Kelly v Thorn; Monteleone v Thorn

Proceedings 2016/74936 A Renshaw with B Adam (Plaintiff) M T McCulloch SC with D P Kelly (Defendants/Cross-Claimants) L D Robison (Cross-Defendants)

Solicitors: Proceedings 2015/326714 Benson Law (Plaintiffs) Gillis Delaney Lawyers (Defendants)

Proceedings 2016/74936 AR Conolly & Company Lawyers (Plaintiff) Gillis Delaney Lawyers (Defendants/Cross-Claimants) Benson Law (Cross-Defendants) File Number(s): 2015/326714; 2016/74936 Publication restriction: None

Judgment

1. The plaintiff, Ross Monteleone, alleges that he sustained serious injuries in an accident whilst working on a property near Narrawa on 15 March 2013.
2. He alleges that the accident was caused by the negligence of the defendants. I will refer to the defendants in the singular, as the second defendant played no role in the proceedings.
3. At the time of the accident, the plaintiff was employed by William Andrew Kelly, William Richard Kelly and Margaret Jane Kelly, who operated a business known as Lugano Pastoral Company. I will refer to them collectively as "the employers" or "the Kellys" for ease of reference because there is a general similarity in a number of names in this matter.
4. The employers have also commenced their own proceedings against the defendants. The employers accept that the plaintiff was injured during the course of his employment on property owned or operated by them.
5. Subsequent to the accident, the plaintiff made a claim for Workers Compensation payments. The employers did not have compulsory Workers Compensation insurance. In accordance with the statutory scheme, payments were made by the Workers Compensation Nominal Insurer ("the Nominal Insurer"). The Nominal Insurer then sought recovery of those payments directly from the employers. The employers have reimbursed the Nominal Insurer and, according to Mr Andrew Kelly ("Mr Kelly"), will continue to do so should any further obligation arise.
6. The employers seek recovery of the workers compensation paid from the defendants. The defendants deny that the employers have a right to recover irrespective of whether there is any finding of negligence on the part of the defendants. The defendants say that s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) does not afford a statutory cause of action for indemnity to an uninsured employer who has not paid the compensation directly to the injured worker but has merely reimbursed the Nominal Insurer in accordance with the demand made by the Nominal Insurer.
7. I deal with the claim pursued by the employers in the separate proceedings in the second part of this judgment.

The plaintiff's case

1. The plaintiff's case is simply put. He says that he was asked by the defendant to assist him in unloading sheep from the defendant's trailer at the employers' property. Whilst he had his arm inside the trailer pushing the sheep's heads so that they would move out of the trailer, the defendant moved a deck within the trailer such that it dropped onto the plaintiff's arm.
2. The plaintiff says that his version of events is corroborated by contemporaneous records and the evidence of Mr Kelly, who was there, observed the accident, signed documents verifying the happening of the accident and gave evidence said to be consistent with the plaintiff's version of events.

The defendant's position

1. In final submissions the defendant did not dispute that, if I accept the plaintiff's version of events, the plaintiff would be entitled to succeed.
2. However, the defendant says that the accident did not occur as alleged and positively asserts that no accident occurred involving the defendant.
3. The defendant has pursued a defence (commencing with the filed defence as supported by the defendant's evidentiary statement and maintained through cross-examination during the hearing) that the accident did not occur and that the plaintiff and Mr Kelly are not witnesses of truth. This defence is based on instructions presumably received from the defendant as then attested to in his evidentiary statement. The defendant also points to other evidence, which he submits supports his defence.
4. As articulated during submissions, the defendant's position is that either: 1. the evidence is so uncertain, inconsistent and confused that I would not be satisfied that the plaintiff has discharged his onus of proving the facts on which his action is based and the plaintiff should not succeed; or 2. I would reject the evidence of the plaintiff and Mr Kelly as untruthful and find that the accident did not occur.
5. The defendant also submits that the plaintiff's disabilities and claims of loss are largely exaggerated. Whilst the plaintiff claims substantial sums on account of loss of earnings and care, the defendant submits that there should only be a small allowance for loss of earning capacity and no allowance for domestic assistance.
6. The primary basis for such contentions is extensive surveillance undertaken by the defendant over the period 2016 to 2020. The defendant submits that by 2016, the plaintiff "had resolved to make his fortune out of this case" and did not make any reasonable attempt to return to work.

The hearing

1. The conduct of the case was unfortunate because all parties sought to rely on evidence which had not been served in accordance with the orders and directions of the Court. In particular, the plaintiff sought to rely on a medico-legal report that was said to be critical to its case, which had not been served until shortly before the commencement of the hearing; evidence from an expert whose evidence was not the subject of a report; and finally a statement from Mr Kelly's wife, Dr Amy Kelly.
2. The defendant sought to rely on surveillance film and other photographic and video film, which had not been served, and then sought to adduce further evidence from doctors retained by him about the significance of the surveillance film.
3. The plaintiff relied on his own evidentiary statement and adduced further oral evidence and was cross-examined. The employers adduced evidence from Mr Kelly.
4. The defendant relied on his evidentiary statement and adduced further oral evidence.
5. A number of doctors were called and were cross-examined. The occupational therapists gave evidence concurrently. The defendant showed an edited compilation of some of the film it had obtained.

The central factual issue

1. The central issue is whether the plaintiff sustained injury as he maintains.
2. The defendant's case was revealed during cross-examination and the additional evidence adduced by the defendant. The defendant cross-examined the plaintiff and Mr Kelly as to the precise way in which the deck was moved and hit the plaintiff and then sought to demonstrate through the additional evidence of the defendant that this could not have occurred.
3. As far as Mr Kelly is concerned, as was put directly to him, the defendant suggests that Mr Kelly decided to help the plaintiff win his case because it may allow him to recover amounts owing to the Nominal Insurer.
4. Again, on the defendant's case, it is not merely that Mr Kelly might have misunderstood the workings of the trailer or might be mistaken. Mr McCulloch SC submitted, "There are a number of pieces of evidence which point to him not being there."
5. However, on the second day of submissions, Mr McCulloch expressly withdrew the positive contention that Mr Kelly was not there [1] but continued to assert that I would not accept Mr Kelly as a witness of truth.
6. It is necessary to assess the competing positions having regard to the evidence presented.

The plaintiff's evidence

1. The plaintiff is currently 39 years of age. He grew up on a property at Sutton, outside of Canberra. He worked full-time from the age of 16 on his parents' farm. He completed a Diploma in Horticulture whilst working on his parents' farm. He has considerable experience in farm and contract work. He ran his own rural contracting business and then became a head stockman for three years.
2. When he was 29, he moved to Rugby with his family and worked as a rural contractor, as well as leasing 400 acres running sheep. His property was adjacent to one of the Kelly family's properties.
3. In 2011, he commenced undertaking work for the Kelly family which included fencing, cattle and sheep work, mustering, drenching, lamb and cattle marking, mechanical repairs and tractor operation.
4. At the time of the accident he was very experienced in taking delivery of stock from external stock carriers.
5. In his evidentiary statement he refers to his experience and the usual system of work adopted when taking stock from external carriers. In particular, he says that a lot of the drivers have dogs with them and the dogs can get into the trailer and push the sheep out. However, if the driver is having a hard time, a driver might ask for help.
6. In those circumstances, the plaintiff would assist. The type of assistance he might give would include turning the heads of the sheep from the side of the trailer and pushing the sheep by hand towards the back of the open trailer. Older sheep are said to run easier than younger sheep. Young sheep hang back.
7. The sheep being unloaded were very young. It was their first trip. This would make it likely that they needed prodding to move out of the trailer.
8. On the day of the accident the defendant did not have any dogs with him. The defendant brought two loads of sheep to the Little Narrawa property. The plaintiff says that, even during the first load, the defendant was having trouble with the young weaners. According to the plaintiff, he appeared to be cranky and frustrated. He could hear the defendant at the back of the truck yelling as they were coming off.
9. The plaintiff says that during the first load, he called out to the defendant, "Do you want a hand?" and the defendant said, "Yeah, come up here". He went up to the ramp and went into the deck with the defendant. He assisted him in turning the sheep out towards the back of the trailer.
10. After the first trailer was unloaded, the defendant left whilst the plaintiff drenched the first load of sheep.
11. According to the plaintiff, when the second load arrived Mr Kelly also arrived at the sheep yards. Again, the defendant was cursing at the sheep, grabbing them by the wool and shoving and pushing them. The plaintiff says that he said to the defendant, "They don't want to come out there" and that the defendant said, "Yep, go down the side there and see if you can push them out".
12. The plaintiff says that he went down to the side of the truck on the driver's side. At this point, he was below the defendant's feet. He thought the defendant's feet were level with his head. He heard the defendant say, "Push them out of there."
13. The plaintiff put his arm inside of the truck, pushing them towards the defendant. He observed that after he pushed the sheep, the defendant would receive it and pull it out onto the "sheep ramp". The sheep ramp is the ramp belonging to the owner of the property, which is positioned between the ground and the back floor of the trailer so as to enable the sheep to move from the trailer into the sheep yards.
14. The plaintiff says that this went on for some minutes. That is, he had his hand through the railing on the side of the trailer, pushing the sheep when he suddenly felt the deck come down.
15. In his evidentiary statement of 3 June 2015, he says: "While I was still turning the remaining sheep in that back bottom pen from the side, I suddenly felt the deck come down. It pinned me to the point where it lifted me, bending my arm down and lifting my feet off the ground. I actually thought when it first happened that it had taken my arm off. The deck came down on the remainder of the sheep in that back pen. The fact that the deck hit the sheep probably saved me from having my arm completely smashed. The deck pinned the sheep as well. Andrew [Thorn] had dropped the deck without telling me what he was going to do, or warning me. Andrew [Thorn] had not said to me to stand clear before he dropped the deck. Andrew [Thorn] had not said that he was going to drop the deck. ... Andrew [Thorn] was that my hand and wrist were hanging through the side of the truck. He said, 'Shit you've for to be careful of that'. I think I said something like 'I've got to be careful? I think you've got to be bloody careful'."
16. The plaintiff added to his written statement orally. His evidence-in-chief was to the effect that he had done the same thing, that is, place his hand between the rails, on many occasions previously for the purposes of assisting the carrier in pushing the sheep out. He said he unloaded sheep on the Kelly property approximately 15 times. He said that he had unloaded sheep for the defendant at least half a dozen times. He gave further evidence as to the circumstances of the accident as follows: [2] "Q. Where were you standing? A. Alongside the truck on the driver's side to the rear of the vehicle. Q. Were you adjacent to this object that is variously a ramp and a deck? A. Yes, my, my arm was inside the truck and it was up above me. Q. What did he do? A. He was standing on the ramp at the back of the trailer, and he was - I was ushering the sheep towards him, and he was collecting the sheep and sending them down the ramp. Q. Then, how did your hand come to be injured? A. As he was standing at the back of the trailer, he's pulled on the, pulled on the pin and the, the deck of the sheep - the floor of the sheep trailer has swung down against the, the side of the trailer with my arm inside of it and it has hit all the sheep as well as my arm, and the fact that there were still sheep in there was the only thing that enabled me, with them wriggling, to get my arm back out of the trailer. It was pinned in there. Q. Were you injured in this? A. Yes."
17. In cross-examination, he gave further evidence about the circumstances of his accident as follows: [3] "Q. Just before I go on, how is it you say it was that your arm became injured, what caused it? A. The deck falling on it. Q. I want you to describe what you mean by the deck falling on it? A. Well my arm was in ushering the sheep out and the, what do we call it, the level 1 deck has come down to fold against the side of the truck and it's captured my arm on its way down, and lifted me up and pivoted my arm into the trailer like this, between-- Q. I'll just stop you-- A. --the wall and the floor. Q. I'm sorry I didn't mean to interrupt you. First of all when you were giving that answer, when you said came down, you gave the, with your hand, you gave the same arc movement you'd given earlier? A. That's correct. Q. So what you were describing by dropping on your arm, was the deck, you say falling? A. Pivoting down to be against the side of the trailer. Q. Did it pivot down under its own weight and the force of gravity, or was it pushed down? A. By its own weight. Q. Before it came down and struck your arm, did you see Mr Thorn doing anything in relation to that deck? A. Mr Thorn was up at the back of the trailer on the ramp and yes he was at the, at the deck. Q. Forgive me if I sprinkle this with a few more definitions, when you say the ramp, you mean the sheep ramp? A. He was standing on the sheep ramp that belongs to the yards. Q. He was doing what sorry? A. He was receiving the sheep that I was ushering towards him and physically pushing them down into the sheep yards, down the ramp that belongs to the sheep yards."
18. He said further: [4] "Q. Did you see the object that struck you in that attitude, that is, being used as a ramp, before your accident occurred? A. No, it wasn't ever used as a ramp when the accident occurred."
19. The livestock trailer used to transport the sheep on this day consisted of four levels and different pens on each level. For the purposes of allowing the sheep to be moved from the ground onto the top level (and vice versa) each deck may be converted into a form of ramp. For example, the deck above the floor of the trailer can be converted into a sloping ramp to allow the sheep which were loaded on the first level of the trailer to walk or run off the trailer. They would thus move from the internal deck or ramp onto the "sheep ramp" (which I have described above at [39]).
20. There was no consistent use of terminology during the oral evidence. In the end, it appeared to be agreed that the "sheep ramp" was the sheep ramp to which I have just referred and a deck such as the level 1 deck could also be described as a ramp, particularly if it was being used as a ramp. This led to some uncertainty, particularly when comparing what I will describe as the rather generalised version of events contained in the plaintiff's evidentiary statement and the evidentiary statement of Mr Kelly, with the oral evidence both in-chief and in cross-examination.
21. Having said that, when invited to do so in oral evidence, the plaintiff gave a more detailed description of what he says occurred. It is his evidence that his arm was struck by the dropping or falling deck as it pivoted and turned so that it could be secured on the side.

