KIPRIOTIS v ROYAL TILES PTY LIMITED & ORS - [2008] NSWSC 871 - NSWSC 2008 case summary — Zoe

NSWNSWSC

KIPRIOTIS v ROYAL TILES PTY LIMITED & ORS

[2008] NSWSC 871

Supreme Court of NSW|2008-06-19|Before: Hall J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2008-06-19

Before

Hall J

Source

Original judgment source is linked above.

Judgment (112 paragraphs)

[1]

Background 11 The plaintiff's date of birth is 11 April 1959. He was, accordingly, 44 years of age at the date of the accident and is presently 49 years of age. 12 In his earlier working life, he injured his left wrist whilst working for an entity known as United Patricks. That injury occurred in 1988 and I will refer to it further in the medical history below. It is sufficient, at this point, to note that the plaintiff said in evidence that his wrist continues to be sore to the present time. He stated that he was right hand dominant. 13 The plaintiff's evidence was that during his employment with Thunderbolt Carriers Pty Limited, that company regularly performed work for United Transport. He said that he was employed on a regular basis up to the date of the subject accident as a truck driver. 14 The plaintiff's evidence was that, apart from the symptoms he had with his left wrist, he was in excellent health prior to 30 September 2003 (the date of the accident) and said that he did not have any difficulty with his work as a truck driver up to that date. 15 The company, Thunderbolt Carriers Pty Limited, is operated by his sister, Yvonne Serlimetas, who is its director and shareholder. 16 The plaintiff said he was the only employee of Thunderbolt Carriers and that that has been the case from 1991 up to the date of accident. 17 The plaintiff's pre-injury work involved picking up containers that had been delivered by ship to wharves and then delivering them around the metropolitan area. He said that this would involve him going to the wharf with paperwork for the release of the containers and submitting them to the yard depot. Containers would be loaded onto his truck and he would then drive the container involved in each job to the required address. He said that, apart from locking the container onto the trailer of the truck, there was no physical manual work for him associated with the loading of the containers. 18 The plaintiff said that, on occasions, he would be required to assist in the unloading when requested. At other premises, when not requested, he was not involved in the unloading operation.

[2]

The plaintiff's evidence 19 On 29 September 2003, the plaintiff received a telephone call from Mr Halil Karatas who gave him directions for the next day's work. 20 On the morning of 30 September 2003, the plaintiff said that he went to the wharf, loaded a container and then travelled to the first defendant's premises. He said it took approximately 35 to 40 minutes to travel from the wharf to those premises. He said that, when delivering to these premises, he always used the rear access in Short Street. The normal practice was that he would drive to the premises and then wait for a forklift driver who would then direct him to where the container was to be placed because, he said, the yard was "pretty cramped". 21 On the day of the accident, he spoke to the forklift driver. He described him as "skinny built, about five foot six, possibly seven, about my age, dark hair". The forklift driver told him to park on a slope or ramp. He said that the forklift driver pointed to him indicating that he was to drive up the sloping driveway or incline. He said that after he drove up it, the forklift driver then held up his hand and told him to stop. Exhibit C consists of 12 photographs, several of which depict the first defendant's premises, the ramp and two roller doors (Exhibit C7) at the entry into a warehouse. 22 The plaintiff said that the forklift driver then told him that there was a shortage of labour and that the plaintiff would have to assist in the unloading of the container. 23 The plaintiff then said that he rang Mr Karatas and told him of the situation. Mr Karatas told him to help out. 24 The plaintiff said that he climbed into the container at a point in time after the forklift driver had unloaded tiles on two pallets from the back of the container. 25 The plaintiff described the tiles as packed onto timber pallets which he referred to as "skids". He said that they were a smaller version of a wooden pallet. The stacks of tiles were about seven feet high, measured from the floor of the container. Each stack was a substantial weight and could only be unloaded by means of a forklift. 26 The tiles were said to be stacked in the container, five rows deep by two rows wide. The first row of stacked tiles was removed by the forklift. After the plaintiff climbed into the back of the container the forklift then came and placed a trolley jack inside it. 27 The plaintiff said that when he was in the container, a young man was there to assist him. At that point in time, there was no pallet jack in the container. At the time the pallet jack was loaded into the container, the truck and trailer, the plaintiff said, were still parked on the slope with the open trailer facing down the slope. 28 The plaintiff said that he introduced himself to the young man who was in the container with him. He asked him if he had unloaded a container before. The young man replied that he had not and did not know how to operate the pallet jack. 29 The plaintiff described the pallet jack. He said it was operated by a hydraulic handle. A photograph of the equipment is Exhibit C12 and a further photograph is attached to Mr Hely's report (photograph 4). 30 He said he was very familiar with pallet jacks. They are fitted with two tines. There is a set of wheels at the back and a set in the tines themselves and a rotating handle for steering it. The operation of the lever causes the hydraulic pump to operate. A pump action is used on the handle to move the load. There is a valve which, when activated, slowly releases. The plaintiff said if squeezed "hard", "it just drops". Movement of the lever activates the hydraulic mechanism. 31 The plaintiff placed the tines of the pallet jack in between the pallets. He said there were four pallets facing him in stacks of two. The container itself was eight feet wide. 32 Once the pallet jack was under the pallet of tiles, the plaintiff explained that it was then lifted up by the pumping action using a lever. He said that the usual procedure was that once the pallet was lifted off the floor, people would then hold the weight "because you've got a tonne and a bit at you, so you need that body to lean on it to hold it from sliding out … so the young gentleman assisted me on the first two or three pallets which we did safely" (t.24). 33 The plaintiff clarified in cross-examination that he successfully managed to move six pallet stacks with the pallet jack which were, in due course, removed from the container by the forklift. He estimated there were, in all, about 20 pallets of tiles in the container. 34 The plaintiff said that he then lifted a pallet with the pallet jack, this being the pallet that, in due course, fell on him. The plaintiff said:- "It just rushed out of my hands, like I couldn't hold it … and I wanted him to come and help me." 35 The plaintiff's evidence on the events leading to the accident included the following evidence:- "Q. Tell us what the usual procedure is? A. The usual procedures is you're supposed to lift the container off the floor and have people hold the weight, because you've got a tonne and a bit coming at you, so you need that body to lean on it to hold it from sliding out, you know. So the gentlemen, the young gentlemen, assisted me on the first two or three pallets, which we did safely.

