Hubbard v CPB Contractors Pty Limited

The circumstances of the accident

1. The central issue is whether the accident occurred as the plaintiff maintains.
2. The defendant and Fulton Hogan Construction Pty Limited, trading as Leighton Fulton Hogan in a joint venture, were engaged to undertake the Pacific Highway upgrade works between Sapphire and Woolgoolga. The defendant admits that it was the occupier of the area where the accident is alleged to have occurred.
3. The defendant entered into a minor works services contract with SNP for the provision of project security services.
4. Prior to the accident, the plaintiff had worked for SNP for a period of five years. He originally worked in the Coffs Harbour district as a security officer at Coffs Harbour Campus Hospital.
5. In 2011 he moved to Corindi Beach. He continued to work for SNP as a security officer.
6. During the period leading up to the accident, his role was to patrol the compounds along the Pacific Highway between Coffs Harbour and Woolgoolga which had been installed as part of the Pacific Highway reconstruction works. He says that he had been performing that specific role for a week or two prior to his accident, although it was put to him that it was longer.
7. The plaintiff visited each of the compounds during his shift from 6.00pm to 6.00am and checked that the buildings in each compound were secure. He would generally visit each compound four times each shift.
8. On the day of the accident he had started at the southern end of the Pacific Highway and worked his way north before turning around and working his way back towards Coffs Harbour.
9. One of the compounds was known as Gate 6. It was located on the eastern side of the Pacific Highway. The plaintiff was required to inspect the plant and equipment within the casting yard, which was accessible through Gate 6.
10. He had been to Gate 6 on two or three occasions that evening prior to his accident. Access to Gate 6 was gained through an unsealed road off the Pacific Highway.
11. The plaintiff says that, in accordance with his usual practice, he drove his vehicle to the entrance of Gate 6, which is secured by a large security gate which was chained and padlocked. The gate consisted of two arms that swung out away from the centre. It was his practice to open the southern arm of the gate so that he could drive through. He would then leave the southern arm open whilst he inspected the compound. He would then drive back out again and secure the gate. There was a small metal pin at the bottom of the southern arm. He says that there was no hole into which the pin might be placed. He would just drag the pin across the dirt when opening it.
12. There was no pin or bolts securing the northern arm. As he drove through the entrance, the northern arm remained in position, although it was not secured by anything at all. When he drove back out through the gate, he noticed that the northern arm had swung so that it was completely open and resting against the fence, that is, at 90 degrees.
13. It was a windy night and it must have blown open in the wind as it had been left unsecured by the plaintiff, as he was inspecting the compound.
14. After he had closed the southern arm, he walked towards the northern arm which was up against the fence. He was required to leave the road and walk across an area of vegetation and some long grass. He was using his torch for illumination, although he was not shining it directly on the ground. There was no other source of light.
15. As he was doing so, he fell in a ditch. Despite using his torch (the defendant says improperly), he had not seen the ditch. It was obscured by grass or vegetation. It was in the area where he was required to walk to close to gate. He had not walked in that area previously because the gate had not swung open to its full extent on any earlier shift.
16. After getting himself up and closing the gate he drove to the next compound which is about 10 minutes away. During that time, he noticed some blood on his leg. During his next inspection, his left knee began to swell and he began experiencing pain and discomfort.
17. He says that he called the monitoring centre through his two-way radio to tell them about the accident. He was told to drive back to the office in Toormina. He says he had to drive slowly because he was unable to operate the clutch properly. On arrival at Toormina, he reported the accident to the operations supervisor and then went home but, by the time he went home and got into bed, his pain had increased. He then took himself to Coffs Harbour Hospital for treatment.
18. The circumstances of the accident are recorded in the incident report as being, "Trying to close gate and there was a gully that I didn't see in the dark".
19. Having regard to the contemporaneous report of the accident and contemporaneous attendance at the Coffs Harbour Hospital (with a record of slipping into a ditch) and the plaintiff's statement, it might be thought that there could be little dispute as to the circumstances of the accident. Indeed, the plaintiff's description of what occurred would seem to be rather unremarkable.
20. However, the defendant served two evidentiary statements from its employees at the time, Paul Worsnop and Greg Stewart. The effect of their statements was that the defendant was aware that there was a drainage ditch in the area where the plaintiff fell because it had created the ditch but that area had been guarded and secured by star pickets, posts and para-webbing since the compound had opened in 2010. Mr Stewart said that this was to prevent workers from walking in the area.
21. The content of both evidentiary statements left no room for uncertainty as to the presence of the pickets and webbing in 2011.
22. Presumably, based on this evidence, there was a strong challenge to the plaintiff's evidence and the plaintiff was cross-examined extensively on the issue of liability. Although it was not put to the plaintiff that he was fabricating a version of events, it was put that his memory was uncertain and that he had reconstructed facts or a version for the purposes of his case.
23. There is some inconsistency in his evidentiary statement as to when he first returned to the scene after the accident but he said in cross-examination that he first returned in June 2012.
24. It was suggested that the plaintiff's reconstruction had been aided by the plaintiff's attendance at the area at that time . Although the defendant did not assert that the plaintiff was simply making it all up, the effect of its challenge is the same. That is, I would not accept that the plaintiff fell into a ditch at the defendant's premises in the area where the gate swung open. I would not accept that that the gate swung open as he maintains.
