NSWNSWSC

Sivonen v Smith

[2023] NSWSC 984

Supreme Court of NSW|2023-02-27

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-02-27

Catchwords

239 CLR 420
84 ALJR 19
260 ALR 628
226 CLR 1

Source

Original judgment source is linked above.

Catchwords

239 CLR 42084 ALJR 19260 ALR 628226 CLR 180 ALJR 59222 ALR 1 Doubleday & Anor v Kelly [2005] NSWCA 151 Dell v Dalton (1991) 23 NSWLR 528 Evans v Bartlam [1940] HCA 2764 CLR 1[1937] AC 473[1937] 2 All ER 64653 TLR 689 Government Insurance Office of NSW v Rosniak (1992) 27 NSWLR 665 Hackshaw v Shaw [1984] HCA 84155 CLR 61456 ALR 417 Hirst v Sydney South West Area Health Service [2011] NSWSC 664 Joslyn v Berryman [2003] HCA 34214 CLR 55277 ALJR 1233198 ALR 13738 MVR 41 Makaroff v Nepean Blue Mountains Local Health District [2019] NSWSC 715 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30552 NSWLR 705 Malec v JC Hutton Pty Ltd [1990] HCA 20169 CLR 63864 ALJR 316

Judgment (66 paragraphs)

[1]

Background

The plaintiff attended Richland Highschool until Year 10. Although he was not a very good student, he was always good with his hands. He left home at 16 and got a job on a farm.
Upon leaving school in 1986, the plaintiff began working on a pig farm in Warwick, Queensland. The plaintiff was essentially a maintenance worker, performing all duties concerning the upkeep of the property, as well as assisting in preparing the food for the pigs and feeding them. The plaintiff had to leave this job in 1987 as the prices of lysine, (pig feed), went up and the plaintiff's employer decided to cut costs by letting workers go. The plaintiff was the last person hired and the first to be let go. Some months later, the employer asked the plaintiff to work on his farm but by that time the plaintiff had started another job.
In 1987, the plaintiff was working on a cotton farm in Goondiwindi. The plaintiff's duties involved all general farming roles, including planting, irrigating, pumping water from the river into the dam and collecting cotton. The plaintiff worked 7 days a week, 12 hours a day.
In 1995, the plaintiff moved back to Nowra, New South Wales, where his parents had moved. The plaintiff's partner had secured a job at Jervis Bay school.
Upon moving to Nowra, the plaintiff started working as a truck driver for R.K. & P.S. Smith at South Nowra, New South Wales. He also did "welding" jobs. Shortly after the plaintiff started his job as a truck driver, he obtained his Class HC (Heaving Combination) Licence. The plaintiff operated heavy machinery including trucks, bobcats and excavators. The plaintiff also worked from time to time as a float driver moving machinery from site to site and loading and unloading machinery from the float at various sites. However, the plaintiff's main job was to operate machinery. The plaintiff worked in this job for about 20 years.
In 1997, the plaintiff got a job with Premier Pump Outs in Wandanian, New South Wales. The pay was better than that offered by R.J. & P.S. Smith. The plaintiff cleaned septic tanks while employed by Premier Pump Outs.

[2]

The first accident

On or around the date of 9 December 1997, the plaintiff was injured in a work-related accident whilst working for Premier Pump Outs. The plaintiff was driving a tanker truck which had no baffles (angled dividers with holes that keep liquid cargos from sloshing front to back) along Bendalong Road, Bendalong, New South Wales, when the tanker truck tipped over. The plaintiff suffered injury to his back and was scalped in the accident. The plaintiff also developed psychological symptoms. The plaintiff made a claim for compensation. He was unable to work for several years after the accident. The plaintiff had a financial manager to manage his financial affairs, a requirement that was subsequently lifted after he went overseas and married his wife, Anu, in 2002.
By about 2003, the plaintiff's physical and psychological symptoms had mostly resolved, and he was ready to re-enter the workforce.
In 2003, the plaintiff worked for Bennett's at South Nowra. The plaintiff's duties involved assisting in making concrete septic tanks and installing them. The plaintiff worked at Bennett's for approximately one year.
On or around the 1 April 2004, the plaintiff obtained a 'Safework NSW Health and Safety General Construction Induction' ticket.
In 2004, the plaintiff got a job working for Shoalhaven Underground in North Nowra, New South Wales. The plaintiff's duties involved earthmoving, including operating machinery and driving a truck and bobcat. The plaintiff left this employment in 2005, as he acquired his own truck and decided to seek work as a contractor elsewhere.
In 2005, the plaintiff started working as a truck driver, plant operator and earthmover with Smith's Plant Hire. In this course of employment, the plaintiff's obligations pertained to operating earthmoving machinery, mostly on construction sites.
In 2007, the plaintiff's wife was homesick, so he and his wife moved to Finland. The plaintiff got a job working for Uutela company for approximately 12 months and was offered full-time employment. However, the plaintiff and his wife had concluded that they were better off in Australia.
When they returned to Australia in 2007, the plaintiff returned to work full-time as a plant operator with Smith's Plant Hire.

[3]

The second accident

Before the plaintiff returned to work, around August 2008, the plaintiff was involved in a motor vehicle accident through no fault of his own. The plaintiff suffered an injury to his neck with associated pain in his upper limbs, as well as psychological injuries such as depression and anxiety. The plaintiff lodged a CTP Claim against CIC Allianz Insurance Ltd and received compensation.
The plaintiff returned to work with Smith's Plant Hire in 2009. The plaintiff worked as a Plant/Float Operator.
The plaintiff left Smiths plant hire in 2011. A friend of the plaintiff had just started his own company, South Coast Asphalt, and invited the plaintiff to work with him. The plaintiff accepted the invitation and worked full time as a Float Driver, transporting machinery. In 2013, the company went into liquidation and the plaintiff was forced to seek other employment.
After working at South Coast Asphalt, the plaintiff returned to work for Smith's Plant Hire for a short period of time using his own truck. However, the plaintiff was not being compensated for all the work he was performing, and he decided to leave this employment once again.
The plaintiff then went to Mackay, Queensland, where he performed sub-contracting work using his own truck. The plaintiff spent approximately one year in Queensland but returned home to the South Coast as he was missing his family.
When the plaintiff came back, he returned to Smith's Plant Hire as an employee. The plaintiff was told he would have a role as a contractor, but this did not eventuate, so he left the company once again.
In about 2017, the plaintiff got a full-time job with Jade's Plant Hire in St Georges Basin, New South Wales. The plaintiff continued working in the same type of roles, driving trucks, bobcats and excavators and performing machinery work. The plaintiff worked for a few more years at Jade's Plant Hire until the job opportunities dwindled.
In 2018, the plaintiff got work as a truck driver, and plant operator with Shoalhaven Recycling in Bomaderry, New South Wales. The plaintiff worked with this business until approximately the latter part of 2018.
Then, in early 2019, the plaintiff commenced work as a plant operator on a sub-contract basis for Tym Lynch. The plaintiff maintained this position full time until he was injured in the accident which is the subject of these proceedings.

[4]

The plaintiff's prior injuries

The plaintiff's prior injuries are as follows: 1. The 1997 truck accident (the first accident) left Mr Sivonen with ongoing back problems. 2. The 2008 accident (the second accident) mainly affected his neck. 3. Each accident caused psychological disabilities like the disabilities claimed in these proceedings (T 86.49-87.3, 141, 142.23-143.11, 146.27-147). Mr Sivonen had trouble recalling the details of the problems which had manifested after the second accident in 2008, although he did recall he had problems with his neck, which he largely overcame (T146.25). Consequently, Mr Sivonen was able to manage the physical restrictions caused by the previous accidents. 4. After the first accident, the plaintiff was told his spine had been stretched and he would not be able to walk (T142.28-36). As a result, he sensibly avoided manual labour. He found that it aggravated the problems in his lower back (T146.11-20). Likewise, after the second accident in 2008 he 'understood' that it was important for him to avoid heavy labouring and did not partake in any (T148.43-149.2). 5. After the 2008 accident he took medication for an extended period, though he was unable to recall the name of the medication, which was OxyContin (T147.24 - 148.36).

[5]

Evidence of the plaintiff

I have briefly set out the plaintiff's version of events here.
The plaintiff explained that he was contacted by Mr Smith "some months prior to the accident" who informed him that he was preparing a property for subdivision and asked him if he was interested in being financially involved (Ex A 63 [32]). The plaintiff elected to not be involved with the project, after conducting his own enquiries with the local council (Ex A 63 [33]).
The plaintiff understood the defendant was to be clearing timber on his property for subdivision, and wanted to take some away for his son, Eric, to sell as firewood (Ex A 63-64 [34]).
Eric planned to buy a car soon and the plaintiff wanted to teach his son the life lesson of working to achieve one's goals (Ex A 63-63 [34]). The plaintiff recalled saying to the defendant: "Peter, let me know when you have started to clear the property, as Eric and I would like to collect any spare tree logs for firewood if that is ok to you" (Ex A 63-64 [34]). The defendant telephoned Mr Sivonen to confirm if he and Eric still wanted the felled tree logs located on the property, he invited them to come the following morning and collect some (Ex A 63-64 [35]). This evidence is corroborated by the plaintiff's son, Eric Sivonen.
On the morning of 2 March 2019, the plaintiff drove himself and Eric to the property in a flatbed truck. He initially missed the entrance leading to the area where the defendant had arranged for them to meet (Ex A 64 [35]). The plaintiff telephoned the defendant, seeking directions from him as to where exactly on the property the defendant was waiting for them (Ex A 64 [36]). The plaintiff was told by the defendant to return to the entrance and drive down a bush track to an area that Mr Sivonen, during his oral evidence, clarified as being a "big area" where the logs would be lying on the ground.
In his statement, the plaintiff deposed: "We did so and eventually found the area with felled logs. When we pulled up and parked the truck, Mr Smith was there in his excavator". The plaintiff then got out of his vehicle with his son. He spoke to the defendant regarding which felled logs the defendant wanted the plaintiff and his son Eric to take away (Ex A 64 [36]). The plaintiff explained: "We measured the logs, and they were about fourteen metres in length. We decided they had to be cut into seven metre lengths to adequately fit onto my truck. Eric started to walk back to our truck in order to obtain the tools to sharpen our chain saw" (Ex A 64 [36]). The plaintiff clarified this evidence to reflect that he was the only one who measured and marked the logs (T31.23-31). The plaintiff's evidence is that he went back to the truck with Eric to get his axe and the tape to measure and mark the logs while Eric serviced the chainsaw (T105.3-23). Eric's evidence was that he went back to the truck alone (T162.21-23). On this topic, I prefer Eric's evidence, that is, the plaintiff did not go back to the truck as there was no need to do so. This is the only evidence given by the plaintiff where I do not accept his evidence.

