Porter v Bonojero Pty Ltd [2000] VSC 265

Supreme Court of Victoria|2000-06-27|Before: Eames J

TORT - negligence - master and servant - defective truck seat causing aggravation to back injury -- worker also injured by falling from truck cabin when alighting - top step missing - whether plaintiff entitled to bring common law proceedings against employer - whether either injury a transport accident and subject to Transport Accident Act 1986 - plaintiff paid compensation pursuant to South Australian legislation - whether receipt of compensation makes Accident Compensation Act 1985 inapplicable - Choice of law - whether torts arose in Victoria or South Australia - whether s.54(1) and s. 99(3) of Workers Rehabilitation and Compensation Act 1986 would preclude damages claim in South Australia - damages - contributory negligence - John Pfeiffer Pty Limited v Rogerson

The plaintiff, Trevor Clarence Porter, brings a claim for damages for personal injuries suffered in two separate events in 1993 whilst employed by the defendant, Bonojero Pty Ltd (hereafter referred to as "Bonojero"), as a truck driver. The defendant is a company incorporated pursuant to the laws of the State of South Australia and traded as Mt Gambier Tyre and Brake Centre, which operated from Mt Gambier in South Australia.

The plaintiff was first employed by the defendant, on 7 April 1993 after approaching one of the managers of the defendant at its premises at Mt Gambier. The plaintiff was, and remained throughout his employment, a resident of Heywood, a small town in the Western District of Victoria, about 70 kilometres from Mt Gambier. The defendant was employed to transport wood chips to the wharf at Portland. He was to collect the wood chips from various forest locations in Victoria where a mobile chipper would be operating.

The vehicle supplied to the plaintiff was an "International" prime mover, a 1979 "S line" model which was owned by the defendant as one of a small fleet of trucks. When he commenced employment with the defendant he collected the truck from the defendant's yard at Mt. Gambier. The truck was old and, I find, in a poor state of repair. It was the oldest truck in the fleet and was constantly requiring work, both by the plaintiff and by the mechanics in Mt Gambier. During his employment with the defendant - which lasted some four months - the truck was given defect notices on a number of occasions by relevant authorities, necessitating repair work to be done before it was deemed roadworthy.

Attached to the truck, for the collection and carriage of wood chips, was a high sided trailer of some 25 tons capacity. It was intended, and proved to be the case, that he would only perform this work in Victoria, although he would return the vehicle with which he was supplied to the defendant's yard at Mt Gambier for servicing.

At first, the chipper was located at Hotspur (about 70 km from Portland), then the chipper moved to Greenwald, and then to Rennick. All of those locations are in Victoria. To get to the chipper the truck and trailer had to be driven off bitumen roads and on to dirt tracks, some of which were very rough. At the various locations the time spent driving on bush tracks would vary between five minutes at one location, to thirty minutes at others, for each trip. He would make about three or four return journeys to Portland from the chipper each day.

The plaintiff's claims relate to two different events. In the first place he alleges that he was injured by virtue of a defect in the seat of the truck. The defective seat, he says, meant that he was exposed to excessive pressures on his spine, thus aggravating an existing degenerative problem with his lower back. When driving the truck carting woodchips the plaintiff said it "wasn't real comfortable at all", but it was particularly difficult on the bush roads. For ease of understanding, I will refer to this cause of action as "the seat injury", although, as will be seen, it is common ground that the seat did not produce a new injury, so much as an aggravation of existing injuries. Although the defect of the seating was causing him continuing problems - to the point where the plaintiff was contemplating leaving Bonojero, and seeking work elsewhere - the plaintiff continued working until the event which represents the second cause of action. The second event I will call "the fall injury".

As to the fall injury, the plaintiff alleges that apart from the defective seat, the truck was further deficient in that it was missing the top step to the driver's cabin (being one of two steps, which were originally installed on the truck). On 4 August 1993, while at Portland, the plaintiff, when attempting to step frontwards out of the truck (that is, with his back to the cabin as he exited), lost his balance and fell to the ground, thereby causing a very severe injury to his lower back. The plaintiff has not worked since that day.

Before dealing with the circumstances of the two events, it is first necessary to provide some history of the plaintiff's employment, and of his health, prior to his employment with Bonojero.

THE MEDICAL HISTORY PRIOR TO EMPLOYMENT WITH BONOJERO

The plaintiff was born on 27 June 1960. He left school in 1975. The plaintiff married Jennifer Anne Porter in February 1980 and had a daughter, born 1982, and a son, born 1984.

The plaintiff had a long and productive work history. Throughout his working life, however, he suffered a series of extremely serious back injuries - mainly during the course of employment - with the result that by the time he commenced employment with Bonojero, although then only 33 years of age, his back bore the signs of severe degenerative damage, and he was vulnerable to further injury to his back, at any time.

In 1976, when aged 16, he fell off his motorbike after running into a dog, and he badly bruised his kidneys. He did not believe that he suffered any damage to his back at that time, but there was some evidence of injury to his head.

On 5 January 1979, whilst employed as a labourer at Thomas Borthwick Pty Ltd, he suffered severe pain in his back when lifting a bag of tripe. He was admitted to hospital and was placed in a full torso cast and was treated with traction and physiotherapy. He was off work for some four and half weeks and upon returning to work on light duties experienced low back pain, with pain radiating into both legs, and numbness on the outer side of his right thigh. He was laid off from work some two weeks after returning to his job. Mr Paul Kierce, an orthopaedic surgeon who treated him at the time (and subsequently) concluded that he had a weakness in his lower back and that he had strained a degenerate lumbo-sacral joint and would always have a weakness there. An x-ray taken at the time showed significant narrowing of the interbody space at L5-S1. Mr Kierce advised the plaintiff that if it was possible for him to get a light job then that would be ideal, although Mr Kierce felt that he was fit to resume any occupation. (On 2 December 1980 a worker's compensation claim against Borthwicks was settled upon payment of $4,000 for weekly payments due to him. On 27 November 1985 common law proceedings brought against Thomas Borthwicks were settled by the signing of a deed of release which recited that $40,000 was paid pursuant to workers' compensation entitlements and a further $5,000 in settlement of common law proceedings).

In 1980 the plaintiff was a passenger in a motor vehicle which was struck from behind and pushed into a drain. He hurt his neck and his ankle and suffered headaches, which recurred over a few months.

On 14 October 1989, whilst working for Wimmera-Mallee Bailers Pty Ltd as a truck driver, the plaintiff hurt his back, again, whilst pulling down on a rope to secure a tarpaulin over a load of hay. The rope slipped and he fell to the ground on his buttocks, and felt severe low back pain. He was admitted by his local doctor to the Heywood Hospital where he received traction, and was seen again by Mr Kierce on 6 December 1989, at which time he complained of severe pain to the right thigh, right shin and foot and was experiencing pins and needles. On 7 December 1989 Mr Kierce performed a laminectomy, observing at the time that the fifth lumbar nerve root was compressed by a massive herniation of the disc between L4 and L5. He decompressed the right fifth lumbar nerve root and the plaintiff was discharged from hospital on 21 December 1989.

Mr Kierce's opinion in February 1990 was that the plaintiff had regained a good range of movement and no longer had leg pain. Mr Kierce stated that he was fit for work, providing that it did not involve the lifting of weights greater than 15 kilograms, prolonged bending, the driving of machinery which gave rise to vibrations, or the use of heavy jarring implements such as picks and shovels. In the decade between the injury in 1979 and the further injury in 1989 the plaintiff had often engaged in work driving heavy equipment which would have jarred his spine, and he also worked, on occasions, in situations which required bending and lifting. But after returning to work in 1990 the plaintiff was primarily employed as a truck driver and from September 1990 until February 1993 he was employed as a driver with the firm TMTS. He then transferred to Brian Smith, for whom he worked for seven weeks, before joining Bonojero.

The plaintiff had been with TMTS for 128 weeks when he left it in February 1993. He had been driving a truck to Melbourne from Millicent, about five times per week delivering toilet paper. He returned with a load of pulp on each trip. He had also been required to drive to and from Sydney for about twenty days per year. When driving the Sydney run, the plaintiff would make two return journeys per week. That driving was causing him pain in his back, and that fact, together with the fact that the job required him to be absent for long periods from his home in Heywood, led him to resign from TMTS. He took work with Brian Smith, carting wood chips between Tarpeena and Portland. The job with Smith, although not having any long-haul trips, had the disadvantage that it required that he live in Mt Gambier. The plaintiff then changed to Bonojero because it meant he could live at home with his family at Heywood during the week.

There is considerable dispute on the evidence as to the severity of the symptoms, and limitations, which the previous injuries had already caused to the plaintiff before he commenced work with Bonojero. The plaintiff said that whilst his work from 1979 until his employment with Bonojero in 1993 undoubtedly caused him varying degrees of pain and discomfit he did not miss work on account of his back condition. Although he was out of work from time to time over those years his unemployment was due to factors unconnected to his health (and despite his willingness to work) save for the limited periods of convalescence after his major injuries in 1979 and 1989.

The plaintiff's action was originally set down for trial by jury, but counsel on both sides agreed that the many complex issues which were raised in the case made it appropriate that the case be heard by judge alone, and I made that order. Apart from disputing the allegations of negligence, and alleging contributory negligence (if negligence was proved) there was significant dispute by the defendant as to the extent of any damage and losses suffered by the plaintiff. Furthermore, the defendant submitted that there was no claim which the plaintiff could bring, in any event, because the torts (if they occurred) took place in South Australia, and by a combination of South Australian and Victorian law the plaintiff's common law rights of action had been abrogated by statute.

It was agreed between the parties that the outcome of the jurisdictional arguments would depend, to a considerable degree, on findings of fact, and, accordingly, it was agreed by counsel that I should hear all of the evidence and resolve all questions of fact before determining the questions of law which arise in the case. It was apparent that the defence of the action was of interest to insurance bodies and compensation agencies in addition to Bonojero and it was regarded as something of a "test case", with respect to the jurisdictional issues, which it raised.

As I will later note - when assessing damages - it is agreed on both sides that if the plaintiff makes out his case for negligence as to the seat injury, damages would not, then, exceed a modest sum of $5000. It may be thought unnecessary, therefore, for me to deal at length with the evidence on that issue, or to elaborate my reasons for making findings of fact, but the issues raised as to the seat injury are important as to questions of credit, generally. Accordingly, I will deal with the evidence in some detail.

The plaintiff's claims as to negligence are confined, in each case, to an allegation that both as to the seat injury and the fall injury he suffered injury by virtue of the defendant's failure to supply him with safe plant and equipment, namely, a safe and properly equipped truck.

The plaintiff alleges that during his employment with the defendant from April to August 1993 he was supplied with a truck which had defective seating, which caused him to suffer pain and aggravation of his back symptoms. The plaintiff said that the defects of the seat constantly placed stress on his back, but particularly so when the truck was driven on rough roads.

The plaintiff said that the pain which the inadequate seating caused became most pronounced in the last five weeks of his employment with Bonojero and was so severe that he was contemplating, he said, leaving the employment with Bonojero and seeking employment as a driver with another company, one which he knew would provide a truck with adequate seating for his purposes.

Counsel for the defendant submitted that I should conclude that there nothing wrong with the seat, and that the problems which the plaintiff was experiencing with his back would have been experienced with any vehicle, and were attributable to his pre-existing injuries and degenerative disease. Mr Curtain QC, senior counsel for the defendant, submitted that I should find that even before the fall injury the plaintiff had decided to abandon truck driving as an occupation, and that there was no additional injury or incident of negligence on the part of the defendant which played any part in that decision.