Mr Kelly's evidence

1. Andrew Kelly was called in the employer's case. He was cross-examined on behalf of the defendant.
2. He signed an evidentiary statement in May 2015 on which he relied.
3. Mr Kelly asked the defendant to pick up 800 Merino weaners and deliver them to Little Narrawa. He then organised the plaintiff to take delivery of the sheep from the defendant and drench them after they come off the truck.
4. Mr Kelly says that the stock carrier makes the decisions about how the stock will be unloaded. The stock carrier will ask for help if he wants help. He says the stock carrier will direct people at the property what he wants done.
5. In his evidentiary statement, he provides a description of the trailer, referring to the pens inside the trailer being divided by gates and referring to a ramp which would be used to unload sheep from the next step up. He refers to the ramp being between the first and second deck which is further to the back of the trailer and the ramp between the second and third decks which was further to the back than the ramp between the third and fourth decks.
6. He observed the defendant turning the head of each sheep and that the defendant was red in the face and looked upset and angry. He heard the defendant ask the plaintiff to go to the side of the truck and to turn some of the sheep around from the side of the truck.
7. He then observed the plaintiff go to the right-hand side of the trailer and put his arm through the rails and start to turn the heads of the sheep. Because the first deck is only about knee or thigh high, the defendant could not get into the back of the trailer until the back pen was cleared.
8. He observed the defendant pulling the sheep forward off the truck and onto the sheep ramp as this was occurring. He said that the plaintiff was still at the back right side of the trailer pushing the sheep out of the side, whereas the defendant was at the back of the truck pulling the sheep down the sheep ramp.
9. He then said: "Suddenly Andrew [Thorn] dropped the ramp between the first and second decks. I saw the ramp fall onto some sheep. Ross Monteleone cried out and it was clear the ramp had hit his arm which was still between the rails on the side. It was completely unexpected. I've never seen any carrier drop a ramp onto sheep in the pen and with someone's arm through the rails. There is a hinge point on the floor of the second deck which is about 4 feet in from the door. To drop that ramp the driver lifts it slightly, [knocks] the pins out and then drops the ramp into position. When he dropped the ramp Andrew was at the back of the trailer and would have been able to see where Ross was and that Ross was continuing to turn the sheep with his arm between the rail. Ross was only a few feet away from where Andrew was standing. Before he dropped the ramp Andrew did not give any warning, and did not say what he was about to do. He didn't say that he was going to drop the ramp. He did not ask Ross to stand clear. Andrew just dropped the ramp unexpectedly hitting sheep still in the back pen."
10. Mr Kelly was cross-examined extensively on suggested inconsistencies between statements made in the witness box, his evidentiary statement and the evidence of the plaintiff.
11. During cross-examination, he was taken to part of the claim form completed at the request of the Nominal Insurer in 2013.
12. The cross-examination on the claim form focused on the alterations in the claim form in response to questions both as to whether the person completing the form actually saw the accident and then whether there were other people who witnessed the injury. It is apparent that whoever completed this part of the claim form, said by Mr Kelly to be his mother, changed the answers.
13. Plainly, Mr Kelly signed the document but he says that his mother actually completed it. His explanation is that she simply made a mistake when ticking or crossing the boxes. One explanation for the changing of the answers in the claim form is that one question refers to "you" and the other to other witnesses.
14. The defendant points to a more sinister explanation, being that the real position is that Mr Kelly did not witness the accident at all.
15. Part of the cross-examination was as follows: [5] "Q. Go halfway down the page and you'll see an entry which says, 'Did you actually see the accident?' Do you see that? A. Yes. Q. Do you see that the box 'Yes' appears as though it's been crossed and then an attempt made to obliterate the marking? A. Yes, I see that. Q. And that the word, 'No,' has been crossed? A. I can see it has. Q. Did you do that? A. No. I saw the accident. Q. Do you see by the combination of these two pages that you made a declaration to WorkCover on 29 April 2013 which said that you did not witness it, you did not actually see the accident? A. Well I did see the accident. Q. You say, following on on the same line, so that we can complete this, 'If yes, how far were you to the injured person (metres/feet)?' And there appears to be '10m,' standing for 10 metres writing there? A. That's correct. Q. Again, your mother's handwriting? A. It is. Q. You say you were 10 metres away at the time the accident occurred? A. Yes, that's correct. Q. Can you explain why in the face of signing this document you wish to maintain that you in fact witnessed the accident? A. Well it's, it's clearly a mistake that was made in this document. I, I was at, I saw, I saw the accident take place. It was right in front of me."
16. Cross-examination continued subsequently as follows: [6] "Q. I'll ask it again. You could've been the only source of information given to your mother, to enable her to complete this form, isn't that correct? A. Believe so. Q. So there'd be no reason for her to have made up that you didn't witness the accident, it must've come from you I'm suggesting? A. But I did witness the accident, I, I think that that was just a mistake that's been made on the form and I-- Q. That is as may be but and his Honour will rule on that no doubt in due course, but what I'm putting to you directly-- A. Right. Q. --is that, I'm asking you to accept that for there to be a change from yes to no involves a reconsideration of whether the first answer put down, namely yes, was correct? A. I don't believe so and I just think it was a mistake. Q. You must have told your mother I suggest to you, based on her crossing 'yes' first, that you did not witness, did not actually see the accident? A. No that's not correct." It concluded with the following proposition: [7] "Q. Perhaps if that exhibit could be returned. To be clear about it, what I suggest to you is in fact the case and I ask you to agree or disagree, is that you in fact told your mother that you did not witness the accident, but you were about ten metres away? A. I disagree."
17. This was then followed up with a further and more general cross-examination: [8] "Q. You have been doing what you can when asked to assist Mr Monteleone's legal advisers? A. We have, yes. Q. Because, let's be clear about it, Mr Kelly, you have a very direct financial interest in the outcome of this case, don't you? A. We do, yes. Q. Will you accept it would be in your interest to give evidence which would be favourable to your case? A. Well the evidence I give is what, what I saw and what I do. Q. Yes, I'm asking you a slightly different proposition. I'll repeat it. Will you accept that it would in your financial interest to give evidence which assisted your case? A. I accept that, yes."
18. I was not sure whether the defendant was running a case that Mr Kelly was simply not there at all. During final submissions, I asked Mr McCulloch whether he was really inviting me to find that Mr Kelly was not on the property at all at the time and that his wife's statement, which refers to a conversation she had with him contemporaneous to the accident, was simply a fabrication. [9] After further considering the point, he informed me that he was not making such a direct submission.
19. Having said that, Mr McCulloch consistently maintained that, irrespective of whether Mr Kelly was there, I would not accept him as a witness of truth.
20. Without intending to avert to every aspect of cross-examination, the focus of cross-examination was to the effect that: 1. Mr Kelly must have told his mother, when completing the claim form, that he did not witness the accident and then corrected it for his own gain. 2. Mr Kelly had a direct financial interest in assisting the plaintiff and had determined from the outset to do so. 3. Mr Kelly did not say anything to the defendant at any time between the day of the accident and the defendant receiving a letter from solicitors for the plaintiff about a potential claim. Indeed, he continued to retain the defendant which, it was suggested would be inconsistent with Mr Kelly believing that the defendant had caused the accident. 4. Contrary to Mr Kelly's evidence, the defendant left no telephone message on his parents answering machine. 5. Nothing occurred on the day which caused Mr Kelly to have any concern about the defendant's conduct. Again, that was specifically put. [10] 6. He could not have seen what he said he saw because he could not have seen both the defendant and the plaintiff at the same time. 7. Mr Kelly's description of the accident as set out in his evidentiary statement is inconsistent with his oral evidence and the plaintiff's evidence and could not reflect what the plaintiff says occurred.
21. Whilst there were many facets to this challenge, there was an emphasis on Mr Kelly's use of "ramp" rather than "deck" in his evidentiary statement and an absence of any real description of what the plaintiff said occurred, being the rotating or pivoting of the deck, so that it was flush with the side of the trailer, rather than a lowering of the deck so that it might be used as a ramp.
22. Cross-examination on this topic commenced as follows: [11] "Q. You agree then that it just could not be the case that that deck on level 2 was either dropped down as a ramp or moved over to the side with sheep on it, do you agree with that? A. Yes, I do. Q. Right. Just impossible? A. Yes. Q. Couldn't have happened? A. Yeah. Q. You said a moment ago that the deck on level 2, that is the one which is directly above the rear right-hand side of the vehicle, pen on level 1 - you said that it was moved over to the side, and you moved your arm and I've just forgotten how you did it so I haven't read that onto the transcript, but what you're saying in the witness box is that that deck on level 2 was moved over to the side of the vehicle? A. That's right. Q. Is that a version which has been suggested to you by anyone? A. No, it's not. That's what I saw. Q. Are you conscious of the fact that you signed a statement which referred to a ramp being dropped by Mr Thorn, giving rise to the injury? A. Yes."
23. However, Mr Kelly also said: [12] "Q. You have used the word, 'ramp', on a couple of occasions, haven't you? A. I have. Q. When you're using it on those occasions, it's the same way in which you were using it, or have been using it in answer to questions I've been asking you; that is, how is the internal layout of the trailer? A. Yeah, I think I've used ramp and deck interchangeable, but, yep. … Q. So that when you refer to a ramp in the sense of the internal machinations of the truck and the movement of sheep between decks, you were referring to a deck which becomes a ramp? A. It can be used interchangeably, yes. Q. Well it can't be a deck-- A. Well it, it is both. It's a ramp and deck, so."
24. The cross-examination continued: [13] Q. You say, 'I saw the ramp fall onto some sheep.' Do you see that? A. That's correct, yes. Q. You say Mr Monteleone cried out and it was clear, you say, that the ramp had hit his arm which was still between the rails on the side? A. That's correct. Q. Then you add, to be complete, 'It was completely unexpected.' And then you add, 'I've never seen any carrier drop a ramp onto sheep in the pen and onto someone's arm through the rails,' correct? A. That's what I said, yes. Q. What you are there describing is the action of releasing the deck on level 2 above the pen on level 1 and dropping it so that it would fall into the ramp position? A. No, no, what I'm describing there is lifting it and dropping it to the side. Q. Please read the paragraph again, take all the time you want, and tell his Honour whether or not that last answer you gave was truthful. A. It's truthful. Q. Because you consistently have referred to 'ramp' as being an internal area between two decks within the trailer, haven't you? A. I, I've used the terms interchangeably. I've-- Q. You see, one can't move, or one can't store a ramp onto the side of the truck‑‑ A. Yes, they can. Q. I hadn't - sorry, that was my fault because I paused. I'll ask the question again. Someone can't move what is a ramp in the way you've described it to store it onto the side of the truck unless it's lifted first into the deck position, do you agree? A. It, it, it's - it was in the deck position before it's stowed away."
25. He then continued: [14] "Q. And if it's in that position as a ramp, it cannot be stored onto the side of the vehicle before it is lifted back to the deck position, can it? A. Yes, that's correct. Q. Right. And in addition, if that's to occur, that deck as it now is has to be lifted again by the operator to engage the mechanism that allows the deck to rotate to the right so that it can then be stored on the side of the vehicle. Do you agree with that? A. That's how it works, yes. Q. Incidentally, that could not happen physically, could it, if there were sheep on that deck? A. Not on that part of the deck, no. Q. Because it would just weigh too much? A. No, yep."
26. In my view, there are a number of problems with the defendant's approach to Mr Kelly's evidence: 1. The defendant specifically submitted [15] that I should find that Mr Kelly was not there at all but then on the second day of submissions specifically withdrew that submission, presumably because the evidence could not support the original position adopted by the defendant. 2. The fact that the defendant asserted in his evidentiary statement that Mr Kelly was not there calls into question his reliability, particularly as he accepted in cross-examination that he could have been. 3. The motivation to give false evidence was said to be Mr Kelly's desire to assist the plaintiff for his own financial benefit but if Mr Kelly really wanted to act in his own self-interest and knew there was no accident, it is puzzling that he did not inform the Normal Insurer that there had been no accident when first asked to complete a witness statement and claim form. Indeed, he might have protested that he should not be liable to reimburse the Normal Insurer in respect of Workers Compensation payments made to the plaintiff in circumstances in which there was no accident. 4. Similarly, whilst on one view, the evidence as to the telephone message left by the defendant tends to suggest that something occurred on the day, if Mr Kelly had really wanted to make up a story about a telephone message, then he might have made up a story about a message which incriminated the defendant, rather than exculpated the defendant. 5. The deck or decks inside the trailer could be used as a ramp or ramps. In many instances the terms have been used interchangeably. This rather reduces the significance of Mr Kelly using "ramp" rather than "deck" in his evidentiary statement. 6. The focus of the plaintiff and Mr Kelly would have been on what happened to cause the accident, that is, the deck dropped on his arm. I do not find it particularly remarkable or inconsistent that they did not include in their statements a more detailed description of the movement of the deck prior to its dropping onto the plaintiff's arm. Further, even on the defendant's description, it is not necessarily so that the plaintiff and Mr Kelly would have even noticed or heard all of the movements or even that all of the movements happened at the same time.
27. I do not accept that any misdescription of what occurred inside the trailer leading to the deck hitting the plaintiff is indicative of Mr Kelly not being there or not telling the truth.
28. Of course, on the defendant's theory, the accident did not occur and, as such, Mr Kelly could not have witnessed what he said he witnessed even if he was there. It must follow that he could not have gone home that day and told his wife, Dr Amy Kelly, that which she asserts he told her being: "He said: 'Oh my god, I think Ross may have broken his arm. Andrew Thorn dropped the deck of the truck on his arm.'" [16]
29. It is inescapable that, if Mr Kelly did not witness any accident on the day, he could not have gone home and told his wife that he witnessed the accident and, as such, it must follow that Dr Kelly's statement is similarly a fabrication.
30. Mr McCulloch submitted that I would have considerable doubt about the circumstances in which this evidence came to light but I do not have that doubt. It only emerged during the hearing when counsel for the plaintiff spoke to Dr Kelly while she was at Court with her husband.
31. As I have already made plain, there are a number of things that should have been done well before the hearing in this matter which were not done.
32. I would not draw an inference about Dr Kelly's veracity, that is, to find that her evidence is made up, merely because of the circumstances in which the evidence arose.
33. Finally, I found Mr Kelly to be an impressive witness. Whilst it has been said that one ounce of merit is worth pounds of demeanour, [17] he was not evasive, vague or uncertain. He identified as mistakes those things which could quite plausibly have been mistakes. He was not the only one to refer to the decks as ramps and vice versa. I do not find it extraordinary that he would have continued to retain the defendant after the accident.
34. In any event, even if the defendant's construction of the evidence is correct and Mr Kelly is wrong on his recollection as to what he saw in terms of how the deck hit the plaintiff's arm, he says that he observed the deck fall onto the plaintiff's arm as the plaintiff had his arm between the rails attempting to turn the sheep.
35. This is surely the critical point. I could still accept that evidence. It is corroborated by his statement to his wife contemporaneous with the accident and everything he has said since the accident.