25. The defendant suggests that the version of events put forward by the plaintiff is improbable and that there are a number of inconsistencies in his evidentiary statement and his oral evidence, as well as statements that he has made to various medical practitioners.
26. For example, the plaintiff was cross-examined on whether he had hit his knees when he fell into the ditch. He was challenged on his statement that there had been blood on his knee. He was cross-examined on the difference between slipping into the ditch and stepping into the ditch. He was cross-examined on his description of the ditch as being 1x1 metre. He was cross-examined on whether it was a U or V shape ditch. It was suggested to him that his description of the ditch was so different to that of the defendant's witnesses that his evidence must be a reconstruction.
27. The effect was to suggest that the plaintiff really did not know what had happened but he had been back out to the site in June 2012 and had formed a view based on a subsequent inspection.
28. In cross-examination the following exchange occurred: "Q. Isn't it the case that you have told practitioners that you have seen in relation to your left knee different versions of the event in which you say you've suffered injury? A. No, sir, I haven't. I've told the truth to every doctor that I have seen. Q. Isn't it the case that in arriving at a conclusion in your own mind about what it is that occurred, you've done your best to piece together what must have happened? A. No, sir, I have told the truth to every doctor what happened. Q. Please focus on my question, if you will. In arriving in your own mind at a conclusion about how you fell, you have effectively pieced together a number of matters? A. I don't recall putting any, anything different to any of the doctors, sir. Q. I'm not asking you that. Please pay attention. A. Well, I don't understand what you're saying, sir. Q. Let me try and do better. When you fell on 5 October 2011 you did not think it was a significant fall; do you agree? A. Well, yeah, of course, sir. When you fall, you fall. It's like yourself, if you fell, sir, you wouldn't think about it until you stood up and after a while. Q. It wasn't until weeks later when you realised that you had persisting pain that you started to think that the fall had been a very significant event in your life? A. No, sir, it wasn't. It's when I got back to the work office is when I was in pain. From that time that I got back to the office, which was probably around about half past 4 or 5 o'clock in the morning. Q. You thought about the circumstances in which you fell after the event? A. Well, yes, sir, I fell down the ditch. I got myself up, as I said, I cleaned myself off. I wasn't in any pain except for grazes on my hand and then as I was driving the vehicle back to the rest of the compounds is when I felt something on my knee and that's when I went into the big main compound itself, went into the men's toilets and saw what happened. So I just wiped myself down. I'm telling the truth, sir. What, what, what else can I do? I'm telling the truth."
29. The plaintiff was challenged as to his recollection and as to the description contained in the incident report completed on the day of the accident as follows: "Q. How good is your recollection of the events on 5 October 2011, would you say? A. I can remember what happened, sir, yes. Q. Is the first document you ever created about those events the notification of the incident that you gave to your employer, SNP? A. Yes, I rang them up through the radio."
30. It is said that his general description of the ditch, both in terms of its structure and dimensions, is inconsistent with the defendant's description of the ditch and that he has given different versions at different times.
31. He was challenged on the pin or drop bolt in the gate as follows: "Q. Is it the case that the southern gate was secured by a drop bolt into the ground? A. No, it wasn't in the ground, sir. Q. Are you sure about that? A. Yes, sir, I'm definitely sure about it. Q. It is the case, is it not, that the drop bolt could be described as a metal pin? A. Yes, sir. Q. Your role involved securing that metal pin into the ground? A. Yes, sir, if there was a hole there to put it in. Q. You say that there wasn't such a hole; is that your evidence? A. Yes, that's correct, sir. Q. Are you sure about that? A. I'm very correct about it, sir."
32. The various histories given to doctors were put to the plaintiff again on the basis that they were inconsistent with his evidence. Those histories were summarised in the defendant's submissions as follows: "43. He is recorded to have given very many versions of the alleged fall: i. The history recorded by Dr Bodel in a 22 December 2015 report served in support of the plaintiff's case is that 'a gate swung towards him but did not hit him. He stepped back [and] inadvertently stood in an uncovered drainage ditch and he twisted his left knee … he had a cut on the knee.' ii. The history recorded by Dr Andrew Porteous in a report dated 13 July 2018 was that the plaintiff had said he had stood in an uncovered ditch injuring his left knee and lower back … The knee swelled. He put an ice pack on it. He said he went home … with significant left knee pain and lumbar back pain. iii. In the workers compensation assessment, he is recorded to have: 'stepped backwards … fell into a ditch 1 [metre] deep. He hurt his left knee and lower back.' iv. In the report of Ms Skibby, it is recorded that 'he noticed one of the gates had opened in the wrong direction … he fell into the easement, which he described as a ditch. He said he fell on both hands and heavily on his left knee … the knee was bleeding.' v. He told Dr Jorneaux he fell on all fours tore a hole in his trousers and there was a small amount of blood coming from the knee. vi. In the Coffs Harbour Hospital records, the following is recorded: 'tripped into ditch' … (page 1 of 4) 'fell onto hands. Did not hit knees directly. Felt instant Lt knee lateral pain' (page 2 of 4). No abrasion or laceration (to either knee) was recorded in the records."
33. There are some discrepancies in the version proffered by the plaintiff during the hearing and the histories recorded by doctors or even statements made in other documents such as the claim form, but caution must be exercised in making any decision based on medical practitioners' recording of histories.1
34. At least in my experience, it is not that unusual in cases such as this that there be some variation in the history of accident in doctors' reports. Further, there is a general consistency in the reports that his accident involved a ditch and a gate. Unless the plaintiff has simply made up a story for the purposes of recovering compensation, there is really only one gate at Gate 6 and one ditch into which he could have fallen.