In the course of his evidence-in-chief the plaintiff identified the deficiencies in the seat as being constituted both by unusual movement of the seat and also a slope in the seat. He attributed the pain which he experienced in his back to both factors. The seat was operated by a compressor which pumped the seat up until it was full of air but it would cushion out a bit when you sat on it, the plaintiff said. Then, when you hit a bump, it would "bottom out". The plaintiff said that there was movement in the seat, forward and backward, when changing gears.

The plaintiff was closely cross-examined as to the possible causes of the claimed movement forward and backward (and also sideways) of the seat. The plaintiff said that the seat was attached to a frame by bolts, and was missing some of the nuts to the four bolts which attached the seat to the frame on which it sat. The plaintiff said that the seat would tilt backwards and forwards every time he went to change gears and it was not stable side to side, either, because the seat was loose on the passenger side. The sideways movement was hazardous when alighting from the truck.

In the end, however, during cross-examination, the plaintiff said that it was not the movement of the seat which was causing pain in his back, but the fact that the seat sloped forward and to the left. The plaintiff said that was due to the fact that the seat had hardly any padding left, and the back of the seat was very worn, with bits missing out of it, and it had an old sheepskin, or lambswool, covering over the seat, with wood under the lambswool.

Mr Curtain, senior counsel for Bonojero, submitted that the allegations made by the plaintiff as to defects of the seat were without substance, and his explanations for movements in the seat were implausible and confused. The deficiencies in his evidence as to the nature and origin of the defects in the seat were attributable, Mr Curtain submitted, to the fact that the allegation of defects was a fabrication, and that the plaintiff's back symptoms were due to the natural progression of his degenerative disease.

There was undoubtedly some confusion and uncertainty in the plaintiff's evidence as to the particular defects, or the precise mechanism, which might have produced the unusual movement of the seat that he described. In part, that confusion and uncertainty was due to what I consider was some element of reconstruction in the account given by the plaintiff as to the likely cause of the movement in the seat. In saying that, I do not consider that there was any element of deliberate invention in the account given by the plaintiff, but it was apparent from his answers that at times he was casting his mind back by virtue of the challenging questions he was being asked, and was speculating as to the possible causes of the movement which he recalled. In effect, it seemed to me that it was only during cross examination, and after he was taken through various hypotheses as to the possible causes of movement in the seat, and the effect of that movement, that the plaintiff concluded that it was not the movement of the seat which caused him trouble, but the slope of the seat. That could, of course, support the contention of fabrication levelled by Mr Curtain, but I do not believe that is the explanation. Notwithstanding the very strong attacks made on his integrity, Mr Porter struck me as a man without artifice, and as a totally honest person, whose limited education and lack of guile did not always serve him well in the witness box.

The confusion or uncertainty in the plaintiff's evidence was not entirely his fault. When being challenged to identify the nature and origin of the movement in the seat the plaintiff was not provided with a photograph or plan of the seat. In addressing questions as to the mechanism of the seat, its undercarriage and bracing points, the verbal descriptions of the seat and its components as articulated by the cross examiner and the plaintiff were at times confusing and unclear. It seemed to me that the plaintiff had not really turned his mind to the possible mechanism for the defects in the seat, and the precise impact of the deficiencies upon his back, until he was in the witness box. There was nothing at all improper in the questioning, but in my view the approach adopted exaggerated the plaintiff's tendency to engage in reconstruction, when apparently invited to do so.

For what must have been tactical reasons, Mr Curtain did not invite the plaintiff to make use of a photograph or scale drawing of the seat so as to assist him in his answers and to ensure that he and the questioner were clear as to the type and features of seat which were being discussed.

It later became apparent that the defendant was in a position to have shown a photograph to the plaintiff of a seat which counsel for the defendant would later contend was similar to that which had been in the truck. Such a photograph was produced by junior counsel for the defendant to the witness Mr Hellyer, who was called on behalf of the defendant. The photograph was tendered as exhibit D12. Hellyer and, later, both Mr Sinclair and Mr Gamble - also defence witnesses - agreed that Exhibit D12 showed a seat very similar to the one which was on the truck. The plaintiff was never shown that photograph.

The plaintiff was, however shown a photograph of a seat (Exhibit Q19) during re-examination by his own counsel, and adopted that as being very similar to the seat which he had used. That photograph was one of a batch of photographs produced by the defendant in response to a call for production made to defence counsel by counsel for the plaintiff at the end of the plaintiff's cross-examination. Counsel for the defendant initially objected to production of those photographs on grounds of privilege but subsequently they were tendered by Mr Meldrum and became Exhibit Q. Although the plaintiff had said that his seat was very similar to Q19 the structure of the base of the seat in that photograph was very different to that shown in D12 and later adopted by Hellyer, Gamble and Sinclair as being very similar to the seat in question. The plaintiff was never given the opportunity to compare the seats shown in the two photographs, and as I said, had no photograph in his hands, at all, when he was cross-examined. In these circumstances, I consider that the fact that the plaintiff engaged in a degree of reconstruction in his evidence of the seat is hardly surprising. Likewise, I consider I should be cautious before concluding that uncertainties, vagueness or apparent inconsistencies in the plaintiff's explanations for the movement of the seat should be attributed to fabrication on his part.

Mr Curtain submitted that I should not draw any adverse conclusion against the defence, nor make allowance for the plaintiff's evidence, on account of his failure to use photographs when cross examining the plaintiff. Mr Meldrum, he said, had photocopies of the photographs in Exhibit Q, which he had obtained from an FOI request to the South Australian WorkCover authority, and he could have used those in questioning the plaintiff in evidence in chief. Mr Curtain did not say whether had Mr Meldrum attempted to do so he would have objected to the use of the photocopies of photographs, which he later contended had been attached to a privileged report, but even if he would not, it was not in evidence in chief that the confusion arose; it was only in cross-examination that the deficiency in questioning without a photograph as a reference, and aide, became apparent.

The plaintiff's contention as to the abnormality of the seat was supported by Mr David Evans, a friend and fellow resident of Heywood, who said he had travelled in the truck three times, and driven it twice, once for the journey from Mt Gambier to Heywood. He had also accompanied the plaintiff on one occasion when he collected wood chips and took them to Portland.

The evidence of David Evans, in my view, is entirely believable as to the fact that the seat, for whatever reason, was uncomfortable to sit on when driving the truck. He said the seat tilted forward and to the left, at a sharp angle (which counsel agreed he had demonstrated as being as much as 30%), and moved backwards and forwards. He said that there was a sheepskin cover on the seat and the seat was uncomfortable; you had to brace yourself to stay in the seat because of the slope. He attributed the slope of the seat to a fault with the frame underneath the seat, rather than to the fact of there being missing padding. He considered that so far as padding was concerned, the seat was alright, although it was missing a little bit of padding.

Mr Evans was invited to venture opinions as to what may have been the cause of the tilt and the uncomfortable nature of the seat. It appeared to me that in offering opinions on those matters, as invited, he was not seeking to assert that he had made a particular observation, himself, as to the frame, the bolts or any items which could have been the explanation for the defects in the seat. One is left, however, with his clear evidence that the uncomfortable nature of the seat, and a slope, was something which he noticed. It may well have been that in his recollection he exaggerated the angle of the slope, but if so then I do not consider that he did so deliberately. Save for having reservations about the degree of the slope in the seat, I believe his evidence.

The plaintiff's wife, although stating that her husband had complained to her about the seat, and had had her write a note for the mechanic complaining about the seat, said that she had travelled in the truck only once, as a passenger, and had not observed the seat.

The plaintiff's contention was disputed by three witnesses called by the defendant, two of whom, Dean Gamble and Robert Sinclair, said they had worked as mechanics for the defendant in 1993, and one, Peter Hellyer, who was a driver and part-time, but unqualified, mechanic, he said, at that time.

Peter Hellyer had been employed by the defendant as a driver for about ten years, having ceased employment in February 2000. He said that he would have driven the plaintiff's truck in 1993, and said he never experienced any difficulty with the seat. His belief was that the company had disposed of the truck probably about five years ago, that is, approximately 1995. He had no specific recollection of any particular journey in the vehicle, nor could he say that he actually had driven it in 1993. At the furthest, if he had he driven it, he might have driven it 60 to 80 kilometres, perhaps, on any journey, he said. He could not recall a sheepskin cover on the seat. He conceded in cross-examination that the seat had "wear and tear" and a bit of its stitching was undone, but said its upholstery was "virtually intact". The seat had some sideways movement, but not excessive, and not abnormal. He said "there was movement there, whether it was going up and down, it could go up and down at the same time as it be moving slightly sideways and you wouldn't (sic) notice it, but not to the point where you'd sort of say, this is - that she was unusual".

Dean Gamble was a mechanic who had been, and remained, in employment with the defendant since 1992. Mr Gamble, the junior mechanic, said that he would work on weekends if required to do so. The truck would be given a monthly general service and he would drive it for the purpose of moving it into the workshop. He would drive it at least once a week in that way. He said that in 1993 it had a "Cush-N-Aire" seat. When shown Exhibit D12 by counsel for the defendant he said that that seat was "very similar" to the seat in the truck. He did not think that there had been a lambswool seat cover on it. He said that the plaintiff had complained about pain in his back, but had not identified the seat as the cause of his complaints. He said that had the seat been broken then the mechanics would have fixed it.

Mr Robert Sinclair, the head mechanic, said that worked for Bonojero on a couple of occasions. He ceased to work for Bonojero at the end of 1993, having been there for 12 months on that occasion. He said that in 1993 he would have driven the vehicle for short distances for checking mechanical matters. He recalled no faults with the seat and did not believe that it would have had a pronounced lean or would rock forwards and backwards or move sideways. Had it been missing upholstery, then it would have been fixed. When shown exhibit D12 he said it was about the same sort of seat as had been in the vehicle.

I was not at all persuaded that Hellyer had been driving the truck over any distance, if at all, in 1993. He was not a mechanic with the company; although he saw himself as such, neither of the two qualified mechanics referred to him as being a mechanic on the job. His evidence was, for the most part, evidence of his assumption of what he would have observed had he driven the truck, and if it had the deficiencies identified by the plaintiff.

Having initially contended that there was nothing unusual in the movement of the seat because he would have noticed it if there had been, Hellyer later said that he actually recalled movements in the seat, and could describe the movement, with some precision. He said that the seat "possibly" would have had some sideways movement. All truck seats, he suggested, must have some "slight" sideways movement, both during driving and when stepping out of the seat. I doubt whether Hellyer actually had any recollection of the seat, but if he did then there must have been something unusual in the movements of the seat for him to retain an apparent precise recollection of it, when it was just one of a number of trucks with which he was associated. I did not find Hellyer to be an impressive witness. For whatever reason, he seemed anxious to support what he thought was the case for the defendant, a tendency that became more pronounced as his cross-examination progressed.

None of the three witnesses could actually recall the plaintiff. Gamble and Sinclair were both honest witnesses. Neither was prepared to say that they definitely did drive the truck in 1993. I consider it likely that one of them, at least, must have done so, but in my view the probability is that they would have driven it for a very short distance only, probably to move it into the service bay, and the deficiencies in the seat would not necessarily have become apparent to them. They regarded the truck as an old one, which had a lot of faults. The work of the yard on Saturdays, which was when this truck usually was worked on, was extremely busy. Notwithstanding the fact that, as I find, the plaintiff complained about the seat, I do not consider that either of the witnesses would have regarded that as a matter of importance or as causing them to take particular note at the time, or to now remember the deficiencies of the seat. (No records were kept of what work was done on the trucks or was requested by drivers to be done.)

