary and remote from the primary causes of the plaintiff's accident; 8. the alleged failures of Strategic Formwork appear to relate to some failure to have a proper occupational health and safety system, documentation and procedures in place. If the Court finds that Strategic Formwork had some obligation during those few months, January 2011 to May 2011, it must also be that RTS Holdings had the same obligation while Mr Van Der Merwe was managing that company prior to January 2011; and 9. if the failings of Strategic Formwork are the failings of Mr Van Der Merwe and Mrs Van Der Merwe's failings in the period January 2011 to May 2011, they pale into insignificance with the very many failings of Mr Van Der Merwe in the period prior to January 2011. For every point the plaintiff makes about Mr Van Der Merwe not doing something in setting up proper occupational health and safety, the same point can be made back against RTS Holdings for all those years prior to the accident.
Senior counsel for Strategic Formwork submitted that if it is found to have contributed to the plaintiff's accident, then the failings of Strategic Formwork were isolated from the day to day events at the yard and the failing of a system or an obligation to implement some sort of system. Senior counsel further submitted that it was the duty of Mr Gales to supervise the backpackers and if Strategic Formwork failed to ensure that Mr Gales who had the primary obligation of supervision, then Strategic Formwork's obligation was a secondary obligation to ensure that Mr Gales did what he should have done. Therefore, according to Strategic Formwork its liability is a minor proportion compared to the liability of RTS Holdings. (T244; T245).
RTS Holdings submitted that the causal potency between RTS Holdings and Strategic Formwork is about equal. However, the culpability is overwhelmingly against Strategic Formwork because it designed the system, it controlled the operatives in the system and it inspected the yard where the system was deployed but failed to detect or act upon the risk of harm to which the plaintiff was exposed.
Senior counsel for RTS Holdings submitted that if it is negligent then there is an equivalence or an equality between the action of Mr Gales and the actions of Mr Van Der Merwe, that is 50%. (T267.22-25).
However, in terms of culpability, senior counsel for RTS Holdings submitted that Mr Van Der Merwe was in a vastly more superior position than Mr Gales. Firstly, it was Mr Van Der Merwe's system; secondly, Mr Van Der Merwe is an educated man who knew what needed to be done; thirdly, Mr Van Der Merwe did not document a safe work method statement or system which he could have documented and made available to Mr Gales.
Senior counsel for RTS Holdings submitted that Mr Gales knew that gluts should have been in place but what Mr Gales did not know that the shipping container should have been level. Mr Gales was not responsible for was the practice of hiring inexperienced backpacker labour. He did that because Mr Van Der Merwe told him to do it. That was the practice that was established. So those two issues, together with Mr Van Der Merwe's superior position in relation to Mr Gales, justifies a disproportionate approach to the question of culpability. (T267).
RTS Holdings submitted that its non-delegable duty of care is 25% and Strategic Formwork responsibility is 75%.
The plaintiff submitted when all of these factors are taken into consideration and balanced against the capacity of Strategic Formwork to control the site and control the persons who were in a position to put into place the necessary safeguards against injury, would dictate that the apportionment of responsibility between Strategic Formwork and RTS Holdings would be of the order of 80% and RTS Holdings at 20%.
RTS Holdings as an employer owes the plaintiff a non delegable duty of care. The evidence establishes that the only director of RTS Holdings was Mrs Van Der Merwe. She did not play a significant role in business of RTS Holdings and she took no active role in the management and day to day running of the yard. In particular she exercised no real role in relation to her responsibilities to her employees for the occupational health and safety issues at the yard. In fact, she left it all to Mr Van Der Merwe. In summary, Mrs Van Der Merwe deferred to Mr Van Der Merwe for almost all aspects of the running of RTS Holdings. This is because he was an experienced engineer and had previously supervised the operations at the yard. He was still in a position to instruct and/or direct Mr Gale, the yard manager.
Mr Gales, as yard manager of RTS Holdings, was at the yard when the plaintiff's accident occurred. Mr Gales was the person who directed the plaintiff to do the work that he was undertaking at the time he sustained his injuries. Mr Gales was instructed, directed and trained by Mr Van Der Merwe. He reported to Mr Day, the general manager of Strategic Formwork and Mr Van Der Merwe. Mr Van Der Merwe on behalf of Strategic Formwork knew or ought to have known of the danger consequent upon the absence of gluts and the unlevel state of the shipping container. He also knew that the people likely to be performing the work were "backpackers" who were not necessarily experienced in construction work and that the casual employees were inevitably from wide ranging backgrounds and experiences. The work was inherently dangerous.
While RTS Holdings had responsibility for OH&S at the yard, it had no written procedures in place. About a week before the plaintiff's accident, Mr Gales noticed that this shipping container was not level on the ground (D2/4 Q&A264-265) but he did not take any action to level it because "we were busy." (D2/4 Q&A267). The lack of gluts was the most significant cause of the accident. Mr Brad Hewson, a fulltime employee, had packed the container without the use of gluts approximately four weeks prior to the plaintiff's accident. (Ex D1/5 [29]). Mr Van Der Merwe gave evidence that he could not remember who employed Mr Hewson. (T151.26-33). Mr Gales as RTS Holdings' supervisor of the yard should have ensured there were gluts in place to stabilise the beams before the plaintiff started unloading the beams. He did not do so.
While Strategic Formwork has sought to place almost total burden upon RTS Holdings, it is my view that Strategic Formwork had the capacity to control what took place at the yard. Strategic Formwork maintained financial and occupational health and safety controls over the yard and gave directions in relation to the hiring of staff. Mr Day, as an employee of Strategic Formwork, gave daily directions to Mr Gale in relation to the manner in which his work was performed to the extent that he was capable of giving directions to Mr Gale which did not necessarily have any benefit to RTS Holdings. If Mr Day was not present, Mr Van Der Merwe gave these directions.
Mr Van Der Merwe, as an experienced manager and well qualified in the construction industry, knew or ought to have known that such inexperienced people required close supervision, training and instruction. Mr Gales, as yard manager, would not have necessarily appreciated this requirement.
Furthermore, as at 16 March 2011, Strategic Formwork through Mr Van Der Merwe, knew that there were problems associated with the absence of gluts in the materials sourced from RTS Holdings. He directed steps be taken. He gave that direction to Mr Day, which shows that he expected Mr Day to take steps to remedy the deficiency that he had observed. He sent a copy of that email to the Strategic yard. It is significant that he did not address it to Mr Gales.
In District Court proceedings Mr Van Der Merwe deposed that he regularly attended the yard to ensure that the systems which he had designed were adopted by RTS Holdings and Mr Gales. Between January 2011 and 2 May 2011 Mr Van Der Merwe had been to the yard on at least two occasions.
As explained earlier, RTS Holdings and Strategic Formwork are part of the same entrepreneurial grouping with the supply of material by RTS Holdings to Strategic Formwork being critical to the financial success of Strategic Formwork. As previously stated, Mrs Van Der Merwe appears to have played no active role in the operational part of RTS Holdings. Mr Van Der Merwe and Mr Day were in a superior position to Mr Gales who was required to report to them.
However, so far as Strategic Formwork is concerned, Mr Gales was trained by Mr Van Der Merwe. It was a system created by Mr Van Der Merwe and he expected it to remain in place. Mr Van Der Merwe is an educated man who knew what needed to be done. He did not document a safe work method statement or system which he should have documented and made available to Mr Gales. Mr Van Der Merwe established the practice that he expected to be carried on when Mrs Van Der Merwe, the director of RTS Holdings, took over employing inexperienced backpackers. Further, Mr Van Der Merwe was aware that RTS Holdings in March 2011 had permitted beams to be transported from the yard without being stabilised by gluts.
In relation to s 151Z(2) of the Workers Compensation Act, and having regard to all these circumstances, I apportion the culpability of RTS Holdings at 40% and Strategic Formwork at 60%.
I will now assess the plaintiff's damages.