[7]

Q. How did you land? A. I landed on my left leg, which snapped, and my left ribs which hit the concrete, the actual - and I landed on the floor." 36 The plaintiff said that because of the weight and the incline, the pallet started moving towards him. He said that the only thing he could do was to operate the lever of the pallet jack. The plaintiff explained that, by pressing the lever slowly, the load on the tines on the pallet jack would also lower slowly. However, on this occasion, when the load was moving towards him, he said that the pallet jack just dropped. He said that the speed at which the load was moving towards him and the sudden stop caused the top pallet to collapse onto him and throw him out of the container. 37 The plaintiff said he was hit by some tiles as he fell. He landed on his left leg, which he said snapped and his left ribs hit the concrete. 38 The plaintiff said that the young man who had been assisting him was located on the right hand side of the container facing the back. He said that he had asked the young man for support, but there was no time to do anything and he just stood back. 39 The pallet jack, he said, was not meant to suddenly drop in the fashion in which he said it did on this occasion. 40 The plaintiff's evidence was that he felt pain in his leg and ribs and up to his shoulder. He said he sustained cuts and bruises in the course of the accident. 41 The plaintiff said that in his experience, an alternative unloading system involved having trucks loaded with cargo reversing up to a ramp with the cargo unloaded by means of a forklift from the ramp. 42 In cross-examination, the plaintiff said that both the truck and the trailer were parked on the slope. He confirmed that there was only one person helping him unload, not two as had been suggested to him, apart from the forklift driver. 43 It was put to the plaintiff in cross-examination that the truck was parked so that the end of the tray of the truck was approximately adjacent to the far roller door shown in Exhibit C7 and not as depicted in the plaintiff's diagram, Exhibit E. The plaintiff rejected these propositions. 44 It was also put to the plaintiff that the forklift driver did not ask or require him to assist. Again, the plaintiff rejected that suggestion. 45 The plaintiff agreed in cross-examination that he would not have got into the container to assist with unloading unless he thought that he could do it safely. He said it was not until during the unloading that he found that the assistant had no experience and that he learned this not long before moving the pallet load involved in the accident. 46 He agreed that the pallet jack had been used to move a number of "stacks" safely from the container just prior to the accident. He agreed that the overall load had been half unloaded when he was attempting to move the pallet stack involved in the accident. 47 The plaintiff agreed that a pallet jack is a simple device and that the more one squeezed the lever on it, the faster it went down and the converse, the less the handle was squeezed, the slower it would move. 48 The plaintiff confirmed that there would have been a total of about 20 pallets in the load in the container. He explained this by saying there were 10 "double stacks" in the container. 49 The plaintiff said that he noted a "faulty operation" in the pallet jack. He said:- "I observed it the minute I did the first or second load, unload of the pallets." 50 He said that he observed the pallet jack was not working or was not functioning properly. He gave evidence as follows (at t.94):- "Q. What does that mean? A. It means that the pallet jack wasn't functioning properly.

[11]

(1) Mr Kahlia 51 The first defendant called Mr Ziad Kahlia, warehouse manager with the first defendant. He commenced employment with the first defendant in 1999. 52 In September 2003, he said the company had three other employees besides himself working at the premises at 255 Parramatta Road, Auburn. He said one of these employees was Mr Danny Issa, who was then aged about 20 years. There were two other employees, one of whom was approximately 25 to 27 years of age and the other about 35 years of age. 53 Mr Kahlia said that the company would receive a container of tiles once or twice a week. He said also that the roller door shown in the photographs, Exhibit C, was normally in the closed position. 54 He also said that the company used two pallet jacks as at the date of the accident and that he had never experienced problems operating them. 55 Mr Kahlia's evidence was that when the doors of the container were opened, there were two stacks across the trailer. He said the first two rows were removed by the forklift only. The remaining pallet stacks were removed by the use of a pallet jack and the forklift working together. 56 He said that there had never been any unloading accident before September 2003. 57 He said that on the date of the accident he directed the plaintiff's truck into its parked position. He said that he told the plaintiff that he was a little bit early and to wait for somebody to come. Mr Kahlia said that the plaintiff told him that he would start unloading and opened the container. 58 Mr Kahlia said that when he placed the pallet jack with the forklift into the container (t.157):- "Then, I wait for someone to come to drive the fork so I can unload the container." 59 He said that he went "inside" and that about 10 minutes later he heard someone screaming out. He said he emerged through the right of the two roller doors and saw the plaintiff on the ground. He also saw Mr Issa. 60 He said that the rear wheels of the trailer were on the flat part of the driveway. He said that the front of the truck was on the ramp, but the trailer was on the flat. 61 In cross-examination, Mr Kahlia said that the accident happened at about 8.30 am. That was not correct. He later said that he had no clear recollection at all as to the time the accident occurred, but thought that it was in the morning. 62 He said that he reported it immediately to "the boss", but did not make a statement about the matter until approximately April 2007 during the course of or following Mr Hely's (engineer) visit. 63 He disagreed when it was put to him that Danny Issa was not present that day. He agreed that Mr Wahid Haddad was present on that day. He said Mr Haddad was the manager. 64 In later cross-examination as to the position of his truck, he said "I don't remember" (t.165). He later repeated that the trailer was on the flat. He said that to unload the trailer on the slope was "too dangerous". 65 Mr Kahlia said that he did not ask Mr Issa to help with the unloading "because he's not expert". He said that he had no memory now as to whether Mr Issa got into the container with the plaintiff. 66 Mr Kahlia could not explain the plaintiff's presence in the container and said he did not ask him to get into it and suggested he must have done so at his own initiative. 67 He agreed that after the accident the truck remained where it was and that it was Mr Karatas who moved it. 68 Mr Kahlia also said that he was the only person that needed to be in the container and one other person was required to operate the forklift to unload the container. He said the pallet, once on the pallet jack, could be controlled through the operation of the pallet jack's lever or handle. 69 He said that he did not think that the pallet jack was faulty. 70 He said that, since the date of the accident, the company had moved to adjacent premises where unloading operations are now performed.