The fact that three witnesses gave evidence that there was no defect in the seat in 1993, as opposed to the evidence of the plaintiff and Evans (who was a friend of the plaintiff), might suggest that the allegation has not been proved, but I was satisfied that the allegation was proved on the balance of probabilities. I did not find the evidence of the witnesses called by the defence persuasive, and other evidence lent weight to the plaintiff's account.

The plaintiff said he was forever complaining about the seat. He said he complained both to Mr Sinclair and also to Robert Gabrielli, one of the owners of the business. He said Robert Gabrielli told him to see Sinclair and that Sinclair would work it out with Jack Gabrielli, who was effectively in charge of the business. The plaintiff said that Sinclair eventually said to him that he would speak to Jack Gabrielli. The plaintiff said he later had an angry confrontation with Sinclair, on one Saturday morning, demanding that something be done about the seat. He said that on that occasion, when Sinclair said he would contact Jack Gabrielli, the plaintiff insisted that he do it at once, so that he would know where he stood. He said that Sinclair went away and made a phone call and returned and said that Gabrielli was going to supply a new seat for the truck. The plaintiff said that was about four or five weeks before he fell from the truck and was injured. In fact, the truck seat was not altered and the plaintiff said that about two to three weeks before his injury he left a note, written by his wife, at his dictation, which said, "could you fix this fucking seat please".

The plaintiff and his wife were accused of fabricating their evidence of complaints being made about the seating and of the demands, both by a written note and orally, that the seating be replaced. Mr Sinclair did not recall any such incidents but he acknowledged that drivers did leave notes in which they required repairs to be done, and that the work requested by such notes was not necessarily performed. He agreed that driver's comfort was rated as the least urgent of work to be done on the many trucks that were brought into the busy work yard on a weekend. He agreed that he would engage in arguments about the need for the work that the drivers asserted had to be done, and that on occasions the language used both by the mechanics and by the drivers would be colourful and forceful.

The plaintiff's account of these conversations, and of the note, has a distinct ring of truth. If this was a fabrication, as was alleged, the plaintiff identified three persons who were in a position to give evidence to contradict his accounts that there had been any such oral complaints or requests made by him. There was Sinclair (who, in my view, did not expressly discount that the plaintiff may have made such complaints) and there was Robert Gabrielli and Jack Gabrielli. Neither Gabrielli brother was called to give evidence.

The plaintiff would have been taking a considerable risk in making a false allegation in these circumstances. Were his account false those three witnesses, at least, were likely to give direct evidence in contradiction. In fact, during cross-examination, the plaintiff challenged counsel for the defendant to call Sinclair, and gave a convincing display of confidence that Sinclair, if called, would recall the complaints which he had made.

Furthermore, the account given by the plaintiff that Sinclair said that he would check with Jack Gabrielli about the seat and then returned advising that Gabrielli had authorised a replacement seat, was consistent with Sinclair's evidence that there was a limitation on his authority to effect costly repairs. A replacement seat (which would have cost in the order of $1,000) was beyond his own authority to authorise. He agreed that there was no reason why the plaintiff would have known that he had such a limitation of authority - accordingly, if the plaintiff was inventing this conversation not only did he introduce a potential further witness against himself (namely, Jack Gabrielli) but he fortuitously advanced an account which happened to coincide with the nature of the authority and its limitations as between Robert Sinclair and his boss, Jack Gabrielli.

Sinclair said that had he spoken to Gabrielli about the seat he would have inspected it first and if Gabrielli had decided to replace the seat Sinclair would have first given him a report as to the condition of the seat. Given that I accept that Sinclair did tell the plaintiff of Jack Gabrielli's agreement to replace the seat, then, whether or not Gabrielli had actually said that, it follows that Sinclair has forgotten these events. He was not asked to recall his dealings with the plaintiff until some six years after they took place, and given the busy nature of the work performed by the Bonojero mechanics it does not surprise me that he may have forgotten these events.

As to the fact that an abusive written note was left, I do not believe that such a note would be remarkable so far as Robert Sinclair was concerned, and if this was an invention on the part of the plaintiff then it was a lie advanced by himself, and corroborated by his wife, which ran the risk of being exposed if the defendant was able to establish that had a system for the retention of notes of complaints. In any event, having very carefully watched both the plaintiff and his wife under very rigorous cross-examination, I have no doubt that they are honest witnesses, and I have no doubt that such a note was written.

Furthermore, there is other evidence of the need for this seat to be replaced, by virtue of the fact that it undoubtedly was later replaced. Tendered before me were a batch of photographs that were produced by the defendant (Exhibit Q). No evidence was given as to when the photographs were taken but it was admitted that these were photographs of this truck. Bonojero Pty Ltd retained this truck until 1995, at which time it was sold to a company, Armandi Pty Ltd. Photographs taken of the truck with Armandi's name on the door discloses that a new seat had been installed in the truck. It is true, as Mr Curtain correctly pointed out, that I could not conclude that the seat had been altered whilst it was still owned by Bonojero. But the fact that new seating had been placed on the truck is certainly not inconsistent with the plaintiff's contention that there was a need for a new seat when he was using the truck, and that Jack Gabrielli had acknowledged that need.

Mr Curtain submitted that no adverse inference could be drawn from the fact that Jack Gabrielli did not give evidence. He submitted that there was no basis on which it could be inferred that a new seat was placed in the truck at the time when the truck was owned by Bonojero, let alone that that was done because Jack Gabrielli accepted that the seat was defective. In my opinion, however, his unexplained failure to give evidence enables me to more confidently act on the evidence of the plaintiff as to the seat being defective.

The fact that there was a fault in the seat is also inferentially confirmed by a question asked of the plaintiff by counsel for the defendant during cross-examination. Mr Curtain asked the following questions:

"I suggest to you that this seat was faulted by an RTA person, that's right isn't it? - By a policeman actually, he was on a pushbike. And you have used that event to launch a claim because you knew that there was a criticism made of the seat? - No" And you have constructed around that, a story that is totally a fabrication? - No"

A later question carefully narrowed the allegation to the assertion that "there was nothing wrong with the seat of the vehicle throughout the time you were employed". Whilst I could not conclude that the seat had been replaced during the time the vehicle was owned by the defendant, it is open to me to conclude that the vehicle had been defected, on account of the seat, at some time when the truck was owned by the defendant, or, even if not at that time was subsequently defected at a time proximate to the time when the defendant owned the truck.

The plaintiff said that a few days before the fall injury the truck was given a defect notice for a suspension fault and also for the seat, and it was taken into the workshop, in mid week, for repairs to be effected to the seat, as well as the suspension. The witness, Gamble, said that there was no possibility that the RTA would have cleared the truck if that work had not been performed on the seat. That seems likely to be correct. It may well be that the plaintiff is mistaken in his belief that a defect notice for the seat was given at the time he recalls. On the other hand, the evidence all points to the fact that the seat required replacement, and that it was replaced at some time after the plaintiff's injury. It also seems probable that, at some time whilst it was owned by the defendant, the truck was given such a defect notice with respect to the seat, an event which would not be sufficiently remarkable for the mechanics to now recall it, in my opinion.

I conclude, therefore, that there was a defect in the seat. The problem with it which aggravated the plaintiff's back condition was that it sloped forward and to the side. Whether that was because it lacked padding or for some other reason I am unable to say, but the slope rendered the seat not safe plant and equipment, given that most, if not all, drivers, were likely to have some back problems and the seats were intended to function in a manner which minimised harm to the drivers.

I also conclude that there was movement in the seat which was greater than would have been the case for a seat in a newer truck. That movement was, no doubt, particularly noticeable to the plaintiff, due to the fragility of his back, and initially he attributed his back pain to that movement, in addition to the effect of the slope.

Whilst the movement in the truck seat may not have caused particular difficulty for other truck drivers (unless they had a back condition as serious as that of the plaintiff), the same could not be said about the slope of the seat. The slope in the seat posed an appreciable risk of aggravation of a back condition of any driver performing the duties the plaintiff did with this truck. Thus, the failure of the plaintiff to advise Bonojero of his back condition did not relieve Bonojero of responsibility to provide safe plant or equipment, nor override the fact that this truck seat did not represent safe plant and equipment.

On the medical evidence before me, if the seat did have a slope then it is probable that it would have aggravated the plaintiff's back condition and produced the symptoms of which he complained. I conclude, therefore, that the slope in the seat in this case caused an aggravation of the plaintiff's back condition, and the supply of the defective seat constituted negligence, in that it constituted unsafe plant and equipment with which he had been supplied by his employer.

On 4 August 1993 the plaintiff attended at the premises of Vic Roads at Portland to apply for the removal of a defect notice which had been placed on the truck a few days earlier whilst he was working at the wharf at Portland. The plaintiff had taken the truck to the defendant's yard at Mt Gambier for repairs to be effected and returned to the Vic Roads office with a Roadworthy Certificate. On arriving at Vic Roads the plaintiff exited the truck, and in so doing fell to the ground onto his buttocks, experiencing severe pain. He continued to the Vic Roads office, had the defect notice removed and then drove back to Mt Gambier, in severe pain. Upon presenting the truck to his employer's yard one of the mechanics drove him to the South Australian/Victorian border where he was dropped off, so as to hitch hike home to Heywood. This was the last day on which the plaintiff has worked. The evidence is undisputed that on that day he suffered a disc herniation at L5-S1.

Prior to the truck being acquired by Bonojero it had been owned by another operator, G.R. Watt. Evidence presented to me showed that at that time the truck was fitted with two steps to allow entry to and exit from the cabin via the driver's seat in the prime mover. Both steps were aluminium steps attached to a diesel fuel tank that sat underneath the driver's side cabin of the truck. The two hundred litre cylindrical tank had three steel straps encircling it and the lower aluminium step was attached to the outer two of those straps. The lower step was about 18 inches from the ground and was about half a metre long. The upper step, when the truck was with G.R. Watt, was attached only to the central strap, and was much smaller in dimensions than the lower step. It was approximately eight inches long by about six inches wide. Immediately above it there was a handrail on the outside of the cabin, so that a driver entering the cabin could place one foot on the lower step, one foot on the upper step and, holding onto the handrail with the left hand (and either the steering wheel or the door with the right hand), could gain entry to the truck. It was quite a steep climb. The plaintiff's case is that at all times when he drove the truck there was no top step.

The plaintiff said that he repeatedly complained to Mr Sinclair about both the seat and missing step. As to the missing step, he said, Sinclair told him, "You don't need a step, don't be a sook". The plaintiff said on other occasions Sinclair told him that "we'll get around to making one". Sinclair did not recall such events.

Mr Curtain QC, for the defendant, submitted that even if it was the case that the step was missing (which was denied) the plaintiff's account of his fall from the truck disclosed that the missing step played no part in that event.

The plaintiff said that on this day when he got out frontwards from the driver's cabin: "I guess I just didn't think". He described what happened, as follows:

"I grabbed hold of the steering wheel because I felt myself slip but the seat tilted... towards the driver's door and then my foot just slipped straight down on the tank, me heels hit the bottom of the step, a bit of the bottom of the step and I landed on my backside... on the bitumen outside Vic Roads office."

The plaintiff said that over the years he had always got out frontwards from any truck, but on this truck that was quite difficult, so he used to exit backwards, i.e. facing the cabin of the truck. Whether going frontwards or backwards it was a long stretch down. He said that to get out backwards on this truck required him to sort of slide and hang on fairly tight to the steering wheel, and the door, and slide down until his feet hit the bottom step, but he said it was "not real hard" to do so.

In describing how to get out of the truck when going frontwards the plaintiff said (there is a transcription error at p.61 of the transcript where the word "barely" is inserted instead of the word "really"): "I would have to really hang onto the steering wheel and the door to get down, to actually try and get your heel on the bottom step." He said that the calf of his leg would be on the diesel tank.