The defendant's evidence

1. As identified in the defendant's evidence, a drainage ditch was constructed by the defendant or someone on its behalf by the use of a bucket of an excavator. The ditch was created by the defendant. It was not merely part of the terrain.
2. This is an important part of the defendant's evidence, as it provides a rationale for why the defendant's witnesses maintained that the ditch was always protected with webbing and that there was a post which would prevent the gate from swinging open in the manner asserted by the plaintiff.

The evidence of Mr Worsnop

1. The defendant relied on an evidentiary statement of Mr Paul Worsnop. Mr Worsnop gave evidence through audio-visual link from his home near Albury.
2. In his evidentiary statement, Mr Worsnop states that he commenced work on the project which incorporated the compound known as Gate 6 in approximately 2010. He continued to work on the project until its completion in 2018. He attended the compound on a daily basis in his capacity as a serviceman and fitter.
3. He was familiar with the area known as Gate 6 and described its use and operation. In respect of the drainage ditch and gates, he said in his evidentiary statement: "Drainage 28. I recall that when the JV first commenced work at the Plant, a drain was built around the Plant to divert water away from the Plant. The drainage ditch bordered the road and the Plant. 29. The drainage ditch ran near to the side of the Track, but was not on the road. At all times during my employment, the ditch and bushland surrounding the Track and the Plant was protected by para-webbing and nylon fencing. It was clearly marked as out of bounds. 30. There was high grass growing out of the ditch, though this was also covered and marked off by para-webbing, nylon fences and orange flagging at all times. 31. The Gate to the Plant could not have opened over the drainage ditch, because iron posts, a nylon fence and/or para-webbing would have prevented it from doing so. Gate 6 32. I recall that on the outside of Gate 6, two iron posts were driven into the ground on either side of the gate. The posts served to prevent the arms of Gate 6 from opening entirely."
4. The point of this evidence was obviously to establish that the accident could not have occurred as the plaintiff maintains, both because the gate could not have swung back as far as he maintains and because the drainage ditch was guarded by posts and meshing. Importantly, it is clear from this evidence that the drainage ditch was present in the area over which the gate might have swung if it was able to swing fully to the fence. This is the area where the plaintiff says that he was walking when he fell.
5. During the initial part of cross-examination, Mr Worsnop confirmed the very specific statement contained in his evidentiary statement maintaining that the posts and meshing were present at all times since he started there in 2010.
6. However, when shown photographs taken by the plaintiff on 12 June 2012 (Exhibit C), Mr Worsnop conceded that, at least on the date that the photographs were taken, there was no meshing in position. There were no posts in the position of the type that he had referred to in his earlier evidence. The following exchange took place: "Q. On that photo on the left‑hand side of the photo is where the ditch would be? A. Yeah. Q. Off to the left of the photo. A. Yep. Q. Do you see any para webbing in that photograph? A. No, it's been taken down for some reason. I don't remember that. Where that - there's a blue post and you come along a bit further and you'll see a, a black iron post, that iron post should have been out on the edge of the road. It's been moved back. Q. That means that to the extent that you have a recollection that para webbing was always in place-- A. Yep. Q. --that recollection is not 100%? A. Yeah, well, unless I was up at the, the other compound at that stage or in Sydney."
7. The significance of this evidence is that Mr Worsnop identifies that the ditch was precisely where the plaintiff says it was and that there was supposed to be webbing cordoning it off, although it was obvious from the photo that it was not there. He said: "Q. Again, this is a photo taken in June 2012. A. Yep. See where the - yeah, the use - where that iron post is right on the edge of that sign there, there used to be para webbing along there. I don't know why it was taken down. Q. But there's no para webbing shown there, is there? A. No…." And further: "Q. Should there be some para webbing in that photograph? A. There should be para webbing going from that iron post to that big mainframe post and it used to come or should have been coming right along to where the car park was. Q. What you see in those photos is pretty different to your recollection, isn't it? A. Yep. Q. It's remarkably different, isn't it? A. Yeah. Well, that should have all had para webbing around it, bright para webbing."
8. Further, he was also surprised by photographs of other parts in and around the fence, suggesting that it is possible that work was being done or there had been some changes. He previously identified that there had been some widening and asphalting of the access road but maintained that that work did not impact upon the post or meshing. Indeed, he said on more than one occasion that the main gate stayed the same throughout the project. He also said that the webbing remained in place at all times.
9. Mr Worsnop was first asked to recall matters going back to 2010 in late 2019. He said he was subsequently provided with three photographs by and on behalf of the defendant but those photographs are not in evidence.
10. I accept that when preparing his evidentiary statement, he was doing his best to recall matters and that he had a genuine belief that the posts and meshing were in place as at late 2011.
11. However, he also had a belief that they were always in place. He could offer no explanation as to why the post and meshing were not in position on 12 June 2012, other than perhaps someone was doing some work in the area. There is no indication in the photographs of that.
12. I accept that Mr Worsnop was doing his best to give evidence on the basis of his recollection, but his statement that the area of the drainage ditch was always protected by meshing and posts has been shown to be wrong .
13. Whatever the changes between the day of the accident and the date of the photographs, in the photos there is no webbing or posts of the type that Mr Worsnop expected to be there and had been quite specific about in his evidentiary statement. As to the purpose of the webbing Mr Worsnop said: "Q. One of the purposes of the para webbing and the rope with the orange flags was to prevent access to certain areas? A. Yep, that was just your, your barrier to say you're not allowed in that area, don't go in that area. Q. One of those areas where access shouldn't have been had to was where the ditch was? A. Yep."
14. The defendant submits that parts of Mr Worsnop's evidentiary statement were not subject to challenge, such as his evidence relating to the iron posts on either side of the gate. However, again it seemed to me that the plaintiff challenged Mr Worsnop's recollection through the photos taken in 2012, which cannot be reconciled with his evidence as to the alleged state of the area at all times since 2010.
15. I agree that the photos taken in 2012 are not proof of the state of the area as it existed at the time of the accident but that is not really the point of the photos. They were used to demonstrate that the evidence of the witness, expressed with such certainty in the evidentiary statement, may be incorrect. Indeed, this was accepted by Mr Worsnop.
16. It may be that with the passage of time, his recollection as to precisely when things happened is not correct. I would not prefer his statement to the effect that the webbing pickets and posts were in place at the time of the accident in preference to the plaintiff's evidence as to their absence.

Mr Stewart's evidence

1. At the time of the accident, Mr Greg Stewart was a senior safety coordinator employed by the defendant. He had direct responsibility in respect of the compounds along the Pacific Highway in the area where the plaintiff was working, albeit he was not there every day. He commenced on the project in 2010. The defendant's records show that the plaintiff was inducted by the defendant on 25 January 2011, although the plaintiff though it was later.
2. In his evidentiary statement, Mr Stewart said: "19. Throughout my work on the Project, for around 4 years, between early 2010 and late 2013, I attended the Compound on a regular basis. I regularly supervised safety inductions at the Compound. I can recall the layout and structure of the Compound well based on these frequent visits." and also: "34. At all times throughout my experience at the Compound, I recall that the Gate had star picket iron posts on the outside of the Compound located close to the tip of each arm when opened (the Posts). It ensured that the outer-most point of the Gate, when opened, did not swing beyond the edge of the Access Strip. 35. The Posts were stuck into the ground to prevent the Gate from opening completely. They were also used to fasten the arms in an open position during the day. I do not recall any time when the Posts were not in place at the Gate. 36. Throughout my time working at the Compound, I recall that the Gate was left fully open each day that the site was operational. In the morning the first worker on site would generally open up each arm and fasten them to their corresponding Posts. The Gate would remain open all day until the last worker left in the evening when they would be unfastened, closed and locked with a padlock and chain. 37. I am confident that at all times during the Compound's operations, including on 5 October 2011, the Posts were in place to ensure that the Gates did not open completely, and to ensure there was always something to which the arms of the Gate could be fastened when open, to prevent them swinging around in the wind. 38. The Posts also prevented the arms of the Gate from opening so far that they were flush against the fence surrounding the Compound. Drainage 39. As with most Work Sites that I have worked on, the Compound had a 'high' side and a 'low' side which ultimately required water to be drained away from the Compound. 40. I recall there was slight 'v' drainage ditch to the northern side of the Gate to ensure that run off from the Compound and the Access Strip did not flood the area in times of wet weather. 41. I recall that there was some long grass growing out of the drainage ditch, however, the long grass was marked and cordoned off with fencing to prevent workers from accessing it or walking on it or in the drainage ditch, or vehicles driving into it."
3. Mr Stewart was cross-examined. In my view, he was an unsatisfactory witness.
4. He resorted to responding with "I don't recall" in answer to questions on many occasions, despite the certainty with which he has expressed his views in his evidentiary statement. Indeed, when asked questions about the webbing and posts, he used the same expression ("I don't recall"), only to change his mind when directed to the relevant paragraphs of his statement. I am not sure that he had an actual recollection of the content of parts of his statement.
5. Further, when presented with the photographs taken by the plaintiff in June 2012, he could offer no real explanation as to why there was no webbing, posts or pickets in the area at the time the photographs were taken.
6. Plainly, the content of his evidentiary statement is contrary to the photographic evidence exposed in June 2012 and the plaintiff's evidence as to what the scene was like at the time of his accident.
7. Having regard to particularly Mr Stewart's response to cross-examination, I would not place any weight on the content of his evidentiary statement insofar as it purports to identify that the drainage ditch was protected and the post could not have swung open at the time of the plaintiff's accident.
8. However, his evidence remains relevant as he was a senior safety coordinator on the site. He identifies that the ditch was covered with long grass but it was cordoned off to prevent workers from walking into it.