[6]

Evidence of the plaintiff's son, Eric Sivonen

Eric made an evidentiary statement on 26 November 2021. He gave evidence and was cross-examined.
Eric confirmed that he wanted to make some money so he could save for a car of his own and wanted to collect some felled timber to sell (Ex A p 81 [7]). Eric deposed: "On Saturday 2 March 2019, Dad and I drove to Peter's property in Wandandian. We drove down in a flatbed style of truck; not a semi-trailer type but big enough to fit 7-metre-long logs" (Ex A 81 [8]).
He and his father had driven past the entrance to the property, so he had to call the defendant who gave them directions as to where to park the truck and meet him (Ex A 81 [9]). Eric described the plaintiff and him pulling up, parking the truck, seeing Mr Smith on his excavator, and speaking with him about which logs they would be able to take (Ex A 81 [13]).
After meeting the defendant, the plaintiff continued to chat with him (the defendant), and Eric proceeded back to the truck to sharpen his chainsaw and fill it with petrol (Ex A 81 [14]). He was wearing his protective gear, including a helmet, earmuffs, leather chaps and a face guard (Ex A 81 [14]).
Eric could see clearly. His vision was not obstructed at this stage. He was approximately 20 metres away from his father (Ex A 82 [16]).
Eric described not being able to hear anything at this point due to the earmuffs, but he saw the plaintiff "walking away from the excavator, further to the right and in the same general direction as Peter [the defendant] was facing while sitting on the excavator" (Ex A 82 [17]).
Eric gave the following account: "Without warning while Dad was still walking away, the excavator moved forward, and I saw that a log which was already in the grabs of the excavator swung towards and hit Dad." (Ex A 82 [18]). He recalled seeing his father being thrown up in the air (Ex A 82 [18]).
At that time, Eric was no longer standing in a position where he could see what the log had ricocheted off, after the excavator had moved forward. He was an eyewitness of the log hitting the plaintiff and can account that it swung towards the plaintiff, moving quickly, knocking his father's left leg out from under him (Ex A 82 [19]).
Eric saw his father lying on the ground, he recounted that the defendant "initially tried to move the log, but was told not to by his wife, when she and her daughter arrived from where they were before" (Ex A 82 [20]). This evidence was not challenged. The defendant's partner and her daughter were not present in the area when the accident happened (Ex A 82 [20]).

[7]

Evidence of the defendant, Peter Smith

The defendant made two evidentiary statements (the last one prepared a few days before this hearing). Both his statements were prepared several months after he had been in possession of the plaintiff's evidence including the report, photographs and diagrams provided by the expert on liability, Dr Rechnitzer.
The defendant's version of events contained in his evidentiary statement dated 31 May 2022 is as follows: "26. The Plaintiff and Eric drove a table top truck and parked it on a track about 200-250 metres from where Eyvonne, Roxanne and I were removing the old fence posts. 27. I saw the Plaintiff and Eric arrive and start walking towards us, I drove the excavator about 45 metres away from where I had been clearing logs and parked it about 5 metres from a large area of trees, some standing and some felled. 28. The Plaintiff, Eric, Eyvonne, Roxanne and I met near the felled trees and exchanged greetings. We then had what is known in the civil industry as a "toolbox" meeting. After a few minutes, the Plaintiff walked closer to the felled trees, quickly measured some logs with a tape measure, then pointed to 3 of them and said words to the following effect: (i) Plaintiff: "I'll have that one, that one and that one. They need to be cut to fit in my tray." (ii): Me: "Right, you two [motioning to the Plaintiff and Eric] go back to the truck and get your gear ready. Sharpen your chainsaw or whatever you need to do. I will come and get you when I have the logs out and am ready for you. Evyonne and Roxanne, you can go back to the fence." (iii) Plaintiff: "Yep yep, get me those logs out." 29. I watched the Plaintiff and Eric turn to walk in the direction of their truck and both Eyvonne and Roxanne walk in the direction of the fence. 30. I walked 4-6 metres back to the excavator. I looked around to assess how I had to manoeuvre the excavator to remove the logs which had fallen between and around an existing clump of standing trees. The property was in the process of being cleared so there was still a considerable amount of trees to be removed. It would be considered a light to medium dense bush block. 31. While assessing the removal of the logs that the Plaintiff had indicated he wanted, I noted that Eyvonne and Roxanne were back at the fence, which was approximately 50 metres away and at a safe distance from where I was about to commence work. 32. Through the trees, I could see the Plaintiff and Eric making their way back to the truck, following the existing truck. At that stage, they were a similar distance away, or possibly further, than Eyvonne and Roxanne. I assumed the Plaintiff would have continued on to his truck as I had instructed, and with his many years' experience in operating machines, that he and his son would stay at the truck, especially since I recall Eric was only about 14 years of age. … 34. With a plan established in my mind, I climbed into the cabin through the only access door on the left side, which I had left open and locked against the body of the cabin, My front window was fully open and the right side sliding window was partially open. 35. There is a safety process to be able to start the excavator and it cannot be started unless executed. I put the safety lever down, turned the key and put the revs up to working capacity,. It took approximately 10 minutes from assessing the site to starting the machine and being ready to remove the first log. 36. With many years of experience, once you assess the site it is almost as if you have programmed an internal computer, and sensors as to where obstacles and the boundary of your works are, which helps as my field of vision when looking forward is about 35 degrees. 37. My usual field is often obstructed by the boom (working arm of the excavator). It is difficult to turn and look out the rear window, which rarely an operator does, as it easier to turn the cabin instead. The cabin and boom can turn around on its axis 360 degrees wither way continuously whether tracks are stationary or in motion. … 41. Having seen that everyone was at a safe distance away to where I had directed them, I drove the excavator forward about 5 metres to where the felled trees were that the Plaintiff had selected. I stopped and was stationary with the engine still running, facing towards the felled logs at my 11:30 to 12 o'clock. Eyvonne and Roxanne were working at about my 1 to 2 o'clock and the Plaintiff was behind me at about my 7 o'clock. … 43. I began to manoeuvre the tracks of the excavator, positioning the machine so that I could remove the first log (Log) which was about 8 or 10 metres long and laying between the standing trees. The left end of the Log was about 150-200 millimetres in diameter and the right end of the log was about 300-400 millimetres in diameter. 4. It took me about 15 minutes to reposition the excavator and drag out the Log from between the trees so that I was able to pick the Log up in the centre with the grabs. The grabs are an attachment on the end of the boom, not unlike a claw, and about 1.2 metres wide. Once I had a firm grasp of the Log there was about 3/5 to 4.5 metres of log on either side of the grabs. 45. The excavator was now stationary and I starting slewing (rotating the cabin and boom around an axis) to the left with the Log in the grabs when the very end of the right front clipped one of the standing trees. There was only minimal resistance and with a small jolt it released. I was able to continue slewing left. 46. As I was almost in the final swing of slewing around with the Log in the grabs, I was shocked to see the Plaintiff in view. Unknown to me, the Plaintiff had returned and I was standing behind the excavator, about 4 metres away, at about my 8 o'clock position. 47. It all happened so quickly. I tried to stop but, with the momentum of the excavator slewing and the weight of the Log, the left of the log struck the Plaintiff on his leg. He screamed and fell to the ground…"

[8]