By contrast, he said it was quite easy to go out backwards: you just slide your feet down to the bottom step, hanging onto the steering wheel. He said he usually hung onto the door and the steering wheel and would put two feet on the bottom step when going out backwards. He said "I found it quite difficult to go out frontwards. It's why I went back - used to go out backwards".

Under cross-examination, the plaintiff confirmed that he had forgotten to get out backwards on this occasion, and had exited forwards because he was in a hurry. He grabbed hold of the steering wheel but did not think to take hold of the handgrip outside the cabin door with his right hand. He said he did not use the handrail because he was "not thinking on that day, flew out of the truck, didn't even give it a thought. The seat tilted forward, I can remember trying to grab the steering wheel. I slipped, obviously my hand let go and that". Although Mr Curtain strongly urged that this account gave no indication that the missing step was itself a factor, in my view, that is not so. The plaintiff was, I believe, trying to explain that in the process of going forward (even if his movement was unexpectedly accelerated), and, without thinking, he went to place his foot on the top step, and simply missed it. So much is clear from passages of his evidence as follows:

"Not thinking. I was thinking there was a top step there which I knew that there wasn't - just while I was working for Frank. It was the easiest way to get out of the truck was frontwards and I sort of had to learn to get out backwards in that truck but I didn't think on that day."

"I was getting out of the truck but the seat tilted, I had to grab the steering wheel, I went to put my foot on the top step which was not there, it slid - my feet slid down, my heels hit the bottom step and I landed on the ground."

He was asked what he meant by the top step not being there and he said:

"I suppose - supposedly there wasn't, well, 99.99% of the trucks have got a top step."

"What you did was you went to put your right foot on a step?" - "Yes, that wasn't there." "That had never been there in the five months you had driven the truck?" - "...that's right." "If you had been careful about it, that would never have happened?" - "...that's correct." "It was you failing to observe that caused the accident, wasn't it?" - "... Yes." "Were you in a hurry?" - "... Yes." "Why were you in a hurry?" - "... I wanted to get back to go straight to load."

In my view, the account of the plaintiff amounts to this - that because there was no top step he had to be careful to remember that was the case, and whereas in going out frontwards with other trucks no hazard would be occasioned, he forgot that this truck was minus a step and so when he was unbalanced in getting out of the truck, he put his foot out for the non-existent step.

In my view, if that account is accepted it constitutes negligence on the part of the defendant in failing to supply proper plant and equipment to the plaintiff for him to perform his job. The question of contributory negligence requires to be dealt with separately.

The defendant contended that there was a top step on the truck. Mr Robert Sinclair, Mr Hellyer and Mr Gamble, who were called as witnesses by the defendant, all said that in 1993 they would have worked on the truck and would have from time to time got into the truck and moved it short distances for the purpose of servicing or checking. They each expressed a belief that at all times the top step had been on the truck. They each were confounded by the fact that the plaintiff took a photograph of the truck sitting in the yard of the defendant, only a month or so after his accident, which clearly shows that there is no top step at that time.

The plaintiff called evidence from his wife and from David Evans to say that they had observed the truck whilst the plaintiff drove for the defendant, and it was missing the top step. Additionally, George McGrath swore that he had observed the truck to be missing a top step after the plaintiff's accident when he observed the truck, located, he believed, at the defendant's yard in Mt Gambier.

McGrath was not a particularly satisfactory witness, one whose bias towards the cause of the plaintiff, and antipathy to the proprietors for the defendant (for whom he had once worked) was all too apparent. His evidence was also somewhat confused at times. However, having given careful attention to his evidence I am satisfied that the confusion in parts of it was a tribute to his readiness to speak without thinking, rather than to dishonesty. He initially said that he had taken a photograph of the truck, which was missing the top step (Exhibit A1), whereas the plaintiff took that photograph. He seemed doubtful that he was, in fact, the photographer who had taken the photograph attributed to him by the plaintiff, namely, a photograph of the truck with two ("new") mesh steps (Exhibit A2) which had been affixed at some time after the plaintiff's injury. The explanation, I believe, is that, as he said, McGrath saw the truck when it was missing a step and, at a later time saw and photographed the truck when it had been fitted with mesh steps. He said he did make two separate observations, about two months apart. Eventually, he said that he did take the latter photograph, but thought it was in Gabrielli's yard, at the time, whereas the evidence suggests that that was not where the truck was placed when the photograph was taken. (No direct evidence was called by either side as to where the truck was when that photo was taken.)

The plaintiff took the photograph of the truck without a step (Exhibit A1) approximately one month after he finished work. I conclude that the second photograph (Exhibit A2), showing different steps installed on the truck - they being mesh upper and lower steps - was taken by Mr McGrath. The truck then had the Bonojero name on the driver's door. That photograph, having been taken some 12 months after the plaintiff's injury, was taken at a time when Bonojero owned the truck. The truck, at that time, had different steps on the driver's side, and had two steps, whereas when the plaintiff had photographed it about a month after his injury (and McGrath had also, at another time, likewise seen it) it had one aluminium, step only. The "new" steps, shown in McGrath's photograph, were wire mesh steps, approximately half a metre long. Plainly someone, whilst the truck was in the ownership of Bonojero, for some reason, saw fit to install two "new" steps. (I emphasise the word "new" because although the steps were installed after the plaintiff's injury they appear to be of poor, jerry-built, quality.)

Although McGrath was not a particularly impressive witness, both Mrs Porter and Evans impressed me as reliable witnesses. They gave express evidence that they observed that there was a missing step, and Evans spoke of the difficulty it caused him in gaining entry to the driver's seat. It is not reasonably possible that they could be mistaken as to this. They are either telling the truth or are lying. Mr Curtain accused them of lying. I believe both witnesses were telling the truth. As confused as the evidence was of McGrath, and as anxious as he was to harm the cause of the defendant and to promote that of the plaintiff, the undeniable fact remains that the truck was photographed in the yard of the defendant at a time when it was owned by the defendant and when it was missing a top step. The plaintiff says that that was the condition of the truck at all times when he had it. At a later time two "new" steps have been installed on the truck. Photographs produced from the defendant also show the "new" steps, although those photographs, unlike the photograph taken by McGrath which shows Bonojero's name on the door of the truck, show the name of the operator of the truck as Armandi Pty Ltd, the company which purchased the truck from Bonojero.

If there was an explanation for the fact that there was a missing step when the truck was photographed by the plaintiff in the defendant's yard - one which is inconsistent with the plaintiff's account that that was how the truck had been at all times when he had it - then the defendant did not produce such evidence, but merely relied upon the contentions of Hellyer, Sinclair and Gamble, who could offer no explanation (apart from venturing guesses) as to how it might have occurred that the truck was missing a top step when photographed in the defendant's yard within a month or so of the plaintiff's injury.

Mr Hellyer said that on all the occasions when he drove the truck it had its original, standard, steps on it. He said he "would have" driven the truck in 1993, if his own truck was not available (assuming it was being worked on) and if he had a job to do, such as picking up a trailer, or doing a small job, and if the S line truck was also in the yard. In fact, Mr Hellyer had no actual recollection of any trip, at all, which he had made in the truck in 1993. He said that it did not have a sheepskin cover on the seat when he drove it. The plaintiff's evidence, and that of Evans, was that it did have such a cover when the plaintiff drove it.

Gamble, said he could not specifically recall driving this truck, but would have done so. He said he did not think that there had been a lambswool cover on the seat. His recollection of the top step was that it was not the aluminium type which came with the truck originally, but was what he called an "open step" which, he said, was like a mere frame for a step rather than the step itself. Such a frame for a step is shown in the photo taken by the plaintiff which showed that there was no top step in place where it had been originally designed to be, but there was a mere frame for a step which was at a place further towards the rear of the prime mover and was located so as to allow access to the load, rather than to the cabin. As to the two "new" mesh steps shown in photo Exhibit A2, Gamble had no recollection of such steps being on the truck. Such steps, he said, were of poor quality, and would not have been built for the truck by any of the defendant's mechanics, and yet, plainly, the steps had been installed, by someone, while the truck was owned by Bonojero.

Mr Robert Sinclair, the head mechanic, said that the steps which he recalled being on the truck were those originally designed for the truck (Exhibit Q2). Thus, the top step as he remembered it, was not the "frame" which Gamble remembered.

The three witnesses from the defendant were giving evidence not of a positive inspection, or an observation, that there was not a step missing, but of a belief that the step would have been there on all occasions, because they would have noticed had it not been there. They were mechanics working in an extremely busy yard under considerable pressure. This was just one of very many trucks that would be brought into the yard from time to time. Although it was the only S line truck owned by the defendant it was one of three, four or, possibly, five trucks at that time (Mr Sinclair and Mr Gamble were not in agreement as to that) which were owned by the defendant, but they also performed work on many vehicles owned by other drivers and companies, in addition to the defendant's own trucks. The commencement of work on the Bonojero vehicles was not given priority over work on privately owned trucks.

In contrast, the observations made by Jennifer Porter, the plaintiff's wife, and by Mr Evans were made in circumstances where it is more likely that they would particularly note a defect such as a missing step, both because they knew that the plaintiff had an injured back and also because the truck was not one of many with which they were routinely confronted. I regarded both the plaintiff's wife and Mr Evans as honest witnesses and their accounts as being more reliable than those given by Mr Sinclair and Mr Gamble.

I am satisfied that there was a missing step at the relevant time and that it was a cause of the plaintiff suffering the injury when he fell to the ground on 4 August 1993. The injury to the plaintiff was therefore caused by the negligence of the defendant.

Counsel for the defendant submitted that if the defendant was guilty of negligence as to the seat injury the plaintiff was guilty of contributory negligence. It was submitted that the plaintiff should have advised the defendant of his back condition, so that Bonojero was aware of the special need which he had, over and above the needs which any driver might have. It was also submitted that he could have himself tightened or attached nuts where they were missing from bolts on the seat; he could have supplied a cushion, or added padding so as to remove the slope on the seat; he should not have continued to drive the truck, knowing that the seat was damaging his back.

I have found that the defect in the seat, which caused the aggravation of symptoms to the plaintiff, was in the slope of the seat, not in the fact that it had unusual movement. That is how the plaintiff finally put his complaint. I can not say precisely how the slope was caused. There was no suggestion that missing or loose nuts caused the slope in the seat. Whether the cause was related to missing padding in the seat, or a fault in the frame, the seat required replacement, and I have held that that was recognised by Jack Gabrielli, and agreed to after the plaintiff had complained. Mr Curtain, without great enthusiasm for the contention, submitted that the plaintiff should not have driven the vehicle at all, or, at least, not whilst awaiting the replacement seat. In my view, having complained, and having eventually received a positive response to his complaint, the plaintiff had done all he could, and it would not be reasonable to expect that he should have quit his job.

I do not consider it likely that his employer might have moved more rapidly to replace the seat, or would have had a new seat fitted at the outset had the plaintiff told him of his back condition. All witnesses who were familiar with trucks said that it was well understood in the industry that truck drivers inevitably had bad backs on account of their job. Mr Gabrielli would have known that, but he made no inquiries of the plaintiff. Mr Sinclair, his chief mechanic accepted that issues related to the comfort of drivers were of the lowest priority in the workshop.

I will discuss the relevant principles of law as to contributory negligence in the next section of these reasons. Applying those principles I do not find that the plaintiff was guilty of contributory negligence with respect to the seat injury.

If there was negligence on the part of the defendant with respect to the fall injury then, so it was submitted, the plaintiff was guilty of contributory negligence in exiting the cabin forwards rather than backwards; in failing to use the handrail; in using the seat which was unstable for support as he left the truck; because he did not look where he was placing his foot, and exited in a rush, and without due care for his own safety.