[33]

Roxy and the plaintiff's parents

Roxy arrived at the hospital on the day that the plaintiff's accident occurred. During the plaintiff's stay at the Prince of Wales hospital she moved to Manly. Every day at 7.00 am she caught the ferry and then a bus to the hospital. She stayed with the plaintiff all day, leaving at around 10.00 pm or 11.00 pm when they "kicked her out". She helped the plaintiff in an out of his wheelchair, helped him to dress, wash and shower, moved him around, did things for him on the internet, sorted out the TV and obtained food and drinks for him. She made the plaintiff breakfast and got his dinner, liaised with his doctors and medical practitioners, did his washing, ironing, transported his clothes back and forth and anything else that he needed. She also provided him with constant emotional support which was very important to him. She spent all day and most nights providing some form of care and assistance.
The plaintiff's parents arrived from Wigan, United Kingdom about two days after the accident. Initially, they were absolutely devastated when they were told by the plaintiff's surgeons that there was a 95% certainty that the plaintiff would not walk again.
The plaintiff's parents provided him with every support possible and had meetings with his surgeons and social worker at Prince of Wales hospital. Every day was spent at the hospital. They also got in touch with Southport Spinal Unit in the United Kingdom to begin the possibility of repatriation. The plaintiff's parents say that the biggest hurdle was the plaintiff coming to terms with the possibility that he may not walk again. The plaintiff also had to see a psychologist because of the mental trauma as a result of his accident. They say that all that they could do was to be with the plaintiff and be strong for him. While the plaintiff's parents were in Australia, they stayed with him every day at the hospital helping him with anything that was required. They estimate that they spent about 8 to 10 hours per day at the hospital providing physical and psychological support to the plaintiff.
The plaintiff's parents paid for their return flights to and from Sydney and for their accommodation. They also paid for Roxy's flight back to Wigan and the plaintiff's living expenses while he was living with them on his return to the United Kingdom.
On about 25 June 2011, the plaintiff was discharged from hospital in Australia. He travelled directly to the airport and on to the United Kingdom. On his arrival in the United Kingdom the plaintiff was transferred to the spinal injuries unit at Southport and Ormskirk hospital where he remained for two weeks. The plaintiff was discharged as an inpatient of Southport and Ormskirk hospital but remained an outpatient with daily treatment.
During the two weeks that the plaintiff was an inpatient at Southport and Ormskirk hospital, Roxy and his parents travelled to the hospital every day and spent all day with him. This trip was approximately 20 miles each way. They would spend most of the day at the hospital with the plaintiff providing him with care, support and any assistance he required. On 10 July 2011, the plaintiff was transferred to Northwestern Regional Spinal Injury Centre. On 9 September 2011, he was discharged from there.
After the plaintiff was discharged as an out patient, he lived with his parents at their home in Wigan. Their home had a room and bathroom downstairs that the plaintiff could use. They purchased items which enabled the plaintiff to use the shower. They had a ramp built to accommodate his use of a wheelchair. Roxy stayed with the plaintiff and his parents and helped care for him.
When the plaintiff was at his parents' home, Roxy provided him with most of his personal care. His parents were backups in case Roxy was unable to do anything. Roxy says that just getting up in the morning was such a big job. At first the plaintiff required help with the smallest of things, such as putting on socks as he was unable to lift his legs and hold them to hook his socks on. She says that her assistance amounted to at least two to three hours per day on average. The plaintiff's parents say that the assistance they provided would have equated to at least seven hours per week. In addition there were general household duties which they attended to for example shopping, cooking, cleaning and washing for the plaintiff.
The plaintiff's parents say that once the hospital visits began to decrease and then finally cease, they then took the plaintiff to numerous and ongoing specialist appointments. They say that initially the plaintiff had appointments on a daily basis. During the first couple of months, Roxy took the plaintiff to about 75% of the appointments and his parents took him to about 25%. This changed once Roxy obtained employment. Roxy has continued to provide the plaintiff with constant emotional support from the date of the accident to date.
On 4 October 2011, the plaintiff consulted Dr CA Glass, a consultant clinical psychologist. On 11 October 2011, the plaintiff consulted Mr BM Soni, a consultant surgeon in spinal cord injuries. The plaintiff was provided with an elbow crutch for his left side.