Photograph (4) 1. 2. In the defendant's second evidentiary statement dated 24 February 2023, he deposed: "14. As referred to in my previous statement dated 31 May 2022, soon after the plaintiff and his son arrived, I met them near a large area or clump of trees, some of which were felled. The plaintiff walked to this area, measured some of these felled logs with a tape measure and pointed to three of them, stating they were the three he wanted to take. He said he needed to cut them so they could fit into his truck. As best as I can recall, after he measured these logs, he used his axe to mark them. 15. The clump of trees in which these three logs were located had therein quite a number of logs laying in a haphazard way partly on each other. 16. It was the first of these three logs that I removed from this clump of trees over a period of time with my excavator, after the plaintiff and his son had left the area, when the accident happened. I never retrieved the remaining two logs identified by the plaintiff. 17. These logs were in dense scrub - similar to the density depicted in photograph 2 in the top right hand corner of that photograph - to the right of the track leading to where Eyvonne and Roxanne had been working before this accident. Eyvonne and Roxanne were working down the track towards the top of photograph 2. 18. The clump of trees was located to the left of the tree immediately to the left of the log with the annotation "end of log next to tree" in photograph 2. The commencement of the clump of trees was to the left of this location about 10 metres away. 19. In order to gain access to these logs the plaintiff wished to retrieve, I drove the excavator forward between the tree located immediately to the left of the log in photo 2 (at the end of the log furthest away in the photo) and the tree immediately to the left as depicted in this photograph (being further away) towards the clump of trees 10 metres away. 20. When I reached the logs they were parallel to the excavator on my right hand side. I then swivelled the cabin and claw of the excavator 90 degrees to my right, so that I was perpendicular to or facing the logs within the clump of trees while the tracks remained stationary and parallel to the logs. 21. I commenced retrieving the first log because it was the easiest log to access. In doing so I used the claw attached to the excavator in order to push away some logs that were on top of it - using the claw to simply push and pull those logs away. 22. I was eventually able to grab the log I wanted. I grabbed it more on the right side but still close to the middle of the log. I then pulled it out from the clump of trees and then I reversed back through the two trees I had entered through. At this time my cabin and claw were still perpendicular to or facing the log, which was still parallel to the excavator's tracks on its right. 23. Once the left end of the log was clear of the two trees (depicted at the top left hand corner of photograph 2) I had previously entered and then exited through, I lowered the log and lay it on the ground. 24. The log was now lying on the track at a bit of an angle with the left end of it being a little more to the north of the photograph than the right end of the log. The cabin of the excavator was still facing north in this photograph, perpendicular to the log. The tracks of the excavator were parallel to the log on the right. 25. In my estimation the log was about 8 or 10 metres. 26. I then manoeuvred the excavator so that its tracks, cabin and claw were all perpendicular to where the middle of this log was located. The middle of this log at this time was behind where Eyvonne was standing and the trees behind her as depicted in photograph 2 - with each half the length of this log extending either side of her. I then grabbed the middle of the log with the claw of the excavator and picked it up off the ground. 27. To accommodate the width of the log and the restricted area, I slowly reversed backwards to my right in a "C" shaped curve. When I stopped reversing, the front of the excavator with the log in front of it was near the far right of photo 1, between the man bending over the plaintiff and the trees depicted in this photo to his right. 28. I then started slewing the cabin and the claw holding the log, independently of the tracks, to my left. The right end of the log was travelling forward, and the left end of the log was travelling backwards. Shortly after I started this movement, the very tip of the right end of the log hit a small/thin tree. This could be the pale coloured tree to the right of photograph 1, but I cannot be sure as there was lots of those little trees in that area. There was very little resistance and the right end of the log quickly pushed passed the tree. I continued slewing the cabin and the log to my left. 29. I then glimpsed the plaintiff who was immediately hit in the leg by the left end of the log. This came as a complete surprise. It happened very quickly. 30. Immediately after the plaintiff was hit by the left end of the log on his left leg, he immediately fell to the ground. I jumped out of the excavator remonstrating as to what he was doing (as described in my first statement). 31. The log was never released by the claw of the grab. (My emphasis added)

[9]

Evidence of Eyvonne Stewart

Ms Stewart made an evidentiary statement dated 31 May 2022. Ms Stewart is the defendant's partner. She also gave oral evidence and was cross-examined.
In cross-examination, Ms Stewart's answers were inconsistent and unimpressive. She testified that it took her 10 to 15 minutes after the so-called "toolbox meeting" to walk 50 metres (T318.20-25). When her account was challenged, she dismissively answered "whatever" (T218.44). When she was asked whether she agreed that it only took a minute or two, she inexpiably replied "Not entirely, no" (T319.134). Ms Stewart also took it upon herself to cast aspersions as to the plaintiff's motivations regarding insurance and the taking of photos while he was lying on the ground; that evidence was unprompted and telling (T322.16-20).
No evidence was called from Ms Stewart to contradict or cast any doubt on Eric's evidence at [20]-[21] of his evidentiary statement regarding the location of the log in figures 8 and 9 (Ex A 82).

[10]

Evidence of the plaintiff's expert on liability, Dr George Rechnitzer

The plaintiff relied on an expert liability report of Dr George Rechnitzer, engineer, dated 11 November 2020. He was not cross-examined. Dr Rechnitzer prepared a reconstruction of the incident from various points of view at pages 20 and 21 of his report (Ex A 155-156). Dr Rechnitzer opined: "Because of the length of the log of around 14m, its flexibility over such a length and that it is being held by the grab at mid length, there is a geometric multiplier effect where the free left end of the log would move/rotate at a greater speed and distance to the excavator."
Dr Rechnitzer responded to the following questions as follows (Ex A 161): Based on the assumptions set out above, was there a not insignificant risk of injury to the Plaintiff from the manner in which the Defendant operated the machine? Yes, whether Mr Smith resumed control of the excavator to intentionally move it or it was done inadvertently at the time that he did, there was a not insignificant risk of injury to the Plaintiff. It appears that Mr Sivonen was still in fairly close proximity to the excavator at this time, and thus it was irresponsible of Mr Smith to resume operating it. Operating the machine by itself can be hazardous and requires persons to be a safe distance away, but in conjunction with holding the considerably large (approx. 14m long) log it was especially so, increasing the ability for it to cause serious injury over a wider area. It is for reasons like this that "clear zones" or "Safe Work Areas" are an established OHS industry logging practice as will be discussed in the following question.
At Ex A 162, Dr Rechnitzer stated: Were the plaintiff's injuries caused by a lack of reasonable care by the Defendant? If yes, please explain how and in what respects the Defendant failed to exercise reasonable care? In providing your opinion, please have regard to any relevant industry practices, principles, rules and/or standards for the operation of machinery for the purposes being operated by the defendant? Yes, in my opinion, the Plaintiff's injuries were caused by a lack of reasonable care by the Defendant. This was primarily due to Mr Smith not apparently implementing well known practical industry practice with mobile plant of having a "safe work zone" or "exclusion zone" such that pedestrian workers or other personnel, are positioned sufficiently out of the mobile plant work area that they cannot be injured should the plant start moving or operating (for whatever reason either deliberately or inadvertently), as discussed below. Were there reasonably practicable measures available to the Defendant to obviate or minimise the Plaintiff's risk of personal injury? If yes, please detail these measures and explain why you consider they were reasonable. Yes, there were reasonably practicable measures available to the Defendant to obviate or minimise the Plaintiff's risk of personal injury, as discussed below.

[11]

Credibility of the parties

Under cross examination, the plaintiff confirmed his consistent description of the manner and sequence of events including his initial conversation with Mr Smith and the process by which he secured Mr Smith's attention and eye contact prior to the second conversation (T107.34-43, 109.6-16, 113.37-50, 116.22-27, 117.41-45, 118.1-38, 135.3-28). The plaintiff disagreed with the defendant's version of events (T130.6-10, 136.10-28). Both the plaintiff and the defendant are experienced in the safety protocols required when using heavy machinery, including making eye contact with the driver of the excavator before approaching it.
As previously stated, I carefully observed Eric when giving evidence and being cross-examined. Eric had the best and clear recollection of events leading up to and after the accident. He also answered questions carefully. I prefer his evidence and accept Eric as a witness of truth.
When being cross-examined, the defendant was argumentative. Some of the defendant's answers were evasive and irreconcilable with answers he had provided moments earlier. The defendant conceded that he had given three different accounts of the same event, the last of which was provided in the witness box (T210.1-7). Towards the end of his cross-examination, he produced a further undated statement (Ex H), which contained another different version of events.
The defendant's evidentiary statements contain discrepancies that are incompatible. The defendant could not sufficiently explain these discrepancies. The inconsistencies increased through the course of his oral testimony and were especially evident when he produced and relied upon the undated statement.
The undated statement that had been produced by the defendant referred to a "ricochet" mechanism which was absent from any other versions. Importantly, in the undated statement, the defendant made it clear that he only "assumed" the plaintiff had left the area where the excavator was operating. This account contradicts the defendant's oral testimony that "I was clearly watching them walk up the track together" (T207.1).
In the defendant's first evidentiary statement, he stated that when the plaintiff and his son arrived, he was working with Eyvonne and Roxanne removing old fence posts. When he saw the plaintiff and his son walking towards him, he drove the excavator about 45 metres away from where he had been clearing posts. He parked it about 5 metres away from a large area of trees, some standing, some felled. According to his account a "toolbox" meeting then took place between the plaintiff, the defendant, Eric, Eyvonne and Roxanne. While conducting the meeting the defendant, maintained that he was not sitting in the excavator. The defendant stated that upon the completion of their meeting he observed the plaintiff and Eric walk back up the track and in the direction of their truck. Only after he observed them walking off did he also return to his excavator which was in the defendant's estimate 4-6 meters away. Subsequently, after surveying his surroundings and looking through the trees to make sure that the plaintiff and eric were still on their way back to the truck, did he climb into the cabin of the excavator. He says it took about 10 minutes after the "toolbox" meeting to assess the site, start the machine and be ready to remove the first log.

[12]

Findings of fact

I prefer and accept the evidence of the plaintiff and his son, Eric, to that of the defendant. That is, while the plaintiff was walking away from the excavator, the first defendant moved the excavator carrying the log in the direction that the plaintiff was walking and struck the plaintiff from behind. The plaintiff submitted that the argument that Mr Sivonen would walk behind a working and moving excavator is baseless, particularly as he was experienced in the operation of heavy machinery. I agree with these submissions.
The defendant submitted that the defendant's version of events at Ex A 89 [36]-[44] should be preferred.
Even if one the defendant's version of events was accepted, the plaintiff submitted that the defendant would still be liable for the plaintiff's injuries. This is because of the first defendant's failure to check the whereabouts of any persons (including the plaintiff) who may have been in the general area, before commencing to move or slew the machine. This illustrates that the defendant had failed to maintain a safe exclusion zone and through his own omission had failed to pay adequate attention on his driving and slewing. The plaintiff also submitted that Mr Smith failed to accurately control the excavator to avoid collision with any surrounding trees. A collision that would cause such force as to cause the log to "recoil", "ricochet" or "glance through an arch of 4m" at high speed.
During cross-examination, the plaintiff says he saw first the excavator before signalling in the top right-hand corner of Ex A 153 (T110.42-45). The plaintiff also says that he was uncertain how the excavator was being manoeuvred but recalled that the defendant broke the top of the tree with the claw of the excavator (T114.3-7, T115.6-21 & 116.14-32). When the plaintiff approached the excavator, the plaintiff did so slowly, in a careful manner, making sure that the defendant clearly observed him (Ex A 65).
The defendant however, denied that before the accident there was any communication by way of discussion or signalling as the plaintiff alleges. As previously set out in this judgment, I prefer the plaintiff's evidence over that of the defendant.