Conclusion

1. Despite the defendant's assertions of inconsistencies and improbabilities in the plaintiff's evidence, there is one constant in the plaintiff's complaints since the day of the accident, which is that he fell in a ditch at the defendant's premises during the early morning of 5 October 2011.
2. It seems to be more than mere coincidence that there was a drainage ditch adjacent to the place where the northern gate would swing fully open. The plaintiff might have been somewhat vague on matters such as the size of the ditch, its description or the extent to which it might have been covered with vegetation but there is no dispute that there was a ditch which the defendant describes as a drainage ditch in the area where the plaintiff says he fell.
3. It is this ditch that the defendant maintains was protected or barricaded with the use of star pickets and mesh at the time. There is no evidence of any other ditch into which the plaintiff could have fallen.
4. Also, the defendant asserts that there was a post adjacent to the roadway which would prevent the gate from swinging open and ending up against the fence.
5. The competing positions of the parties cannot be reconciled. The defendant submits that the burden of proof rests on the plaintiff and that I would not feel an actual persuasion of the matters asserted by the plaintiff such that the plaintiff must fail. [1] The defendant submits that the plaintiff was an unimpressive witness and patently unreliable.
6. Having regard to the content of the defendant's evidentiary statements, it is not surprising that there was a direct and strong challenge to the plaintiff's evidence but I did not form a view that the plaintiff was an unreliable witness.
7. He was doing his best to answer the questions as well as he could. Perhaps he was offering opinions about matters about which he might have been uncertain, such as the shape and size of the ditch or the level of vegetation, but the tenor of cross-examination was such that he probably felt that he was required to offer such opinions.
8. Further, I do not find it surprising that a witness such as the plaintiff may resort to emphasising that he is telling the truth in response to constant questioning as to whether he is sure about things and suggestions to the contrary. Witnesses not used to the process and stress of skilful cross-examination sometimes resort to attempting to defend themselves.
9. Nor do I find the references to the histories given to the doctors compelling. They all present as a variation on a theme; the theme being that the plaintiff fell in a ditch.
10. Whilst the defendant points to what is submitted must be careful preparation of the evidentiary statement and then contrasts it with other evidence, again there can be no doubt that the plaintiff has always maintained that he fell into a ditch. The incident report completed within hours of the event records such a fall although the person completing the form described it as a gully.
11. It is the defendant, through its evidentiary statements, which has identified the fact that there was a drainage ditch around the very area where the plaintiff fell. The defendant has not identified any other ditch into which the plaintiff might have fallen.
12. Unless I accept the defendant's contention that I would not accept that the plaintiff has discharged his onus or that I would not accept the plaintiff's evidence generally, the logical conclusion is that the ditch into which the plaintiff fell was the drainage ditch identified by the defendant's witnesses.
13. The plaintiff says that was not guarded by webbing and pickets. It is difficult to understand how he could have fallen into it if it was, although the defendant submits that causation is not established because I would not accept that the accident would not have occurred even if the webbing was in position.
14. I accept the plaintiff's evidence. He fell or walked into an unguarded drainage ditch as he was retrieving the gate which had swung fully open. There was no webbing cordoning off the ditch. There was no post there at the time of his accident preventing the gate from swinging open to the point of the fence.

Negligence

1. The defendant was the occupier of the area where the accident occurred. It accepts that it owed a duty of care to the plaintiff.
2. The first step in the proper application of s 5B of the Civil Liability Act 2002 (NSW) ("the CLA") is the identification of the risk of harm. Only once the risk of harm has been properly identified can the Court consider whether the risk was foreseeable, not insignificant and whether a reasonable person would have taken the precaution suggested. [2]
3. I granted leave to the plaintiff to file in Court a second further amended statement of claim in which the risk of harm is identified and the s 5B particulars are properly pleaded.
4. The plaintiff identifies the risk of harm as being that the plaintiff, doing his work duties and retrieving the northern arm of the gate, could step into the drainage ditch and be injured.
5. The defendant does not suggest an alternative description of the risk of harm. The defendant merely points out that some of the contextual matters pleaded as the basis of the risk of harm have not been established.
6. Unlike when considering the question of breach, in identifying the risk of harm I may have regard to what actually happened. In my view, the risk of harm is simply described. The risk of harm was the risk of the plaintiff falling or walking into a ditch as he was closing the entrance gate to the premises.
7. Having regard to s 5B of the CLA, the plaintiff must then establish that that risk was foreseeable and that the risk was not insignificant and, in the circumstances, a reasonable person in the defendant's position would have taken the precautions identified.
8. As set out in para 10 of the second further amended statement of claim, the defendant is alleged to have been negligent (in failing to undertake the following precautions): 1. failing to illuminate the area surrounding the gate; 2. failing to ensure that the area is safe for persons to walk in; 3. failing to set up the premises so that the northern arm of the gate did not move beyond the drainage ditch; and 4. failing to warn by signage or otherwise that there was a ditch in the area.
9. In support of his allegations of breach of duty, the plaintiff sought to rely on an expert report of Mr David Cockbain, Safety Expert, but I rejected his report on the basis that it was essentially a statement of assumptions of fact and his opinions were beyond expertise. [3]
10. I hardly need an expert to inform me that, if there was proper illumination, the ditch would have been properly illuminated. I hardly need an expert to tell me that if there was webbing and some form of pickets around the ditch, then that would have been a means of guarding or providing a barrier around the ditch.
11. Indeed, Mr Hutchings did not submit that these were not reasonable precautions. It is only necessary to refer to the defendant's written submissions as follows: "7. The plaintiff must correctly identify the prospective risk of harm with which it is alleged that the defendant ought to have been concerned in order that the Court can determine whether a response was required, and if so, what a reasonable response would have been and importantly - for the purposes of addressing the issue of causation - what can be shown to have directly flowed from the alleged failure to so respond. 8. The plaintiff alleges that a reasonable precaution would have been - in effect - to limit the range of movement of the northern arm of Gate 6 or to warn by signage or otherwise that there was a ditch in the area or that the ground was rough or uneven. 9. That was a precaution that was taken by the defendant."
12. The defendant did not submit that there were no reasonable precautions which it could have taken.
13. Further, the defendant emphasises that the scope of its duty of care was only to exercise reasonable care to a person taking reasonable care for his or her own safety. [4] There was no obligation to prevent harm.
14. In my view, there could be little dispute in the defendant's approach to the principles that should be applied, except that it remains important not to assess primary negligence on the basis that any contributory negligence would absolve the defendant of any tortious liability.
15. In my view, the risk of harm was both reasonably foreseeable and not insignificant. The defendant must have been aware that security personnel would be attending the compound at night. The defendant was aware that its own workers might walk into the ditch, as Mr Stewart says that it put up the webbing to guard against that. A similar comment was made by Mr Worsnop.
16. There was no illumination in the area of the gate. The plaintiff was required to open and close the gate. If the northern arm of the gate flew open or was pushed open, such that it came to rest against the fence, then a person such as the plaintiff might be required to walk off the roadway and across the area adjacent to the roadway where the ditch was to retrieve and close the gate.
17. The defendant plainly foresaw itself that persons might walk in the area of the ditch it created because it says it secured the area through webbing and start pickets with the purpose of preventing workers from walking in the area.
18. Mr Stewart, who was involved in occupational health and safety, specifically says in his evidentiary statement that the webbing was there to prevent persons walking into the area of the ditch.
19. The precautions which the defendant says it actually took were reasonable precautions for it to have taken in all of the circumstances.
20. In reality, the defendant's case is that it took those precautions. This must be so because in its written submissions on the question of reasonable precautions, it says [5] : "128. It is convenient to address each particular of negligence in turn. a) Illuminate adequately the area surrounding the entry/exit gate area of the Premises 129. Given that the plaintiff had a powerful torch and was working as a night security officer, it is hard to accept that this was necessary. b) ensure that the area where persons had to walk in order to open and close the exit gates was safe for persons doing [so] 130. This particular does not reflect the operation of the law of negligence. c) failing to take the precautions of setting up the premises so that the northern arm of the gate did not move beyond the drainage ditch 131. The evidence establishes that such steps were undertaken. d) warn, by signage or otherwise, persons attempting to open and/or close the entrance/exit gates that there was a ditch in the area and/or that the area was rough and uneven 132. The evidence establishes that such steps were undertaken. …"
21. Having regard to my findings, the precautions which the defendant said it took were not in place at the time.
22. The defendant says that even if the ditch was not marked or cordoned off, it was an obvious risk within the meaning of s 5F of the CLA such that there was no duty to warn of its presence. I do not agree. I do not understand how a ditch obscured by grass and vegetation and likely to be difficult to see in the dark could be described as obvious. Indeed, Mr Worsnop said: "Q. Do you remember at this compound at gate 6 that there was just a - you recall that there was a drainage ditch? A. Yeah. There was a drainage ditch on the - as you drove into the compound, on the left‑hand side, but you wouldn't have known it was there cause the grass was that thick and high you could - if you stood there and looked, you could just see it, if there was heavy rain with a bit of water in it. But the grass and everything was that thick. It was a V sort of shaped drain."
23. For the reasons set out, I consider that the defendant was in breach of its duty in failing to take care to ensure that the area around the ditch was cordoned off or barricaded so as to prevent persons such as the plaintiff from walking into it. Alternatively, the defendant should have taken steps to prevent the gate swinging open (as it says it did) and exposing the plaintiff to the risk associated with the obscured ditch.