[35]

Return to work

Prior to the accident, the plaintiff's past working experience was as a duty manager in a gym, a personal trainer, a football coach and a surveyor. His only employment as a labourer was with RTS Holdings. Prior to the accident, once the plaintiff returned to the United Kingdom from his backpacking adventure, he had planned to do one year of further study to become a physical education teacher at a secondary school. (T72.50).
The plaintiff's first post-accident employment occurred in September 2012, when he commenced work as a teacher's assistant at Abraham Guest High School working with children part time from 9.00 am to 3.00 pm. He was in the special needs department. He worked with children with learning difficulties, assisting the teacher to facilitate the children's learning. (T15.19-23). Some of the children were in 5th year. The plaintiff resigned because he felt quite vulnerable at times. While he enjoyed some aspects of the work, overall he did not really enjoy it. At this time he was walking around unaided but still had a lot of functional issues. He could not walk to work. He had to get a lift by car to and from work from his father or Roxy. The school was five minutes away by car. (T16.13-14).
In March 2013, the plaintiff returned to Australia for medico legal examinations. On 18 March 2013, he consulted Dr S Buckley who diagnosed the plaintiff with spinal cord injury with incomplete paraplegia, neuropathic bladder and other problems, a healed fractured ankle and fusion of the thoracolumbar spine.
On 19 March 2013, Dr H Ting, provided a vocational and functional assessment report. On 20 March 2013, the plaintiff consulted Dr R Higgan orthopaedic consultant. On 21 March 2013, he consulted Associate Professor M Fernside, a neurosurgeon. On 25 March 2013, the plaintiff consulted Dr A Durrell, a psychiatrist.
From 21 December 2012 until June 2013, the plaintiff did not undertake any paid employment. During cross examination he admitted that he could have worked during this time (T57.3-9) but he was "looking for work" and that he was "still in a position where [he] didn't really know what to do…" (T57.18-19).
From June/July 2013 until January 2014, the plaintiff volunteered at Manchester City Football Club coaching children. He felt frustrated trying to coach kids' football. He was not able to do a lot of the things that the kids could do, nor could he show them how to do things. He found it more physically demanding than what he thought it would be. (T17). He helped children from certain backgrounds and disabilities get involved in sport. (T7 .7-10). Due to his physical limitations and pain he felt vulnerable and for those reasons, he resigned.
In August 2013, the plaintiff commenced working at Fusion performing recruitment work for engineers and plumbers mainly for commercial property management companies. It was essentially a sales job. (T 17). During this time he found that he was not able to do any gym work. He would just go to work and that was it. He could not do anything else as it was a full time position and something that he had not done before. His exercise fell off and as a result he was suffering quite a bit of back pain. (T18). He initially worked full time earning £15,000 per annum plus commission.
On 28 August 2013, he was assessed by Cathy Field a neurophysiotherapist at St John Street Clinic, Manchester. He then began consulting her once a week. She helped him work on his mobility, strength and posture as his overall condition had deteriorated since he started working at Fusion. He still consults her once a week as he finds this therapy beneficial. When he first saw her he was getting up steps by pulling himself up with the handrails. He can now walk up stairs. He had no sensation in his left leg but he now has partial sensation in his thigh. (T19). He has muscle atrophy in his quadriceps. (see photographs - Ex Q). He has weakness around his left hip, hip flexors and weakness in his trans-abs and paraspinal muscles. (T20.10-13).
In September 2013, the plaintiff and Roxy moved into their flat at Deansgate, Manchester. Their flat is on the third floor and there is a lift as well as stairs.
The plaintiff's parents still assist and provide support to the plaintiff where and when they can. This is on an ad hoc basis and difficult to specifically quantify.
On 21 October 2013, the plaintiff became aware that his physical condition was deteriorating. Prior to seeing Ms Field, the plaintiff was able to reduce his hours at Fusion to 25 hours per week. His salary reduced from £15,000 to £9,373 per annum plus commissions. On 14 February 2014, the plaintiff ceased employment with Fusion because he realised that he did not want to do recruiting work for the rest of his life.
From 14 February 2014 to September 2014 (28 weeks), the plaintiff was not employed.
On 20 February 2014, the plaintiff attended a consultation with Campbell Tait, Fellow in neurology, who noted that the plaintiff had a urinary problem.
On 18 March 2014, the plaintiff saw Lorraine Moore, a principal physiotherapist at Manchester & Salford Pain Centre.
From September 2014 to September 2015, the plaintiff commenced a fulltime Master's degree in Science in Sports Psychology at Manchester Metropolitan University. (T21.34-39). In September 2015, the plaintiff completed his degree with merit.
In April 2015, the plaintiff accompanied his family on a holiday to Florida.
In May 2015, the plaintiff returned to Australia for further medico legal examinations.
On 15 May 2015, he consulted Associate Professor Fearnside and Susan Beaver, occupational therapist. Ms Beaver recommended that to improve the plaintiff's quality of life and reduce his reliance on others he would require the following equipment: A Dyson stick vacuum, an electric lift desk, an ergonomic seat and an on bench dishwasher at a cost of $3,499 with an annual replacement value of $449.90.
On 19 May 2015, the plaintiff consulted Dr A Durrell, psychiatrist. On 20 May 2015, he saw Drs Buckley and Mellick.
On 25 May 2015, the plaintiff saw Dr P Cozzi, urological surgeon, who opined that the plaintiff had a neuropathic bladder problem and while there would be some improvement over the years he would have ongoing problems.
On 23 June 2015, the plaintiff consulted an occupational therapist, Julian Ho.
On 18 November 2015, he commenced working for Impellan Group (SRG) on a fulltime basis as a recruitment consultant, where he received the sum of £1,833 per month. At this time he was struggling to find a job and they offered him a role within biomedical science but it actually turned out that it was more in line with the chemical industry. He did not have any physical problem in carrying out that job but it was not really what he wanted to do. (T22.42).
On 8 March 2016, Cathy Fields recommended an Odstock Wireless Functional Electrical Stimulation device. The plaintiff uses it when he exercises. He says it is beneficial as he is more aware of where his leg is when it is switched on. It also helps him control his left knee. (T23).
In April 2016, the plaintiff ceased working with Impellan Group (SRG) and commenced his current part time employment as a neuro rehabilitation assistant at Bridgewater Community Healthcare, National Health Service (NHS) (Neuroscience) working 30 hours per week, earning approximately £245 ($421) per week. He currently enjoys this work. He supports physiotherapists, speech and language occupational therapists, dealing with patients who have had neurological issues or impairments. (T23). There are aspects of the work he cannot do, such as stabilising a person's knee on the floor, he cannot kneel down as he has no core stability and cannot work on the floor. He attends the gym every day and once on the weekend to keep him as physically fit as he can be. (T24).
Prior to the accident, the plaintiff was extremely fit and healthy. It was important to him to be physically active. He was a good football player. It was a high priority for the plaintiff to play football over the few years after the accident occurred. However, he can no longer play football and he misses not being able to play. While he can play badminton it brings on a lot of knee pain. (T60.25-28). The plaintiff has taken up golf and while he can complete 9 holes, he finds it really hard to complete 18 holes. In essence, he plays golf as it is something he can do with his friends. He joined his friends who are very keen hikers on one hike but only just managed it. (T61.20-23). He attended the Glastonbury Music Festival for three days. He stayed with friends and managed it with rests and medication. (T68). He has not been skiing. He can travel to places like Germany and Spain. For short plane trips he can manage economy class but for longer plane trips for example to Australia, he gets uncomfortable. The plaintiff socialises with friends, goes to the pub with his mates and watches football and goes to friends' houses.
It appears that the plaintiff has painted a more optimistic picture of his current capacities and stamina. Roxy says that when the plaintiff comes home from work and after he has been at the gym, his is always tired and can be quite grumpy. (T85.9). When the plaintiff and Roxy go out socially, Roxy has observed that the plaintiff always gets tired and they have to find somewhere to sit. He is not able to stand in a bar and have drinks, they have to have seats. (T86). When he gets tired, his walking style changes. He locks his left knee and does a kind of limp. He will walk with his hands on his back and walk at a slower speed. (T86).
Roxy has completed a university course in illustration and animation and is currently working as a project manager. The plaintiff and Roxy intend to buy a house in the next couple of years. (T87.13-15).