[36]

(2) The position of the truck/trailer on the first defendant's premises 93 In relation to this issue, Mr J G Stewart of counsel on behalf of the first defendant relied, in particular, upon Mr Kahlia's evidence on this issue. He submitted that although Mr Kahlia was "not the most precise of witnesses …", nonetheless his evidence established that the vehicle was not parked on the ramp. As noted above, Mr Kahlia had not been asked to recall the day of the accident until some three and a half years later in April 2007. 94 The first defendant's position was that the truck and trailer were parked and at all material times were located on the flat part of the driveway. Its alternative position was that if that were not the case, then, based upon the evidence of Mr Kahlia in cross-examination (that the rear wheels of the trailer were just on the flat portion of the driveway), the slope of the trailer would have been a little less than seven degrees as suggested by Mr Hely in his expert report. 95 The report of Injury Management Services dated 21 November 2003, as noted above, recorded the plaintiff as having been required to park his truck on a ramp. That account provides a measure of corroboration, being a reasonably contemporaneous account by the plaintiff, as to where his vehicle was in fact parked. 96 Mr Kahlia confirmed that the vehicle was not moved before Mr Karatas arrived at the premises after the accident. Mr Karatas said that, on his arrival, the truck was parked on what he described as a steep driveway or slope. He said that the front wheels of the truck were at the highest point on the driveway and the rear wheels were on the slope as he indicated by reference to Exhibit C10. 97 In cross-examination, he said that he had a good memory of the day. He agreed, by reference to photo Exhibit C18, that the rear wheels were "just below" where the line separates the slope from the flat pavement. There was no other challenge made as to Mr Karatas' credibility or reliability. 98 On the basis of Mr Karatas' evidence in cross-examination and by reference to photograph, Exhibit C10, the trailer was, on that basis, still well on the sloping driveway, even if the slope of the floor of the trailer was slightly less than 7.5 degrees. 99 I do not consider that the plaintiff's credibility regarding the position of the truck was successfully impugned. I will refer below to evidence relied upon by Mr Stewart as to the plaintiff's general credibility. Notwithstanding the findings made in that respect, I consider that his evidence as to the position of the truck and trailer to be substantially corroborated by the evidence of Mr Karatas, who I accept as a reliable witness. I, accordingly, accept the plaintiff's evidence on this aspect of the matter. 100 I also accept that he was told where to park the vehicle. He gave a plausible account that there was limited space on the first defendant's premises to unload trucks and it is clear that, at all material times, the premises were under the control and direction of the first defendant by its employees.

[39]

(2) The plaintiff was in the truck with the knowledge of the first defendant. If this second situation occurred, then there were three matters relied upon relevant to liability:- (a) whether the plaintiff was in the truck with the pallet jack which developed a sudden fault; (b) whether the plaintiff was in the truck with a pallet jack that was not faulty; (c) whether the plaintiff was in the truck with a pallet jack which was faulty to the knowledge of the first defendant. 102 Mr Stewart submitted that, of the above alternative situations, it was only the last circumstance which would attract liability on the part of the first defendant. 103 In regard to the issue of the pallet jack, Mr Stewart submitted that I should not accept that it malfunctioned. He pointed to the fact that a number of pallets loaded with tiles were successfully removed from the container prior to the accident without incident. 104 Mr Stewart submitted that I would accept Mr Kahlia when he said that he had not experienced problems using the pallet jack. It was submitted that one possible explanation as to why the pallet jack may have moved quickly, as the plaintiff contended, was that the plaintiff himself had pressed down harder on the lever of the pallet jack than he had thought and that this was the cause of the movement of it as described by the plaintiff. 105 In the plaintiff's written submissions, it was contended:- "6. It is submitted that there is no proper evidence given by the defendant of a system of inspection or that they did inspect the pallet jack either before or after this accident. Mr Kahlia said he only inspected equipment if there was a fault or it required routine service or maintenance. It is submitted that Mr Kipriotis' evidence (supported by his near contemporaneous statements made to his rehabilitation insurer) is to be preferred. " 106 In oral submissions, Mr Lakeman, of counsel on behalf of the plaintiff, emphasised that Mr Hely had identified the pallet jack as only one of the causal issues that led to the accident. He contended that the evidence established that the whole system of work implemented at the premises on the day in question was unsafe. In this respect, Mr Lakeman emphasised that the system involved not only the pallet jack and the truck being on an incline, but that there was a lack of assistance and there were other practical alternatives for the unloading of the pallet such as docks, side-loaders and other procedures. I will return to this aspect below. 107 I need only say on this last aspect that the evidence indicated that, by reason of limited space, the use of side-loaders would not have been a practical alternative.