The defendant's evidence

1. The defendant relied on his evidentiary statement completed in October 2018.
2. As emerged during cross-examination, he had previously completed a liability claim form (presumably as required by his insurer). He gave further oral evidence-in-chief, intended to demonstrate that the accident could not have occurred as asserted by the plaintiff because the internal components of his trailer could not be manoeuvred in the way so asserted.
3. The precise description of the way in which the internal ramp struck the plaintiff's arm only emerged during oral evidence of the plaintiff, perhaps because the use of the words "deck" and "ramp" interchangeably in the written documents and perhaps because it was not until it became apparent that the defendant was specifically denying that any accident involving him occurred, that it might have been necessary to provide greater specification as to the mechanism of the deck/ramp falling onto the plaintiff's arm.
4. In his evidentiary statement, the defendant says: 1. On 8 March 2013 he was asked by Mr Kelly to transport two loads of sheep. 2. On 15 March 2013 he transferred the two loads to Little Narrawa. 3. He met the plaintiff at Little Narrawa on that day. He had never seen or met him before. 4. Mr Kelly was not present when the sheep were unloaded. 5. He did not see Mr Kelly or anyone else on the road from Lugarno Pastoral droving sheep as he was driving towards Little Narrawa on 15 March 2013. 6. Mr Kelly was not at Little Narrawa whilst he was unloading sheep. That is, he was not there at all. Further, it was not possible for that which Mr Kelly asserted in his statement to have occurred. 7. He was not angry or in some way handling the sheep roughly. 8. He did not ask the plaintiff to go to the side of the truck and turn sheep around from the side of the truck. He had never asked anyone to do that. 9. The plaintiff did not put his arm through the rails to turn the head of the sheep. He had never asked anyone to do that. 10. If the plaintiff had done that, he would have told him to remove his arm immediately. 11. He denied that he was pulling the sheep forward and off the truck as the plaintiff was turning the sheep's heads on the back of the truck. He said he would never stand at the back of the truck if he wanted to get sheep off because it would spook them. 12. He denied that he lowered a ramp or deck onto the plaintiff's arm or he did or said anything that the plaintiff or Mr Kelly suggested occurred. 13. He had no knowledge of any injury to the plaintiff. There was nothing unusual that occurred during the unloading and after the event, the plaintiff drove his vehicle ahead of him and opened the gate to let him out. 14. After 15 March 2013 he did another 10 jobs for Mr Kelly and Mr Kelly never said anything to him about the plaintiff's injury. 15. The first time he became aware of the injuries was when he received a letter from the solicitors on 13 June 2014. He refused to transport any more stock for the Kellys after he received the letter.
5. The effect of the evidentiary statement is thus that the plaintiff did not injure himself whilst assisting the defendant and that Mr Kelly was not there at all.
6. Cross-examination of the defendant was limited in the sense that neither Mr Renshaw nor Mr Robison sought to traverse the defendant's explanation as to the workings of his sheep trailer.
7. However, the result of the cross-examination revealed the defendant's real stance, being that: 1. As he had no knowledge or recollection of it, it would not have occurred. 2. He had a rule (by that, he meant known only to himself) that no other person would assist him unloading sheep from his trailer and no other person would be allowed to have any part of his body inside the trailer. This would include a person's arm. Because of his rule, the plaintiff could not have had his arm inside the trailer when he was moving the deck or ramp.
8. In my view, the result of cross-examination was that the claim was first brought to the defendant's attention 15 months after the accident and he had no real recollection of the particular unloading at all, except that he had transported stock on many occasions on behalf of the Kellys.
9. My impression was that the defendant did not believe that the accident had occurred and did not accept that it had occurred but this position was really based on his recollection that nothing out of the ordinary occurred on that day. He would have remembered if it did. However, he maintained his position that he did not ask the plaintiff to assist him in turning the sheep, seemingly because he never asked anyone to do that.
10. Having said that, the impression that might have been created from his evidentiary statement to the effect that persons such as the plaintiff would not place their hands inside a sheep trailer was negated because the defendant admitted that this was a practice he had seen and that other truck drivers would allow it. He said he would not, although he conceded that the plaintiff could have placed his arm in the trailer.
11. It is not clear to me why he had this "rule" despite the contrary practice adopted by other stock carriers. Indeed, the existence of this practice was confirmed by Mr Kelly.
12. I formed the view that (as was suggested to him) the defendant was just not prepared to accept that the accident had occurred, because he had no knowledge or recollection of it and he was not prepared to accept that which the plaintiff asserted would have occurred in connection with his trailer.
13. In my view, this is a far different position from that espoused in his evidentiary statement, which included positive assertions about that which was said not to have occurred.
14. The direct contest between the plaintiff and the defendant is really between a person who was there and says what happened and another person who was there but cannot remember what happened. Whilst there is much more evidence in the case to be considered, I would not prefer the evidence of the defendant as to what he does not remember over the evidence of the other witnesses, if such other evidence is otherwise credible.

Conclusion as to circumstances of the accident

1. In my view, there are a number of aspects of the evidence which make it unlikely that the plaintiff and Mr Kelly have made up a version of events for the purposes of ensuring success in both their actions.
2. Firstly, the plaintiff attended the Crookwell Hospital on the day of the accident. He informed the hospital on that day that an approximately 200kg sheep deck had fallen on his right arm. He was diagnosed with an isolated fracture to the mid radius of his right arm.
3. There is no evidence or even suggestion of the plaintiff unloading any other sheep on 15 March 2013. It was not put to the plaintiff or Mr Kelly that the plaintiff had been working elsewhere that day with another load of sheep.
4. Of course, it is not up to the defendant to put forward an alternative explanation or disprove the plaintiff's case, as the plaintiff bears the onus, but the absence of any alternative explanation consistent with the contemporaneous hospital records is a powerful indicator that the plaintiff sustained injury whilst assisting the defendant in unloading the sheep on that day.
5. Secondly, it is not suggested that the plaintiff or Mr Kelly made much of the accident or his injury at the time. Indeed, the plaintiff says that the defendant merely said, "Shit you've got to be careful of that" and that he responded with words to the effect of "I've got to be careful? I think you've got to be bloody careful". The plaintiff then sat down under a tree.
6. It is possible that the defendant would not have remembered such an apparently minor incident when first confronted with a claim against him.
7. Thirdly, the fact that the plaintiff has received Workers Compensation payments and that the Kellys have repaid monies to the Nominal Insurer rather detracts from the proposition that Mr Kelly has constructed a version of events to assist the plaintiff. The employers were uninsured. If Mr Kelly knew that the accident did not occur and indeed, he was not even there, he might have said so when the Nominal Insurer required that the employers provide a statement and verify the claim.
8. Fourthly, the evidence about the errors in the claim form does not assist the defendant.
9. Certainly, Mr Kelly has an interest in recovering amounts paid to the Nominal Insurer. That is hardly unusual. However, on the defendant's case theory, he would have known immediately that he was not there and that this suggestion of an accident whilst working for him was false. That might have been the time for him to say something.
10. Fifthly, in order to accept the defendant's submissions it would be necessary to find that not only did Mr Kelly not see what he maintains, but also that he has made up a story after the event about the defendant leaving a message on his parents' answering machine.
11. Sixthly, on the defendant's case, not only is Mr Kelly involved in this fabrication of a version of events but his wife must also be involved.
12. Seventhly, there are two aspects of the evidence of the plaintiff and Mr Kelly about the defendant's actions that day which tend to support the proposition that the plaintiff sustained injury as he suggests: 1. Both the plaintiff and Mr Kelly said that they saw the defendant at the back of the trailer on or around the sheep ramp immediately before the accident. This is where he would be standing if he was lifting and rotating the deck to store it on the side. 2. The plaintiff referred to the defendant removing a pin or link. As shown on the video exposed by the defendant and not shown to the plaintiff until after he gave this evidence, it would have been necessary to remove a pin prior to lifting and dropping it on the side.
13. Against all of that is the defendant's general challenge to the credibility of the plaintiff and Mr Kelly and his own evidence and photos and video.
14. The defendant says that the plaintiff was asked to demonstrate at the view precisely how he was hurt. The defendant says that on that occasion he placed his arm into the side of the trailer at the point where the first level deck/ramp was being lowered, that is, lowered flat, rather than rotated on its side. This, says the defendant, is indicative of the plaintiff making up a version of events.
15. It appears from the photo taken at the view that the plaintiff has placed his arm below the deck as it is being lowered rather than rotated.
16. However, the plaintiff denies that the photo demonstrates that which is asserted (being him showing everyone at the view how the accident happened) and the defendant called no evidence to back up the proposition put to the plaintiff.
17. Whilst I would not draw any inference in respect of the defendant's claim for privilege in respect of all of the videos and photographs taken by the defendant at the view, plainly a number of videos were taken. I do not know whether the other videos demonstrated other positions of the ramp/deck or the plaintiff put his arm in other points in the trailer. I do not know whether they contained audio recordings, as Exhibit 5 did.
18. There is also force in the plaintiff's submission that, whilst it is not incumbent upon the defendant to put forward any other explanation as to how the plaintiff might have sustained injury on that day, the absence of any alternative explanation is a matter to which I can have regard in assessing whether I should accept the plaintiff's version.
19. All of the above must be considered in the light of the defendant's detailed evidence as to how the decks may be moved for different purposes.
20. In his oral evidence, the defendant was asked to give a step-by-step explanation of how the deck could be moved between various positions as captured in photographs tendered on his behalf. He was also taken through a video in which he is shown in the back of the trailer demonstrating the actions required to move the deck from a horizontal position, in which it would operate as a deck, into a vertical position flush up against the internal right-hand side of the trailer. This operation was what the defendant described as "cranking".
21. According to the defendant, this process involved: 1. detaching a chain preventing the deck from swinging, from a lug fixed to the outer frame of the trailer; 2. releasing one of the two pins locking the deck in place (the pin closest to the middle of the trailer); and 3. manually lifting the deck up on to its outer edge, to about a 70-degree angle, and then manoeuvring it sideways and down, such that its surface comes flat up against the side of the trailer, straight up and down.
22. This evidence was not contained in the defendant's evidentiary statement. It was adduced orally in further examination-in-chief after the plaintiff had been cross-examined. The defendant's contention is that this sequence of movement of the deck is inconsistent with the evidence of Mr Kelly and the plaintiff.
23. The defendant also points to the evidence of the plaintiff that sheep were on top of the deck when the defendant moved the deck as an indication of the inherent improbability in the plaintiff's version. Mr Kelly did not agree that there were sheep on top of the deck. It is somewhat odd that the plaintiff would say in cross-examination that there were sheep on top of the deck whist it was being rotated. Indeed, it is so odd (as being highly unlikely) that it may be that the plaintiff meant further up or something was lost in the telling. It seems so improbable both that the defendant would move a deck whilst the sheep were still on it (because of the risk of hurting the sheep) and that the plaintiff would make up a story about that happening that it is likely that there was some misunderstanding in that questioning.
24. It is the defendant's contention that the plaintiff's case is so replete with inconsistencies, improbabilities, falsities and exaggeration that I would not be satisfied that the plaintiff has discharged his onus in proving the essential facts which give rise to his cause of action.
25. However, far from there being astounding inconsistencies in the evidence, there is a remarkable consistency in the very simple explanation as to what occurred.
26. That consistency starts with Mr Kelly telling his wife that the deck dropped on the plaintiff's arm, at a time contemporaneous with the accident. That consistency continues on with the plaintiff attending at the hospital on the day of the accident and reporting that a 200-kilogram sheep deck fell upon his arm.
27. If I accept that the first conversation took place, and if I accept that the plaintiff did report to the hospital that which is recorded in the hospital notes, then those two pieces of evidence are powerful factors supporting the proposition that that which the plaintiff asserts did occur, being that the defendant moved a deck and caused it to drop on his arm whilst his arm was inside the trailer.
28. Indeed, it is the defendant's position which has been shown to be somewhat uncertain. His positive assertions that there was no accident on the day and that Mr Kelly was not even there morphed into acceptance that the accident could have happened, expressions of a lack of memory and the withdrawal of a submission that Mr Kelly was not there at all.
29. I prefer the evidence of the plaintiff. I consider that he was doing his best to tell the truth. I accept that he was assisting the defendant in turning the heads of the sheep when the defendant moved a deck within his trailer causing it to drop onto the plaintiff's arm. I accept that the defendant had asked him to help. The defendant should have known that the plaintiff was in the vicinity (as he must have been relatively close to him but below him). He either asked the plaintiff to assist or the defendant should have known that he was so assisting.
30. I cannot think of a reason why the plaintiff would make up a story about the way in which the deck was moved before it hit him. In terms of his case against the defendant, it would hardly matter whether the deck was dropped onto the plaintiff's arm, as it was being lowered to be used as a ramp or dropped as it was being stored on the side. I accept the plaintiff's evidence as to what occurred.