Causation

1. Mr Hutchings submits that even if I find, contrary to his submissions, that there was no webbing, star pickets or posts in place at the time of the plaintiff's accident, I would not be satisfied that any such precautions would have prevented the accident. In particular, he submits that bearing in mind the plaintiff's failure to use his torch in a proper way and bearing in mind what he submits was the plaintiff's obvious failure to take care for his own safety, I would not be satisfied that the plaintiff has established that the presence of webbing and pickets around the ditch would have prevented the accident; that is, causation under s 5D of the CLA is not established.
2. I do not accept this submission. Even though the plaintiff may not have been using his torch as the defendant submits he should have been, it does not follow that he would have simply walked or fallen through webbing, if it had been appropriately positioned around the ditch.
3. Of course, if the post was actually in the position maintained by the defendant, the gate would not have been able to swing back into the area of the ditch and it would not have been necessary for the plaintiff to walk into that area.
4. Again, causation is a matter of fact. In my view, causation is established.

Contributory Negligence

1. In Pollard v Baulderstone Hornibrook Engineering Pty Ltd, [6] McColl JA set out the proper approach to assessment of contributory negligence in a case such as this: "[13] At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act which provides: '(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.' [14] The words 'reasonable person in the position of that person' in s 5R are equivalent to the words 'a reasonable person in the plaintiff's position': Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects 'the expectation that, in general, people will take as much care for themselves as they expect others to take for them': Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing)."
2. The plaintiff was walking across the area on the side of the road because the gate had blown open and it was necessary for him to close the gate. He was required to exercise care as he walked across the area, particularly, in circumstances in which he was no longer walking on the road, and he could see that there was long grass and vegetation.
3. There was no illumination but the plaintiff had a torch. The defendant says that having regard to cross-examination, the plaintiff appears to have been shining his torch upwards rather than along the ground. This is said to be indicative of a failure to take care for his own safety.
4. It could not be said that he failed to take care for his own safety because he walked across the area as the duties of his employment required him to close the gate. However, the defendant says that the plaintiff was not paying proper attention to where he was walking and is thus guilty of contributory negligence.
5. There are two difficulties with this contention being: 1. Firstly, the plaintiff was using his torch for things that he needed to look for. He was shining his torch on the gate. Not shining his torch directly on the ground at the point that he fell does not mean that he was failing to take care for his own safety. He was using his torch. It is not as if he had made a decision not to use his torch at all. 2. Secondly, the defendant bears the onus of establishing the causal connection between any failure to take care on the part of the plaintiff and his injuries. Even if he was failing to take care by not shining his torch on the ground, the ditch was obscured by vegetation and grass. Mr Worsnop specifically said that it was. In assessing contributory negligence, I must apply the same principles as when assessing primary negligence. That is, I must be satisfied that any failure to take care by the plaintiff caused his loss.
6. I am not satisfied that, even if the defendant had been pointing his torch in the general area, he would have necessarily identified the ditch. The plaintiff is not guilty of contributory negligence.

Employer's liability

1. The defendant pleads that in accordance with s 151Z(2)(c) of the Workers Compensation Act 1987 (NSW), its liability should be reduced having regard to the notional contribution of SNP as a joint tortfeasor.
2. In DIB Group Pty Ltd Trading as Hill & Co v Cole, [7] Basten JA said in respect of the duty of employers who sent their employees to work at the premises of others: "[51] The modern case law with respect to the duty of employers which despatch employees to other places or premises, may be seen to commence with the judgment of Lord Denning in Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117, where his Lordship stated: 'Notwithstanding what was said in Taylor v Simms & Simms (1674 LT 414), it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over-riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work ...; and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable depends, of course, on the circumstances.' [52] Smith v Austin Lifts Ltd was applied by this Court soon after it was delivered, in Sinclair v William Arnott (above at [49]). The judgment of the Court, delivered by Walsh J, stated at 92: 'The principle ... to be derived from the authorities is that the duty of care is recognised as existing where employees are sent to work in another's premises, and that what constitutes a failure to fulfil this duty must depend upon all the circumstances.' … [54] The employer's duty, however effected, to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control. Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises?"
3. Those observations are apposite in this matter, particularly because it is unclear what answers the employer might have obtained if the same inquiries had been made and what the employer might have seen if it had inspected the area around the gate to gate 6 at any particular time. This is because on the defendant's case the area was normally cordoned off and it would not have thought that the gate could swing so far open unless the posts were removed.
4. Inferentially, if SNP had inquired about the risk associated with the ditch near the gate it would have been told that the defendant had taken measures to reduce the risk through webbing and posts.
5. There are thus two reasons why the plaintiff would not have succeeded against SNP and thus why s 151Z(2)(c) of the Workers Compensation Act has no application (and the damages should not be reduced on account of the notional contribution of SNP), being: 1. SNP's duty, whilst onerous, was only to exercise reasonable care. No evidence was adduced as to what SNP may have done or not done. It would be imposing an overly onerous obligation on SNP to require it to have regularly inspected the area where the plaintiff fell at some unspecified earlier times. After all, the plaintiff's role was to inspect the premises. 2. Having regard to the defendant's evidence, I do not know what SNP might have found. For example, on the defendant's case in 2010, the gate could not swing that far open and there was webbing in place. That was not the situation at the time of the plaintiff's accident but, as I have not accepted the evidence of Mr Worsnop and Mr Stewart, I am unable to make any finding as to the state of the drainage pit or surrounding area at any other time. Plainly the defendant knew it was there, as it created it, but the onus was on the defendant to establish what SNP would have seen if it had inspected the area at some time prior to the accident.
6. Other than inspection, it is not clear what an employer exercising reasonable care for its employee might have done and when it might have done it.
7. My finding is only that there was no such webbing when the accident happened. Whether it was there at an earlier time (when SNP might have carried out a preliminary inspection) is not known. It is possible that it was not there at the commencement of the security contract but I am unable to make that finding. I have only found that it was not there at the time of the accident, having regard to the plaintiff's evidence and the concessions by the defendant's witnesses.