[41]

Findings on liability 110 Mr Lakeman, in his submissions, relied upon the fact that the plaintiff was directed by the first defendant's forklift driver to park the vehicle on the ramp or slope and that, on the plaintiff's account, owing to a staff shortage, the first defendant asked the plaintiff to participate in the unloading operation. 111 It is clear that Mr Issa had no experience in unloading and that, given the very heavy nature of the loaded pallets, it is likely that Mr Kahlia did request the plaintiff to help unload the container. 112 As to the position of the truck and trailer, accepting, as I do, the plaintiff's evidence and that of Mr Karatas, I find that the truck and its trailer were substantially located on the ramp or slope of the premises. On the basis of Mr Karatas' evidence in cross-examination to the effect that the rear wheels of the trailer were located just past the join between the slope and flat area of the driveway whilst that position would diminish only very slightly the degree of slope beyond that opined by Mr Hely, nonetheless, the truck and trailer were located on a slope, as the plaintiff stated. This, together with the heavy weight of the pallet stacks, created a potentially unsafe work situation. 113 In relation to the pallet jack, there is no evidence, other than the plaintiff's own evidence, that there was in fact a defect or malfunction in the working mechanism of the pallet jack. It was as the evidence established, quite a simple device and was not the type of equipment that was prone to malfunctioning. I accept the evidence of Mr Kahlia that he had operated the pallet jack on a regular basis and had not detected any defect or malfunction when he had done so. 114 I also have regard to the fact that the pallet jack had been in use for only a relatively short period of time, having been acquired as new equipment some 12 or 18 months prior to the accident. There having been no post-accident inspection or investigation, the question of whether the pallet jack malfunctioned on the day in question is a matter that cannot be verified or corroborated by independent or objective means. 115 On the whole of the evidence, I am not satisfied that the pallet jack did malfunction. As I have earlier indicated, that finding does not necessarily lead to the conclusion that the plaintiff must fail on the question of breach of duty of care. 116 I consider that, on the probabilities, the plaintiff was manoeuvring, with the aid of the pallet jack, a heavily loaded pallet on a sloping surface, thereby rendering it difficult for him to operate the pallet jack with safety. On his account, the likelihood is that, whilst endeavouring to manoeuvre the loaded pallet with the pallet jack and with the forces of gravity operating, momentum built up as the plaintiff described and, in the course of operating the pallet jack, he inadvertently brought it to a sudden stop by pressing down on the handle or lever, thereby dislodging the tiles that caused him to fall from the container. He did so, however, in quick response to the loaded pallet jack which he had difficulty controlling as it commenced to move. 117 In the light of the above factual findings, it is necessary to consider the content or scope of the first defendant's duty of care. This is not a case involving injury occasioned by a defect or inherently dangerous condition of premises. Nor is it a case involving merely the relationship of occupier and the lawful presence by the injured party. The plaintiff, of course, was a lawful entrant but he in addition became by request a participant in unloading operations. 118 On the finding made above, the first defendant, by its employees, were in control, firstly, as to where the truck was parked and, secondly, as to the manner of unloading. The first defendant's duty of care was, in part, related to and determined by the fact of its position as occupier and, in part, as the entity in control of what was in inherently dangerous activity. As such, it had the responsibility to take reasonable care to protect the persons (including the plaintiff) who were entrusted with the task. The duty of care was partly informed by the fact that the first defendant's employees were aware of the heavy nature of the pallets to be unloaded and the fact that the plaintiff was in large measure required to work without proper assistance on a slope when the forces of gravity would render it difficult to control the pallet jack when loaded. 119 Accordingly, in essence, the first defendant's control over the unloading in the circumstances as found above created a particular relationship with the plaintiff to take reasonable steps to protect him from a foreseeable risk of injury. This it did not do. The fact of unloading heavy stacks from a container when not in a horizontal position gave rise to the risk that came home on the day of the accident. 120 I, accordingly, am of the opinion, based on the findings to which I have referred, that the first defendant was in breach of duty as alleged by directing the plaintiff to park the trailer on the slope and then to undertake the unloading of the container without appropriate assistance. 121 The plaintiff said that, when he visited the first defendant's premises in April 2007, he saw that the company had acquired an adjacent site. It did not have that additional area in September 2003. It was submitted in evidence that this was evidence as to the inadequacy of the site for unloading operations in September 2003. I do not, however, consider that it does. There were flat or level areas on the existing premises which should have been made available for the unloading operation.

[45]