I quoted passages of the plaintiff's evidence earlier in these reasons. The plaintiff did say that the first factor relevant to his fall was a tilting movement of the seat. I do not conclude that that movement, and any possibility of reducing it by the tightening of nuts (which, on the evidence, was not shown to have been the answer to the movement) was of significance in producing his injury. It was the attempt to place his foot on the missing step which, in my view, was the explanation for the accident. Plainly, the plaintiff did accept that his own decision to exit forwards - and being in a rush and not thinking about the missing step - contributed to his fall. Do those matters constitute contributory negligence? Mr Meldrum submitted that they do not, and that the sole cause of the injury was the failure to supply a top step and that insofar as the plaintiff himself played a part in the fall his own actions or omissions amounted merely to inadvertence, inattention or misjudgment: see McLean v Tedman.[1]

The relevant question is where mere thoughtlessness, inadvertence or forgetfulness ceases and where negligence begins: Davies v Adelaide Chemical & Fertilizer Co Ltd[2]. In evaluating the conduct of the plaintiff it is relevant to consider whether his inattention was bred from familiarity and repetition, and from his preoccupation with the task in hand. Those are factors that might produce mere temporary inadvertence, which was not incompatible with the conduct of a prudent and reasonable man: Sungravure Pty Ltd v Meani[3]. Those were certainly elements in the plaintiff's conduct.

The task of assessment of contributory negligence requires, too, consideration and analysis of the duties and responsibilities of the defendant. The prudent employer cannot fail to provide safe plant and equipment and then fail to take into account the possibility of inadvertent or negligent conduct of his employees[4]. In some cases, even if the conclusion reached is that the employee's conduct did constitute contributory negligence, rather than mere inadvertence or inattention or misjudgment, the nature of the duty cast on an employer may reduce what would otherwise be the degree of negligence which would be attributed to the employee: Astley & Ors v Austrust Ltd[5]. In my opinion, this is such a case.

At paragraph [73] of these reasons I quote the plaintiff's evidence where he agreed to propositions put to him in cross-examination that it was his failure to remember that there was no top step which "caused the accident". Those answers provide a good illustration of why I concluded that the plaintiff - contrary to the submission that he was a dishonest witness - was a person without guile or artifice. In my opinion, the answers should not be taken at face value, as constituting an admission of contributory negligence, but, instead, they reflect a classic illustration of conduct amounting primarily to mere inadvertence, inattention or misjudgment.

In my view, once it is accepted that a top step was not on the truck, and that a cause of the accident was that the plaintiff slipped when trying to place his foot on that (missing) step - having failed to turn his mind to the fact of the missing step - it is clear that the major factor in the fall was the failure of the defendant to supply safe plant and equipment.

However, even if the primary cause of the fall injury was absence of a top step, a number of witnesses said that it was safer to exit a truck (even one with a top step) backwards. That was the view of Hellyer, Gamble and Evans. It was clear, however, that exiting forwards was not unusual, and a prudent employer would have to allow for that fact. The plaintiff did not agree that is was safer to exit backwards, but he agreed that on this truck, given its missing step, it was certainly easier to exit in that way. His own practice with other trucks was to exit forwards. If it was safer on trucks which had a top step to exit backwards, was it contributory negligence on the part of the plaintiff to exit frontwards on this truck, with its absent step, when, had he thought of it, he would have exited backwards for the very reason that the top step was missing?

Having regard to all of the circumstances I consider that the plaintiff was himself guilty of contributory negligence with respect to the fall injury, but only to a modest degree, in that he did fail to take proper care for his own safety, by failing to exit backwards, and use the handrail, as would have been safer in any circumstances, even with a truck without a top step. I assess his contributory negligence at 10%.

IS A CLAIM FOR DAMAGES AVAILABLE TO THE PLAINTIFF? WHERE DID THE TORT OCCUR?

Mr Curtain submitted that in the event that I held that there was negligence, I should also find that the causes of action arose in South Australia. He submitted, therefore, that if proceedings are to be brought and maintained in Victoria for a wrong which occurred outside Victoria the plaintiff must comply with the rule in Phillips v Eyre[6] as re-stated by the High Court in Breavington v Godleman[7]. The law, as then understood, meant that if the wrongdoing really occurred in South Australia and not Victoria the plaintiff must show, first, that if the wrong had occurred in Victoria a cause of action would have arisen in Victoria which would have enabled the plaintiff to enforce a civil liability against the defendant, and, secondly, that in South Australia the event would have given rise to civil liability in that State. This requirement was known as the double actionability rule.

Mr Curtain submitted that as to the seat injury the first condition would not have been met because the seat injury was a transport accident under the law in Victoria, and proceedings for a transport accident could only be brought pursuant to the Transport Accident Act 1986. In this case the preconditions for the bringing of civil proceedings for a transport accident in Victoria had not been met. Counsel for the plaintiff conceded that is the case. As to the fall injury, Mr Curtain submitted, that would fail the second condition, because civil proceedings for the fall would have been denied under South Australian law, which precluded common law proceedings for negligence being taken against an employer, unless the injury arose in circumstances governed by s. 54(2) of the Workers Rehabilitation and Compensation Act 1986 (the terms of which I will later discuss).

Counsel for the plaintiff did not challenge the correctness of the statements of principle, but submitted that the wrong in both instances occurred in Victoria, and submitted, therefore, that the principles of Phillips v Eyre had no application.

After reserving my decision in this case - and when I was ready to hand down my judgement - the High Court on 21 June 2000 handed down the decision in John Pfeiffer Pty Limited v Rogerson[8] in which the Court re-examined the principles of Phillips v Eyre and the application of those proceedings in the modern context of the Australian federal system. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, in a joint judgment, and Kirby J in a separate judgment) held that the double actionability rule should no longer be applied. The Court held that in future where proceedings were taken in one State with respect to a tort which occurred in another State the substantive law to be applied by the court hearing the case should be that of the lex loci delicti, that is, the place of the commission of the tort. The procedural rules which the court should apply, however, were those of the court of the forum. Laws of the lex loci delecti which limited the kinds of damages which could be awarded, or the amount of damages that might be recovered, were to be treated as substantive issues and those laws were to be applied by the forum court.

As to the double actionability test of Phillips v Eyre the joint judgment held, at 33:

"So far as concerns non-federal jurisdiction, the question is whether, in a federation, the common law should any longer require double actionability as a threshold test before the courts of one State or Territory will recognise and enforce obligations arising as a result of tortious acts or omissions in another State or Territory. Somewhat different considerations apply in context in which the applicable law is the lex loci delicti from those that arise if the lex fori were to be applied. Quite apart from s 118 of the Constitution, it would be incongruous if a State or Territory were to allow a remedy for an act or omission in another State or Territory which did not constitute an actionable wrong under the laws of that latter State of Territory. But application of the lex loci delicti negates that possibility. Thus, the sole question that arises in relation to a double actionability rule in non-federal jurisdiction is whether the courts of a State of Territory should be obliged to give a remedy in accordance with the law of the State or Territory in which the relevant events occurred when, if the events had occurred in the law area of the forum, none would be given."

"Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an International tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws."

The issues raised in Pfeiffer v Rogerson would have a direct relevance in the present case only if it was the case that the torts with which I am concerned arose in South Australia. As will emerge, I have concluded that they did not, and for that reason I did not invite counsel to make further submission to me as to the effect of the new decision of the High Court.

I turn then to examine why I concluded that the torts arose in Victoria. Before doing so, however, I note that the issues raised before me, based on the law as it was then understood, as to the double actionability rule, did focus attention on the question whether the plaintiff could have maintained a common law action against the employer in South Australia, and that issue (with which Pfeiffer v Rogerson is not concerned) remains relevant in the context of some other submissions made to me by counsel for the defendant. Thus, I will deal with that issue in some depth, later, albeit for purposes other than the choice of law question.

Mr Curtain, for the defendant, submitted that an analysis of the circumstances upon which the claims for the two causes of action are based demonstrates that the wrong, in both cases, occurred in South Australia. The tort, in each instance - if it was held to have been committed at all - was committed in South Australia, he submitted. He pointed to the following matters.

(a) The contract of employment was entered in South Australia;

(b) The truck was registered, and provided to the plaintiff, in South Australia;

(c) The truck was brought to South Australia for its regular servicing, and it was on those occasions when the plaintiff alleges that the defects should have been remedied;

(d) The plaintiff's alleged complaints about the defects were made at the defendant's premises in South Australia.

Mr Curtain submitted that the negligence, whether by act or omission, occurred in South Australia, and that in those circumstances the fact that the damage may have arisen elsewhere does not matter, in those circumstances. Mr Curtain cited passages in Voth v Manildra Flour Mills Pty Ltd[9]. That was a case concerned with principles of forum non-conveniens, in a claim for damages arising from negligent advice given in Missouri, as a result of which damage was suffered in Australia. The High Court was concerned, therefore, with the principles which would govern the discretionary decision as to whether proceedings should be permitted to be brought in Australia, and the Court resolved that the appropriate test was whether, in all the circumstances, the Australian court was a clearly inappropriate forum for the determination of the case.

In Voth it was argued that one factor which made it clearly inappropriate to conduct the case in Australia was that the tort was a foreign tort, and that the acts and omissions complained of (as distinct from the damage that flowed therefrom) all arose in Missouri. Their Honours held, at 569, that the acts or omissions which gave rise to the cause of action occurred solely in Missouri.

As their Lordships in the Judicial Committee observed in Distillers Co (Biochemicals) Ltd v Thompson[10], it is not always an easy task to determine where wrongdoing took place. Their Lordships noted that the wrongdoing might take place at one location but, by mere chance, the damage resulting from that wrongdoing might occur within another jurisdiction.

Similar recognition of the difficulty, at times, in determining where an action arose, was given in Pfeiffer v Rogerson[11]. In the joint judgment their Honours held, at 31-33:

"Before turning to the question whether the common law choice of law rule should be the lex fori or lex loci delicti, it is necessary to recognise that the place of the tort may be ambiguous or diverse. Difficulty will arise in locating the tort when an action is brought, for example, for product liability and the product is made in State A, sold in State B and consumed or used by the plaintiff in State C. And the tort of libel may be committed in many States when a national publication publishes an article that defames a person. These difficulties may lead to litigants seeking to frame claims in contract rather than tort (as the NSW Compensation Act anticipated) or for breach of s 52 of the Trade Practices Act 1974 (Cth) or some similar provision. Characterising such actions may be difficult and may raise questions whether the private international law rules about tort or some other rules are to applied. Moreover, even if the place of the tort can be located in a single jurisdiction, it will often enough be entirely fortuitous where the tort occurred. Why, so the argument goes, should the rights of Victorian residents injured when the car in which they are driven (by another Victorian) differ according to whether, if a driver falls asleep and the car runs off the road near the Victorian border, it does so south of Wodonga or north of Albury? But for every hard case that can be postulated if one form of universal rule is adopted, another equally hard case can be postulated if the opposite universal rule is adopted."

In the Distillers case the plaintiff purchased the drug thalidomide in England and consumed it in Australia, not having been warned of its danger to pregnant women. Their Lordships concluded that that was a case where the negligence was constituted by an alleged omission to warn of danger of the drug, the failure to warn, and also the damage, occurring in New South Wales.

In Voth the High Court also considered the question of an allegation of omission, namely, the failure to advise - which might have occurred in New South Wales - but on analysis of the facts of the case in Voth concluded[12] that the allegation was actually not of an omission but of a positive act, namely, negligent misstatement, which arose in England.