Negligence

1. Having regard to my factual findings, there could be little doubt as to the negligence of the defendant. The defendant was in charge of the unloading of his trailer. The plaintiff was assisting him. Their relationship was such that the defendant owed a duty to the plaintiff to exercise reasonable care in moving the decks of his trailer, so as to ensure that the plaintiff was not exposed to a risk of harm whilst he was doing so.
2. Of course, I must assess whether the defendant was negligent having regard to s 5B of the Civil Liability Act 2002 (NSW) but, again, the circumstances of this accident are such that there could not be much dispute that the provisions of s 5B are satisfied.
3. The risk of harm would be the risk of the plaintiff being hit by the deck of the trailer as it was being moved by the defendant. In circumstances in which I accept that the plaintiff had his arm in the trailer trying to turn the sheep's heads whilst the defendant was at the back of the trailer on the sheep ramp, the harm was reasonably foreseeable and the risk was not insignificant within the meaning of s 5B(1)(b).
4. The reasonable precautions which might have been taken by the defendant included either checking to ensure that the plaintiff did not have his arm inside the trailer or asking the plaintiff to move away from the trailer. The simple explanation for the accident is that the defendant moved the deck without realising (because he did not check) that the plaintiff was still trying to move the sheep along.
5. Of course, no-one suggests that the defendant deliberately caused the deck to drop onto the plaintiff's arm but it seems likely that the young weaners were not moving out of the trailer as they should have been (it is, again, no coincidence that the sheep being moved were young weaners, being transported for the first time and thus unaccustomed with the process of moving out of the trailer).
6. Acceptance of the fact that the plaintiff's arm was hit by a deck of the trailer leads to a number of conclusions being: 1. the plaintiff must have had his arm inside the trailer; 2. the defendant must have moved the deck whilst the plaintiff's arm was inside the trailer (as only the defendant could have moved the deck); and 3. the defendant must not have checked on the plaintiff's whereabouts, positioning or whether he had his arm inside the trailer before he moved the deck.
7. It was incumbent upon the defendant to check. The simple failure to do so caused the accident.

Contributory Negligence

1. In Pollard v Baulderstone Hornibrook Engineering Pty Ltd, [18] McColl JA set out the proper approach to assessment of contributory negligence in a case such as this as follows: "[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. At the time he was hurt, the plaintiff had his arm inside the trailer, attempting to turn the sheep's head so that they would move out of the trailer. He was doing this at the request of the defendant. He observed the defendant standing at the back of the trailer on the sheep ramp, moving the sheep along, as they emerged from the trailer. There is no evidence of any warning or indication from the defendant that he was about to move a particular deck in any way, let alone in a way that caused the injury to the plaintiff.
3. It makes no sense to suggest that the plaintiff would have kept his arm inside of the trailer if he thought the deck was about to be moved or was being moved. It was not suggested that he did so. Rather, the focus of the defendant's approach to cross-examining the plaintiff was that the accident could not have occurred as he alleged.
4. As there is no evidence that the plaintiff knew or ought to have known that the deck was about to be dropped onto his arm and, upon my findings, the plaintiff was doing what he was asked to do, there could be no finding that the plaintiff failed to take care for his own safety.

Liability of the employers

1. In a case such as this, the liability of the employers may be relevant in three contexts, namely: 1. having regard to the cross-claim filed by the defendant against the employers seeking contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); 2. having regard to the defence relied upon by the defendant, pursuant to s 151Z of the Workers Compensation Act, that the damages payable to the plaintiff should be reduced on account of the notional contribution of the employers (being the amount that the defendant would have recovered by way of contribution, but for the restriction on damages contained in the Workers Compensation Act); and 3. in the context of the employer's claim for indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act.
2. Whilst it is often said that the standard of care owed by an employer to an employee is not a low one, [19] the liability is not strict. All duties may be discharged by the exercise of reasonable care. [20]
3. Further, I have regard to the observations of Windeyer J (McTiernan, Kitto, Taylor and Owen JJ agreeing) in Vozza v Tooth & Co Ltd, [21] as follows: "For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment."
4. The plaintiff had been instructed by the employer to attend at the sheep yards and take delivery of the sheep. He had not been instructed by the employers to assist the plaintiff in the unloading.
5. However, Mr Kelly was present and watching what was happening at the time. Mr Kelly says that the practice of persons such as the plaintiff in assisting the carrier, in the way that the plaintiff did, was not uncommon. The task he was performing was a simple one.
6. The defendant admitted that other carriers required and allowed the assistance of someone such as the plaintiff in the way suggested by the plaintiff, albeit he referred to his "rule" that he did not.
7. The plaintiff did not suffer injury as a result of some defect in the trailer or some misadventure with the sheep. The plaintiff suffered injury as a result of the conduct of the defendant in dropping the deck without checking that the plaintiff's arm was inside the trailer.
8. The dropping of the deck happened suddenly, unexpectedly and without warning.
9. The cross-examination on the employers' potential negligence was limited as follows: "Q. You didn't at any time hear Mr Thorn ask Mr Monteleone for help, did you? A. Sorry, repeat that sorry? Q. You didn't hear Mr Thorn ask Mr Monteleone for any help, did you? A. No I did, I heard that. Q. What do you say Mr Thorn said? A. He said, 'Can you push some sheep through the side of the truck?' Q. They're, as best you can recall it, the effect of the actual words that were used, is that right? A. He said 'Put your arm in and try and get the heads to point in that direction', that's right. Q. Of course that is something that you as an experienced grazier would know had to be done, you've got to turn the sheep around? A. That's right. Q. Because in the course of transit, they can end up in all sorts of positions can't they? A. They can. Q. If they happen to be facing the front as you've said, then they need to be turned around so you can hopefully get a flow or a draw going, is that right? A. That's correct. Q. You didn't at any stage say to Mr Monteleone, 'Listen, don't do that', didn't stop him from doing what he was doing, did you? A. No. Q. You knew didn't you that there was a risk that he could be injured in the course of putting his hand in the side of a vehicle where there was livestock? A. No, I disagree. Q. So there was no risk at all was there, according to your view-- A. Well these sheep-- Q. I have to ask the question before you answer it. A. Mm-hmm. Q. The sheep could come into contact with Mr Monteleone's arm which would be placed in between the two side rails and injure it couldn't they, as a matter of common sense, won't you agree? A. No I don't. These sheep, these sheep were 20, 25 kilos and they're covered in wool, there's not, not a very high risk of that happening at all. Q. But there is a risk isn't there, it's just not high in your opinion, correct? A. Correct, yeah."
10. Mr Kelly disagreed that there was a risk that the plaintiff could be injured in the course of putting his hand in the side of the trailer where there was livestock. He explained that he meant that was not a high risk.
11. No questions were directed to Mr Kelly to the effect that he should have been aware that there was a risk that the deck might drop onto the plaintiff's arm or that he observed what the defendant was doing in sufficient time to give some warning to the plaintiff.
12. No questions were directed to Mr Kelly as to whether he gave any instructions to the plaintiff about not placing his arm inside the trailer or not assisting the carrier. On Mr Kelly's own evidence, it was something that he knew occurred from time to time. However, he was unaware of any carrier ever dropping a deck in circumstances in which a stockman was assisting with his arm inside the trailer.
13. The employers owed a duty of care to the plaintiff but to the extent that the defendant wished to establish that the employers were negligent, it was necessary to establish that the risk was reasonably foreseeable on the part of the employers in all of the circumstances and that there were reasonable precautions which the employers should have taken which would have prevented the accident. Other than specifically directing the plaintiff not to assist the defendant and not to place his arm inside the trailer, I am not sure what other precautions might have been taken.
14. In all the circumstances existing at the time, I do not accept that reasonable care on the part of the employers required Mr Kelly to instruct the plaintiff not to place his arm inside the trailer and not to assist the defendant. It is not something that the plaintiff needed to be trained in or be supervised by Mr Kelly. It was a basic task which carried with it no real risk of injury until the defendant decided to move the heavy sheep deck without warning the plaintiff.
15. The defendant has not identified any precautions that should have been taken by the employers which would have prevented the accident. In the circumstances, negligence on the part of the employers has not been established.
16. It follows that the defendant is not entitled to contribution as sought in its cross-claim and further that the liability of the defendant is not reduced, having regard to the notional liability of the employers (as pleaded in the defence). The cross-claim must be dismissed.