Dr Conrad's report dated 1 May 2008 138 Dr Conrad re-examined the plaintiff on 30 April 2008. He recorded that, since previously seeing him, the plaintiff's condition had basically remained unchanged. He noted pain in the back with radiating pain to the left leg. He also noted pain and stiffness in the left leg, especially his left knee, lower leg and left ankle. He also noted that the plaintiff said he found it difficult to do a lot of standing, walking, going up and down stairs and squatting. 139 The plaintiff, on the history provided to Dr Conrad, was still working as a casual driver driving trucks. He told Dr Conrad he was working about five hours per day, working an average of 25 hours per week. He also told Dr Conrad that he had to take Panadeine Forte from time to time to relieve the pain. He also noted that he saw his general practitioner, Dr Johnson, from time to time and that Dr Johnson prescribed him Panadeine Forte. He had not seen any specialist doctors since the last examination. 140 Dr Conrad's opinions were expressed in very similar terms to those appearing in his first report. He, again, considered the plaintiff well-motivated and noted he was working an average of 25 hours per week and that he was able to do such work driving short distances. He also noted that, should the plaintiff's parents not be able to do the heavier part of the house and garden maintenance, then the plaintiff "might" need some six hours per week of home care assistance. 141 Once again, Dr Conrad did not expressly address the nature of any physiological basis for ongoing physical or economic incapacity and he did not state what his opinion was upon the plaintiff's ability to return to full-time truck driving, with or without a clutch driven vehicle. 142 The plaintiff did not tender any report from Dr Johnson. In ordinary circumstances in a case involving a claim based on ongoing physical incapacity, it might be anticipated that the claim would be supported by medical evidence from those practitioners involved in the case in a treating capacity and on an ongoing basis. There is no explanation as to why Dr Johnson was not called. A number of medical certificates by Dr Johnson were in evidence. These were dated 24 October 2003, in which the plaintiff was certified unfit for work for approximately one month between 30 September 2003 and 31 October 2003, a report dated 28 January 2004 certifying the plaintiff unfit for a period of approximately two weeks between 28 January 2004 and 13 February 2004, a report dated 1 March 2004 certifying the plaintiff unfit for approximately one month between 1 March 2004 and 31 March 2004, a certificate dated 31 March 2004 certifying the plaintiff unfit between 31 March 2004 and 4 April 2004 and a certificate dated 20 July 2005 certifying the plaintiff unfit for suitable duties between 25 July 2005 and 31 August 2005. 143 The first defendant tendered the reports of Dr Peter Burke dated 15 May and 26 June 2007, reports of Dr James Bodel dated 16 May and 22 June 2007, reports of Dr Johnson dated 5 June and 8 July 2007 together with the clinical notes of Dr Johnson, a report of Dr Sher dated 10 May 2004 and rehabilitation "closure reports". Additionally, the defendant relied upon the reports of Dr Honner dated 2 March in relation to the plaintiff's left wrist injury recorded as having been sustained on 9 November 1998.

[47]

Dr Bodel's reports 150 Dr Bodel, in his first report, noted that at that time (16 May 2007), the history given by the plaintiff was that he was able to manage personal care items such as showering, dressing and toileting without any particular difficulty. He also noted that he was able to manage household maintenance and cleaning activities but that those activities were performed at a much slower pace. This history is relevant in assessing the claim for past domestic assistance and care. 151 Dr Bodel considered that the plaintiff's overall prognosis was reasonable. He was prepared to accept that he had sustained some form of soft tissue injury to the lower back in the incident. He also noted that work was a substantial contributing factor to ongoing complaints and that his ability to find work on the open labour market "… has been minimally compromised by the injury". He considered that the plaintiff was capable of "near pre-injury duties with permanent modifications". He considered he should be able to continue with his then current work which was a slight modification of his pre-injury duties. 152 He did not consider that the plaintiff required domestic assistance for household maintenance and cleaning activities. He did consider that he may have required some assistance during the period that he was on crutches and he would have required about five hours' domestic assistance per week for heavy household cleaning and maintenance during a period of approximately four months. 153 In his report of 22 June 2007, Dr Bodel reviewed documents including reports from Dr Johnson and Dr Sher and the records of Concord Hospital. He said that the hospital records confirmed he had a significant injury to his left tibia and fibular. He referred to a report from Dr Johnson in which Dr Johnson stated that, on 2 October 2004, the plaintiff had "fully recovered and is fit for pre-injury duties". However, he also made mention of "dizzy spells". 154 Dr Bodel stated that he had been surprised on his first examination at the length of time that it had taken the plaintiff to get back to work. He considered that the type of fracture in question should have enabled him to return to modified duties within six to eight months, rather than nearly two years. He, again, stated that he appeared to be working in near normal duties and should be capable of undertaking his pre-injury duties. 155 The defendant, in addition to the medical evidence referred to above, also relied upon certificates of Dr Johnson dated 31 March 2004 which certified the plaintiff fit for "suitable duties" and his certificate of October 2004 in which he certified the plaintiff fit for pre-injury duties from 20 September 2004.

[48]

(a) The basis of the plaintiff's claim 156 The plaintiff's evidence was that he did not consider that he would be able to return to full-time work and, indeed, would not be able to work a 40 hour week. He said that since his return to work and presently he was delivering approximately two containers a day, although the amount of work would vary. He estimated that his working hours would be between four and six hours per day over a five day week. On that basis, his working hours would vary between 20 hours and 30 hours per week. 157 The plaintiff claimed that, prior to the subject accident, he often worked on six to eight containers a day, working 12 hour days and sometimes up to 50 to 60 hours per week. In other weeks, the number of containers may be down to two or three a day. 158 He said that he resumed work approximately 18 months after the accident on a part-time basis of four hours per day, five days a week, increasing to between four and six hours per day. 159 The plaintiff's credibility was challenged in cross-examination by Mr Stewart, in particular, in relation to his evidence that he had worked extremely long hours up to the date of the subject accident. Mr Stewart put to him in relation to the wrist injury sustained in 1988 that he had been off work for about six to eight weeks and brought a worker's compensation claim which was resolved for a lump sum in March 1999. He said that prior to going to the Worker's Compensation Court in March 1999 he had seen Dr Horsley (an occupational physician) and Dr Honner (orthopaedic specialist) in relation to the wrist injury. In evidence he said that the left wrist was "bad" in March 1999 and that he was taking pain killers, including Panadeine Forte daily. 160 It was put to him that he had given a history that he was working 20 to 25 hours per week as at March 1999. He agreed that he had given that history. 161 It was also put to him that he told Dr Horsley on 19 February 1999 that he had had great difficulty undertaking driving for period of more than four hours per day and he agreed that this history had been given. 162 Mr Stewart, accordingly, challenged the plaintiff that, having for approximately some 11 years or so suffered with significant left wrist injury (that is, between 1988 and 1999), he would not, as he told the Court in the present proceedings, have been able to work very long hours prior to the accident in September 2003. 163 The evidence by the plaintiff in this respect is less than satisfactory. I consider it is relevant to have regard both to the medical history associated with the wrist injury and the various histories given to Dr Horsley and Dr Honner as well as to the taxation returns commencing for the year ended 30 June 2000 which discloses a very low gross income of $18,368.