In the present case, Mr Meldrum submitted that the wrongdoing, in both instances, occurred in Victoria, as did the damage. So far as the seat injury is concerned, the complaint is that the plaintiff was not provided with a safe seat for performing the work with the defendant. The plaintiff was at foreseeable risk of injury if safe plant and equipment was not supplied. The wrongdoing, thus, was an omission: the failure to supply safe equipment. Likewise, he submitted, the failure to supply safe equipment arose in Victoria with respect to the missing step.

The plaintiff did, indeed, put forward as part of his case the fact that he made many complaints to the defendant's servants or agents at Mt Gambier, to the effect that the seat and the missing step needed attention. The particulars of negligence as to both injuries allege a failure to heed complaints. Furthermore, whilst in his evidence in chief the plaintiff identified two faults in the seat which caused him harm, he eventually contended that it was only one aspect as to the seat which constituted negligence which caused him injury, loss and damage. Initially, he said that one way the harm was being caused was in the movement of the seat, a movement backwards and forwards when he changed gears, and also when he drove over rough bush tracks. He did not identify the changing of gears on good bitumen roads as a problem, nor did he identify any problems associated with driving on South Australian roads. The second area of complaint about the seat - and the sole aspect as to which he maintained his complaint at the conclusion of cross examination - related not to the movement of the seat, but the slope of the seat. That problem must have applied not only in Victoria, and not only when driving on bush tracks, but also (albeit to a much lesser extent) when driving on South Australian roads.

The complaint of an omission to supply safe equipment with respect to the seat was sought to be confined to Victorian roads, by a late amendment to the statement of claim, whereby the plaintiff alleged - only - that the plaintiff "was required to drive the truck in the State of Victoria". The complaint was sought, thereby, to be confined to a complaint of omission to supply safe equipment on roads in Victoria.

Insofar as the complaint as to the seat relates solely to the slope of the seat the evidence suggests that failure to supply a safe seat had application to driving on South Australian roads, too, and the wrongdoing could not be confined exclusively to events in Victoria, although the South Australian roads must have made a very small contribution to the aggravation of the plaintiff's symptoms. The amendment seeks to limit the complaint to Victorian driving and, predominantly, it must have been driving in Victoria, which was the cause of any aggravation of the plaintiff's condition. But there are other elements, too, which particularly locate the wrongdoing in Victoria.

The plaintiff was employed to cart wood chips solely in Victoria. There is some evidence that it was because the work was to be exclusively in Victoria that he was chosen, as a Victorian, to do the job. Save for some of the maintenance, all of the plaintiff's working activities with the vehicle were conducted in Victoria, including refuelling.

The plaintiff was working five to five and a half days a week, but on weekends he would take the truck from Heywood to Mt Gambier for repairs to be done at the workshop of the defendant. He would drive the vehicle there on a Saturday, driving approximately 80 kilometres from Heywood to Mt Gambier. Of that journey about 20 kilometres was on South Australia roads. He would hitch-hike home or be driven home by his wife and return on Sunday evening to collect the truck for work the following day. The drive on South Australia roads was always on good bitumen roads. He would also attend at the Mt Gambier office, on occasion, to collect his pay or to collect payment of overtime. For his ordinary pay the plaintiff worked 40 hours a week but he also did overtime.

Although the question is not free from doubt, I have concluded that once the claim is confined to a complaint of omission to supply safe plant and equipment - when coupled with the fact that the damage undoubtedly occurred to the overwhelming extent in Victoria - the wrongdoing may truly be said to have occurred in Victoria with respect to the seat injury. In that event, it must follow that the assertion that the defendant failed to heed his complaints is relevant merely to the proof of the allegation that the omission to supply safe plant and equipment constituted negligence.

As to the fall injury, the failure to supply a truck with a top step, if proved, is also an allegation of an omission which occurred in Victoria, where the damage exclusively arose from that omission.

I conclude, therefore, that the wrongdoing as to both causes of action arose in Victoria, and the principles in Phillips v Eyre, as they had previously applied, and the restatement of those principles as set down by the High Court in Pfeiffer v Rogerson, have no application.

Assuming, therefore, that the causes of action properly arise in Victoria then the defendant, alternatively, submitted that the seat injury was a transport accident, and, accordingly, proceedings could only be brought pursuant to the provisions of the Transport Accident Act 1986. Counsel for the plaintiff conceded that if the seat injury was a transport accident then his claim for damages must fail, as the plaintiff has not complied with the conditions imposed by s 93 as a precondition for such a claim. Counsel for the plaintiff submitted, however, that the seat injury was not a transport accident.

By s. 3(1) of the Transport Accident Act a "transport accident" is defined as follows:

"Transport accident means an incident directly caused by, or directly arising out of, the driving of a motor car or motor vehicle, a railway train or a tram;"

Counsel for the plaintiff submitted that the seat caused injury (or aggravation of symptoms of a pre-existing injury) by the repeated jarring of the plaintiff's back and that that could not constitute an "incident". Counsel noted that the Transport Accident Commission, when notified of the circumstances of the alleged injury by the plaintiff's solicitors, declined to treat the injury as arising out of a transport accident. Counsel for the defendant submitted that the concept of "incident" should be interpreted to extend to "incidents" by virtue of s 37 of the Interpretation of Legislation Act 1984, and that each jarring of the plaintiff's spine was an incident arising directly out of the driving of the vehicle. Unless the vehicle was being driven the jarring could not have occurred. As to the fact that the Transport Accident Commission did not regard the event as a transport accident, I agree with Mr Curtain that the manner in which the query was raised virtually begged for that response from the Commission, and, in any event, the opinion of the Commission can not govern my decision as to whether the event should be regarded as being a transport accident.

Mr Meldrum conceded that if something was happening to the plaintiff's back whilst he was driving (which I understood to include mere pain, as opposed to physiological changes) then that clearly would be arising "directly" out of the driving, but he submitted it would not be an "incident". He contrasted the event of a person who was passenger in a vehicle being suddenly and violently thrown into the air when the vehicle struck a pothole, with the happening of one of a myriad of small jolting movements caused, over months, by a defect in the seat. The latter would not be an "incident" but the former would be, he submitted. A single, small, jolting movement, even if added to all other movements so that "incident" was to be taken to encompass the plural - incidents -would still not constitute "incidents", he submitted. Mr Curtain, however, submitted that if one experienced a series of sudden jolts, for example, by hitting four potholes, or a dozen, then there would be no reason why each jolt might not be a distinct incident, or else why the accumulation of those dozen jolts on one journey might not constitute a single incident of being jolted. Whether the jolts occurred once or a thousand times should not matter, Mr Curtin submitted.

On both sides it is accepted that a single sudden jolt might constitute an incident. In my view, it does not follow that a thousand jolts, over a series of journeys over many months on different roads, when performing different duties, could be regarded as constituting an "incident" or incidents for the purpose of the Transport Accident Act. In my view, the intention of the legislation, by use of the word "incident", is to identify a discernible event, which may be the subject of scrutiny as to whether it arose directly out of the driving of a motor vehicle. It may well be that an "incident" might be constituted by a series of events happening at one approximate time, such as a series of major jolts during one journey, as a vehicle strayed on to a road which was in a state of disrepair. However, in my view, the singular "incident" would not encompass, for example, the driving over corrugated roads and the receiving of sudden jolts on two separate days, or at two different times on the same day. They would then be identifiably distinct incidents.

Thus, in my opinion, the minute changes which might have occurred a thousand times with minor jolts - or merely by virtue of the distorted seating position causing pain due to the slope of a seat - could not be regarded as being an "incident" for the purpose of the Act. I was referred to Hawkins v Commonwealth[13]. That case was concerned with a claim for compensation under the early Commonwealth compensation legislation which required there be proof of "injury by accident". Injury was defined to include an aggravation, acceleration or recurrence of a pre-existing injury and the worker claimed that he was eligible for compensation by virtue of the jolting he received when driving a vehicle on rough bush roads over a period of several years. The court held that the worker had suffered injury by accident and that the magistrate had been right to conclude that the driver had suffered a series of accidents over the years, constituted by the various jolts and bumps to which he had been exposed. Mr Curtain submitted that a series of jolts might likewise be regarded as constituting a series of "incidents".

I do not regard Hawkins case as applicable. The intricacies of the Commonwealth compensation legislation, in particular the concept of "injury by accident", led to a refined and complex jurisprudence, and the litigation was all conducted against the background of an accepted presumption that social legislation of such a nature should be construed in favour of the injured workers. The court held that it was the cumulative effect of the series of accidental injuries which constituted the sustaining of "injury by accident" in the "popular and ordinary sense" of that phrase, as interpreted by the courts for the purpose of such legislation. The concepts, there, involved concentrated attention on the consequence of new and identifiable incidents of employment. The cumulation of events and the cumulation of their consequences, was being considered against the definition of injury which provided for "aggravation". The attention which is focussed by the definition in s. 3(1) on "an incident" arising directly out of the driving of a vehicle" is much more directed towards the identification of a specific episode than to a cumulation of aggravating events. To apply the decision in Hawkins to the present definition would be to ignore the distinct differences in the two schemes of legislation, and their relevant definitions.

Counsel were able to refer me to only one authority directly on point, a decision of His Honour Judge White in McKenna v Scotts Transport Industries Pty Ltd[14]. Mr Curtain submitted that the decision was wrong and I should not adopt the reasoning of His Honour. The facts in that case are very similar to those in the case before me. His Honour referred to the definition of "incident" in the New Shorter Oxford Dictionary, which defined it to be: "A distinct occurrence or event especially one that attracts general attention or is noteworthy in some way". His Honour concluded that a contrary intention, for the purpose of s. 37 of the Interpretation of Legislation Act, appeared in the Transport Accident Act so that "an incident" should not be taken to include the plural, and consequently an incident could not comprise what amounted to thousands of occurrences of jolts and jarring events when driving a truck over an eleven month period.

I agree with his Honour that "an incident" is not intended to embrace myriad events of jolts and jarring over a period of many journeys by a motor vehicle - no single jolt or jarring episode being able to be distinctly identified. It is the scheme of this Act that an event and its consequence must be identified so that an assessment can be made as to whether it constituted a serious injury directly arising out of the driving of a motor vehicle. It is unnecessary for me to decide whether a series of jolts on one journey might constitute "an" incident, by importing the plural.

I conclude, therefore, that the combination of jolts and jarring which the plaintiff claimed to have suffered by virtue of the defect in the seat would not have constituted a transport accident.

It was common ground that the fall injury was not a transport accident (see Transport Accident Commission v Treloar[15]).

PUBLIC POLICY QUESTIONS: A PERCEIVED LEGISLATIVE LOOPHOLE.

I have concluded that the two causes of action in these proceedings arose in Victoria. Legislative changes made in recent years both in Victoria and in South Australia sought to abolish or severely restrict the common law rights of action of persons claiming damages for negligence with respect both to transport accidents and workplace accidents. I have concluded that neither claim, here, constituted a transport accident within the terms of the Victorian legislation. They are both claims against an employer for breach of the employer's duty of care. Claims for damages against an employer were severely curtailed by the terms of the Accident Compensation Act 1985, but were these events governed by, and the claims restricted by, the terms of that legislation?

In the case of the seat injury, it would not meet the requirements of s. 135 that there be a "serious injury", as that term has been interpreted by the courts.[16] In the case of the fall injury, whilst it would undoubtedly constitute "serious injury" (had the plaintiff complied with the requirements of s. 135A such as the seeking of a determination of serious impairment from the Authority), a claim for damages under that Act would not include some of the headings for which claims are now made, such as claims for Griffiths v Kerkemeyer damages. It would, therefore, be in the interests of the plaintiff to be able to claims damages freed from the restrictions of the Accident Compensation Act, and counsel for the plaintiff submits that that freedom has been achieved.