Evidence on damages

1. The plaintiff was 31 at the time of the accident. He is currently 39. He is right-handed. Prior to the accident he had been involved in farm work all his working life. Indeed, he had grown up on a farm and worked full-time on his parents' farm from the age of 16.
2. He ran his own rural contracting business known as Ross's Rural Fabrications for four years doing stock management, sheep marking, drenching, fencing and contract mustering. He was also engaged in building sheds, stables and yards. He also worked on trucks and trailers.
3. He then became a stockman for three years and was running his own business doing the rural mail delivery for Australia Post. At the age of 26 or 27 he recommenced his own rural contracting business.
4. Then at the age of 29, he moved to Rugby with his family. He worked as a rural contractor whilst also leasing 400 acres running his own property.
5. In 2011 he commenced undertaking work for the Kelly family. This work included fencing, mustering, drenching, lamb and cattle marking, mechanical repairs and tractor operation.
6. At the time of the accident, he was living on a property for a rental sum of $1 per week. In return for that nominal rent, he would undertake tasks for the owner of the property such as gardening and maintenance, earthworks and fencing.
7. He serviced his cars and did mechanical work on the cars. He helped with the household duties from time to time.
8. At the time of the accident he had six children.
9. The only injuries of any note prior to the accident were that he had fallen off his motorbike about a year before the accident and fractured two ribs.
10. He now maintains a disability at such a level that he says that has only been able to perform some limited work or odd jobs since the accident. He maintains that he continues to suffer from shooting pain up his right arm and that he suffers from weakness, wasting and deformity of the right wrist and arm.
11. He says that he suffers from a major depressive disorder and generalised anxiety disorder. He says that he has taken to excessive consumption of alcohol which he says he uses as a form of self-medication. Medication causes him to vomit.
12. He says that as a result of the accident he has changed from a hard-working husband and father who was engaged in all of those activities to a depressed and anxious person who is in pain and who has split up with his wife, drinks excessively and now lives in a caravan.
13. On the other hand, the defendant asserts that he has suffered from little by way of disability since 2015; that he is deliberately not working so as to maximise his claim for compensation; that he has had long-term problems with alcohol; and that he has been quite capable of doing whatever he wished since at least 2015.
14. I reject the defendant's portrayal of the plaintiff. It is based essentially on surveillance film and a report from a doctor (Dr David Maxwell) which is out of step with other evidence. It is inconsistent with the psychiatric evidence, both written and oral.
15. Having said that, there appears to have been some improvement in the plaintiff's mental state in more recent times.
16. The plaintiff has recently formed a relationship with a Ms Goodman from Victoria.
17. Prior to the hearing, he had visited her. He was permitted to visit Victoria in the beginning of September 2020. He is now in a full-time relationship with her, although they do not live together.
18. Further, the plaintiff has done some work in the last two years. As was put to him during cross-examination, he has done a few jobs here and there. [22] He did some contract work through the Council.
19. The position arrived at during cross-examination in respect of such work is best summarised as follows: [23] "Q. To the extent that you have worked, you have only done the odd job here and there? A. Yes. Q. You have not attempted to work more because you are waiting for this case to be determined, because you believe you will receive a significant amount of money from it? A. I don't agree. Q. Well what do you want to say about that? A. I'm continually attempting to do things, to be honest with you I wish none of this ever happened, it's not as though I'm sitting here waiting to get money out of it, it's destroyed my life."
20. The defendant did not suggest that the plaintiff has been undertaking any continuous or significant work at any time since his accident. The defendant's position is that he has not attempted to work because he is waiting for his case to finish. That is, he is deliberately not working so as to recover more from this case.
21. Until shortly before the hearing the plaintiff relied only on treating material, the last report of significance being dated 29 June 2016. Shortly before the hearing, the plaintiff served a report of Professor Bruce Brew. It seems that although the doctor examined the plaintiff on behalf of the solicitors of the plaintiff in 2017, the doctor would not release the report until the plaintiff paid for the report. The plaintiff only obtained the funds to pay for the report (on a discounted basis) shortly before the hearing.
22. This led to an application for leave to rely on the report. I granted leave on the basis that the defendant could obtain a report in response, which the defendant then did from Professor Paul Spira.
23. The defendant also relied on medico-legal reports from Dr David Maxwell, orthopaedic surgeon, and Associate Professor Allan Meares, plastic and general reconstructive surgeon.

The evidence of the treating doctors

1. On the day of the accident the plaintiff reported to the Crookwell Hospital complaining of a sore and swollen right arm. X-rays revealed a fracture of the distal shaft of the radius with dorsal angulation. He was placed in a full plaster cast. According to his general practitioner, as at 4 December 2013, x-rays showed good union but he still had pain in the right wrist with limitations in movement and numbness in the fingers which suggested a radial nerve compromise.
2. He was referred to Dr Angela Hatfield of Riverina Orthopaedics who he saw in February 2014. Dr Hatfield considered that the plaintiff's treatment up to that time had been inappropriate. The plaintiff was treated by his GP with an above elbow plaster without surgery, rather than referring him for an open reduction and internal fixation of the radial shaft fracture. Consequently, his fracture did not heal properly leaving him with approximately 20 degrees of malunion and ongoing significant weakness and wasting in the arm. He also suffered a lot of wrist pain when he moved his wrist, which was not getting any better.
3. It is apparent that the initial treatment of the plaintiff has led to a much more significant disability than might otherwise have emerged.
4. The plaintiff was referred for hand therapy and an MRI which confirmed a high-grade tear to the scapholunate ligament. He underwent surgical repair. According to his hand therapist, at six months post-surgery he had regained significant functional wrist movement and right grip strength and was not experiencing pain over the wrist. However, it became apparent that he suffered from other problems. His hand therapist suspected the dorsal component of the wrist had been injured.
5. In her final report of 10 December 2015, Dr Hatfield opined that the plaintiff's capacity for work had been significantly affected by the injury suffered in the accident. He had a radial malunion which reduces the range of motion of the wrist quite significantly and, despite the ligament reconstruction and neurolysis, he had ongoing pain and hypersensitivity. Dr Hatfield opined that his capacity to undertake activities of daily living and manage his own property was significantly reduced.
6. All of this was directly related to the radial shaft fracture and its treatment. Dr Hatfield summarised her opinion as follows: "My prognosis for the future is guarded in that it is extremely difficult to predict if there will be any deterioration or need for any further surgery. Likewise however, it is impossible at this point to expect much improvement for Ross and I believe he will be left with significant weakness and a reduced range of motion in this wrist for the rest of his life. This then in turn will adversely [affect] his ability to perform the day to day activities and manual work that he was otherwise able to do in the past."
7. It seems that December 2015 may not have been the last time that Dr Hatfield saw the plaintiff, as she referred the plaintiff to Dr Jennifer Green, a hand, wrist and microsurgeon. In her report of 29 June 2016, Dr Green observed moderate generalised wasting in the forearm and a mild angular deformity at the side of the distal radius malunion.
8. I note that this cannot be reconciled with the opinion of Dr Maxwell retained by the defendant also in 2016, who observed that the plaintiff did not have wasting in his arm. It is puzzling that Dr Green would observe wasting of the arm that Dr Maxwell did not observe.
9. Dr Green diagnosed post-traumatic carpal tunnel syndrome. She had arranged a nerve conduction study which she would review with the plaintiff. There is no further report from the doctor. There are no updated reports or reports prepared for the purposes of this case from the plaintiff's treating doctors.

The evidence of Dr Fisher

1. The plaintiff was examined by Dr Robert Fisher, consultant psychiatrist and pain management specialist, on 5 July 2019. The plaintiff relied on the report of Dr Fisher dated 28 August 2019. Dr Fisher gave oral evidence and was cross-examined on behalf of the defendant.
2. The plaintiff provided a pre- and post-accident history, generally consistent with his evidence in these proceedings. As Dr Fisher noted, the plaintiff admitted that he was drinking to excess. He starts drinking from about 8.00am to 10.00am and drinks constantly through the day. He was smoking 30 to 45 cigarettes per day. He said he vomited when he tried to take medication and tended to gag when he tries to swallow the pills. Even the thought of medication makes him feel like vomiting. There is no evidence or suggestion to the contrary.
3. Dr Fisher opined that the plaintiff has features of chronic neuropathic pain affecting his right wrist. He reported intermittent pain in the right shoulder and had symptoms of major depressive disorder and generalised anxiety disorder. He has developed a fairly severe alcohol abuse disorder.
4. Dr Fisher considered that there was a direct relationship between the injury sustained and the plaintiff's complaints made to him. In terms of his prognosis, he opined that if his pain persists and he remains disabled for work, it is likely that his depressive disorder will worsen and he is at risk of committing suicide.
5. Dr Fisher says that the nature of neuropathic pain is that it tends to persist despite treatment. He considered it unlikely that this will remit. He felt the plaintiff should be referred to a chronic pain management rehabilitation program and come under the care of a psychiatrist. He needed to cease drinking.
6. He opined that the plaintiff remained severely impaired for work and if he continues to suffer pain, depression and drink excessively, then his capacity will remain severely impaired.
7. The plaintiff was examined on behalf of the defendant by Dr Lewin, psychiatrist, but that report was not served. The only inference I would draw is that Dr Lewin's report would not have made the defendant's case any better.
8. Consistent with the defendant's request during the course of the hearing, Dr Fisher was provided with the summary surveillance film prior to giving evidence.
9. A number of propositions were put to Dr Fisher in cross-examination, including that the fact that the plaintiff had been able to form a new relationship would have been an important indicator against him having depression. Dr Fisher disagreed, noting that it is not unusual for people who are in a very bad emotional state to be rescued and what may unfold may be an improvement in their state or a repetition of loss and exacerbation of their depression.
10. The cross-examiner then followed up with the direct proposition that the forming of a relationship would be strongly indicative of the fact that someone was not suffering from depression. Dr Fisher disagreed.
11. He was asked about the plaintiff's consumption of alcohol before the accident, said to be 4 to 5 drinks per session, and it was put that this was indicative of a person drinking to excessive levels. Again, Dr Fisher disagreed and explained why.
12. It was put that the fact that a person was able to go on holidays would be an important marker of that depression no longer affecting that person's life. Dr Fisher suggested that there may be a range of possible interpretations and responses to that proposition.
13. Of course, he accepted that a new relationship could contribute to an improvement in mood but he emphasised the fact that the relationship was not the end of the matter in the plaintiff's case, bearing in mind his complaints of pain and disability.
14. Next, it was specifically put that activities such as the plaintiff attending a club buying beers, sitting with someone, smoking and having a cigarette were inconsistent with the diagnosis of the depression. He rejected that proposition on the basis that people do tend to get on with their lives but it is a matter of what they are feeling subjectively.
15. Specifically, Dr Fisher said that the footage cannot validate or increase the probability of the person being depressed.
16. In re-examination, Dr Fisher accepted that the cause of the plaintiff's depression was likely to be, amongst other things, a chronic neuropathic pain and as long as that chronic neuropathic pain persisted, the plaintiff would remain depressed.
17. Dr Fisher's evidence is a good example of why caution should be exercised in reading too much into short highlights of film taken over a long period, only demonstrating fragmented occasional activities. Dr Fisher generally adhered to his opinion and there is no contrary psychiatric or pain specialist evidence.

The defendant's medical evidence

1. The defendant relied on medico-legal reports from Dr Maxwell, dated 28 November 2016 and 3 September 2020, as well as Associate Professor Meares, dated 11 July 2018, 12 July 2018 and 2 September 2020.
2. Plainly, Dr Maxwell did not accept the plaintiff. He considered that his incapacity for work had been somewhat overstated and that the plaintiff was locked into the Workers Compensation system. He considered that the results for those treated in the Workers Compensation system are much worse than those who are not involved in a secondary gain situation. He says that the continued receipt of payments encourages continued disability.
3. He thought the plaintiff's incapacity for work was minimal. He should be encouraged to carry out physical activity with his right wrist. He thought he would be fit to return to work as a farmhand and should be encouraged to do so. His findings and opinion did not change greatly when he examined the plaintiff in September 2020. He felt that his incapacity and prognosis would depend on his mental state. He considered him capable of a wide range of activities with his right dominant arm. He felt that there had been an abnormal reaction but this was often the case in personal injury claims. He felt he would have only needed assistance for the first two months and after that, he should have been encouraged to be physically active.
4. The findings and philosophical views of Dr Maxwell are somewhat at odds with the opinions of the treating doctors. A comparison of the opinions of Dr Hatfield and Dr Green with Dr Maxwell's opinion makes it difficult to accept Dr Maxwell's opinion.
5. On the other hand, Associate Professor Meares was more accepting of the plaintiff. He felt that the plaintiff should see a pain management specialist. He had multiple problems apart from pain and stiffness in his right arm. He felt he would be fit for restricted duties with restricted hours. He would need a vocational assessment and he would need a gradual return to the workforce.
6. After the film had been shown to the plaintiff, it was provided to Associate Professor Meares and I granted leave to Associate Professor Meares to give further evidence. He produced a further report dated 3 November 2020. In his report of 3 November 2020, he said that he stood by his earlier reports and then said: "It may be that he has been able to carry out the tasks shown in the surveillance despite pain in his hand. I can only state in summary that I stand by my reports dated 11 July 2018 and 2 September 2020. However, in the surveillance there appears to be at no time that he has problems in carrying out tasks with his injured right upper extremity."
7. He repeated that the film showed a man doing many normal activities without problems. Then in cross-examination, he said that he stood by his earlier opinion and it may be that the plaintiff had been able to carry out the task shown in the surveillance film, despite pain in his hand.
8. Associate Professor Meares was cross-examined by Mr Robison on behalf of the employers with the intent of having the doctor reduce his assessment of whole person impairment, which the doctor assessed at 22%. There was no change in his opinion as a result of cross-examination. I assume that the reason for such cross-examination was an attempt to limit the damages which might be payable under the Workers Compensation Act, should the employers be found liable on the cross-claim pursued by the defendant.