[50]

(c) The medical evidence 165 In evaluating past and future economic loss, it is, of course, necessary to have close regard to the medical opinions expressed in the medical reports in evidence. The plaintiff did sustain a severe injury involving a comminuted fracture of the lower third of his left tibia and fibular which required surgery and immobilisation. Whilst recovery from a fracture may, as some of the medical evidence suggests, be expected within 12 months, the outcome in all cases does not always correspond with expectations. 166 Dr Bodel accepted that the plaintiff did have a measure of continuing disability as at May 2007 and stated that he should be able to continue his current work with slight modification of pre-injury duties. He also accepted that his ability to compete in the open labour market had been minimally compromised by the injury. 167 Dr Burke accepted that he had a slight restriction of movement at the left ankle and that such restriction was consequent upon the factures. It said it was likely the present stiffness of the ankle will persist. 168 On the question of the claim of past and continuing incapacity, the significance of the injury and its physical sequelae are important matters, and there is a need to evaluate them by the medical opinion that suggests the plaintiff should be able to undertake fulltime work, albeit, with some modifications. 169 There is no suggestion in the evidence that the plaintiff is likely to have any significant deterioration or complications as a result of the fracture in the future. Mr Stewart of counsel objected to passages in Dr Conrad's reports in which statements were made to the effect that he considered on the balance of probabilities, that the plaintiff's working life would be curtailed by at least five years. 170 I allowed that evidence to be admitted, indicating in making that rule that the real question was the cogency and weight of the evidence. Dr Conrad does not at all explain the basis for his opinion that the plaintiff could or might have curtailment of his working life by five years. There is certainly no support from the treating orthopaedic surgeon, Dr Sher, or from any other medical practitioner to support such a prognosis. In the absence of Dr Conrad having identified any particular matters that would support and explain his abovementioned opinion, I do not believe that I should accept it.

[53]

172 I have referred earlier to the fact that the plaintiff did not persist in seeking to establish the actual value of his work the pre-injury years for Thunderbolt Carriers Pty Limited as reflected in the company's overall economic performance and by reference to any financial "arrangement" he may have had with his sister. Whatever arrangement he may or may not have had with her about his remuneration, is, as earlier discussed, a matter not disclosed by the evidence. 173 On the basis of his declared earnings for the year ended 30 June 2003, the plaintiff would only have received a net wage of $168.30 per week. He, of course, has the evidentiary onus of establishing any actual loss of earnings. 174 His declared earnings for the year ended 30 June 2003 is to be given some weight in determining the true value of his pre-injury earning capacity, although I do not consider it is necessarily determinative. Whatever the arrangement he may have had with his employer, I consider his earning capacity, and hence his loss of earnings, should have regard to all the evidence including his physical pre-injury capacity and other evidence that provides guidance as to his earning capacity, one such guide being available earnings in the community. 175 Mr Lakeman tendered and relied upon average weekly earnings as a measure of the economic value of the plaintiff's work on a full-time working basis. The Australian Bureau of Statistics produced as at February 2008 Australian average weekly earnings and a copy of the earnings was marked as Exhibit F. I have had some regard to the category "average weekly earnings, seasonally adjusted, males" for the period from November 2006 to November 2007. As disclosed in Exhibit F, the full-time adult ordinary time earnings range from $1,222.30 as at November 2006 to $1,294.90 as at February 2008 in respect of "full-time adult total earnings". Whilst I have some regard to these average earnings figures as a guide, it is not, in the circumstances of the present case, appropriate to adopt them as an actual measure of the plaintiff's working capacity having regard in particular to the personal history of his work since his wrist injury in 1988 and the income declared in the abovementioned pre-injury tax returns. They can only operate as a very general guide against which to evaluate the other evidence. 176 I note at this point that the plaintiff was paid weekly compensation from 30 September 2003 at the rate of $560 gross per week, totalling $26,717.72 and past out of pocket expenses of $10,452.99. 177 I set out below the assessment of past and future economic loss.