[13]

Summary of my findings

Considering the evidence before me, my findings are that the following events occurred on the morning of 2 March 2019: 1. It is not in dispute that on the morning of 2 March 2019, the plaintiff and Eric drove in a flatbed truck to the property located at Hancocks Creek Road, Wandandian. Mr Sivonen and Eric drove to the property to collect timber logs in accordance with an arrangement made with Mr Smith. The logs were to be sold by Eric. 2. It is also common ground that the plaintiff parked his truck a fair distance away from the spot where the plaintiff was shown lying on the ground after the accident in photos at Ex A 153-4. 3. Upon arriving at the area with the felled logs, the plaintiff engaged in a conversation with the defendant about which felled logs were to be taken. The defendant was in a Yanma 5-tonne "mini" excavator with a "grab" attachment to pick up and move the logs. The plaintiff then measured the logs to be about fourteen metres in length. To fit the plaintiff's truck, the logs had to be cut down to seven metres in length. The plaintiff measured the logs using a tape measure and used his axe to mark the logs at 7 metre lengths. 4. According to all the evidence presented there is no logical reason why the plaintiff would go back to his truck. I prefer Eric's account over that of the plaintiff. The plaintiff did not go back to his truck. 5. Mr Smith then picked up a log using the excavator's claw attachment. This log had been marked by the plaintiff. Consequently, the plaintiff signalled to the defendant, who was 20 metres away from the plaintiff, that the log did not need to be picked up. The plaintiff raised both of his arms, waved them high making an "X" and importantly made eye contact with the defendant. The plaintiff was also yelling at the defendant to stop. 6. The defendant then acknowledged the plaintiff's signal, looked straight at him, and lowered the claw with the log to the ground. The defendant removed his hands from the control but allowed the engine to run on idle. The plaintiff signalled, directly looked at and spoke to the defendant. 7. The plaintiff then approached Mr Smith, who was still in the excavator. The plaintiff was standing 1 metre to the left of the excavator's side door. The plaintiff told the defendant in a loud voice, words to the following effect: "Do not move that log, Eric needs to cut it into two seven metre lengths" (Ex A 64-65). The defendant acknowledged the plaintiff by nodding and stating: "No worries" 9 (Ex A 65). 8. After the exchange, the plaintiff walked away from the excavator in the same direction from which he had come, that is, past the front of the excavator in the direction the defendant was facing, and past the arms and the claw attachment holding the log. The plaintiff did not walk behind the excavator. 9. As the plaintiff was walking away from the excavator, the defendant drove the excavator forward while the grab (claw) was still holding the log. As the excavator moved forward, the right end of the log struck a tree trunk with enough force to cause the log to recoil and ricochet. The subsequent impact sent the free left end of the log swinging forwards towards the plaintiff. 10. The log struck the plaintiff's left leg resulting in serious injuries. The impact threw the plaintiff forward some distance. His son witnessed the event, watching his father get thrown up in the air and then seeing him lying down on the ground afterwards. 11. The defendant admitted that if he had taken the time to look around the area and had better observed where he was moving the machinery, the accident could have been avoided. Before commencing to move or slew the machine the defendant failed to check the locations of each person at the site, including the plaintiff who was in the vicinity. He did not maintain a safe exclusion zone. The defendant failed in adequately controlling the excavator in a way as to avoid any potential collisions, such as the log colliding with any surrounding trees with such force as to cause it to "recoil", "ricochet" or "glance through an arch of 4m" at high speed.

[14]

Liability

Sections 5B and 5C of the CLA read: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 5C Other principles In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
The question whether the defendant breached his duty of care turns firstly on determining whether the risk in question is one of which it knew or ought to have known: s 5B(1)(a) of the CLA. This means risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the defendant owed to the plaintiff.
The scope of the defendant's duty is delimited by the expectation that people like the plaintiff will exercise reasonable care for their own safety. The expectation that a potential plaintiff will exercise reasonable care goes not merely to the assessment of breach, but it is a "specific element contained, as a matter of law, in the scope of the duty of care": Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 per Leeming JA at [53]; see also Council of City of Sydney v Hunter [2014] NSWCA 449 per Emmett JA at [33] and Blakemore v Moore and Clements [2015] NSWDC 9.

[15]

The plaintiff's submissions

The plaintiff submitted that the evidence of the plaintiff and his son Eric should be accepted by the court. This evidence provided that the defendant moved the excavator carrying the log forward in the same direction as the plaintiff was walking away and struck the plaintiff from behind. The plaintiff submitted that the contention made by the defendant that the plaintiff, (an experienced operator of machinery himself), would walk behind a working and moving excavator is baseless. I agree with these submissions.
Even if one of the defendant's contradicting versions of events was to be accepted, the plaintiff has submitted that the defendant would still be liable for the plaintiff's injuries, firstly, because of the first defendant's failure to establish an exclusion zone and to adequately check whether any persons were present in that exclusion zone, before proceeding to operate any machinery. Secondly through the defendant's own omission of failure to watch where he was driving and slewing. The plaintiff also submitted that the defendant failed to control the excavator effectively to avoid the log colliding with any surrounding obstructions.

[16]

The defendant's submissions

The defendant submitted that if the defendant's version of the accident is accepted, then it is likely that the plaintiff was not exercising reasonable care for his own safety. The plaintiff had many years of experience working in and around heavy equipment such as the excavator used by Mr Smith at the time. It was therefore submitted that the plaintiff would have known that he was required to keep well clear of the excavator until such a time as he had contacted the operator to let him know he wanted to approach. For the reasons set out earlier in this judgment, the defendant's version of events has not been accepted.

[17]

Resolution

As stated earlier, it is necessary to accurately identify the relevant risk of harm. The defendant had a duty of care towards the plaintiff and a duty not to operate the excavator when someone was within the exclusion zone. Incidental to this is a duty to ensure that no one was within the exclusion zone. Therefore, the risk of harm is as follows, that an operator of an excavator with a claw attachment holding a log would hit a tree or other obstruction causing the log to dislodge and hit someone who was standing within the exclusion zone.
Whether the risk articulated above is foreseeable, that is, whether it was a risk of which the defendant knew or ought to have known, does not require actual knowledge of the risk of harm. Section 5B(1) reflects the position of the common law to inquire what a hypothetical person in the position of the actual defendant would have known.
A reasonable person operating a heavy piece of machinery would have ensured that there were no persons within the exclusion zone. This is especially important if the excavator was holding a log in the claw attachment and manoeuvring around small trees and brush. The reasonable person would have known that if they did not take necessary precautions, there was a material risk that a person within the exclusion zone could be injured by the excavator.
The defendant, who was operating an excavator holding a log in a claw attachment, with a person such as the plaintiff and trees in close proximity, should have known that there was a risk of injuring the plaintiff. The risk was therefore foreseeable.
As stated by Garling J in Benic v State of New South Wales [2010] NSWSC 1039 at [101], "the phrase 'not insignificant' is intended to refer to the probability of the occurrence of the risk." The risk, in circumstances in which the plaintiff was within the exclusion zone, was clearly not insignificant. The plaintiff had made his presence clear to the defendant by way of motioning an "X" with his arms and by yelling and making eye contact with the defendant. The defendant's sustained operation of the excavator in these circumstances gave rise to a likely materialisation of the risk.
In these circumstances, a reasonable person in the position of the defendant would have taken the following precautions: checking the location of the plaintiff before commencing movement of the excavator, establishing a safe exclusion zone and being watchful and aware of his driving and slewing. The defendant's failure to engage in these precautions increased the probability of a potential injury to the plaintiff, with serious consequences of harm given the size of the logs and force in which they could impact a bystander. The burden of taking such precautions to avoid the risk of injury to the plaintiff or other parties were not burdensome.

[18]

Causation

Section 5D of the CLA prescribes the relevant test for causation: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [41], [44].
Section 5D of the CLA reads: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements-- (a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation" ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent-- (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
Unlike duty and breach, the inquiry as to causation is "wholly retrospective [and]…seeks to identify what happened and why": Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94 at [61]. Causation is wholly factual and turns on the plaintiff's proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14].
Proof of the requisite causal link between those omissions and an occurrence requires consideration of the probable course of events had the omissions not occurred: Strong v Woolworths at [1320].

[19]

Resolution

There is no real argument as to causation.
But for the failure of the defendant moving the excavator forward causing the log in the claw attachment to hit a tree and swing towards the plaintiff, the plaintiff would not have been struck and injured. The defendant's negligence in failing to take precautions and operating the excavator was a necessary condition for the occurrence of harm. Without the defendant's course of action, the plaintiff would not have been injured by the log. Had the defendant exercised his duty of care properly, the excavator would not have been in operation while the plaintiff was within the exclusion zone. Factual causation as set out in s 5D(1)(a) is made out.
Given the defendant was operating the excavator, it is appropriate for the scope of the defendant's liability to extend to the harm caused. Section 5D(1)(b) is satisfied.
The result is that the defendant is negligent. Section 5D of the CLA has been satisfied.

[20]

Obvious risk

Sections 5F, 5G, 5H and 5I of the CLA concern obvious risk and are as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if - (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."