[37]

Damages - Injuries and medical evidence

On 29 July 2016, rehabilitation physicians Professor Jones and Dr Buckley prepared a joint conclave report. (Ex E, 941). Professor Jones also provided a report and a supplementary report both dated 20 May 2015. (Ex E, 898, 907). Dr Buckley also provided two reports dated 17 May 2013 and 3 May 2015. (Ex E, 789, 806).
On 4 August 2016, Dr Mellick, consultant neurologist, Mr Soni, spinal cord injury specialist and Associate Professor Fearnside, neurosurgeon prepared an expert conclave report. (Ex E, 949). Dr Mellick provided a report dated 25 May 2015. (Ex E, 909). Associate Professor Fearnside provided two reports dated 21 March 2013 and 15 May 2015. Ex E, 770, 781). Mr Soni provided four reports dated 13 July 2011, 12 October 2011, 14 March 2012 and 3 April 2013. (Ex E, 657, 658, 660, 661).
On 30 August 2016, the psychiatrists Dr Vickery, Dr Akkerman and Dr Durrell prepared a conclave report. (Ex P). Dr Vickery provided a report dated 26 March 2013. (Ex E 866) Dr Akkerman provided a report dated 15 May 2015 and Dr Durrell provided two reports dated 30 July 2013 and 2 August 2015). Ex D, 821, 845).
The plaintiff's serious injuries are: 1. fracture dislocation T12/L1; 2. fractured transverse process of L1/L2; 3. undisplaced fracture of the distal left fibula; 4. incomplete spinal cord injury, partial loss of function of the right and left legs; and 5. neuropathic bladder, and other impairments.
On 18 March 2014, the plaintiff consulted Lorraine Moores, principal physiotherapist, at the Manchester and Salford Pain Centre. Ms Moores noted (Ex D, 520-21): "Mr Hitchen presents to the Pain Centre today with on-going back pain mainly on the left side of his lower back and left leg pain… He continues to see a Neuro Physiotherapist every week and is guided with strengthening exercise… … ... He has made excellent progress with his rehabilitation and we have encouraged him to continue with this in order to maintain his function, strength and flexibility. We advised that once pain has continued for more than six months or so it does tend to persist in the long term. Unfortunately there are no specific treatments which can take it away completely or make a significant change in intensity. ..."
The plaintiff came under the care of Cathy Field, neurological physiotherapist from Manchester Neuro Physio. In her report dated 27 May 2015 (Ex E, 736) Ms Field noted that the plaintiff had received weekly neurological physiotherapy since 28 August 2013.
She further reported in relation to the plaintiff ceasing volunteering at Manchester City Football Club (Ex E, 737): "…Mr Hitchen reported stopping this due to his physical limitations and pain. He is currently undertaking a master's degree in sports psychology at University. Mr Hitchen is a highly motivated individual who demonstrated measureable improvements in strength, coordination and core stability as documented in the last report, February 2014. Since the last report in February 2014, Mr Hitchen has reported struggling to manage his exercise regime alongside his university workload, reporting increased episodes of acute low back pain and difficulties with fatigue management".
And Ms Field noted (Ex E, 738): "Lower back pain Mr Hitchen reported a constant low back pain on the left side at the level of the lumbar spine 1 and 2. Mr Hitchen scored this pain using the numerical rating scale (NRS) as 2/10… Mr Hitchen stated that he struggles to get to sleep at night and that he wakes up with this pain in the morning. Mr Hitchen reported that he experiences episodes of acute pain at the lumbar spine 1 and 2 bilaterally. Mr Hitchen has presented at his physiotherapy session with acute lower back pain and para spinal muscle spasm. Aggravating factors include standing and sitting in static positions for more than a minute. Mr Hitchen reported difficulties managing his pain whilst at university as this involves sitting in lecture theatres for long periods. Consequently Mr Hitchen has permission to lie on the floor during his lectures to ease the pain. Mr Hitchen described functional tasks such as standing at the sink and washing up and to cook as both aggravating factors…"
In relation to left knee pain, Ms Field noted (Ex E, 738): "Mr Hitchen reported episodes of left anterior knee pain. On assessment all special knee tests were negative. As a result of the spinal injury Mr Hitchen has reduced quadriceps muscle bulk and loss of sensation. This can cause patella mal tracking when walking and kneeling. Mr Hitchen wears a knee support to provide proprioceptive feedback and stability to his knee when walking and kneeling."
In relation to the thoracic and lumbar spine, Ms Field noted (Ex E, 738): "Mr Hitchen presented with reduced, left sided flexion and right thoracic rotation….Right lumbar spine rotation and left side flexion were also reduced. This was restricted by joint stiffness and muscle tightness. …"
Ms Field went on to note in relation to the right lower limb, that the plaintiff (Ex E, 739): "... had muscle bulk reduction in the right quadriceps in comparison to the previous report; this is most likely due to a decrease in physical exercise over the past 6 months. …"
She further noted active dorsiflexion was reduced due to calf tightness and joint stiffness. The plaintiff has reduced sensation to light and blunt touch from his groin to his knee. Since August 2014 there have been frequent episodes of the plaintiff's left knee giving way which happened up to four times a month.
The plaintiff gave a history to Ms Field of difficulties he had clearing the floor with his right foot when ascending stairs, that his mobility was limited by his lower back pain, that he had difficulty with the timing of his hamstrings and quadriceps and associated heel strike and push off which was caused by reduced joint sense awareness, sensation and strength in his left lower limb.
The plaintiff provided a history to this Court and Ms Field that he has had falls while carrying objects which was caused by his knee giving way. Ms Field noted a posterior pelvic tilt with a shortening of his right trunk and also noted that the plaintiff had trouble maintaining good posture while sitting due to pain in his lower back. The plaintiff reported difficulties with fatigue management, difficulties completing a regular exercise regime alongside studying for his Masters' degree and she observed that over the previous six months the plaintiff has been struggling to cope with his physical limitations as a direct result of the accident.
Ms Field also noted that the plaintiff's ability to work would be dependent on the management of his lower back pain and fatigue noting specifically that office based work with static positions would aggravate his lower back pain. Manual work and work that involved driving for more than 30 minutes were not suitable. It is common ground between the medical specialists that the plaintiff cannot do heavy manual work.
Specifically, Ms Field noted that the plaintiff had developed secondary problems associated with his spinal injury, for example acute and chronic lower back pain, muscle weakness, tightness and postural changes that had not stabilised.
On 8 March 2016, Ms Field recommended that the plaintiff purchase an Odstock Wireless Functional Electrical Stimulation (FES) device at a cost of £2,795 and an annual cost of £750. (Ex E, 745, 754). This converts to Australian dollars (as at 30 August 2016) to $4,847.45 with an ongoing cost in Australian dollars of $1,295.96 per annum. The ongoing neuro physiotherapy is at a cost of £85.00 ($146.88) per session.
The conclave of neurologists, Dr Mellick, Mr Soni and Dr Fearnside, agreed that the plaintiff remains with a significant disability and there is not likely to be any neurological improvement. They agree that:

There is a possibility of development in the later years of post traumatic syringomyelia. They noted that the plaintiff currently does not have that condition but agreed that should it develop there would be deterioration in his neurological condition and his prognosis would worsen. They agreed that there is potential for acceleration of degenerative changes in the adjacent segments to those that are fused namely T10/11 and L2/3 and that if the plaintiff undertakes regular exercise and light physical work such as that required by an exercise physiologist, this may cause an increase in back pain and accelerate the degenerative changes.
In relation to the plaintiff's bladder function and other problems, they agreed that he should consult his general practitioner four times per annum and should be assessed by a spinal cord physician twice per year.
These needs may increase with age which could include adjacent segment degenerative disease which would require analgesia and physiotherapy.
The plaintiff has considerable weakness of his left leg. Together with wasting of the musculature, he is more at risk of developing osteoarthritic conditions in his left hip and knee and this will require investigations.
He should undergo urological assessment every two years by way of plain abdominal x-rays and urinary ultrasounds.
He is more at risk of developing urinary tract infections and there may be a decline in his urinary function in later decades from age 50 onwards.
The plaintiff would require assistance with lifting heavy luggage and that any flights in excess of six hours should be by business class and for flights between two and six hours premium economy.
The plaintiff will probably require increased assistance from an occupational therapist as he ages in order to maintain his mobility. It is further agreed that he should have available access to a physiotherapist who could advise him to avoid over exertion and maintain his stability due to the fact that he is more likely to sustain minor injuries such as falls.
Due to the weakness and wasting of his left leg the plaintiff is vulnerable to slipping on a wet floor and non-slip floor and grab rails in the bathroom would lessen the chance of further injury.
He will require assistance with maintenance for activities at home and if he were to obtain a detached cottage they estimate three to four hours a month for handyman type duties would be appropriate and also assess that he needs four to six hours a month for domestic assistance. It is estimated as he gets towards his 60's these activities and his needs will increase.
The plaintiff should not work with little children where he is required to squat, knee and sit on low chairs. He should not work with children with behavioural disorders nor should he undertake any active physical education such as demonstrating exercises. It is agreed that he would be able to work in sports psychology or administration but would need to choose work which was consistent with his disability. They further agree that the plaintiff may need to retire early due to the development of accelerated spinal degeneration over the years. It is estimated that he would need to retire from fulltime work between 5 and 15 years earlier than the normal retiring age and even if he were to work part time that may advance his retiring age by a year or two.

The rehabilitation physicians, Professor Jones and Dr Buckley, are substantially in agreement with the neurological conclave report. They agree that the plaintiff has:

Degenerative changes which will become significant during his sixth decade.
Bladder and other disabilities
That the holidays the plaintiff has taken and shown on social media do not impact upon their opinions.
As to the need for general practitioners' attendances, rehabilitation physicians and renal ultrasounds, the doctors differ in how often these should occur. The neurologists state that over the age of 60 the plaintiff will require review by a spinal cord specialist every 18 months and provision should be made for him to see his general practitioner six time per year. The rehabilitation physicians say that the plaintiff will require review by his general practitioner four times per year and a yearly review by his spinal rehabilitation physician and a renal ultrasound every two years. However, Dr Buckley believes provision should be made for two urological procedures during the rest of his life.
The non-slip floors and grab rails are desirable and the plaintiff will require handyman assistance. The amount of time and when it is required are in dispute.
The plaintiff should not participate in physically demanding activities which include running and it is agreed that he would need to be more selective in his job choice. It is agreed that he will require additional sick leave and annual leave over and above those that are normally required. It is also agreed that he will need to retire early or at least reduce his hours earlier.

The neurologist and rehabilitation specialists disagree as to aeroplane flight seating.
The rehabilitation physicians say that the plaintiff should fly premium economy due to potential pain from his fusion. The neurologists say that for domestic flights within the United Kingdom, economy class would be appropriate. For flights between two and six hours, premium economy would be a minimum and for longer flights in excess of six hours, business class is appropriate because of the plaintiff's spinal injury. I prefer the neurologists' opinion on this issue. In my view it is reasonable for the plaintiff to have different quality seating depending on the length of the flight. I make an allowance for this amount.
Contrary to the above findings by both the rehabilitation and neurological specialists, the orthopaedic physicians' conclave report opines that the plaintiff will suffer no further loss of neurological function or complications. As this is not their area of expertise, I prefer the opinions of the neurological specialists and I adopt their opinions.
The orthopaedic specialists also express the view that the plaintiff does not require physiotherapy. They qualify that by indicating that he does require a regular and appropriate program of self managed exercises.
There is a discrepancy between the orthopaedic specialists and both the rehabilitation and neurological specialists in relation to care and employment including early retirement. Where the orthopaedic specialists' opinions conflict with the rehabilitation and neurological specialists, I prefer and accept the rehabilitation and neurological reports and I will assess damages on that basis.
In so far as the psychiatrists' joint report (Ex P) is concerned, Drs Vickery and Akkerman differ from Dr Durrell on every issue. Dr Durrell's view differs from the plaintiff's evidence as to his recovery. Hence, I prefer and accept the views expressed by Drs Vickery and Akkerman. In essence, Drs Vickery and Akkerman agree that the plaintiff has not been diagnosed with any psychiatric disorder and there was no need for any psychiatric treatment.