The evidence of the occupational therapists

1. Both parties relied on expert occupational therapists. In her report dated 5 September 2019, Ms Mullen on behalf of the plaintiff provided an estimate as to the care that he would have required and did receive varying from 28 hours down to 2 hours once he separated from his wife.
2. Ms Mullen also provided an opinion as to the additional cost of gratuitous childcare provided by other persons to the plaintiff's children.
3. The defendant's occupational therapist, Belinda Moylan, carried out a similar review of the plaintiff and his domestic situation but came up with a completely different analysis. Her analysis was that the plaintiff received 475 hours care during the period from the accident until September 2015, However, according to Ms Moylan, the plaintiff received very little assistance thereafter. She did not consider that the plaintiff required any future assistance.
4. Ms Mullen and Ms Moylan gave evidence concurrently. Ms Moylan tended to accept that the film demonstrated that the plaintiff could do more than he had maintained to her. Ms Mullen did not consider that the film caused her to change her opinion. Perhaps the most significant aspect of her evidence was that she observed that, although the plaintiff was a right-handed man, he tended to favour his left hand when undertaking some of the activities on the film. That appears to be something not detected by any of the doctors who examined the film.
5. Whilst occupational therapists often provide valuable insight and input in a case such as this, there is quite often considerable disagreement between the occupational therapists as to the level of care that might have been provided or would be provided in the future. Sometimes those disparities are reduced through expert conclave but ultimately the opinions of the occupational therapists are very much based on the assumptions they make.
6. Further, their opinions as to the level of care required as contained in their reports are often of less use than they might be because of the evidence which emerges during the hearing. In my view, the film exposed of the plaintiff is particularly significant for his claim for domestic assistance.
7. In the end, Mr Renshaw acknowledged that the very significant claim for care particularised in the amended statement of particulars should be viewed as somewhat as an ambit claim. He acknowledged that the claim would have to be discounted, merely suggesting that he would leave it to my judgement to award the appropriate sum.

The evidence of Professors Brew and Spira

1. There was considerable agreement between Professor Brew and Professor Spira. As Professor Brew said, he would accept the findings of Professor Spira, as he had not examined the plaintiff for four years.
2. The doctors generally agreed that the plaintiff suffers from two problems associated with his right hand impeding permanent relief, being: 1. the involvement of a nerve in scar tissue located between the thumb and wrist, which produces shooting pains up his right arm; and 2. a problem of pain and tenderness across the dorsal side of his hand into his wrist.
3. According to Professor Spira, the plaintiff suggested that his main problem related to the shooting pains up his right arm. Professor Spira believes that that problem can be fixed. As he said, if the plaintiff wanted to know what the result of the treatment would be, he need only have a local anaesthetic which would numb the whole area.
4. Professor Brew agreed that the plaintiff could have such treatment but did not agree that the outcome would be as certain as Professor Spira considers.
5. In terms of the second problem, the doctors did not consider that there was any simple solution, albeit, Professor Spira emphasised that, at least based on the plaintiff's complaints, if the first problem was solved then the degree of limitation of movement and pain which the plaintiff experiences would be reduced.
6. The doctors took slightly differing views as to the significance of the surveillance film. Professor Spira considered that, on his analysis of the film, the plaintiff appeared to be using his right hand and arm normally, in the way in which he was shown to be using in the film. Professor Brew was less sure about the significance of the film.
7. It is important to note that, subject to their comments about the film, neither doctor suggested that the plaintiff's complaints were so exaggerated as to be not capable of acceptance or simply fabricated.

The surveillance material

1. The defendant arranged extensive covert surveillance of the plaintiff. The plaintiff was cross-examined on the results of that surveillance. The defendant prepared a summary or edited film of all the parts of the surveillance film. Only the summary was shown to the plaintiff and the doctors. This was a practical and appropriate way of dealing with the film.
2. All of the films were provided to the plaintiff. The plaintiff ended up tendering all of the surveillance reports. The plaintiff provided a written summary of all of the film. Some doctors and the occupational therapists were asked to review the film prior to giving evidence. Professor Brew, Professor Spira and Associate Professor Meares commented on the film during their oral evidence.
3. The reports reveal that the defendant arranged for 328 hours of surveillance of the plaintiff between 2016 and 2020. Five hours of surveillance film was taken during this period. That was distilled into less than two hours of film which was then shown to the plaintiff as he sat in the witness box.
4. In my view, surveillance film is sometimes overused and overrated. Injured persons often do their best to go about their daily lives while waiting for their cases to be heard, despite suffering pain and despite being unable to perform the work that they may have been performing prior to the accident. This view is supported by the psychiatrist who gave evidence in these proceedings, Dr Fisher.
5. Film of a person lifting objects occasionally must be viewed in the context of the full nature and extent of the injuries and, in particular, the type of work which the person used to perform. For example, film of the plaintiff in this case using a shovel to move some mulch without actually doing any hard digging hardly demonstrates that he is fit to work as a farm labourer or stockman 10 hours a day. Film of the plaintiff driving his utility for periods hardly demonstrates that he could be a truck driver.
6. The Court is entitled to take into account the period of surveillance, the period in which a person is shown undertaking activities and, of course, the type of activity which is demonstrated in the film.
7. For example, in this matter in October 2016, the defendant organised 20 hours of surveillance over three separate occasions. This resulted in 9 minutes of film of the plaintiff, with that 9 minutes being segmented into 3 separate periods. That film is relied on to support the submission that the plaintiff was fit for work in 2016.
8. In 2017 the defendant undertook 11 hours of film to produce 4 minutes of film. In January 2019 the defendant undertook 60 hours of film and obtained 10 minutes of video.
9. In 2020 the defendant undertook 424 hours of surveillance and obtained 7½ hours of film. The lengthier film shows the plaintiff driving and drinking in the pub (using his right hand to hold a beer).
10. Whilst the film tended to show that the plaintiff could do more in terms of domestic work and odd jobs, none of the film suggests that the plaintiff has been in regular work or that he has been doing anything of a repetitive nature (other than drinking).
11. The value of the film in this matter is that it tends to suggest that: 1. The plaintiff's claim for domestic assistance is overstated. 2. The plaintiff has been performing some limited occasional work, although I should not use surveillance film taken on a particular day to somehow find that the plaintiff has been working extensively. Indeed, the defendant submits that the plaintiff had only been doing limited work so as to maximise his claim. Further, the defendant submits that I should find that, at least in the latter years, the plaintiff has been quite deliberately not working because he is focussed on gaining the maximum benefit from this case.
12. In the film, the plaintiff performs various manual activities using his right hand and arm, including: 1. pulling two green wheelie bins with one in each hand; 2. using a long handle shovel to move mulch; the film lasted two minutes and did not show him actually digging anything; 3. carrying a large piece of metal with both hands; 4. undertaking some loading of the tray of his ute with some goods and materials, albeit the goods and materials do not seem particularly heavy; 5. driving a car; 6. moving things around a caravan, such as tyres and a jerry can; 7. operating a tyre jack; 8. cleaning up his own caravan and throwing things out of the caravan; 9. sitting in a hotel drinking and smoking using his right hand, including rolling cigarettes; 10. filling up an empty jerry can and then placing it back on the ute with his right hand; 11. helping out various persons with various activities; 12. assisting a repairer with the repair of his car; and 13. playing with his children, including kicking a football.
13. In my view, there is some disconnect between the statements seemingly made by the plaintiff to the medical practitioners who have examined him for the purposes of this case and what is shown on the film, in terms of his ability to use and move his right hand and arm. Further, that view is supported at least to a certain extent by the comments of the doctors who were shown the film. In particular, Professor Spira and Associate Professor Meares expressed doubts as to the consistency between presentation and the activities on film.
14. Having said that, as the Court has often said, caution should be exercised in necessarily accepting the history set out in doctors' reports. Further, the expert evidence in relation to the film did not lead to any expert suggesting that the plaintiff was fit for his pre-accident work or that the plaintiff was not experiencing pain.

Other evidence

1. There is other evidence that the plaintiff is capable of doing more than he had previously indicated, at least, until shortly prior to the hearing when he filed an amended statement of particulars. He completed BAS Activity Statements in 2019/2020. He disclosed a gross income of $21,000 in his most recent tax return.
2. He did not disclose this work to Associate Professor Meares who he saw on 1 September 2020. Apparently, he had been undertaking contract work for Lockhart Shire Council (earning $10,000). There are some other payments recorded in his bank statements, although the plaintiff maintained that he had a financial relationship with Mr Goode, the person who he said provided care to him.
3. The defendant also relied on some pre-accident Police records in support of his submission that the plaintiff had an alcohol problem well prior to the accident. There is no dispute that he has had a significant alcohol problem since the accident. Certainly, there is reference to earlier incidents which have been caused by alcohol, but I would not accept that the plaintiff regularly drank to excess in the years prior to the accident, merely because he had been involved in some incidents with the Police in his younger years.
4. The proposition advanced by the defendant that the plaintiff had a pre-existing alcohol problem was rejected by Dr Fisher, based on the assumptions put to Dr Fisher. I do not accept that the plaintiff was a person who would never have worked more than part-time on a limited earning basis because of alcohol problems.
5. It must be remembered that the plaintiff has not had any real treatment since 2016. On his own evidence, he believes there is nothing the doctors can do for him. He does not like medication. He says it causes him to vomit. Again, there is no evidence or suggestion to the contrary. On his evidence, alcohol is a reliever or pain reducer.

Findings on damages

1. I accept that the plaintiff sustained the injuries of which he complained. Unfortunately, he did not receive proper treatment. Remaining in a plaster cast for a lengthy period led to malunion.
2. After he came into the care of his specialists, he received proper treatment, including operative treatment. I accept the opinions of Dr Hatfield and Dr Green.
3. It is notable that Dr Green observed wasting of the right forearm and deformity at the site of the distal radius malunion.
4. I am unable to reconcile the finding of Dr Maxwell of no wasting in the right arm (which Dr Maxwell considered significant). I prefer the evidence of those doctors who were treating the plaintiff at the time.
5. I accept that the plaintiff has continued to suffer from pain in his right wrist and hand with a shooting pain up his right arm since he was last examined by his treating doctors. His claim is also supported by the evidence of Professor Brew, who examined him on behalf of his solicitors in 2017.
6. Further, Professor Spira, who examined him during the course of the hearing on behalf of the defendant, tended to accept that he suffered from the pain he maintained, albeit Professor Spira felt that the surveillance film indicated that he could do more than he maintained. Dr Fisher, the only psychiatrist and pain management specialist who gave evidence, accepted the plaintiff as genuine in terms of his pain and mental health issues. He refers to the plaintiff suffering long-term neuropathic pain.
7. It is significant that, other than Dr Maxwell, none of the treating doctors or medico-legal practitioners suggest that the plaintiff could have returned or could now return to the type of regular constant heavy work that he was performing prior to the accident.
8. On any view, farm contracting work is hard physical work. I do not accept that the plaintiff could have performed that work, other than on a limited basis, since the accident.
9. I also accept that the plaintiff has gone from being a hardworking family man, who may have occasionally drunk to excess, but provided support to his family as well as his parents and others, to a person who has lost his family (they separated and moved away), who has been living in a caravan by himself and spends large periods of time consuming excessive quantities of alcohol as some form of solace or pain limiter.
10. I also accept that the surveillance films tend to suggest that he is capable of performing more of the everyday activities than he has maintained and that his need for personal domestic care is somewhat limited.
11. The film of the type obtained tended to be more prejudicial to the plaintiff when rolled together (I am not suggesting that there was any other way of showing it), but when it is considered with reference to the actual reports, it becomes apparent that the plaintiff often spent lengthy periods doing nothing.
12. I do not accept that the plaintiff has simply been waiting around for his case to finish before going back to work or that he has in some way sought to maximise his return from the case by not doing any work.
13. I accept the evidence of Dr Fisher, the only psychiatric evidence in the case, to the effect that the plaintiff has been suffering from depression and an anxiety disorder which have impacted upon him significantly. Again, his psychiatric conditions are very much a function of the pain from which he suffers. I accept that any reduction in pain may produce a better outlook for his psychiatric state.
14. Indeed, consideration of all of the evidence obtained in 2019 to 2020 tends to suggest that there has been some improvement in the plaintiff's psychological and physical state. He has been able to perform limited work in the period 2019 to 2020. He has developed a new relationship and has been able to drive to see that person in Victoria.
15. Further, there is some prospect that if the plaintiff receives proper treatment (which he has not had since 2016), he may gain relief from the shooting pain up his right arm.
16. However, he has a deformed arm and pain condition which appears to have both become chronic (seven years after the accident) and I am satisfied that he remains unfit for work as a full-time farm contractor.
17. The opinion of Dr Hatfield to which I have referred earlier remains significant.