[21]

The plaintiff's submissions

The plaintiff submitted that there was no obvious risk.

[22]

The defendant's submissions

The defendants submitted that the plaintiff's injury was caused by the materialisation of obvious risk within the meaning of s 5F of the CLA. The risk of undertaking work near an operating excavator, particularly in circumstances where the operator is not aware of that person's presence, would no doubt be an obvious risk.
It was submitted that at that time, it should have been obvious to a reasonable person in the position of the plaintiff that the circumstances posed a risk pursuant to ss 5F(1) and (2) of the CLA. In those circumstances, it is alleged that the defendant would not have a duty to warn the plaintiff of risks associated with them. Such risks ought to have been obvious to the plaintiff at the time: s 5H(1) of the CLA. The defendant asserted that the plaintiff cannot establish on the balance of probabilities that he was not aware of these risks.

[23]

Resolution

The plaintiff made an "X" with his hands crossed in the air and yelled at the defendant. More importantly, the plaintiff made eye contact with him. The defendant powered down the excavator and engaged in a conversation with the plaintiff. The plaintiff then proceeded to walk away in the direction in which the defendant was facing. In these circumstances, I do not consider the risk as an obvious one, because no one and certainly not the plaintiff would expect that the operator of an excavator with a claw attachment holding a long log of timber would start moving the excavator without ensuring that the plaintiff was outside the exclusion zone, more so because the defendant admitted that had he checked he would have seen the plaintiff.
A reasonable person in the position of the plaintiff, after having done all that they could to secure the attention of the defendant, would not have entertained the risk that the defendant would proceed to operate the excavator while they were still within the exclusion zone. Nor would the plaintiff entertain the concept that the defendant would not ensure that the plaintiff was outside the exclusion without checking, something the defendant conceded he could have done.
As I previously mentioned, both the plaintiff and the defendant were experienced operators of excavators. The experience of the plaintiff is a factor which the court may consider: see Doubleday & Anor v Kelly [2005] NSWCA 151 and Dederer. A person in the plaintiff's position, knowing the defendant's experience, would not have considered the risk to be obvious as the defendant would have been expected to take precautions consistent with industry practice.
For these reasons, the defendant's submission that the risk falls within sections 5F, 5G, 5H and 5K (obvious risk) of the CLA fails.

[24]

Contributory negligence

Section 5S of the CLA reads: "In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
The particulars of contributory negligence are as follows: the plaintiff was an experienced plant operator who was aware of the danger associated with plant equipment and the precautions to be taken and failed to heed the danger associated with the operation of plant equipment; to take reasonable care for his own safety while working around plant equipment; to watch out for the excavator of the defendant; to assess any potential risk of injury; to rely on his skill and knowledge as an experienced plant operator to avoid the risk of injury in the circumstances; to listen to the operation of the excavator; to provide the defendant and excavator with a safe distance; and failed to take reasonable care for his own safety.
The case of Woolworths concerned a challenge on a finding of no contributory negligence. In that case, and not on the topic, which was subject of appeal to the High Court, Campbell JA (with Handley AJA, Harrison J agreeing) stated at [38]: "It is possible for a pedestrian in a shopping mall to take reasonable care for their own safety while still paying attention to the goods on display and the other people that are around that person. By contrast, a cleaner whose task it is to look for and clean up spillages, or any other person whose specific responsibility was to look for spillages, would not reasonably be expected to have the sort of divided attention that a shopper often has."
In Podbrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, the High Court determined at 532-533 that with regards to contributory negligence, the just and equitable apportionment of the liability ought to be examined as follows: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage; Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Miliman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

[25]

The plaintiff's submissions The onus of proving the elements of contributory negligence is on the defendants. The plaintiff was walking away from the first defendant in his direct line of vision. Therefore, the plaintiff submitted that there was no scope for contributory negligence. Even on the versions given by the defendant, it is submitted that is there is no contributory negligence established. If, contrary to the plaintiff's submissions, there were to be any found, it is submitted it would be slight. It is submitted that the defendant was operating heavy machinery in an unsafe manner and not watching where he was tracking and slewing: see Pennington v Norris (1956) 96 CLR 10 at 16.

[26]

The defendant's submissions

If the Court were to be against the defendant's arguments on primary liability, the defendant submitted that the Court should find contributory negligence, indeed as high as 100%. It is the defendant's case that the plaintiff's failure to keep a lookout for his own safety must amount to significant contributory negligence. If the court was to accept the defendant's version of events and yet still find some negligence on his part, the defendant submitted that it is still arguable that a real cause of the accident was the negligence of the plaintiff. The defendant ultimately submitted that when assessed as against any fault of the defendant, the Court should comfortably find contributory negligence of at or above 50%.

[27]

Resolution

The plaintiff did what a reasonable person in his position would have done. The plaintiff secured the attention of the defendant, as stated numerous times in this judgment, by way of an "X" with his hands and yelling. The plaintiff then walked away from the defendant in the direction of the defendant's direct line of vision. The plaintiff was not required to continuously look back to the excavator while he walked away, nor absurdly walk backwards while maintaining eye contact with the excavator. It is my view that the plaintiff did all he needed to do, and that a reasonable person in his circumstances would have done the same. In the circumstances the plaintiff has no culpability. The plaintiff exercised care for his own safety. Contributory negligence has not been established.

[28]

After the accident

As the defendant has been found negligent, I shall outline the plaintiff's condition after the accident, analyse the medical reports and then determine damages. As a result of the defendant's negligence, the plaintiff was severely injured. He suffered a comminute fracture of the shaft of the left tibia, a displaced fracture involving the midshaft of the left tibia, compartment syndrome in the left leg, deformity and scarring of the left leg, a chronic pain disorder with peripheral sensitisation syndrome, and adjustment disorder with mixed anxiety and depressed mood (Ex A 292).
It is common ground that an ambulance was called, and the plaintiff was conveyed to Shoalhaven District Memorial Hospital where he underwent emergency surgery.
At the time of the accident, the plaintiff's pain was severe. The ambulance officer's description reads: "40mg morphine IV, 100mg ketamine IV, 2 x 3mL methoxyflurane… Decision @ scene… made to [transfer] to Wollongong Hospital. Pain not able to be controlled with morphine and methoxyflurane post Ketamine wearing off. Pt diverted to Shoalhaven" (Ex B 2).
The plaintiff was diagnosed with left tibia and fibula comminute fractures and underwent emergency surgery performed by Dr Chad Todhunter. Dr Todhunter performed an open reduction and internal fixation to the left tibia with insertion of intramedullary nail, and a fasciotomy to relieve compartment syndrome in the left lower limb (Ex B 20).
On 6 March 2019, the plaintiff was transferred to Wollongong Hospital and the next day underwent a washout, debridement and closure of the left leg medial wound and application of a VAC dressing. This procedure was also performed by Dr Todhunter (Ex B 30). On 11 March 2019, he underwent a split skin graft to the fasciotomy site performed by Dr Heartsch (Ex B 30). The skin graft has left Mr Sivonen with scarring.
The plaintiff was an inpatient at Wollongong Hospital until 23 March 2019 when he was transferred back to Shoalhaven Hospital (Ex B 27). On 10 April 2019, the plaintiff was transferred to David Berry Hospital for rehabilitation (Ex B 10). He was eventually discharged home on 18 April 2019 (Ex B 10).
On 1 May 2019, the plaintiff attended upon Dr Todhunter for review (Ex B 37). The plaintiff was noted to be two months post compound segmental left tibial fracture and noted to have suffered from compartment syndrome, requiring a fasciotomy and skin graft (Ex B 137).

[29]

The plaintiff's evidence and Credibility

I observed that the plaintiff was in pain while giving his evidence. In his evidence in chief, Mr Sivonen explained that "My pain is just a bit increased" (T24.36). He described that he also had some difficulties having confidence in himself and is: "[t]rying to learn to accept what happened" and that "it's fairly difficult" (T24.45-49). He explained that "Well, I - I do I sort of focus on my children and my family and try to do the best with what - what I've got" (T25.3-4). He was alert during cross examination, challenging some questions on the basis of relevance (T138.8). It is my view that the plaintiff gave truthful evidence and I accept him as a credible witness.
The plaintiff takes various pain killers including, 200mg of Palexia in the morning and 100mg at night slow release, 50mg of Palexia quick release and Oxycodone for breakthrough pain and 5mg Oxycodone Mylan for breakthrough pain. In respect of the pain relief, he said "It helps somewhat but it's not a total relief. It gives - like takes the edge off" (T26.21).
During cross examination, the plaintiff confirmed that his pain medication is being increased by Dr Murray and that his pain stops him from doing the things that he was able to do in the past (T27.23-28). He confirmed that he continues to have a loss of confidence and self-esteem (T28.1), lacks energy and motivation (T28.3-4), has trouble concentrating because of the pain (T28.6-7) and is frustrated, sad and anxious (T28.9-10). He also said that there was no improvement in his frustration, sadness and anxiety. He said it was about the same (T28.16, 23).
The plaintiff spoke about the pain management course that he had referred to in paragraph 72 of his first evidentiary statement. He deposed "When I done the pain management course, they gave me a lot of learning in regard to how to do breathing exercises, how to distract your mind from the pain. I have asked to redo that course again to refresh myself with all that" (T28.31-33).
The plaintiff confirmed, as he said in paragraph 7 of his first evidentiary statement, that he still had persistent left leg pain, difficulty walking long distances and on uneven surfaces (T28.35-39). He confirmed that he still had the "dead sensation" in his left leg and that "it just feels like a heavy weight your dragging, you've got with you" (T28.47-49).