Damages

1. At the time of the accident, the plaintiff was 55. He is currently 64. Prior to the accident, he had an extensive work history, including: 1. working as a qualified plasterer; 2. working as a carpark attendant; 3. assisting in his parents' shop; 4. working as a bus driver; and 5. working as a service station manager.
2. From 2006 to 2011, he worked as a security officer employed by SNP. In 2010, he married Heather Hubbard. They built their own home in Corindi Beach. Mrs Hubbard worked as a medical receptionist.
3. The plaintiff says that if not for the accident, he would have continued to work as a security officer until normal retirement age at 67. The plaintiff says that, as a result of his accident, he has been unable to return to any work at all. He received workers compensation payments until 2014. He has been forced to move house on two occasions since the accident, due to difficulties with steps and steep driveways. He is currently living in a one-storey home at Nerang on the Gold Coast.
4. In 1996, he suffered an injury to his right knee whilst at work. He says he made a full recovery from that injury and, indeed, had resumed playing soccer. He was a fit and healthy person prior to the accident. The defendant accepted in closing submissions that it had not established the extent to which any pre-existing condition might have impacted upon the level of disability since the accident and that it bore the onus of doing so. [8]
5. Immediately following the accident, the plaintiff's knee began to swell. After initially returning to his base, he attended at Coffs Harbour Hospital. X-rays were taken and an MRI scan was done. According to Dr Bodel, there was evidence of significant pathology in the knee, including a torn posterior cruciate ligament, as well as some articular cartilage damage. He was placed in a knee brace and used crutches for a period of six weeks. He underwent physiotherapy. He was referred to an orthopaedic surgeon, Dr Alex Jovanovic.
6. In late November 2011 his left leg gave way whilst he was at the supermarket, causing him to land heavily on the ground. His knee swelled up again. He experienced a burning sensation and developed a lot of back pain.
7. He consulted his general practitioner and was again referred to Dr Jovanovic. He underwent a CT scan on his lower back.
8. In his evidentiary statement, he says "I was told that the result showed disc bulges and degenerative changes".
9. He says that he continued to have falls from time to time due to the weakness in his knee. This continued to aggravate his back problem, as well as his knee problem.
10. He underwent an arthroscopy of his left knee in March 2012. However, his pain did not improve.
11. Again, on 22 June 2012 his knee gave way, causing him to fall and land on his back. The plaintiff continued to attend on the physiotherapist as well as have hydrotherapy and painkilling medication.
12. In October 2012, he was admitted into hospital having problems with his back and was referred to a neurosurgeon. He underwent a bone scan. He says that the bone scan showed degenerative changes in his lower back, as well as arthritis. In December 2012, he underwent a cortisone injection in his lower back at the Coffs Harbour Hospital. He underwent a further injection in March 2003.
13. In March 2013, he underwent facet joint injection. However, neither the problem with the knee nor the back really improved. Further, he continued to suffer falls as a result of weakness in his knee. Indeed, in the second half of 2013, he says he had ten falls. He continued to seek treatment. It is only necessary to say that he has had consulted quite a number of specialists and has had extensive radiological investigation. He exhibited wasting and disuse of the knee.
14. By May 2017, he was continuing to experience problems with his right knee. On 27 July 2017, he underwent a total knee replacement (which had been predicted by Dr Bodel as early as 2012) but there were complications following the operation. Meanwhile, he continued to be treated for his degenerative condition in his lumbar spine.
15. He says that he suffers from constant pain in his left knee, which ranges between 6 out of 10 and 9 out of 10. It is intense. He can no longer walk up and down stairs without being in severe pain and discomfort. He relies on furniture and benches for support. He uses a walking stick.
16. He says that he is also burdened by constant pain in his lower back, which has become progressively worse. He experiences a flare up in his back pain around twice a month which leaves him bedridden and unable to move. His physical symptoms cause him sleeplessness. He is incapable of operating a clutch on a manual vehicle. He is required to drive an automatic vehicle.
17. He says he has difficulty performing domestic tasks such as getting dressed and he is completely reliant on his wife to perform domestic chores and household maintenance. He is unable to remain seated in a chair for long periods and struggles to transfer from a seated to standing position. He walks at a slow pace. He says he has become socially withdrawn. He is now house-bound and feels isolated from the world outside. He relies on television for entertainment and his dog for companionship.
18. He suffers from depression and suicidal thoughts. Everything feels like an effort. He feels he is a burden on his wife and suffers emotionally. He can no longer travel.
19. Prior to the accident, he had been an active person. He was a coach for a soccer team and engaged in normal activities such as beach walks, swimming and dancing.
20. Until recently, he has been on the disability support pension.
21. None of these matters were the subject of any cross-examination. It was not suggested to the plaintiff that he was overstating his level of pain or disability. It was not suggested to the plaintiff that he was overstating his psychological state. It was not suggested to the plaintiff that he did not need a walking stick or that he had not been having the regular falls to which he refers in his evidentiary statement.
22. Whilst the weight which might be put on observations of an injured person in the witness box might be limited, I observed that he tended to move around in the witness box, seeking to find a more comfortable position and standing and sitting. His behaviour in the witness box was consistent with the complaints he made in his evidentiary statement.
23. It is a curious feature of this case that the plaintiff does not rely on any treating doctors' reports. Perhaps there was no need to because, as it turned out, there was no challenge to the evidence on injury and disability. The history of treatment and, perhaps, unusually, the diagnosis and opinions of the doctors are set out in his evidentiary statement.
24. The plaintiff relies on seven reports of Dr James Bodel, Orthopaedic Surgeon, dating between 20 July 2012 and 7 July 2019. The plaintiff also relies on two reports of Dr Andrew Porteous, Occupational Physician, a medical certificate of Dr Frank Machart and two reports of Ms Erika Skibby, Occupational Therapist dated 6 September 2018 and 10 January 2020.
25. The defendant relies on reports from Dr Simon Jorneaux, Orthopaedic Surgeon dated 30 September 2019, Dr Seamus Dalton, Rehabilitation Physician dated 25 January 2019 and dated 20 September 2019 and a report of Ms Di Owens, Occupational Therapist dated 15 October 2019.
26. The medico-legal specialists met in conclave and prepared a joint report dated 25 August 2020. The occupational therapists met in conclave and provided a joint report dated 12 August 2020. Neither the doctors nor the occupational therapists gave oral evidence.
27. The defendant tendered hospital notes and medical records from some of the treating doctors but only for the purposes of establishing the histories given to the various doctors and accepted that the use of those treating doctors' reports should be so limited.