[41]

After the accident

The plaintiff suffered serious injuries namely, fracture dislocation T12/L1; fractured transverse process of L1/L2; undisplaced fracture of the distal left fibula; incomplete spinal cord injury, partial loss of function of the right and left legs; neuropathic bladder, and other impairments. As result of these injuries the plaintiff has been rendered an incomplete paraplegic. He suffered extreme pain and still suffers from pain. The plaintiff through his determination and perseverance has made a remarkable recovery. However his post accident life is very different to his pre accident condition.
He spent months in hospital and then as an outpatient attending daily medical appointments that eventually tapered off. The plaintiff's condition has now stabilised but he suffers and will continue to suffer from low back pain, has reduced quadriceps muscle bulk, a loss of sensation and weakness of his left leg, is prone to falls and has bladder function and other problems.
While the plaintiff is able to work, when he arrives home from work and after the gym, he is tired and grumpy. If he goes out socially he also becomes tired. When tired, his walking changes, his left knee locks and he develops a limp.
While the plaintiff can play badminton, it causes him a lot of knee pain. He has taken up golf because it is something he can do with his friends and he is able to complete nine holes. He can no longer play football and he misses not being able to play and the social life centred around it. He is not able to ski. In other words, his sporting life is now very limited. He keeps himself in the best physical condition he can by going to the gym every day and having physiotherapy once a week.
While the plaintiff says that he could still be a PE teacher, he says that he is no longer able to be the kind of PE teacher that he wanted to be. His options for work are more limited. This is because he is unable to be involved in playing sport nor can he show the students what and how to do things. He has had to change his career plans and his working life will be cut short.
While currently he is a relatively young man as he ages there is a possibility he will develop post traumatic syringomyelia. There is a potential for the acceleration of degenerative changes in the adjacent segments to those that are fused namely T10/11 and L2/3. As the plaintiff has considerable weakness of his left leg together with wasting of the musculature, he is more at risk of developing osteoarthritic conditions in his left hip and knee. He is also more at risk of developing urinary tract infections from age 50 onwards.
Taking all these matters into account, I assess the plaintiff's non economic loss as 70% of a most extreme case. That equates to the sum of $423,500.

[43]

Economic loss

Section 12 of the Civil Liability Act provides for damages for past or future economic loss. It reads: "12 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or … (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or …"
In Husher v Husher [1999[ HCA 47; (1999) 197 CLR 138, the Court expressed the general principle in relation to an award for economic loss at [7] as follows: "7 Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss'. But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if the injury had not been sustained."
Also in State of New South Wales v Moss (2000) 54 NSWLR 536 at 559, Heydon JA at [87] said: "87 The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility."
I will now deal with past economic loss, followed by future economic loss.

[49]

(1) 2 May 2011 to 1 September 2012

Both Strategic Formwork and RTS Holdings agree that the plaintiff should have some allowance for the period from the date of the accident to September 2012. However, I disagree with both of their approaches to the calculations. I disagree with the approach taken by RTS Holdings that the plaintiff's past economic loss for this period should be assessed on his wages for the casual job he took while backpacking in Australia. I also disagree with Strategic Formworks' approach for this period as its calculations are based on the premise of the plaintiff's first full time salary since the accident is £15,000 per annum discounted by 50% to take account of the fact that the plaintiff was not in full time employment at the time of his accident. The plaintiff's wage loss for over eight months should not be based on his working casually at the date of the accident. The accident occurred when he was travelling as a backpacker and this casual employment was only while he had taken a break from his usual employment in England. In my view it was more likely than not that but for the accident, on his return to the United Kingdom the plaintiff would have resumed work at Proscore Academy or undertaken some similar type of work at the same wage until he decided what work he wanted to do in the future.
The plaintiff was not fit for work and had no earning capacity during this period. I am satisfied that the plaintiff would have remained in Australia for one more month after 2 May 2011, the date of the accident, (he had already travelled through Asia) before returning to the United Kingdom. It is most likely that he would have returned to a similar type of work that he was doing prior to his backpacking adventure. Therefore he should be entitled to an allowance reflecting his inability to work from 2 June 2011 to 1 September 2012 on a full time basis at the rate of $674.78 per week (the net amount he earned with Impellan Group) for 66 weeks. This equates to $44,535.48. I allow this amount.

[56]

(10) April 2016 to 17 February 2017

In April 2016, the plaintiff ceased working with Impellan Group (SRG) and commenced his current part time employment as a neuro rehabilitation assistant at Bridgewater Community Healthcare, National Health Service (NHS) (Neuroscience) working 30 hours per week, earning approximately £245 ($421) per week. He currently enjoys this work. He supports physiotherapists, speech and language occupational therapists, dealing with patients who have had neurological issues or impairments. (T23). There are aspects of the work he cannot do, such as stabilising a person's knee on the floor, he cannot kneel down as he has no core stability and cannot work on the floor. He attends the gym every day and once on the weekend to keep him as physically fit as he can be. (T24).
RTS Holdings submitted that the limitation on the number of hours working as a neuro rehabilitation assistant at NHS is attributable to the availability of hours in the job not to the plaintiff's disability. If more hours were available the plaintiff said he could work the additional hours. Accordingly, for the 46 week period from 1 April 2016 to 10 February 2017 RTS Holdings makes an allowance for a base rate of $692 less $421 per week of the amount that the plaintiff earns at NHS, which amounts to $271. $271 x 46 weeks equates to the sum of $12,466. Strategic Formwork did not make an allowance for this period on the basis that the plaintiff had the capacity to work full time. I agree with RTS Holdings that the calculation for past economic loss should be calculated at $692 less $421 per week of the amount that the plaintiff earns at NHS, which amounts to $271. However, I do not agree with the period submitted by RTS Holdings as they only accounted for past economic loss up until 29 August 2016. I allow past economic loss until 17 February 2017 being the judgment date. This amounts to $12,466.
The total past economic loss is $44,535.48 + $10,796.48 + $6,727 + $9,208.66 + $36,490 + $12,466 = $120,223.62.