[30]

Medico-legal reports

The plaintiff relied on the unchallenged opinions of orthopaedic surgeon, Dr James Bodel, Rehabilitation Physician, Dr Vaidya Bala and Psychiatrist Dr Julian Parmegiani. The defendant had the plaintiff examined by Pain Specialist Dr Gorman, and Psychiatrist Dr Rickard-Bell. These reports have not been served. Clearly, their opinions are of no assistance to the defendants.
The records of the plaintiff's treating doctors confirm the serious and permanent nature of his physical and psychiatric injuries.
In his report dated 9 February 2021, Dr Bodel diagnosed the plaintiff with a very serious injury to the left leg (Ex A 272 and 276). Those injuries were described as a comminute fracture of the left tibia and fibula, compartment syndrome, and the complication of chronic pain. Dr Bodel records that the plaintiff suffers from a sharp stabbing pain and numbness in the whole of the left leg below the knee, anterior knee pain with the plaintiff unable to kneel, squat, or climb, and an aggravation of pain related symptoms upon prolonged standing or walking (Ex A 273). He described ongoing disabilities of pain, stiffness, and weakness in the left leg as well as chronic pain and sensitivity (Ex A 276).
Dr Bodel considered that the plaintiff is unlikely to ever return to work, noting his ability to seek employment on the open labour market to be "severely impacted by his injury" (Ex A 277). Dr Bodel confirmed some of the various ways in which the plaintiff has become incapacitated for the everyday tasks of his life such as the completion of domestic duties and the construction of his house (Ex A 277).
In a supplementary report dated 13 October 2022, Dr Bodel opined that the plaintiff's condition is unlikely to improve further over time (Ex A 284). He described the plaintiff as severely and permanently incapacitated for work (Ex A 285). He wrote that the plaintiff's skills were "limited to the heavy work that he has done and the truck driving work that he has done in the past and he has no specific computer-based skills or other indoor skills to fall back on - the plaintiff effectively having no residual earning capacity and no ability to be retrained" (Ex A 285).
Dr Bala, Consultant Rehabilitation in Rehabilitation Medicine, provided a medico legal report dated 21 February 2021. He wrote: "Mr Sivonen does have chronic musculoskeletal pain with neuropathic features resulting in somatic and associated pain disorder with peripheral sensitisation syndrome as a significant disability in itself... According to the definition of International Association of Pain, Mr Sivonen does suffer from chronic pain of mixed features as mentioned above… his chronic pain condition is not curable, however, it can be managed to some degree with judicious use of long term opioid analgesia along with other regular simple analgesics, physiotherapy, cognitive behavioural therapy, and activity simplification strategies." (Ex A 301-302).

[31]

Surveillance

The defendants showed surveillance video of the plaintiff on the first day of the trial. The surveillance records produced disclose approximately 120 hours of surveillance to secure a little over one hour of video.
Ms Heathcoate, occupational therapist, said when giving oral evidence that she had seen the footage shown in Court, and it she did not wish to change or alter any of the opinions she expressed in her expert report. Indeed, the surveillance footage affirmed her prior opinion (T273.12-27).
It is my view that when the plaintiff was sighted and filmed, his behaviour was entirely consistent with the evidence he gave as to his abilities and in accordance with the evidence given by the medical experts

[32]

The plaintiff's current abilities

The plaintiff's balance has improved since his statement of 27 October 2021. He maintains, however, that he does not take any unnecessary risks (T38.23-4).
The plaintiff is prone to falling when he trips over something, or if it is dark and he is walking without looking where his feet go. This is because his feet have less feeling and "… sense [of] the ground" (T41.7-22). He told Ms Heathcoate that his falls were mostly at night (Ex A 321) and that he avoided going out of the house at night unless he had a torch to light his way (Ex A 327).
The plaintiff can and does drive an automatic car (T55.49-56.6). The plaintiff can now drive the excavator, and when he does, he uses his hands (T49.13-15, 50.36-42) though he cannot do it for a long time (T53.37-46). If he uses his feet, it is not worth it (T60.44-47). In re-examination, the plaintiff said the pain becomes problematic after fifteen minutes (T152.16-25).
The plaintiff also described how he was able to drive his excavator that had no modifications. He can reverse and turn it using only his hands, though it was awkward. He could only do this for a short time (T62.48-64.42). The excavator and other equipment could be modified to allow the plaintiff to operate it without the need to use his left leg (Ex A 367).
He was able to travel by car as a passenger from his farm in Parma to Goondiwindi Queensland in July 2019 (T157.40-41). This is about 770 km and would take about 9 hours to complete without any stops. His son Eric drove. They had a lot of breaks because Eric was new to driving and so it took a little bit longer than usual. He observed that his father was restless, because he said his leg was cramped up and painful "… cause we had luggage in the back so we couldn't move his seat back to stretch his leg" (T158.1-16).
The plaintiff can ride his quad bike using the hand control (T66.38-41, 67.22.34). He has used the quad bike to pull a boat trailer (T68.28-29).
The plaintiff pushes himself (T53.6). In the mornings he is at his best (T65.23). In the surveillance footage, in the afternoon he is seen at the shops using one crutch and carrying a carton of beer comfortably which he says he can do over a short space (T57.46-8). The plaintiff was also at the motor registry on the afternoon of 16 February 2023 (T69.25-35).

[33]

The plaintiff's farm

The plaintiff has owned a farm since before this accident on 2 March 2019 (T42.44-46).
So far as the development of his farm is concerned, he has been helped by a friend, an old Finnish engineer, who organised the development, drew the plans, went with him to council, oversaw the builders, and oversaw construction (T43.5-23). Consistent with this evidence is the information provided by the plaintiff to Ms Heathcoate (Ex A 319).
The plaintiff needed the assistance of an engineer to do any of this work that was provided gratuitously. He also needed the professional assistance of others with regards the previous work he had undertaken as reported by Ms Dinley (Ex A 368). In any event, the construction of his home that is now partially completed did not commence until after the accident (Ex A 366 and Ex 8).
The plaintiff does not have cattle on the farm (T69.1-2). It is a hobby farm rather than a business that he can say would be commercially viable. It was always his dream to bring his children up on a farm (T149.35-48). Ms Heathcoate's recommendation that the plaintiff required one labourer a day for an estimated 3 days a week to "manage his land" was predicated on the plaintiff's hope to work on his land, including planting and harvesting garlic and running livestock and doing fencing, sowing, harvesting, weed control, vermin control and land maintenance (Ex A 334-5).
The plaintiff has also expressed concern that he may have to relocate the family to a warmer climate to assist him to manage his pain (Ex A 323).
So far as his farm is concerned, with regards to the completion of the house, the plaintiff told Ms Heathcoate that it would cost $150,000 to complete the home. He estimated the work required by the plumber and electrician was $30,000 and he would have completed the remainder of the home himself (Ex A 319).
There is no evidence as to the viability of and/or how much the plaintiff would have saved (if anything) had he done the building work himself. Nor is there any evidence about the accuracy of the plaintiff's estimates (Ex A 339).

[34]

Damages

Damages are to be assessed in accordance with the provisions of Part 2 of the CLA. The burden upon the plaintiff to establish matters on the balance of probabilities is a reference to the legal onus of proof: see State of New South Wales v Doherty [2011] NSWCA 225 and Hirst v Sydney South West Area Health Service [2011] NSWSC 664.
Damages are awarded as compensation for the harm suffered. It is accepted, and clearly understood, that it is impossible to use money to restore a condition of physical wholeness to a person who has suffered great personal injury. Therefore, all the law can do is restore the person who has suffered so far as money can do.
Damages cannot be perfect. In Evans v Bartlam [1940] HCA 27; (1940) 64 CLR 1, Dixon J stated at 13-14: "No doubt it is right to remember that the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damage in terms of money."
Damages are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff could have sustained: see Pamment v Pawelski [1949] HCA 43; 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans [1977] HCA 8; 138 CLR 563 at [585] (per Gibbs and Stephen JJ).
Actual loss must be determined. The determination of actual loss is made even more difficult when the disabilities consequent upon the injuries suffered by a plaintiff are not clearly defined: see Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665 at 676.

[35]

Quantum

The plaintiff seeks $2,888,745.88 in damages. The defendant asserts that damages should be valued at $1,130,351.32. In assessing damages, I will focus upon the main differences between the parties.

[36]

Non-economic loss

Section 16(1) of the CLA relates to non-economic loss, it reads: 16 Determination of damages for non-economic loss (1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.
It is common ground that the plaintiff's non-economic loss exceeds 15% of the most extreme case.
The definition of a most extreme case pursuant to s 16 of the CLA has been discussed in Matthews v Dean (1990) 11 MVR 455; (1990) Aust Torts Reports 81-037 at 68,014; Southgate v Waterford (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 23 NSWLR 528 at 533.
Non-economic loss means any one or more of the following: pain and suffering; loss of amenities of life; loss or expectation of life; or disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.
The plaintiff claims $352,500 for non-economic loss, which is 50% of a "most extreme case". The plaintiff submitted that his injuries are sufficient to qualify for a determination of a most extreme case.

[37]

Plaintiff's submissions

The plaintiff submitted that the injuries suffered are severe and permanent. Mr Sivonen is a relatively young man with chronic pain. The plaintiff submitted that on the evidence submitted, an award of 50% of a most extreme case is appropriate. That is, $352,500.

[38]

Defendants' submissions

The defendants claim that non-economic loss should be $282,000 which is 40% of the most extreme case.
The defendant submitted that, as in the past, the plaintiff will continue to cope better with his disabilities in the future. In the time since the medical reports were obtained by the plaintiff's legal representatives, the plaintiff has improved his condition. The plaintiff will continue his rehabilitation, which during the Covid-19 pandemic has been limited.
Contrary to the way the plaintiff's case is pitched, it was submitted that the plaintiff is not broken by the incident. His recovery from his previous injuries, was, on any view, remarkable. The defendants asserted that there is every indication that he is on the same trajectory to being able to cope with his pain and achieve a greater capacity, with the proviso that he will likely need to undertake physical activities more slowly and take regular breaks.
On the evidence, as submitted by the defendants, they noted that the plaintiff's cognition does not impede his recovery.