Non-economic loss

1. It is now 7 years since the accident. The plaintiff has a life expectancy of a further 44 years. The consequences of this accident on the plaintiff have been dire, physically and mentally. Further, his wife has left him because of the deterioration in his mental and physical health and the consequences on his behaviour and their relationship. He no longer has responsibility in respect of his children. Balanced against that, it is my view that he appears to be making some improvement at this time and having regard to the most up-to-date medical evidence, there is at least a prospect that treatment might reduce his pain level.
2. I assess non-economic loss at 40% of the most extreme case ($275,000).

Loss of earning capacity

1. At the time of the accident, the plaintiff was working for the Kellys undertaking farm contracting work. As set out in his evidentiary statement, which was not the subject of any challenge, he had in the years prior to the accident performed a variety of farm and agricultural work. Indeed, he appears to have worked in a full range of agricultural farming type activities, albeit not at a managerial level.
2. The plaintiff says that, if not for the accident, he would have continued to work undertaking the same general type of work but that he would have by 2016 obtained a job as a farm manager. On the plaintiff's case, that would have increased his earnings considerably and he would have been earning $90,000 per annum as a farm manager.
3. The defendant says that the evidence tends to establish that prior to the accident, the plaintiff was only working 20 hours per week and being paid $25 per hour. The defendant says that any claim for loss of earning capacity should be assessed on the basis of that sum.
4. At the time of the accident the plaintiff was 31. It is not clear to me why the plaintiff's potential earning capacity, but for the accident, should be assessed on the basis that he would have only ever worked part-time and be paid at a low hourly rate. Further, working for the Kellys was only one of the activities he performed and his pay slips reveal he sometimes worked 40 hours earning over $1000 per week. I assume his variable earnings reflected the variable nature of the work.
5. Of course, I am assessing loss of earning capacity. I am required to assess the plaintiff's pre-accident capacity and then assess the extent to which that capacity has been diminished as a result of the tortious conduct of the defendant. [24]
6. Further, past earnings are only a guide. It is not determinative of the amount which should be awarded on account of diminution of earning capacity.
7. In Nominal Defendant v Livaja, [25] Basten and Campbell JJA and Rothman J observed at [65]: "[65] … Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation. …"
8. Having regard to the plaintiff's evidence, essentially set out in his evidentiary statements (as there was no further oral evidence-in-chief or cross-examination on the subject), I accept that prior to the accident the plaintiff was performing a number of activities all of which were capable of producing an increased income over time.
9. Further, having regard to his extensive experience in performing roles in farms, it is not unrealistic to think that he might have been able to progress to the role of a farm manager at some stage in the future. Of course, the plaintiff bears the onus of establishing all elements of his loss and I would not merely accept that the plaintiff would have become a farm manager at a particular time because he so asserts.
10. It is necessary to have regard to all of the evidence in assessing the prospects of the plaintiff becoming a farm manager. In this regard, the evidence of Mr Kelly is also relevant. Mr Kelly speaks highly of the plaintiff's work ethic, attributes and capacity. Mr Kelly's evidence supports the hope that he might have progressed to the role of a farm manager.
11. I do not accept that for the purposes of assessing his claim for diminution in earning capacity, he should be treated as a person only ever likely to perform part-time at some lowly farm position for the rest of his life.
12. However, I would certainly have regard to what appears to have been his limited earnings whist in his twenties. There is ample financial documentation which tends to suggest that he did not earn anything like average weekly earnings, prior to the accident.
13. Yet I must also have regard to the fact that he had at least another 36 years left in his working career and that he was running his own small property at the time of the accident, as well as working for the Kellys. Further, he was living rent free on property in return for providing assistance to the property owner.
14. There is another principle which is of some significance in this matter in assessing loss of earning capacity. Whilst the plaintiff bears the onus of adducing evidence sufficient to make findings as to its loss, if I am satisfied that the plaintiff is unable to perform his pre-injury employment and suffers a diminution in earning capacity accordingly, the onus is on the defendant to adduce evidence of the work that the plaintiff could perform and could obtain. [26]
15. On any analysis of the work that the plaintiff had performed in the 10 years prior to the accident, he was involved in an industry that required him to undertake hard, heavy and physical work regularly throughout every day. Further, even if he might have progressed to become a farm manager, that work is hardly sedentary or light in nature and involves regular physical work.
16. In my view, the plaintiff has been unfit for the work that he was performing prior to the accident since the accident, other than on a limited or sporadic basis. The surveillance film tends to suggest that he might be capable of moving things or lifting things or doing some work but it does not support the contention that he could perform those activities on a regular, repetitive or daily basis.
17. There is no evidence that he might obtain such work for a period of one or two hours a day. However, he has demonstrated a capacity to earn through his contract work with the Council in 2019/2020.
18. He lives at The Rock which is a town 30 km from Wagga Wagga. He owns a utility and may be able to do odd jobs. There is reference in the rehabilitation reports to the plaintiff being suited to jobs such as truck driving but I am not assessing loss of earning capacity in a vacuum. I have regard to his physical capacity, the availability of such work and the likelihood of him being able to obtain and do such work.
19. In my view, the plaintiff's earning capacity has been significantly diminished as a result of the accident.
20. No evidence has been adduced which would support the proposition that he could have obtained and performed regular full-time work since the accident.
21. It seems likely that if not for the accident he would either have started to earn an income from his own property or increased his hours working for others.
22. Having regard to all of the activities he was undertaking (which were not the subject of challenge), I accept that his income would have increased over time, either because his own ventures would lead to income or because he would stop helping others such as his property owner and his parents and focus on working for others for income.
23. I reject the defendant's submission that the plaintiff would only have exercised his own earning capacity long-term on a part-time basis.
24. I assess his likely earnings but for the accident for the accident on the basis that: 1. He may have been likely to earn something approximate to what he was earning with the Kellys before the accident for the two years after the accident up to approximately 1 January 2016, that is, I would allow the sum of $600 net per week until 1 January 2016 (146 weeks at $600 per week = $87,600). I would allow an additional $100 per week on account of lost income from his other activities = $14,600. 2. In view of his experience and ability to obtain a variety of farm work on a full-time basis, he would have either obtained more work from the Kellys or looked elsewhere for full-time work focused more on his other activities. I accept that he would have been earning approximately $750 net per week by 1 January 2016, which I allow for a 2-year period (104 weeks at $750 per week = $78,000). 3. Thereafter a figure of $900 per week seems realistic (164 weeks at $900 per week = $147,600). I would use that figure on an ongoing basis, except that I must have regard to both the potential for his earnings to have increased undertaking farm contracting work and the prospect of him operating his own property and the prospect of him obtaining work as a farm manager on a longer-term basis. Bearing in mind that he is only 39, I would allow a further buffer on account of all those matters. Indeed, on the basis that he might have worked to the age of 70, there is a further 40 years left when he could have exercised his earning potential.
25. In terms of any post-accident earning capacity, as I have already emphasised, the onus is on the defendant to identify what work the plaintiff could have undertaken and might have obtained. He has not worked except in limited periods. This is because of the combination of his physical and psychological conditions and of course his related alcohol problems.
26. The defendant has not discharged that onus except through pointing to the work actually obtained in 2019. The defendant's position is not that he has been doing more work and not revealing it but that he has deliberately only performed limited work. He has earned approximately $15,000 net including from the contract with the Council. There is no evidence that he has earned any other sums.
27. I thus deduct that amount from the my assessment of the amount he would have earned but for the accident for the period 2018-2021. ($147,600 less $15,000 = $132,600)
28. I assess his past loss of income on the basis of the figures I have identified.
29. For the future, I accept that he has demonstrated an earning potential through the work he has performed in 2019-2020. Having regard to the surveillance and medical evidence and the potential for some improvement to both his physical and psychological state through treatment, I accept that he will be able perform some limited work, including odd jobs and part-time contracting work. I assess his earning capacity in the sum of $400 per week. I thus assess his diminution of earning capacity in the sum of $500 per week for the rest of his working life ($500 per week x 833.8 less 15% on account of vicissitudes = $354,365).
30. I allow a further buffer of $150,000 on account of the prospect that he might have become a farm manager at some time or that one or more of the entrepreneurial activities which he was pursuing might have developed over time. It is not possible to identify when he might have become a farm manager or to what extent he might have successfully operated his own farm but I am satisfied that the accident has deprived him of the opportunity to earn an income from such activities and that the prospects were more than speculative.
31. I allow loss of superannuation at 11%.

Care

1. The plaintiff would have required and was receiving domestic assistance, at least up to 2017 when his wife moved away.
2. Doing the best I can, I would allow a figure of 10 hours per week for the 18 months after the accident. I would then allow a further 6 hours per week up to December 2017. I would not allow any further sum on account of gratuitous care up to the present time because I consider that the plaintiff has been caring for himself in terms of his personal care and limited other needs. Further, the surveillance film tends to suggest that he can carry out a wide range of domestic tasks.
3. Even the defendant's occupational therapist, on the assumptions that she made which are contrary to the way in which the plaintiff presents the case, considered that the plaintiff would have required and received 495 hours of gratuitous care up to the time that she assessed the plaintiff.
4. In assessing the future, I must bear in mind that the plaintiff will not always live in a caravan. The estimate of the occupational therapist obtained by the defendant, Ms Moylan, of 495 hours for the past seems to be a bare minimum. Even 1 year at 6 hours per week would amount to 300 hours.
5. I would assess the need for care for the future on the basis that he will not remain living in a caravan in any of the long or immediate terms and that he will move to a property, rented or otherwise, at which he would normally be required to undertake some heavy maintenance work and undertake the more physical aspects of looking after a home. In particular, I have regard to the fact that he is right-handed and he used to be involved in activities such as servicing his own vehicles, repairing machinery and doing renovation work.
6. I also have regard to the prospect that he may have further treatment which may improve his condition. I would allow 3 hours per week on an ongoing basis.
7. I do not accept that the plaintiff would be incapable of doing things such as washing his car occasionally. Nor do I accept the plaintiff's claim for the cost of childcare expenses being provided by his former wife since 2017. I do not accept as a matter of principle that the plaintiff is entitled to such an allowance.
8. In the end, the allowance I make on account of care (which is much less than the plaintiff seeks) is affected by the surveillance film. As I have said, whilst I do not accept that it supports the proposition that the plaintiff is fit for work, it tends to suggest that the plaintiff is fit for undertaking the sort of occasional short-term domestic tasks which form the basis of his much higher claim.
9. I thus assess loss of care as follows: 1. 15 December 2013 to 1 July 2015 - 78 weeks at 10 hours per week at $28 per hour = $21,840; 2. 1 July 2015 to 31 December 2017 - 130 weeks at 6 hours per week at $30 per hour = $23,400; and 3. Commercial care for the future - 3 hours per week for 43 years (938.2 at the amount claimed by the plaintiff of $40 per hour) = $112,584.

Out-of-pocket expenses

1. Past out-of-pocket expenses have been agreed ($59,299.86).
2. The plaintiff has had little by way of treatment since 2016. However, it is clear that he requires treatment if he is to improve.
3. Further, he should have the treatment or operation which has been referred to by Dr Spira. In my view, all of this treatment is reasonably necessary and perhaps if the plaintiff had undergone all of this treatment some years ago, he would be in a better shape physically and psychologically.
4. In the circumstances, I allow the cost of such treatment as well as some visits to a general practitioner. As is often the case, unless I adopt the rather excessive approach of the plaintiff to the amount of treatment that he will be paying for in the future, I am left to allow a lesser somewhat rounded sum. I allow the sum of $30,000 to reflect the need for ongoing psychiatric intervention, the treatment raised by Dr Spira and the likelihood of ongoing review (as even Dr Spira's treatment will not lead to a full recovery and he will be left with ongoing disability).