[61]

Buffer?

The plaintiff submitted that the assessment of future economic loss should be based on a diminution in earning capacity of between $400,000 and $500,000. The plaintiff submitted that future economic loss needs to consider the plaintiff's loss of income in his chosen career but at the same time balance out his movement into other careers and take into consideration his reduced earning capacity due to the severe injuries sustained in the said accident. The plaintiff's opportunities with regard to his education standards and his determination is reflected by not only his rehabilitation but his past work history. This would dictate that the plaintiff was likely to move into an area of income earning capacity which was above average. The plaintiff also submitted that according to the rehabilitation and neurological conclave reports, he would suffer a severe reduction in income and a shortening of his working life by between 5 and 15 years. Further, the plaintiff submitted that based on the report of the neurological experts and given the plaintiff's risk of future degenerative changes within his spine and the wasting of his left leg together there would be ongoing need for constant exercise and rehabilitation by way of neurophysiotherapy.
RTS Holdings submitted that the plaintiff's qualifications, skills and experience are such that he should not encounter any difficulty in obtaining employment in the open labour market.
Strategic Formwork submitted that the plaintiff is fit for his current employment and at the present time and into the future the plaintiff's disabilities are such that until he reaches the age of at least 50 any allowance for future economic loss should be modest.
Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99 concerns the award of a "buffer" or as it sometimes is known, "a cushion". Basten JA (with whom McColl and Macfarlan JJA agreed) stated at [84]: "[84] As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that 'a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future', but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present."
It is my view that this Court is capable of making assumptions concerning the future earning capacity on which the award is to be based that accord with the plaintiff's most likely future circumstances but for the injury. Hence, in my view it is not appropriate to make an allowance for future economic loss in the form of a buffer.
The assumptions I make are that the plaintiff has completed tertiary education including a Master's degree. He had been in paid employment before the accident and has been able to return to work after the accident, albeit a different type of employment to the teaching career he had planned. Due to the plaintiff's education standards and his determination, reflected in both his rehabilitation and his past work history, I make the assumption that the plaintiff was but for the injuries likely to move into an area of above average income earning capacity and gain promotions in whatever career he pursued. While he is still able to work he is limited in the physical work he can do while he is still able to work on a full time basis until 50 years.
I make the assumptions that due to the injuries he suffered as a result of the accident he is restricted in what he can do. The neurologists agree that the plaintiff should not work with little children where he is required to squat, knee and sit on low chairs. He should not work with children with behavioural disorders nor should he undertake any active physical education such as demonstrating exercises. The neurologists agree that he would be able to work in sports psychology or administration and he would need to choose work which was consistent with his disability. The plaintiff should not participate in physically demanding activities which include running and it is agreed that he would need to be more selective in his job choice. However, he will not be able to work very long days and will need to probably stick to an average 40 hour week.
The joint report of the neurological experts estimate the plaintiff would need to retire from fulltime work between 5 and 15 years earlier than the normal retiring age of 65 (now 67). The neurologists say it may be possible for the plaintiff to work part time and this may advance his retiring age by a year or two but even working part time, it is likely on the balance of probabilities that premature retirement will be necessary and the plaintiff will likely find it necessary to decrease his hours of work from the age of 50 onward. Hence, the other assumptions I make is that in accordance with the rehabilitation and neurological conclave reports, the plaintiff will suffer a severe reduction in income and a shortening of his working life by between 5 and 15 years.
It is my view, based on these assumptions, that had the plaintiff not been injured he would have been employed on a fulltime basis until retirement age of 67 years. The best way I can assess the plaintiff's loss of income is by taking the average wage in Australia of $1,000 net per week as what he would have earned but for his accident as a starting point. Within a few years the plaintiff would be earning at least $1,200 net per week. This also takes into account that in my view but for the accident he would have been physically fit and had more stamina. As I said, over time he would have been promoted in whatever career he pursued. In my view, he would have earned above the average wage with increases in salary within a few years of working but I cannot say exactly when he would have been promoted and exactly how much he would have earned when promoted. Taking this into account, it is my view as an average the plaintiff would have earned $1,200 net per week less what he would be earning at NHS on a full time basis, namely $692 net until the plaintiff reaches 50 years of age. The 5% multiplier for 19 years is 666.4. Future economic loss for 20 years is $508 x 646.2 x 85% (less 15% for vicissitudes) equating to $279,029.16.

[62]

After the plaintiff reaches 50

The plaintiff submitted that the reduction of income and shortening of his working life must be taken into account along with the risk of future degenerative changes within the spine at adjacent levels to the fusion and the wasting of his left leg, together with his ongoing need to engage in constant exercise and rehabilitation by way of neuro physiotherapy.
Strategic Formwork's schedule provides for a staggered work capacity and retirement. Strategic Formwork submitted that until the age of 50, the plaintiff would be employed full time. The plaintiff will then work part time for 5 years from age 50 at 50% of the fulltime rate of $1,000. Strategic Formwork submitted that the plaintiff would then retire at 55 years and has provided an allowance for 10 years until the age of 65 at $1,000 per week and an allowance of $30,000 for periods of unemployment and additional sick days.
With respect to the plaintiff's remaining working life, RTS Holdings also provided for a staggered work capacity from 50 years. RTS Holdings submitted that on the balance of probabilities the plaintiff's working life will be reduced to working part time for the last 10 years of his normal working life, that is, between the ages of 55 and 65. RTS Holdings also make an allowance of 25 weeks at $300 per week x 743.6 x 85% which equals $192,169 plus 10 years at $600 per week x 412.9 x 85% which equals $210,579. $192,169 + $210,579 = $402,747. RTS Holdings submitted that the plaintiff's total amount of future earning capacity between 55 and 65 is $402,747.
It is my view that Strategic Formworks' submissions as to the plaintiff's staggered working capability until 50 years is reasonable but I disagree with the quantum. I have based the plaintiff's earning on $1,200 net per week and that he would have worked until the age of 67.
Between 50 and 55, the plaintiff will work part time at 50% of the full time rate of $1,200 net per week. It is more likely that the plaintiff will then retire at 55 years of age. An allowance from 55 to 67 should be made at $1,200 net per week. The neurologists agree that the plaintiff will require additional sick leave and annual leave above those that are normally required and his job choices are limited so as the plaintiff ages he may experience some period of unemployment. A future allowance of $50,000 should be made for periods of unemployment and additional sick leave. I allow the amount $212, 622.84. Hence the total allowance for future economic loss is $491,652.00.