28. Again, this makes the evidence in the case somewhat limited and unusual. For example, one issue on which the medico-legal practitioners disagreed was whether there was any contemporaneous record of the plaintiff sustaining an injury to his back in the accident on 5 October 2011.
29. Dr Porteous and Dr Bodel opine that the plaintiff is likely to have aggravated or exacerbated degenerative changes in his lumbar spine as a result of the accident, whereas Dr Dalton and Dr Jorneaux suggest that there is no evidence that the plaintiff suffered injury to his lumbar spine on 5 October 2011.
30. It is somewhat difficult for me to form a view one way or another when the contemporaneous records are not in evidence.
31. However, that disagreement may not matter as Dr Jorneaux and Dr Dalton agree that on the basis there had been a series of falls, the injury to the lumbar spine was as a consequence of the accident in October 2011. Again, if there was to be any contention that the back problems are not related to the accident or due to some pre-existing condition, it would have been necessary for the defendant to cross-examine the experts on these issues. Indeed, the defendant expressly acknowledges in its written submissions that the fall caused the left knee injury and some back symptomatology.
32. Dr Bodel and Dr Porteous agree that the injuries and disabilities are consistent with the accident. Dr Dalton believes that there is some pain avoidance behaviour contributing to the alleged disabilities and Dr Jorneaux considers there was some psychological factors adversely affecting functional capacity or disability.
33. It would be difficult to assess damages on the basis of the psychological component when there is no psychiatric evidence and it was not suggested to the plaintiff that, in some way, his recovery has been affected by a non-organic condition.
34. Similarly, there is some disagreement on the extent to which the accident and subsequent falls have contributed to the lumbar spine disability, as opposed to pre-existing degenerative changes. This is often the issue in these types of cases - whether the traumatic event acted upon pre-existing degenerative changes such that the ongoing disability can be said to have been caused by the traumatic event or whether the aggravation of the pre-existing degenerative changes was merely temporary, such that the later disability is not causally related to the traumatic event.
35. In this matter, there is really no contest because of the plaintiff's evidence and because the defendant accepts that it has not discharged its onus of demonstrating that the plaintiff's ongoing lumbar disability is referrable to pre-existing degenerative changes rather than the aggravation caused by the accident.
36. All of the doctors agree that the plaintiff's treatment and medication has been reasonable and appropriate and that he will require regular consultation with his GP and review by his orthopaedic surgeon. Further, he will require a multi-disciplinary pain management regime and a targeted exercise programme.
37. Similarly, the experts agree that the injuries have caused restrictions in his work as a security guard. He could no longer do foot patrol, particularly at night. However, he may be able to undertake sedentary activities such as a gate-house guard or other sedentary security work. However, this seems unlikely, as his mobility is significantly restricted.
38. The experts agree that if the plaintiff is taking narcotic medication, he would not be fit for any sort of security work. He is taking such medication. Further, the experts agree that the plaintiff could not return to his pre-injury duties and his ability to return to any work must depend upon whether he improves. The experts also agree that a degree of domestic assistance would be required.
39. I accept that as a result of the accident, the plaintiff has changed from an active 55 year old to a 64 year old who is significantly disabled. He uses a walking stick because of his continuing concern that his knee might give way and he might fall. His mobility is severely compromised. Despite the extensive treatment he has undergone over the past nine years, he continues to suffer from pain in his back and knee. He continues to seek medical help even consulting a new specialist in 2020.
40. Whilst Dr Dalton and Dr Jorneaux make reference to pain-related behaviour and the need for a pain management programme, they do not suggest that the plaintiff is consciously exaggerating his level of disability.
41. Further, no doctor suggests that the plaintiff might obtain relief from any operative treatment or that he can expect real improvement in the future. It may be that his pain levels might be reduced by a pain management programme and that he can rely on pain relief medication, but there is no evidence that the plaintiff will recover to such an extent as to be able to return to work or resume his active lifestyle.
42. The defendant must take the plaintiff as it finds him. It found him as a middle-aged man with pre-existing conditions such that the consequences of the accident have been more severe for the plaintiff than might have been expected having regard to the mechanics of the accident.
43. This rather innocuous accident has led to dire consequences for the plaintiff.
44. Nine years after the accident, the plaintiff still suffers from pain in two different parts of his body. That state of affairs is likely to continue.
45. I assess non-economic loss at 40% of the most extreme case.
46. The plaintiff has not been fit for his security work since the accident. The plaintiff accepts that his claim for loss of earning capacity should be limited to the age of 67.
47. There is no evidence that he will become fit for his security work in that period. Further, there is no evidence that the plaintiff could have performed that work in the past or will perform that work in the future.
48. The experts suggest that he may be able to obtain part-time sedentary work as a security guard, but it is important to bear in mind that the defendant bears the onus of establishing his residual earning capacity. To the extent that the defendant asserts that a plaintiff who cannot perform his usual or similar job still has a residual earning, the onus is on the defendant to adduce evidence as to what work he could perform and the availability of such work.
49. As was said in Rabay & Anor v Bristow: [9] "[73] … It is incumbent upon the plaintiff to prove the loss for which compensation is claimed but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person." (Citations omitted.)
50. It is not merely a matter of adducing evidence to the effect that the plaintiff has the skillset to perform a particular job. The Court would need to be satisfied that the injured person could physically perform the work and that there is work available which he or she might obtain.
51. No evidence has been adduced of the sort of work that the plaintiff might have done over the past nine years or might do in the future, having regard to his physical limitations and the availability of such work.
52. In the circumstances, the assessment of loss of earning capacity, both past and future, must be undertaken on the basis of the earnings he would have earned whilst working as a security guard up to the age of 67.
53. It is agreed that he was earning $876.32 net at the time of the accident.
54. The plaintiff has undertaken a calculation, including allowances for CPI at appropriate intervals. The calculation is based on the plaintiff's pre-accident earnings. Although in the plaintiff's schedule, the claim is up to the age of 70, I assess damages only up to the age of 67.
55. However, whilst he might have been earning the sum of $876 at the time of his accident, he was only employed on a casual basis and his tax returns suggest that he generally did not earn that amount. His earnings were quite variable.