By s. 85(3) of the Accident Compensation Act a person who has a right to claim compensation in a State outside Victoria shall not be entitled to compensation in Victoria if pursuant to the law in that other State he has been paid an amount of compensation. The plaintiff, in this case, it is not disputed, was entitled to claim compensation under the no-fault provisions of the Workers Rehabilitation and Compensation Act 1986 of South Australia, and did receive compensation in a sum in the order of $300,000 under that Act. Counsel for the defendant concedes that by virtue of that fact, s. 85(3) applies, so that the plaintiff is not entitled to compensation under the Accident Compensation Act in Victoria. That, in turn, means (and the defendant concedes) that, if either claim is not a transport accident, then by the device of having obtained compensation under the South Australian legislation, the plaintiff has been placed in the situation where he is entitled to bring a claim for damages in Victoria free of the restrictions imposed by the terms of the Accident Compensation Act.

Thus, having ruled both that the two causes of action related to wrongs arising in Victoria, and that neither claim was a transport accident, the plaintiff would not be precluded from bringing a claim for damages, with respect to either incident, by reference to the provisions of the Accident Compensation Act 1985. The plaintiff is not thereby precluded from bringing claims for damages at common law against his employer, in those circumstances.

Mr Curtain submitted that since both in South Australia and in Victoria the relevant legislation was intended to deny a claim for damages at common law for workplace accidents, save to the extent that restricted rights of claim for general damages were preserved by the legislation, it is an anomaly, amounting to a legislative "loophole" attributable to the limitations imposed by State borders, that this plaintiff might seek both to obtain the benefit of compensation under the no-fault provisions of legislation in one State and yet by so doing preserve common law rights to claim general damages in another State. Counsel submitted that in the interests of justice and on grounds of public policy I should deny the plaintiff's claim, so as to prevent the plaintiff benefiting in such manner.

In response, counsel for the plaintiff submitted that, in the first place, it was incorrect to say that the plaintiff would not have been entitled to claim damages in South Australia. He could have done so but would have been obliged to repay from damages such amount as he had received by way of compensation payments in that state. The plaintiff accepts that an amount equivalent to the sums received by way of compensation should be deducted from any award of damages I might make. Mr Meldrum submitted, therefore, that there is no question of "double-dipping". Furthermore, counsel for the plaintiff submitted, whether or not it may be regarded as a loophole, the legislation in Victoria does not preclude the plaintiff from making a claim for damages in circumstances such as these, and I have no entitlement to interfere with that right on vague grounds of public policy. If there is a loophole, it is for Parliament to remove it, he submitted.

The question whether the plaintiff would have been entitled to make a claim for damages against the employer under South Australian law was debated before me at some length by reference to the contention that the wrongdoing arose in South Australia and not in Victoria and that, accordingly, in accordance with the double actionability rule, it was necessary for the plaintiff to establish that the action against the employer would have been maintainable in South Australia in order to meet one of the requirements of the rule in Phillips v Eyre. Although, as I have said, that is no longer a live issue, given the High Court's pronouncements as to the double actionability rule, and my finding that the wrongdoing in both cases arose in Victoria, the same arguments apply with respect to the defendant's contention that the claim now brought for damages should be denied on public policy grounds, because a similar claim could not have been maintained in South Australia. For that limited purpose, and also in deference to the detailed submissions which were made to me by counsel, I will examine that question further.

As to the contention that the plaintiff would have been entitled to claim damages against the employer under South Australian law, Mr Meldrum submitted that the prohibition on such a claim which was contained in s. 54(1) of the Workers Rehabilitation and Compensation Act was subject to s. 54(2) which provided:

"Subsection (1) does not affect a liability arising out of the use of a motor vehicle, being a liability against which the employer was or ought to have been insured under the law of compulsory third-party motor vehicle insurance".

The relevant insurance coverage was specified by Schedule 4 of the Motor Vehicles Act 1959 to be coverage with respect to bodily injury "caused by or arising out of the use of the vehicle in any part of the Commonwealth".

The terms of Schedule 4 have to be read with s. 99(3)(a) of the Motor Vehicles Act, which provided that for the purposes of Schedule 4 bodily injury would be deemed not to have arisen out of the use of a motor vehicle if it was not "a consequence of . . . the driving" of the vehicle. There was no dispute that the seat injury met that requirement, but Mr Curtain submitted that the fall injury did not.

Mr Meldrum submitted that the fall from the truck did meet the terms of s. 99(3)(a), as interpreted by courts in South Australia.

In the event that the plaintiff's fall injury did not arise out of the use of a motor vehicle then the plaintiff would not have had any entitlement to claim damages in South Australia against his employer (by reason of s. 54(1) of the Workers Rehabilitation and Compensation Act).

By s 105 of the Workers Rehabilitation and Compensation Act, the WorkCover Corporation is the insurer of Bonojero for any liability which might arise, otherwise than under that statute, in respect of injury caused by or arising out of that employment. If he recovered an award of damages in Victoria against the employer then the WorkCover Corporation, as statutory insurer of the employer, was entitled to bring proceedings in the South Australian Industrial Court seeking to recover from him the whole amount of any award which the employer was ordered to pay in Victoria. That right is apparently given to the Corporation by s. 54(6)(7)(7a) and (7b): see WorkCover Corporation v Reiter[17]. As to the amount which might be so recovered, that depended on whether the plaintiff could have brought a claim for damages at all, in South Australia, and that question, in turn, depended on the question whether the injury was caused or arose out of the use of a motor vehicle within the terms of s. 54(2).

In the event that the injury did arise out of the use of a motor vehicle then the plaintiff (had the torts occurred in that State) would have been entitled to claim damages in South Australia against the employer. That being so, the South Australian legislation then restricted the right of recovery by the Corporation with respect to a pay-out it had made pursuant to a judgment entered in another State, to such sums by way of compensation as it had actually paid out to the plaintiff (although in the present case it is agreed between the parties that in that event the plaintiff will consent to having his damages award reduced by such sums as have already been paid by the Corporation, thereby removing the necessity for action to be brought by the WorkCover Corporation with respect to such sums).

The consequence for the plaintiff if his injuries did not arise out of the use of a motor vehicle, would seem to be, as the Full Court concluded in WorkCover Corporation v Reiter, that the WorkCover Corporation would be entitled pursuant to s 54(7b) to claim recovery from the plaintiff, personally, of the whole of any sum which I might award to the plaintiff, and which as the insurer of the employer it had been obliged to pay out to comply with the order of this court.

The very fact that - in the event that its right of recovery was not satisfied against the employer/motor vehicle insurer - there is such a right of recovery by the WorkCover Corporation against the plaintiff, personally, is a cogent argument against the proposition that the plaintiff should be denied the right to bring proceedings in this State on grounds of public policy. If he recovers a sum of money in this court which would not have been recoverable in South Australia then, potentially, he might later be stripped of that gain as a result of proceedings brought in South Australia by the WorkCover Corporation to recover an equivalent sum. The prospect that such recovery proceedings might later be successfully brought against the plaintiff must, therefore, be set against the contention of the defendant that the plaintiff would achieve a windfall by bringing proceedings in Victoria, and that I should deny him a right of recovery, on public policy grounds, so as to defeat that anomaly.

On the other hand, if the plaintiff merely recovered an amount of money which was equally recoverable had he brought a claim under South Australian law (i.e. if, by virtue of s. 54(2), he was not precluded from bringing common law proceedings against the employer because his injury arose out of the use of a motor vehicle), then there seems little basis, on public policy grounds, for the defendant's complaint that the plaintiff would achieve benefits pursuant to the legislation in both States, an advantage denied to other plaintiffs. If this plaintiff managed to retain a common law right of action free of the constraints of the Accident Compensation Act, whilst at the same time gaining the benefit of compensation under the South Australian legislation, then whilst that may be an unintended benefit which the federal system allows him, it does not mean that the court has any basis for denying him his right to seize the advantage which is provided by virtue of the fact that the features of his case create an opening for a litigant in his position to make claims in both States.

As to the contention that the claim ought to be denied on public policy grounds, the threshold question, therefore, is whether it can truly be said that the plaintiff is seeking to recover a sum of damages which would not be open for him to recover had he sought to bring common law proceedings in South Australia - where he had gained the benefit of substantial payments of compensation under its WorkCover legislation. The answer to that question turns on whether it can be said that the plaintiff's injuries arise out of the use of a motor vehicle, within the terms of s 54(2) of the South Australian Act. There is no dispute that the seat injury does. But does the fall injury so arise?

Mr Meldrum placed emphasis on a passage, obiter, in the judgement of King CJ in State Government Insurance Commission v Wagner[18]. In that case the Full Court in South Australia was concerned with a situation where the respondent-worker had been operating a backhoe which was mounted on four wheels and which, when not operating as such, could be driven along the road under its own power. The Court held that a back injury sustained by the plaintiff was not an injury caused by or arising out of the use of a motor vehicle, in that it was not a consequence of the driving of the vehicle. The Chief justice held at 176:

"I have no difficulty in accepting that injury is in consequence of driving if it is caused by some act, such as adjusting a seat belt, which is preparatory to driving and is immediately connected with the intended driving. The same can be said of actions subsequent to the driving but flowing from it and closely connected with it, such as applying a locking device or handbrake or closing windows immediately after bringing the vehicle to a standstill, even after switching off the motor. The question is whether the relevant action in the present case is of such a nature".

Mr Meldrum submitted that, likewise, the action of stepping out of a vehicle after bringing it to a stop is an action so closely connected to the driving, and flowing from it, as to be a consequence of the driving. As presently advised, I am not persuaded by that contention. It may well be that in a given case the fall from the cabin of a vehicle might occur immediately after a vehicle came to rest, but it is easy to imagine situations where the fall might be much less obviously related to the driving. For example, if the driver had slept in his cabin overnight and then when alighting the next morning, while still sleepy, fell to the ground.

In the Wagner case Olsson J (with whom Millhouse J agreed) concluded that the backhoe operation and the driving of the backhoe were two distinct activities, and that the injury had nothing to do with the driving of the plant. He held, at 182:

"The act of driving was no more than a pre-curser to setting up for a totally different activity. It was in no relevant sense the cause of that activity. Nor did the activity in the legal sense result from the driving - as being the end product of it, in terms of proximate cause and effect."

Olsson J further held that the word "drive" would encompass:

" . . .ancillary activity such as acts immediately preparatory to the use of controls to direct the movement of a vehicle, or to acts necessary to make a vehicle safe and secure at the end of a journey".

In Heath v Tea Tree Gully City Corp[19] the Full Court was concerned with a worker injured while loading concrete slabs into the bucket of a stationary front end loader. Cox and Debelle JJ held that the injury was not a consequence of the driving of the loader but of the loading of the vehicle. Cox J held at 550 that "consequence" denoted more than a temporal connection. His Honour agreed with the appropriateness of extending the concept to the sort of activities discussed by King CJ in the earlier case (for some reason, he did not specifically include the "locking" or window closing examples from the list of matters King CJ had discussed, but nor did his Honour expressly exclude them), but held that the activity here was not sufficiently closely connected with the driving as to be a consequence of it. Debelle J agreed, and added, at 555

"I agree with Cox J that whatever is denoted by the words "a consequence of" it must be more than a mere temporal relationship. It is not enough that the relevant activity immediately precedes or follows the activity of driving. The activity must also be one which is sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense as distinct from a temporal sense".

In Motor Accident Commission v ANI Corp Ltd & Another[20] the Full Court once again drew a distinction between an activity of loading and of driving, the worker in that case having fallen from the back of a stationary semi trailer while it was being loaded by means of a forklift.