[39]

Resolution

In my opinion, the plaintiff has given "given his all" to recover from the injuries he has suffered in this accident and the previous accident.
It is my view that the plaintiff's recovery from his previous injuries has been courageous and remarkable. However, there comes a point where due to the prior injuries, this accident is the tipping point. If the plaintiff's condition improves, it will be minimal.
As I set out above in my judgment, prior to the injury the plaintiff had greater mobility, better mental health and an optimistic outlook on life. The plaintiff was working 40 to 50 hours per week and attending church services once per month. The plaintiff was building a bridge on his farm, enjoyed playing soccer with his children and had regular contact with his friends. There is little objective evidence of a psychiatric disorder before the accident.
However, the plaintiff's injuries sustained on 2 March 2019 have rendered him less social, with significantly less mobility. He is now in great pain. The plaintiff's relationship with his family is not what it once was. I agree with the general theme of the plaintiff's medico-legal reports that the plaintiff's injuries are permanent in nature, and it is unlikely that the plaintiff will recover the same way he did from his previous injuries.
The plaintiff now suffers from an adjustment disorder with mixed anxiety and depression. He now has chronic musculoskeletal pain with neuropathic features resulting in somatic and associated pain disorder with peripheral sensitisation syndrome. This is a significant disability. Dr Bala, in his report dated 4 October 2022, affirmed the permanent and irreversible nature of these disabilities.
The evidence before me does demonstrate that the plaintiff's condition has slightly improved and the plaintiff's commitment to rehabilitation was, and continues to remain, strong. The plaintiff's social life has also slightly improved, albeit not by much.
In assessing non-economic loss, I have also considered the fact that the plaintiff has lost the opportunity to construct his new property at Parma. I will refer to his specific claim for the construction costs under future care.
In CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1, Gleeson CJ, Gummow and Heydon JJ stated at [16] and [39]: "[16] There is one aspect of Burnicle v Cutelli which should be noted. The majority did not deny that the lost capacity of injured plaintiffs to assist their families was compensable: it merely said that, if the loss was to be compensated, compensation was to be given not as special damages but as part of general damages. Thus Reynolds JA said: [A]n assessment must be made as a component of an award of general damages, just as must be done in respect of any other deprivation which does not produce financial loss. The injured plaintiff has in such a case as this lost part of a capacity, the exercise of which can give to her pride and satisfaction and the receipt of gratitude, and the loss of which can lead to frustration and feelings of inadequacy. And Mahoney JA spoke to the same effect. The effect of their reasoning was to deny that compensation for this type of loss was to be calculated by reference to the market cost of replacing the services. Hence when those who support Sullivan v Gordon say that an injured plaintiff who loses the ability to care for a disabled relative loses "something of real value" to the plaintiff as well as the relative, they are saying something true, but inconclusive: there is a loss, but it can be compensated as part of general damages. It does not follow from that fact that general damages will compensate for all aspects of the loss of capacity. Nor does it follow that the value of the plaintiff's loss of capacity can be measured by the cost of obtaining care for the disabled relative from professionals. … [39] … It is a general principle of the law relating to the recovery of damages for negligently inflicted personal injury that if the negligence has caused financial loss, it is recoverable as special damages, and if it has caused non-financial loss, that loss is recoverable as a component of an award of general damages …"

[40]

Past out of pocket expenses

Past out of pocket expenses are agreed at $14,352.00

[41]

Future out of pocket expenses

Future out of pocket expenses are agreed at $111,259.27.

[42]

Past economic loss (inclusive of superannuation)

Section 12 of the CLA reads: 12 Damages for past or future economic loss--maximum for loss of earnings etc (1) This section applies to an award of damages-- (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award. (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is-- (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.
The plaintiff claims $181,585.00 for past economic loss, which is inclusive of superannuation. In Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, the court expressed the general principle in relation to an award for economic loss at [7] as follows: "Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss." But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if the injury had not been sustained."

[43]

Plaintiff's submissions

The plaintiff left school after Year 10. He did not do well academically. The plaintiff has not attained any formal qualifications since leaving school.
Since leaving school, the plaintiff has worked in physical demanding manual employment. He worked on a pig farm and cotton farm, cleaning out, building and installing septic tanks. He also spent many years working as a plant operator/driver. He had a Class C HC Heavy Vehicle Drivers Licence from about 1995.
The plaintiff acquired his own truck in 2005 and started working as a contractor. He worked as a contractor and employee at different times, but generally as a plant operator and/or float driver.
In early 2019, the plaintiff commenced subcontracting to Lynch Civil Contractors Pty Ltd ('Lynch'), based in South Nowra. He was working on a full-time basis.
Since the accident on 2 March 2019, the plaintiff has been unable to return to any form of employment as a result of his injuries and disabilities.
The plaintiff relies upon the joint expert conclave report of financial experts Mr Klain Elsmore and Mr Andrew Clifford dated 7 December 2022. They were not called to give evidence, giving only a joint report. Mr Elsmore has calculated notional earnings per week as being inclusive of superannuation.
The plaintiff claims the following for past economic loss: 3 March 2019 to 30 June 2021 (as calculated by Mr Elsmore) = $81,933.99 1 July 2021 to 30 June 2022 ($1,143.67 per week x 52.20 weeks) = $59,700.00 1 July 2022 to 23 August 2023 ($1,161.36 per week x 34.40 weeks) = $68,520.24 Total claim for past economic loss inclusive of superannuation is $210,154.23

[44]

Interest on past economic loss

Interest on past economic loss is calculated at $9,317.42

[45]

Defendants' submissions

The defendants submitted that past economic loss (inclusive of superannuation) should be calculated at $158,320. The defendants submitted that the calculations of forensic accountant Mr Clifford at (Ex A 121) as compared to Mr Elsmore's, forensic accountant (Ex A 120).
Mr Elsmore's findings at Ex A 120 are as follows: "Mr Elsmore refers to the Vincents report and notes the following: a. During the years ended 30 June 2013 to June 2019 (i.e. the six (6) years prior to the accident), the Plaintiff derived actual earnings of, on average, $50,000 per year before tax (at a 2021 year value). This average formed the basis for Mr Elsmore's tax assessment of the Plaintiff's notional earnings under Scenario 1. b. In addition, Mr Elsmore [sic] calculations of loss (Scenario 2) based on notional earnings, increasing to $70,000 per year before tax (being consistent with the actual earnings the Plaintiff derived during the year ended 30 June (ie the immediately pre-accident year); and c. Whilst Mr Elsmore acknowledges the notional earnings of $50,000 per year before tax adopted under Scenario 1 are consistent with the six (6) year pre-accident average, he notes that the amount of $70,000 per year before tax is around 15% to 40% lower than the commercial earnings for Heavy Plant Operators and Truck Drivers (as set out at Table 12 of the Vincents report). Mr Elsmore has included calculations of the Plaintiff's loss on notional earnings of $70,000 per year before tax to assist the court."
Mr Clifford's findings at Ex A 121 are as follows: "In relation to the inclusion of an alternate assessment of the Plaintiff's loss based on notional earnings of $70,000 per year before tax (as at a 2021 year value), Mr Clifford considers that such a scenario is unlikely to reflect the historical or future loss of the Plaintiff on the basis that: a. the $70,000 represents the earnings of the Plaintiff for only a single full year out of the last six (6) years prior to the accident; b. there is a historical pattern of behaviour and level of work undertaken by the Plaintiff evident in the reported earnings of the Plaintiff for the six years pre-accident and the year to date pre-accident demonstrates that the Plaintiff's earnings vary year on year as an average level around $50,000. c. there is no evidence of the Plaintiff's earnings displaying an upwards trend. Whilst the $70,000 represents the earnings of the Plaintiff for the last full year prior to the accident, the Plaintiff disclosed earnings for the year to date (1 July 2018 to 02 March 2019) of $14,449 before tax, equating to $21,550 for the full year on a simple annualised basis. d. Whilst the notional earnings of $70,000 per year before tax is around 15% to 40% lower than the commercial earnings for Heavy Plant Operators and Truck Drivers (as set out at Table 12 of the Vincents report), the Plaintiff has historically earned, on average, well below the commercial earnings for Heavy Plant Operators and Truck Drivers, and, therefore, I do not consider this is relevant to the consideration of the economic loss of the Plaintiff."

[46]

Resolution

I have carefully read and analysed the evidence of both Mr Elsmore and Mr Clifford. The plaintiff has not worked since his accident. The fact is that he physically is not capable of any past earning capacity nor is he capable of any future earning capacity.
While the plaintiff relies on Mr Elsmore's findings, the defendants rely on Mr Clifford's findings, the difference between Mr Elsmore and Mr Clifford relates to the plaintiff's earnings and the appropriate calculation of his earning capacity. Mr Clifford factors in the higher earnings of the plaintiff in the year immediately before his injury but dilutes their effect by averaging those earnings over the past six years. Mr Elsmore was of the view that this approach would be unreasonable. The true calculations of the plaintiff's earning capacity are what he would have earned uninjured. In that regard, his earnings from Lynch in the last year are the appropriate measure. I agree that the earnings should be based on the year prior to his accident, therefore I prefer the approach of Mr Elsmore's report to that of Mr Clifford, I accept Mr Elsmore's calculations.
I assess past economic loss, inclusive of superannuation, to be $210,154.23 My calculations are as follows: 1. 3 March 2019 to 30 June 2021 (as calculated by Mr Elsmore) = $81,933.99 2. 1 July 2021 to 30 June 2022 ($1,143.67 per week x 52.20 weeks) = $59,700.00 3. 1 July 2022 to 22 August 2023 ($1,161.36 per week x 34.40 weeks) = $68,520.24 4. Total claim for past economic loss inclusive of superannuation is $210,154.23

[47]

Future economic loss (inclusive of superannuation)

Section 13 of the CLA reads: 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
The defendant claims $461,082.37 for future economic loss (inclusive of superannuation).