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(1) Past economic loss 178 On 30 May 2008, the plaintiff filed an Amended Statement of Particulars, a little over two weeks prior to the scheduled hearing. In it he claimed past economic loss at $1,300 per week for 78 weeks from September 2003 to mid 2005 being a total of $101,400. He claimed future loss at $1,000 per week for 17 years to age 65. 179 In Part D, Particulars of past economic loss, the basis for the claim was amended in terms set out in paragraphs 2, 4, 5, 6, 7 and 9 of Part D. In short form, it was claimed that, notwithstanding that the company, Thunderbolt Carriers Pty Limited, had gross earnings in excess of $2,000 per week it "… was unable to pay its employee the plaintiff monies other than as shown in his tax return" (paragraph 2). 180 In paragraph 6, it was stated: "6. Although the gross taxable earnings of the plaintiff were approximately $67,000 over the four year period, the plaintiff says that, but for the accident, he expected Thunderbolt Carriers' ability to pay an increase in wages to reflect the actual gross income brought into the company by the plaintiff." 181 The plaintiff then set out his amended claim in paragraph 7 of Part D of the amended particulars. In paragraphs 7.1, he claimed:- "7.1 The gross earnings brought into the company, Thunderbolt Carriers Pty Limited, before tax and losses through the personal exertion of the plaintiff, as shown in the company's tax invoice books for period 19 October 2002 to 29 September 2003 of $90,058 for 49 weeks being $1,838 per week gross." 182 In paragraph 9, the plaintiff set out the amount of post injury earnings for the financial years 2004 and 2005. 183 The plaintiff's evidence in chief as to his pre-injury earnings commenced on 18 June 2008 at transcript p.38. He agreed that his declared taxable income over the four years prior to the accident was less than $500 per week. 184 The plaintiff gave evidence that Thunderbolt Carriers did not employ any other driver than himself prior to 30 September 2003. He said that he was aware that the company's returns were significant as were its outgoings. 185 He was then asked:- "Q. Can you tell the Court why it was that you were prepared to work for the company receiving wages that were at one year as little as average $125 a week, when the gross haulage income that the company earned through your personal exertion was much greater?" 186 Mr Stewart objected to the plaintiff's claim being determined on the basis set out in the amended particulars. He observed that in the profit and loss account for Thunderbolt Carriers Pty Limited for the year ended 30 June 2003, total wages were shown at $30,000 (or $576.92 average per week). In evidence, the plaintiff said that the only employee of Thunderbolt Carriers was himself. 187 Mr Stewart's objection to the question was put on several bases. In this respect, he referred, inter alia, to the way in which the case had been "re-pleaded or re-cast". 188 The plaintiff proceeded to give evidence to the effect that Thunderbolt Carriers earned its income "solely on one truck", the one truck being the one that he drove. 189 He was taken to his income tax return for the year ended 2003 and was asked the question:- "Q. Why were you prepared to work for the company that sort of remuneration?" 190 The question was objected to. 191 In the plaintiff's absence, the issue was discussed with counsel and the question raised as to whether or not, if there had been any undeclared earnings by the plaintiff, whether or not issues of self-incrimination might arise. 192 Mr Lakeman of counsel responded that he was not going to suggest that there was undisclosed income in the evidence he was seeking to adduce (transcript, p.42). Mr Lakeman then stated:- "The submission at the end of the day will be this: I'm going to say that there is a complicated family arrangement and that this man obviously has a reasonably high earning capacity and that for whichever reasons that he will give you, he has chosen at this stage not to exercise, and that your Honour will find that he has a loss of earning capacity and it will be on the basis of that loss of earning capacity that the plaintiff will be seeking to claim into the future and probably will be seeking some claim in respect of the past." (transcript, p.42) 193 Mr Lakeman stated that it was his understanding that there was "an arrangement with his sister where they were building up the company and they hope to get a financial benefit further down the track" (transcript, p.42). 194 Mr Lakeman accepted that if he were to embark upon that approach, there would need to be evidence of what the "arrangement" was between the plaintiff and his sister. 195 Mr Stewart responded that as recently as 30 May 2008 when the amended particulars were filed, there was no suggestion of any arrangement (the company having operated for some 17 years) whereby there would be some profits or an expectation of profits in which the plaintiff would share (transcript, p.43). The plaintiff, of course, was never a shareholder of the company. 196 Mr Lakeman later stated that the plaintiff's case was that he had been prepared "to work for very little" (transcript, p.45). He stated that the arrangement was "an arms-length transaction" and that the plaintiff could offer an explanation as to why he was prepared to work for the wages declared. 197 Subsequently, Mr Lakeman withdrew the question referred to in paragraph [185] and continued at transcript, p.47. He then embarked upon a question as to what the plaintiff's present intentions were so far as the future was concerned. The plaintiff then proceeded to deal with his ambition to conduct a business. The issue as to the basis upon which the plaintiff had worked and been remunerated prior to the accident and the "arrangement" with his sister, as noted earlier, was not pursued. 198 The first defendants' submissions as set out, in the Defendants' Schedule of Damages, recorded the plaintiff's gross income and wages in the 2002 and 2003 tax years as respectively $7,000 and $10,000. In respect of the 2003 year, it analysed the plaintiff's earnings as being $192 gross per week or approximately $170 net per week. 199 The plaintiff's calculation of net earnings based on average weekly earnings at a rate of $1,042.10 gross per week ($54,189 per annum), based on 2004 tax rates (income tax of $12,691 and Medicare rate at 1.5% or $813) resulted in a net weekly amount of $782. 200 In the plaintiff's schedule, the same basis in respect of the 2005 and 2006 years resulted in net weekly wages respectively of $858 and $898 net per week. 201 In final written submissions, it became clear that the plaintiff's claim was essentially based on the following propositions:-

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(9) A more realistic approach was to have regard to average weekly earnings or average earnings in employment categories in the industry to ascertain his earning capacity rather than to adopt his pre-accident taxable earnings. 202 I have set out in paragraph [172] a summary of the gross earnings of the plaintiff declared in his income tax return for the year ended 30 June 2000 to the year ended 30 June 2003. The average of those four years would result in the figure of $16,742 gross per annum or $321.96 gross per week. 203 The gross total wages declared by Thunderbolt Carriers for the year ended 30 June 2000 was $30,000 or $576.92 gross per week. 204 Although counsel for the plaintiff did not develop a submission based upon the principles discussed by the High Court in Husher v Husher (1999) 197 CLR 138, he did contend that the decision in that case had potential relevance to the plaintiff's case. 205 Normally, in cases requiring the assessment of past wages, there is evidence of the amount that the plaintiff was earning prior to the accident, the period for which the injured plaintiff was not earning as a consequence of the accident and an assessment, based on those matters, of the loss suffered to the date of trial. As has been noted in the case of an employee, it is generally not a difficult task whereas in the case of a self-employed person it can be proven by a comparison of pre and post accident earnings: Mathews v United States Department of Defence [1999] NSWSC 1141 per Rolfe J at [113]. 206 In some circumstances, for example, those of a self-employed person, where there is a lack of documentation and, accordingly, a lack of evidence as to the actual drawings of an injured plaintiff prior to the accident, evidence has been led of professional salaries of comparable employees: Grincelis v House (1998) 156 ALR 443 at 459. 207 Where, in the case of a claim by an injured plaintiff, there is no evidence to enable a loss of past earnings to be quantified, it may be that the trial judge is unable to allow anything in relation to economic loss prior to trial. See, for example, Gumbert v Gumbert [2000] NSWCA 17 at [26]. 208 In relation to the High Court's decision in Husher (supra), the following propositions and principles may be derived from the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ:-