56. For the purposes of s 13 of the CLA, I accept that he would have continued to work as a security guard until the age of 67 but I do not accept that he would have earned such a sum each week throughout the period. I accept the plaintiff's calculations but apply a 20% discount on the basis that there would have been times when he might not have earned or worked as much.
57. I also accept the plaintiff's submission that the usual discount on account of the vicissitudes should be reduced to 10% rather than 15%, bearing in mind the limited period of future loss of earning capacity.
58. Out-of-pocket expenses have been agreed in the sum of $86,039.95.
59. The plaintiff claims $89,000 on account of future out-of-pocket expenses, comprising $23,000 for one-off expenses and $66,000 for ongoing expenses.
60. In his evidentiary statements, the plaintiff provides details of the treatment he has been having and is still having. The OT provides an estimate of the allied health care he requires and Dr Porteous provides an estimate of the medical treatment he will require in the future. No further detail is provided as to the calculations.
61. I assume that the sums are worked out on the basis that he will be having this repetitive treatment for every year for the rest of his life. That seems an unlikely proposition.
62. Doing the best I can and having regard to the absence of any real contrary evidence or argument, I would allow the estimates but discount by 30%, as it seems improbable that the plaintiff will see his GP and consult specialists about his knee and back as frequently as claimed when he gets to old age. I allow the sum of $60,000.
63. The plaintiff's claim for domestic assistance is contentious. The defendant submitted that because it has been demonstrated through cross-examination that Mrs Hubbard's hourly estimates are not likely to be correct, the plaintiff is not entitled to any amount. I do not accept that submission.
64. Indeed, the estimate of a party or witness as to the hours spent undertaking individual tasks should really be treated as just that: an estimate. It could hardly be precise and, in my experience, plaintiffs generally do not err on the side of being conservative.
65. The fact that the defendant might have demonstrated that some of Mrs Hubbard's estimate could not be correct does not disentitle the plaintiff to an appropriate allowance for gratuitous care for the past having regard to the care provided by Mrs Hubbard and having regard to his claim for commercial care in the future, again having regard to his own evidence and his needs.
66. All claims for care are subject to the plaintiff establishing that the care has or will be provided and that there was or will be a reasonable need for such care which is causally related to the tortious conduct of the defendant. [10]
67. There is extensive and detailed evidence in the plaintiff's evidentiary statement as to the domestic assistance provided by Mrs Hubbard since the accident, what he needs and what he used to do prior to the accident.
68. Having regard to that evidence, as well as the evidence of Mrs Hubbard and the evidence of the occupational therapists, I am in a position to form a view as to the need for care.
69. Damages for gratuitous care must be assessed having regard to s 15 of the CLA. The plaintiff must establish that there was a reasonable need for care for at least six hours per week and six months and establish that the need for care is solely related to the accident and that the services would not have been provided to the plaintiff but for the injury.
70. These threshold requirements are often not the subject of focus in occupational therapists reports and require that caution must be exercised in merely accepting such estimates.
71. Having said that, in this matter, the estimate of Ms Skibby as to the plaintiff's needs is less than the estimates of Mrs Hubbard.
72. Further the defendant's occupational therapist, Ms Owens, opines that the plaintiff does not really need much by way of care on an ongoing basis. My impression from her report is that that opinion is based on some reservations as to the level of disability and even some observed inconsistencies but I could hardly accept her opinion when it was not suggested to the plaintiff that he was exaggerating his level of disability.
73. The plaintiff's needs may have increased as his condition deteriorated. His falls and back problems must have aggravated his condition and increased his needs from time to time.
74. This does cause me to have some doubt as to Ms Skibby's estimate (that is, 8.8 hours all the way through). On one view, there must have been some periods when the plaintiff would have required and been given more care than she estimates and perhaps more like that which Mrs Hubbard asserts she provided. However, the estimate of hours might even out over the whole period.
75. It seems to me that an allowance of 7 hours per week over the whole period represents an appropriate sum. Even the defendant's OT suggests a figure of 5 hours per week.
76. The plaintiff claims an average rate of $28.80 per hour. The period is 480 weeks. This amounts to $96,768.
77. For the future, the plaintiff claims commercial care at a higher rate. There was no challenge to the evidence that he will engage commercial care and thus the evidentiary requirements are satisfied. [11]
78. The problem with the claim for commercial care is that I must be satisfied that the plaintiff would engage such commercial care to satisfy all his needs which are related to the accident and that he would do so for the rest of his life. That seems unlikely.
79. Plainly, some aspects of his care are unlikely to be provided on a commercial basis. Further, estimates for things such as car maintenance are exaggerated.
80. I allow a figure of four hours per week commercial care for the future. There is no dispute as to the hourly rate of $53.92. For the rest of the plaintiff's life, this would amount to $151,795.
81. I discount that by 20% on the basis that it seems unlikely that the need for commercial care towards the end of his life would be related to the tortious conduct of the defendant. I allow future care in the sum of $121,436.
82. Damages are thus assessed as follows: Non-economic loss - 40% $275,000 Past economic loss ($876.32 net with CPI increases less 20%) $368,518 Past loss of superannuation $40,536 Future loss of earning capacity to age 67 (at $1,032 per week x 145.6 x 0.9) $135,315 Future loss of superannuation $16,887 Fox v Wood [12] $11,782 Past out-of-pocket expenses $86,039 Future out-of-pocket expenses $60,000 Past care $96,768 Future care $121,436 TOTAL $1,212,281

Orders

1. Judgment for the plaintiff in the sum of $1,212,281.
2. I order the defendant to pay the plaintiff's costs. Should either party seek a variation of that costs order, I grant leave to relist the matter on three days' notice.

Endnotes

1. See, for example, Mason v Demasi [2009] NSWCA 227.
2. Wallaby Grip Ltd v QBE Insurance (Australia) Ltd; Stewart v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9 at [36]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [87].
3. Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314 at [52].
4. Hubbard v CPB Contractors Pty Limited [2020] NSWSC 1921.
5. Schultz v McCormack [2015] NSWCA 330 at [71]-[74] (McColl JA, Macfarlan JA and Beech-Jones J agreeing).
6. Paras 128-132 of Defendant's Submissions dated 11 December 2020
7. [2008] NSWCA 99 at [13]-[14] (Mason P and Beazley JA agreeing).
8. [2009] NSWCA 210 at [51]-[52], [54] (Beazley and McColl JJA agreeing).
9. Watts v Rake (1960) 108 CLR 158 at 160; [1960] HCA 58.
10. [2005] NSWCA 199 at [73] (McColl JA, Handley and Bryson JJA agreeing).
11. Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54.
12. Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 December 2020