In WorkCover Corporation v Reiter, which I have earlier discussed, the Full Court was concerned with an injury which took place when bales which had been placed on a truck in South Australia, and had apparently become unstable during a journey to Victoria, subsequently fell off the truck and injured the driver while he was trying to secure the load. The court held that the injury was a consequence of the driving, although the vehicle had come to a stop. Lander J held that although courts in previous cases had reached their decision by distinguishing between the activity of driving and the activity which occurred at the time of injury, the case was not to be decided by assessing whether the plaintiff had been injured in the activity of loading as opposed to driving. Nor, so he held, at 366, was the question to be decided by assessing whether the driving was a proximate cause of the injury. Rather, he held, the question was simply one of fact, whether the injury was a consequence of driving, and he concluded that it was, since the driving had loosened the load.

The question is one of fact, and the determination in any given case may well be difficult. It is not necessary in the case before me that I resolve this question, because the issue does not fall to be determined by me, but may arise if an application is made under s. 54(7)(b) - which must be made in a South Australian court. The relevance of the question for me is only as to whether it may be said that the plaintiff would gain an advantage which would offend public policy notions should I permit his claim for damages to be determined, here.

Without expressing a concluded view, it seems to me that it might well be held that the fall from the truck was not a consequence of the driving of the truck.

It follows, therefore, that if that is so, the plaintiff would not have been able to maintain his claim for damages for the fall injury in South Australia. He, therefore, gains an advantage by virtue of the fact that he brings his claim in Victoria, where it would not be deemed to be a transport accident but where, by virtue of payments received under the South Australian Act, he is also ineligible for compensation under the Accident Compensation Act, and thus, not precluded from claiming damages in Victoria against his employer.

Counsel for the defendant asserted that I had a discretion to make an order precluding the determination of the plaintiff's claim for damages with respect to the fall injury "in order to discourage persons from seeking to obtain the benefits of part of the statutory compensation scheme of one State whilst seeking to move to another State to capitalise upon what might be perceived as a loophole". Even assuming that I had such a discretion, which I very much doubt I do have[21], I see no valid reason in the circumstances why I would exercise it so as to prevent the litigation and resolution of the plaintiff's claims. If the plaintiff has a right to bring proceedings in this State then it is not to the point that proceedings may later be brought in the Industrial Court in South Australia by the WorkCover Corporation seeking to deny to the plaintiff the benefit of any judgment he might attain.

As I have said, the decision in Pfeiffer v Rogerson has no application in the present case because I have found that the torts arose in Victoria. The public policy argument advanced by Mr Curtain does, however, have some echoes in that decision. The High Court was concerned to ensure that the common law was given relevance in the context of Australian federalism. One identified problem with the maintenance of the double actionability rule was that it encouraged forum shopping by plaintiffs. Although Mr Curtain's public policy argument is not one, expressly, about forum shopping, it is based on a similar concern, namely that an astute plaintiff can apply the vagaries of the federal; system to his own benefit, so as to gain unintended benefits in two States.

In James Pfeiffer Pty Limited v Rogerson Kirby J discussed the practice of forum shopping. Kirby J held at 48-49 (omitting references):

"Within a federal nation such as Australia, the capacity of a party to legal proceedings to choose the forum within which to bring such proceedings can be one of the advantages of the interconnected polity. However, such a facility ought not to involve the capacity of one party seriously to prejudice the legal rights of an opponent. The legitimacy of `forum shopping' is the subject of much controversy. An entitlement of a litigant to choose an advantageous law area within which to pursue its legal claims has sometimes been defended as a means of furthering the ends of material justice. However, at least so far as the enforcement of legal rights for civil wrongs within the Australian Commonwealth is concerned, this viewpoint is a minority one and in my opinion correctly so. It may be reasonable to recognise the right of a litigant to choose different courts in the one nation by reason of their advantageous procedures, better facilities or greater expedition. However, it is not reasonable that such a choice, made unilaterally by the initiating party, should materially alter that party's substantive legal entitlements to the disadvantage of its opponents. If this could be done, the law would no longer provide a certain and predictable norm, neutrally applied as between the parties. Instead, it would afford a variable rule which particular parties could manipulate to their own advantage. Such a possibility would be obstructive to the integrity of a federal nation, the reasonable expectations of those living within it and the free mobility of people, goods and services within its borders upon the assumption that such movement would not give rise to a significant alteration of accrued legal rights. In Australia, the consideration of mobility of people, goods and services within a federation therefore encourages both the broadest possible access to the available courts within the unified Judicature of the nation and the adoption of a choice of law rule which helps to promote an identical outcome for the parties' substantive rights, wherever in that nation those rights fall to be determined by a court of law."

The joint judgement also recognised the problems of forum shopping which arose if the law to be applied was that of the forum rather than that of the place where the tort occurred, at 32-33:

"From the perspective of the tortfeasor (or in many cases an insurer of the tortfeasor) application of the lex loci delicti liability by reference to geography and it is, to that extent, easier to promote laws giving a favourable outcome by, for example, limiting liability. If the lex fori is applied, the tortfeasor is exposed to a spectrum of laws imposing liability. From the perspective of the victim (the plaintiff) application of the lex loci delicti can be said to make compensation depend upon the accident of where the tort was committed, whereas, if the lex fori is applied, the plaintiff can resort to whatever forum will give the greatest compensation. In Australia, in all its law areas, the same common law rules apply and any relevant difference in substantive law will stem from statute. Applying the lex loci delicti will apply a single choice of law rule consistently in both federal and non-federal jurisdiction in all courts and will recognise and give effect to the predominant territorial concern of the statutes of State and Territory legislatures. These factors favour giving controlling effect to the lex loci delicti rather than the lex fori."

As I have said, those propositions are not directly relevant to the present case, but insofar as it might be thought that similar public policy considerations should also deny this plaintiff's claim, then in my view that could not be so.

This is not a case of forum shopping. The wrongs arose in Victoria and the law which the plaintiff is applying is Victorian law. It is that law, and its reference to recovery of compensation interstate, which creates the loophole. There is no question of the Supreme Court applying South Australian law so as to deny the claim. Thus, the fact that there is an apparent legislative right of the WorkCover Corporation of South Australia to seek recovery of any sums paid out in this Victorian action is not a matter which has any relevance to the present proceedings, save to the extent that the very fact that such a right exists, of itself, constitutes a good answer to the complaint that it is contrary to public policy that the plaintiff might pursue these claims. It is not open for a court in Victoria to rule on the question of the WorkCover Corporation's right of recovery. That is a right under South Australian law and capable of being dealt with only in that State. Even in the case where the forum court was concerned with a wrong which arose in another State, the High Court recognised that there would be limitations to the extent to which the forum court would be obliged or capable of applying the law of the lex loci delecti. In the joint judgement in Pfeiffer v Rogerson, their Honours held, at 35 (omitting references):

"There is another consideration that militates against retention of a double actionability rule. If the wrong that is actionable in the forum is a wrong, some features of which are regulated by forum statute, reference to the law of the forum will, often enough, give to the relevant statute of the forum an operation greater than the operation given it as part of the law of the State which enacted it. The State or Territory in which the events occurred may not only lay down a norm of conduct but may also provide its own special remedies for contravention of that norm - remedies which may not be available in the forum. So if one State enacts a law creating an actionable wrong of, for example, invasion of privacy it may make various provisions with respect to wrongs of that kind. The law may specify that these wrongs are to be dealt with by the courts of the State, but following particular procedures and giving novel remedies. The law may go further and entrust disputes not to courts of general or limited jurisdiction, but to a special tribunal set up for the purpose. The forum may know nothing of such an actionable wrong, its courts may have no equivalent procedures or remedies, and its legislature may not have established any equivalent tribunal. Retention of a double actionability rule would, however, serve no purpose in such a case. For reasons to which we will come in considering the distinction between questions of procedure and questions of substance, a litigant who invokes the jurisdiction of a court must take the procedures and remedies of that court as they are. Prima facie, then, if the statute law of a State or Territory provides for a remedy at the hands of a specialist tribunal, and not through the courts, the remedy will be one that can be enforced only in that tribunal. But that result would follow from the distinction between questions of procedure (which are to be governed by the lex fori) and questions of substance (which are to be governed by the lex loci delicti) regardless of whether any double actionability rule is applied."

There are no public policy considerations which necessitate or permit my denying the plaintiff's claims if they are otherwise open to be pursued according to Victorian law, as they are.

Counsel on both sides agreed that on the evidence there was no injury suffered by the plaintiff as a result of the defects of the seat. The plaintiff merely suffered pain and other symptoms as a result of the aggravation of the existing back condition, and suffered no economic loss attributable to the seat. Mr Curtain submitted that fair and reasonable compensation for any such pain and suffering would be $5000, and Mr Meldrum agreed that that was a reasonable assessment of the plaintiff's damages arising from the seat injury.

I am prepared to adopt that figure as an appropriate sum for damages under this claim.

The assessment of damages with respect to the fall injury is a more difficult task than for the seat injury.

(A) PAIN AND SUFFERING/LOSS OF ENJOYMENT OF LIFE

Counsel for the defendant submitted that whilst the plaintiff had undoubtedly suffered pain and discomfit as a result of the fall in August 1993, he has understated the extent to which he experienced the same symptoms prior to 1993 as he now attributes to the injuries suffered while working for the defendant. What is undeniable, however, is that the discrete consequences of the fall were very significant indeed.

On 23 September 1993 Mr Kierce performed a further laminectomy, and subsequently Professor Fraser performed a fusion operation. That operative treatment was due to the injury suffered in the fall with the defendant. There is no further operative treatment that can be undertaken on his back.

Having been admitted to Portland Hospital, by his general practitioner, in severe pain, the plaintiff was treated four hourly with morphine and continues now to be treated with morphine. Mr Kierce found that there was a new disc herniation at L5-S1, which caused compression on the first sacral nerve root. He freed the fifth lumbar nerve root of adhesions and arranged for caudal anaesthetic injections to be administered. He concluded that the plaintiff was not fit for any occupation, as a result of his injuries, at that time.

In 1995 the plaintiff commenced treatment with Professor Fraser, an orthopaedic surgeon who performed an anterior fusion on 11 June 1996 at L4-L5 and L5-S1 taking a bone graft from the iliac crest for the purpose. The fusion of the two lower lumbar levels was not a success.

The plaintiff now suffers from a severe and crippling back injury, which at the age of 40 means that he will never work again.

There is no doubt that the plaintiff had a severe back disability prior to his employment with Bonojero, although he tended to understate the symptoms which he was experiencing, often describing his pre-1993 symptoms, merely, as an "occasional niggle". Mr Curtain submitted that the understatement of his pre-1993 complaints was a deliberate and dishonest attempt to mislead the court. I do not accept that criticism of the plaintiff's evidence. In his understated way the plaintiff did acknowledge the problems which he had prior to his employment with Bonojero. He agreed that work on a front end loader in 1981 had caused him to have good and bad days with pain, as did bulldozer work in 1986; in 1983 driving a bobcat was very hard on his back; when working as a car detailer in 1985, standing on cement floors, and bending low down to work on the cars, and to wash them, that caused him pain; driving a scraper in 1988 would make his back pretty sore on "bad days". In 1991 when he was driving semi trailers for TMTS, mostly between Millicent and Melbourne - and about 20 weeks per year driving to and from Sydney - he was taking pain relief medication such as Codral Forte, Valium and Brufen on prescription. He agreed that he had told Dr Jarasius in December 1991 that he was having trouble putting his socks on in the morning, and was experiencing leg cramps and other significant symptoms of a serious back injury. He agreed that interstate driving knocked him around a bit and was in pain on occasions when driving.

At a glance

Court

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Before

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Judgment (268 paragraphs)

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Legislation Cited (4)

Cases Cited (15)