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(9) However, the inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. 209 In Husher (supra), the plaintiff, a block layer, carried on business in partnership with his wife. There were no other employees of the business other than the plaintiff and it was his skill and labour that generated income for the partnership. His wife's only contribution was to perform bookkeeping and message taking tasks. 210 In resolving the question of impairment causing loss in the circumstances of Husher (supra), it was a critical fact that the plaintiff was a member of a partnership at will and had the capacity to control and dispose of income generated in the course of the partnership. 211 Whilst the plaintiff in Husher (supra) only received 50% of the income generated from the partnership, he had the capacity to bring the partnership arrangements to an end and that was of critical significance in measuring his earning capacity and his financial loss. 212 In the present case, the plaintiff, for reasons not disclosed by the evidence, is said to have worked for his sister's company on a basis whereby he was not properly remunerated for the hours of work performed. The evidence does not disclose whether any "arrangement" he had with his sister was something he was in a position to control and change at will. The plaintiff's sister, presumably, contributed capital to the business of Thunderbolt Carriers Pty Limited but there is no evidence as to why the plaintiff was content to accept the wages which he declared in his income tax returns in the years prior to the accident. 213 The High Court in Husher (supra) at 149, in the context of discussing the loss of future earning capacity, adverted to the inquiry as being about what could the plaintiff in that case have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. As the Court observed, only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff's earning capacity. 214 It may well be, in the present case, that the plaintiff's earning capacity on the open labour market had a value in excess of the wages he received from Thunderbolt Carriers Pty Limited. On the probabilities, he did have an earning capacity greater than his declared earnings established. There is evidence, however, that he had sustained a prior left wrist injury that had both produced symptoms for some 11 years up to 1999 and that had, to an extent, limited his employment. Whether and to what extent any such limitations flowing from his wrist injury restricted his hours of work prior to the subject accident is not known. Balanced against that, some regard may be had to the gross haulage income of Thunderbolt Carriers Pty Limited ended 30 June 2003 and his individual contribution to its operations as a driver and I do not leave that out of account. 215 The plaintiff, as earlier stated, has the evidentiary onus of establishing what economic consequences resulted from the injury. The way in which the evidence was adduced in these proceedings creates particular difficulties in assessing the diminution of his earning capacity and the extent to which it was productive of financial loss prior to the date of trial. As the High Court in Husher (supra), observed both elements are important. It is for the plaintiff to discharge the onus of establishing the nature and extent of the economic consequences flowing from any loss of earning capacity. 216 On the evidence, it is not, in my opinion, open to the plaintiff to simply rely upon the haulage income of Thunderbolt Carriers Pty Limited as a direct personal measure of his loss. There was no evidence adduced from the plaintiff's sister as to how the income in the year ended 30 June 2003 was derived and the extent to which it was dependent upon the plaintiff's work as against work that may have been undertaken in other ways, eg, by part-time or replacement drivers. 217 I do not consider that the average weekly earnings of itself provides an index or measure of the economic consequences of the plaintiff's impairment of earning capacity, although it does provide a general framework within which to assess the claim. The average weekly earnings of the plaintiff, based on his declared income for four years prior to the accident, was, as noted earlier, $321.96. I accept the plaintiff's evidence that he did make a substantial contribution to the haulage income of Thunderbolt Carriers Pty Limited in the year of the accident. However, I am not satisfied to the required standard that he consistently worked the long hours he said he did before the accident. The history of his prolonged wrist disability is one matter that I have taken into account in so concluding. The low level of declared earnings is another. 218 In determining economic consequences of the plaintiff's injuries, I consider it is appropriate to bring into account:-

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TOTAL $193,774.19 252 I propose to allow counsel the opportunity to check the calculations involved in the above assessment and to provide an agreed schedule of damages which will give effect to the judgment and due allowance being made for interest calculations. 253 I reject the first defendant's claim for a reduction of damages pursuant to s.151Z(2) of the Workers Compensation Act. Section 151Z(2) provides for the reduction of an injured worker's damages awarded against a third party (that is, a party other than the worker's employer) by an amount by which any contribution the third party would (but for the Act) be entitled to recover from the employer, as joint tortfeasor or otherwise, exceeds the amount of the contribution recoverable. 254 Mr Stewart, for the first defendant, submitted that the plaintiff's employer should also be found liable, having (it was argued) failed to take reasonable care to provide a safe place of work for its employee. Counsel for the first defendant pointed to the absence of evidence of the employer having taken steps to inform itself of the circumstances in which deliveries to the first defendant's premises were effected (in particular, the position that the plaintiff was directed to park). The first defendant contended that in light of the plaintiff having visited the premises some 15 times prior to the accident, the employer's failure to inquire constituted a breach of its duty of care: Transcript, 4 July 2008, at 216. 255 The evidence does not establish that the employer ought to have known that the first defendant's premises posed a risk of injury. The plaintiff had frequented the premises before without incident. It was not a case where the employer know or ought o have known of circumstances that could pose a risk. There was no evidence that, as a matter of practice, the plaintiff had previously been required to park on the slope and assist in unloading his vehicle when in that position. There is, in my assessment, no evidence in these proceedings to support a finding of negligence against the plaintiff's employer. Accordingly, s.151Z(2) of the Workers Compensation Act has no role to play with the result that no reduction in the plaintiff's damages award as against the first defendant is appropriate or necessary. 256 I, accordingly, order and direct as follows:-