Conclusion

1. I thus assess damages as follows: Non-economic loss = $275,000 Past economic loss ($87,600+ $78,000 + $132,600) = $298,200 Future loss of earning capacity ($354,365 + $150,000) = $504,365 Loss of superannuation = $88,282 Past gratuitous care = $45,240 Future commercial care = $112,584 Past out-of-pocket expenses = $59,299.86 Future out-of-pocket expenses = $30,000 Fox v Wood = $8,000 Total = $1,420,971

The employers' claim for recovery pursuant to the Workers Compensation Act s 151Z(1)(d)

1. At the time of the accident, the employers did not have statutory insurance. Following the accident, the plaintiff sought payment of benefits and his claim was accepted by the Nominal Insurer. Weekly payments and medical expenses have been paid to and behalf of the plaintiff.
2. It is not clear whether the employers have yet reimbursed the full amount to the Nominal Insurer, but Mr Kelly said that if any amount remained outstanding, then payment would be made to the authority in respect of that amount.
3. In the amended statement of claim filed on 4 December 2015, the employers sought: 1. contribution and indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); and 2. indemnity in respect of payments made to the plaintiff pursuant to ss 145 and 151Z(1)(d) of the Workers Compensation Act ("the Act").
4. The employers withdrew reliance on s 5 of the Law Reform (Miscellaneous Provisions) Act during the hearing.

The defendant's position

1. The defendant does not take any issue with the amount or reasonableness of the payments made or with the general entitlement of a compensation payer to recover under s 151Z(1)(d) of the Act.
2. The defendant's point is that, in the events that have transpired, the employers are not persons who fall within s 151Z(1)(d) as being entitled to recover payments made.
3. The defendant says that the employers are not the compensation payer. They merely reimbursed the Nominal Insurer on receipt of a demand under s 145 of the Act.
4. Generally, recovery actions under s 151Z(1)(d) are brought in the name of the employer. In some cases, proceedings have been pursued in the name of the employer's insurer. [27]
5. The defendant submits that the right of recovery under s 151Z(1)(d) is a right to recover "compensation". That is, they say that the employers do not fit within the meaning of the term "the person by whom the compensation was paid" in s 151Z(1)(d) of the Act.
6. The defendant submits that in this case the compensation payer as referred to in s 151Z(1)(d) was the Nominal Insurer and thus only the Nominal Insurer has a right to indemnity under s 151Z(1)(d).

The employers' position

1. The employers say that: 1. the defendant should not be entitled to pursue the issue it raises as it has not been pleaded or referred to anywhere in earlier correspondence or even the statement of issues; and 2. as a matter of proper construction of s 151Z(1)(d), the defendant's contention should be rejected.
2. The employers submit that employers and only employers, as a matter of law, pay Workers Compensation. [28] The Act is not concerned with who physically delivers the money.
3. They submit that other insurers are merely the agent of the Nominal Insurer (known as a scheme agent).
4. Mr Renshaw on behalf of the plaintiff also made submissions on the issue. Firstly, perhaps consistently with his regular references to classical principles and Latin maxims, he referred to Roman law and suggests that there is no loss without a remedy.
5. More specifically, he submits that on a proper construction of the whole of s 151Z in the context in which it appears, it is clear that the section is intended to apportion responsibility to prevent double recovery on the part of the injured worker and direct responsibility to the ultimate tortfeasor.
6. He submits that the only party who could seek indemnity would be the party who has suffered the loss. The Nominal Insurer has been reimbursed by the employer and thus it could only be the employer who could seek indemnity from the third-party tortfeasor.

The pleading point

1. The employers describe the first issue as a standing issue. I am not sure that it is correct to describe it as a standing issue but the effect is the same. Other than a broad denial, there is nothing in the defence which would alert the employers to the proposition which the defendant advances. As no party has directed me to any correspondence which might have been relevant, I assume that there was no exchange of correspondence between the parties questioning the nature of the defence or questioning or explaining the nature of the defence.
2. The defendant relies on the statement of issues filed by it. I can only say that it does not seem to me that the statement of issues advances the position at all. Only when a further statement of issues was filed by the defendant shortly prior to the commencement of the hearing is any real hint given as to the nature of the defence. That is, there is some reference made to whether the employers had standing to seek the relief claimed.
3. The employers submit that the defendant has not pleaded a matter which may take them by surprise and has thus not complied with r 14.14(2) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
4. The defendant's response is to maintain that he is simply raising a matter of proper statutory construction. He has always denied the entitlement to relief under s 151Z(1)(d) of the Act.
5. In the context of this case, this is just another complaint by one party against the other about the way the case has been pleaded and conducted. I will not reiterate the comments I made at the outset of this judgment. Be that as it may, there is merit in the employers' position.
6. In my view, UCPR r 14.14 should not be given a limited meaning. Nor should it be interpreted in such a way that only those matters specifically referred to in r 14.14(3) may be the subject of specific pleading.
7. The overriding purpose of the Civil Procedure Act 2005 (NSW) and UCPR is to ensure the just, quick and cheap resolution of the real issues in the proceedings.
8. In White v Overland, [29] Allsop J observed: "[4] … Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. …" (Emphasis in original.)
9. The defendant should have pleaded that the employers could not succeed because they had not paid the compensation within the meaning of the Workers Compensation Act.
10. Five years after commencement of the proceeding and shortly prior to the commencement of the hearing, the employers may have been alerted to this issue only through the filing of a second statement of issues by the defendant.
11. This is in circumstances in which experts in the area (as both the solicitor for the employers and solicitor for the defendant surely are) would be aware that claims for recovery under s 151Z(1)(d) can and have been pursued both in the name of an insurer and an employer.
12. The defence relied upon by the defendant was apt to cause surprise to the employers and should have been specifically pleaded.

The construction issue

1. The primary object of statutory construction is to construe the relevant provisions consistently with the language and purpose of all of the provisions of the statute. [30]
2. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, [31] the plurality observed: "[47] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."
3. The defendant's approach rather focuses on what might be considered a literal meaning of the words "a person by whom the compensation was paid". That is because the Nominal Insurer paid the weekly benefits and medical expenses to the plaintiff and therefore only it could be entitled to indemnity.
4. There are a number of reasons why I do not consider the defendant's approach to the construction of s 151Z(1)(d) of the Act is correct.
5. Whilst ordinarily the legal meaning of a provision will correspond with the grammatical meaning, this is not always so. The consequences of a literal or grammatical construction may require the words to be read in a way that does not correspond with the literal or grammatical meaning. [32]
6. The defendant's construction would produce a result contrary to the evident policy of the section.
7. In QBE Workers Compensation (NSW) Limited v Dolan, [33] Beazley JA stated: "[11] … The policy of the section is to adjust the responsibilities between two liabilities in circumstances where an injured worker could pursue either or both of the available remedies. As the employer's entitlement appears in s 151Z, it is contained with other provisions directed at ensuring that the employer does not bear the final burden of paying compensation to a worker when the worker has been injured in circumstances where there is liability in another person to pay damages. …" (Citation omitted.)
8. "Compensation" is a term used throughout the Act. Part 2 of the Act contains the provisions relating to the liability to pay compensation. Part 3 of the Act contains the provisions in respect of compensation benefits. There is a clear distinction in the Act between compensation and damages. The primary obligation to pay compensation is set out in s 9(1). The obligation to pay compensation is on the employer.
9. There is no provision in the Act which deems an insurer to be the compensation payer.
10. Further, s 151Z(1)(d) is contained within a sub-section which commences as follows: 151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect--
11. The words "the person by whom the compensation was paid" must be construed in the context of the section as a whole and the Act as a whole.
12. The opening words of the section direct attention to the circumstances in which compensation is payable under the Act and in which there was a liability in some other person other than the employer to pay damages.
13. Compensation was payable under the Act. As set out in s 9, it was payable by the employers.
14. Section 151Z(1)(a) provides that a worker may take proceedings both against the person liable to pay damages in respect of the injury and any person liable to pay compensation under the Act (being the employer), but is not entitled to retain both damages and compensation.
15. Although the Act prescribes the statutory scheme of insurance as well as the scheme for payment of uninsured liabilities, there is no provision which deems an insurer to be the compensation payer.
16. Further, there is nothing in Part 4 Division 6 of the Act (Uninsured Liabilities) which provides a procedure for the Nominal Insurer to recover an indemnity directly from the third-party tortfeasor in respect of compensation payments made by the Nominal Insurer.
17. Section 142A merely provides that the provisions of the Act apply to and in respect of claims as if the Nominal Insurer were the relevant insurer under the Act at the relevant time.
18. It follows that for the purposes of s 151Z(1)(d), the Nominal Insurer should be treated as being in the same position as any insurer under the Act. The construction contended for by the defendant would create an anomalous situation whereby the party who actually suffered the loss (being the employers in this case) could not recover the loss despite the clear intention of s 151Z(1)(d) to apportion responsibility between the party liable to pay the compensation (the employer) and the third-party tortfeasor.
19. Finally, the defendant's construction requires giving only a restrictive meaning to the phrase "by whom the compensation was paid". In practical terms, the compensation was paid by the employers, albeit, it was initially paid by the Nominal Insurer. In my view, the words "the person by whom the compensation was paid" should be interpreted consistently with the balance of s 151Z and indeed the Act as a whole.
20. The employers are seeking indemnity from the defendant as a third-party tortfeasor only in respect of the amount of the compensation paid. They are not seeking some additional sum, for example, in respect of their own legal costs.
21. I do not accept the defendant's submission that s 148A of the Act is of significance. The effect of s 148A is to create a statutory right of subrogation in favour of the Nominal Insurer. The creation of a statutory right of subrogation does not, of itself, provide an answer to the employers' claim for indemnity under s 151Z(1)(d). The purpose of s 148A is merely to put the Nominal Insurer in the same position as any insurer vis-à-vis third parties. Its existence does not support the position adopted by the defendant in this matter.
22. In all the circumstances, I reject the defendant's construction of s 151Z(1)(d) of the Act. The employers are entitled to indemnity in respect of the amount of compensation payments made to or on behalf of the plaintiff. There will be judgment for the employers in that amount. I am uncertain of that amount.

Conclusion

1. The plaintiff is entitled to succeed. I enter judgment in the amount of $1,435,339.
2. The Kellys are entitled to indemnity from the defendants and also entitled to a judgment in their favour. I am uncertain as to the amount of that judgment.
3. I grant liberty to approach on 3 days' notice either to provide an agreed sum or indicate if there is any dispute on the amount.
4. The cross-claim by the defendants against the Kellys is dismissed. The defendants are to pay the costs on the cross-claim.
5. I order that the defendants pay the plaintiff's (Ross Monteleone's) costs.
6. I order that the defendants pay the plaintiffs' (William Andrew Kelly's, William Richard Kelly's and Margaret Jane Kelly's) costs.
7. Should any party seek a different order as to costs, I grant liberty to apply on three days' notice.

Endnotes

1. Tcpt, 25 November 2020, p 597-598.
2. Tcpt, 16 November 2020, p 25.
3. Tcpt, 16 November 2020, pp 64-65.
4. Tcpt, 16 November 2020, p 70.
5. Tcpt, 18 November 2020, pp 248-249.
6. Tcpt, 18 November 2020, p 251.
7. Tcpt, 18 November 2020, p 254.
8. Tcpt, 18 November 2020, p 264.
9. Tcpt, 24 November 2020, pp 587-588.
10. Tcpt, 19 November 2020, p 280(15).
11. Tcpt, 19 November 2020, p 292.
12. Tcpt, 19 November 2020, pp 293-294.
13. Tcpt, 19 November 2020, p 296.
14. Tcpt, 19 November 2020, pp 296-297.
15. Tcpt, 24 November 2020, p 587.
16. Statement of Dr Amy Kelly, 19 November 2020 (Exhibit P1).
17. Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152.
18. [2008] NSWCA 99 at [13]-[14].
19. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308; [1986] HCA 20.
20. Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [43] (Gummow J).
21. (1964) 112 CLR 316 at 319; [1964] HCA 29.
22. Tcpt, 18 November 2020, p 214-215.
23. Tcpt, 18 November 2020, p 215.
24. Husher v Husher (1999) 197 CLR 138; [1999] HCA 47; Moss v State of New South Wales (2000) 54 NSWLR 536; [2000] NSWCA 133.
25. [2011] NSWCA 121.
26. Rabay & Anor v Bristow [2005] NSWCA 199 at [73] (McColl JA, Handley and Bryson JJA agreeing); South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74] (Simpson JA, Macfarlan and Meagher JJA agreeing).
27. See, eg, QBE Workers Compensation (NSW) Ltd v Dolan (2004) 62 NSWLR 42; [2004] NSWCA 458.
28. Workers Compensation Act s 9.
29. [2001] FCA 1333 at [4].
30. Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69].
31. (2009) 239 CLR 27; [2009] HCA 41 at [47].
32. Project Blue Sky v Australian Broadcasting Authority at [78].
33. (2004) 62 NSWLR 42; [2004] NSWCA 458 at [11].

Amendments 21 June 2021 - In accordance with the orders made in Monteleone v Thorn (No 10) [2021] NSWSC 729, the judgment has been amended at [358]. Where it formerly read "$1,420,971", it now reads "$1,435,339". 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: 21 June 2021