[64]

Past domestic care

Section 15 of the Civil Liability Act reads: "15 Damages for gratuitous attendant care services: general (1) In this section: "attendant care services" means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. "gratuitous attendant care services" means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. …"
Strategic Formwork submitted that there was undoubtedly an intense period of care provided, however given the plaintiff's return to Australia eight months after the accident, it must have been relatively short in duration. Accordingly, Strategic Formwork has submitted that there should be an allowance of 6 hours per week for six months at a rate of $25.68 per hour which equates to the sum of $4,006.
The plaintiff submitted that he has required discrete periods of domestic assistance which has been provided on a gratuitous basis as follows: 1. From 4 May 2011 to 25 June 2011 (when he was discharged from Prince of Wales hospital), being 7.5 weeks at a minimum of 5 hours per day at the statutory rate of $27 per hour equals $7,087.50. The evidence of the plaintiff's parents and Roxy is that they performed more domestic care while the plaintiff was in hospital, leaving aside the emotional support. 2. From 26 June 2011 for 2 weeks for 5 hours per day at the rate of $27 per hour equals $1,890. This period reflects when the plaintiff was an inpatient at Southport & Ormskirk hospital. Once again, the evidence of the plaintiff's parents and Roxy is that more domestic assistance was performed by them, leaving aside the emotion support. 3. From 10 July 2011 to 9 September 2011 at 10 hours per week or 2 hours per day for 5 days a week at the rate of $27.00 per hour for 8.7 weeks equals $2,349. This was when the plaintiff was attending Northwestern Regional Spinal Injury Centre. His parents or Roxy were driving and staying with the plaintiff while he spent those days as an outpatient. I allow this amount of $2,349. 4. From 10 September 2011 to January 2012 at 7 hours per week for 16 weeks at the rate of $27.00 per hour equals $3,024.00. Total: $14,350.50.
The plaintiff returned to Australia in January 2012 so I deduct 4 weeks of domestic care claimed by the plaintiff (ie $27 x 4 weeks = $324). In my view the amounts claimed by the plaintiff for past domestic care are reasonable. I allow the sum of $14,026.50 for past domestic care.

[65]

Future domestic assistance

The plaintiff submitted he should have an allowance for the following future domestic assistance on a commercial basis: 1. Handyman for 4 hours per month at £15 per hour ($26.02): $24,013.65. 2. Domestic assistance for 6 hours per month to age 60 at £12 ($20.81) per hour: $28,804.23. 3. From age 60 at 3 hours per week at $20.81 per hour for 26 years and deferred: $11,085.67. Total: $63,903.55.
Strategic Formwork submitted that the plaintiff is not entitled to an allowance for future domestic assistance on the basis that the joint neurologists have provided for only 2.125 hours per week, which does not meet the threshold in s 15 of the Civil Liability Act.
At present the plaintiff is managing his domestic chores but requires assistance with the heavier chores which could aggravate his low back pain. The neurologists anticipate that his low back pain will continue and estimate that the plaintiff will need assistance ranging from four to six hours monthly. The neurologists also agree that the plaintiff will require assistance with maintenance for DIY activities around the home. Assuming that the plaintiff lives in a detached cottage they estimate that three to four hours per month would be appropriate.
Roxy gave evidence that she does the hoovering, washing and mopping because it requires the plaintiff to bend. The plaintiff will help out with the cleaning, such as cleaning the kitchen. They share the cooking. (T85). If the plaintiff gets down to do things low on the floor, Roxy has to pull him up. They currently do not do a huge amount of DIY in their flat.
For the next few years it is not likely that the plaintiff will require additional handyman or domestic assistance. However, as he ages, he will experience accelerated spinal ageing and his capacity for activities of daily living will be slower. Therefore, there is a possibility that he will require additional assistance, particular handyman assistance, but also possibly domestic assistance, which is likely to be required in his 60's. It is estimated as he gets towards his 60's these activities and his needs will increase. If the plaintiff had not suffered the injuries he did in the accident he would not have required any domestic assistance. It is my view that the plaintiff's claim for future domestic care obtained on a commercial basis is reasonable. I allow the sum of $63,903.55 for future domestic assistance on a commercial basis.

[71]

Neurophysiotherapy and physiotherapy

The plaintiff relied upon the report of Mr Soni dated 3 April 2013. Mr Soni reported that physiotherapy would be vital, especially in the latter years of the plaintiff's life, as he is likely to suffer with early wear and tear related pain, stiffness and restriction of movement of his upper limbs. He considered one physiotherapy session once per fortnight for the next five years and the same for the plaintiff's latter years of life.
The plaintiff claims $47,026.07. This comprises of neurophysiotherapy consultations at £85 per consultation ($146.88) once per week for five years and thereafter six times per annum for 51 years deferred for five years equals $13,023.30 making a total of $47,026.07.
Strategic Formwork submitted this amount should be $16,886, as per Dr Buckley's report dated 17 May 2013. Dr Buckley was of the view that due to the likelihood of exacerbations of pain the plaintiff will require six physiotherapy treatments annually; that is three treatments weekly for two weeks. Professor Jones does not believe that the plaintiff requires hands on therapy.
The plaintiff finds these sessions helpful. He has muscle atrophy in his quadriceps and weakness around his left hip, hip flexors and weakness in his trans-abs and paraspinal muscles. The plaintiff finds this therapy beneficial and still consults Ms Field once a week. The neurologists agree that the plaintiff should undertake exercise and light physical work such as that required by an exercise physiologist and that he should have available access to a physiotherapist who could advise him to avoid over exertion and maintain his stability due to the fact that he is more likely to sustain minor injuries from such as falls.
In my view, the views of the plaintiff, the neurologists and Mr Soni who has been treating the plaintiff should be preferred over the reports of Dr Buckley and Professor Jones. I allow the sum of $47,026.07 for neurophysiotherapy and physiotherapy

Hitchen v Strategic Formwork Pty; Hitchen v RTS Holdings Pty Ltd

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