[48]

Plaintiff's submissions

The plaintiff submitted that for his injuries, Mr Sivonen would have continued to work in full time employment until his retirement age of 67 years (a further 14 years). Given his injuries and ongoing symptoms, it was submitted that the plaintiff does not have any real or effective residual earning capacity.
The plaintiff claims damages for future economic loss as follows: 23 August 2023 to 30 June 2024 ($1,161.36 per week x 0.44 years) = $51,099.84 1 July 2024 to 18 July 2035 ($1,177.16 per week x 11.05 years) = $491,350.00 Subtotal for future loss of earning capacity $542,449.84 Less 15% for vicissitudes of life - ($542,449.84 - $81,367.47) Total claim for future loss of earning capacity inclusive of superannuation is $461,082.37

[49]

Defendants' submissions

The defendants submitted that future economic loss should be assessed on the basis of Mr Elsmore's $884.68 per week net earnings rather than the $1,161.36 per week net claimed by the plaintiff's expert. In that event, if it is accepted that the plaintiff has no residual work capacity, the damages are $884.68 x 502.3 x 15% vicissitudes = $377,718.54.

[50]

Resolution

I am of the view that the plaintiff has no residual earning capacity. Consistent with the views of Dr Bala in respect of the plaintiff's physical incapacity, and Dr Parmegiani in respect of the plaintiff's psychological symptoms and capacity, the plaintiff is unlikely to work again. This accords with the bulk of the evidence before me.
For the same reasons I provided in respect of past economic loss, I prefer Mr Elsmore's calculations. I therefore assess future economic loss, less 15% for vicissitudes of life, to be $461,082.37. My calculations are as follows: 1. 23 August 2023 to 30 June 2024 ($1,161.36 per week x 0.44 years) = $51,099.84 2. 1 July 2024 to 18 July 2035 ($1,177.16 per week x 11.05 years) = $491,350.00 3. Subtotal for future loss of earning capacity $542,449.84 4. Less 15% for vicissitudes of life - ($542,449.84 - $81,367.47) 5. Total claim for future loss of earning capacity inclusive of superannuation is $461,082.37

[51]

Past gratuitous care and assistance

Past gratuitous care and assistance is agreed at $158,070.41. I agree that this amount is necessary and reasonable.

[52]

Future commercial care and assistance

Section 15 of the CLA governs damages for gratuitous care and assistance. It reads: 15 Damages for gratuitous attendant care services: general (1) In this section-- "attendant care services" means any of the following-- (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. "gratuitous attendant care services" means attendant care services-- (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that-- (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)-- (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed-- (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for-- (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award--that quarter, or (ii) in respect of the whole or any part of any other quarter--the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

[53]

The approach of Ms Dinley and Ms Heathcoate, Occupational Therapists.

After the legal argument and before the conclave evidence took place, I allowed her report to be admitted into evidence on the basis that it was admissible. While I had some reservations as to some of the views she expressed, I came to the view that it complied with Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305;52 NSWLR 705 in that Ms Dinley's opinion appeared to be based on specialised knowledge based on training, study, or experience. It is now convenient to refer to Ms Dinley's views expressed in her reports and the short evidence she gave at the commencement of the conclave on 1 March 2023. Counsel for the plaintiff objected to Ms Dinley's occupational report dated 22 August 2021. The defendant's counsel submitted that although the way Ms Dinley has expressed herself in the body of the report is not the best example of report writing, Ms Dinley nonetheless made several assumptions and opinions she expressed in her "expert" evidence as an occupational therapist (T189.20-28). Ms Dinley wrote her report in third person referring to herself as Ms Dinley. Council for the plaintiff outlined concerns directed at several paragraphs and views contained in Ms Dinley's report. They are summarised below. At Ex A 364 Ms Dinley's report continues: "From an OT perspective, in the event that any of these claims provided 'loss of future earnings and entitlements', and future commercial care for an inability to partake in his own ADL [activities of daily living] tasks, then making recommendations for this again, is in essence, 'triple-dipping'. From a novice OT perspective, if the court has settled on the fact this Plaintiff was unable to work in the future and that he required future domestic and maintenance assistance resulting from these previous matters, then how does one claim the same." At Ex A 365, Ms Dinley says: "From an OT perspective, having another injury does not change the fact that some of the previous monies resulting from the previous claims, have already been renumerated. Otherwise, it is unfair, and it is a form of double-dipping'." She also reported: "The symptoms that the Plaintiff has made reference to, resulting from this more recent injury to his left leg, have also been referenced in the previous two insurance claims. Ms Dinley, opines, how does one then make statements that this injury has resulted in a list of mental health diagnoses and their mental health and cognitive sequelae, when clearly there is a huge history of such, on top of TBI, and a severe learning disorder, whereby he has received two independent claim payouts? Is this not an example of triple-dipping, to some degree? This was discussed with the Plaintiff during the OT assessment." In her report at Ex A 396, Ms Dinley opined: "One would question why this Plaintiff did not use his previous two claim payouts to fund his necessary ADL task completion when he was injured again. In many ways, below is possible a form of double dipping, which is ethically unfair to the community." At Ex A 397, Ms Dinley repeats the above the opinion. Under the second bullet point under the heading "Ms Dinley considered the following: From a purist perspective", Ms Dinley wrote: "Considering that the Plaintiff has already received previous claims, then, applying the purist and common-sense approach, there are no future recommendations made, as they have already been funded in these two claims, even if the injuries/disabilities are different." Finally, Ms Dinley states: "Under the individual professional codes, when making recommendations, one must identify areas of potential double dipping in order to inform the court, out of fairness to both parties. This is now triple dipping." During cross-examination, Ms Dinley admitted that she had biased view of Mr Sivonen due to the payouts he received in earlier claims: "TZOUGANATOS: Ms Dinley, you have a biased view in this case because Mr Sivonen has received two payouts in earlier claims; would you accept that? WITNESS DINLEY: Yes." (T283.35-38) Counsel for the defendant did not ask Ms Dinley any further questions. When Ms Heathcoate was asked whether she had heard of a "purist perspective", Ms Heathcoate replied with "No, I've never heard of it" (T278.5). I reluctantly cannot accept Ms Dinley's evidence as she had a very strong opinion as to double dipping and now triple dipping as the plaintiff has had three accidents, even though none of the accidents have been his fault. Even though I tried unsuccessfully to explain that this is not the approach adopted under the Civil Liability Act 2002, she elected not to alter her views. Hence, I prefer and accept Ms Heathcoate's evidence.

[54]

Plaintiff's submissions

Ms Heathcoate has provided a detailed and reasonable assessment of the plaintiff's future domestic care and assistance requirements. Her opinion was unchallenged. It accords with common sense given the very large (100 acre) property upon which the plaintiff, his family and Rex reside. The video tendered by the defendants establishes the fact that the property requires significant maintenance every week. Ms Heathcoate has assessed this need.
There is no substance to any suggestion by the defendants that Ms Heathcoate has not considered the plaintiff's earlier injuries and medical history. She has. At pages 109 and 110 of Exhibit A, Ms Heathcoate wrote: "I do not dispute the Plaintiff suffered past accidents with injury, one of which was the brain injury, however I do dispute that he was functioning at the low level suggested by Ms Dinley at the time of the subject log accident. By then, he had increased his fitness, regained his driver's licence, and returned to work full time… I cannot comment upon Mr Sivonen's cognitive function at the time of the subject injury however we do know that he did regain enough cognitive function to return to work, to get married and to have a family".

[55]

Building a home

The plaintiff gave evidence that he intended to build a home for his family performing most of the construction work himself, bringing in contractors to perform trades work such as electricity and plumbing. As a result of his injuries, the plaintiff has been unable to perform the building work he had planned.
Ms Heathcoate has assessed the plaintiff's future requirements at 2.88 hours per week for domestic assistance and 27 hours per week for maintenance of the property and home. According to Ms Heathcoate, the plaintiff will require this for the rest of his life. The calculation is in accordance with schedule B to the plaintiff's synopsis of damages, which is sourced from Ex A 104, 342-343 and 345: Description Hours required per week Rate per Hour Value per Week Domestic Assistance 2.88 $57.00 $164.16 Home Maintenance and garden care assistance 27 $60.00 $1,620.00 Total per week $1,784.16

[56]

The claim for future care and assistance is: $1,784.16 x 822 = $1,466,579.50

[57]

Defendants' submissions

The defendants allow for future domestic care and assistance at $28,631.10.
Ms Heathcoate's estimate of the plaintiff's need for future domestic assistance regarding the domestic garden and law is calculated until he turns 85. Mr Sivonen is now 53 years old. As admirable as the plaintiff's efforts were in recovering from his previous injuries, it remains that he has to avoid heavy lifting. His working life was one of heavy labour. Though incapable of any precise calculation, inevitably, it was likely that his capacity to undertake these tasks would diminish as he aged so that he would not need this type of domestic assistance anyway. The defendants do not contest this part of the claim, but only until the plaintiff turns 67 years.
A further vicissitude is the real chance that the plaintiff might move to premises with no gardens, especially given that he has quite sensibly contemplated moving to a warmer climate.
The defendants submitted that the claim for 27 hours per week care for the remainder of his life in respect of maintaining his farm should not be allowed. This claim is advanced as a need created by injury. The defendants questioned whether this claim is in respect of a need and if so, whether cost of this assistance is reasonable to meet these needs.
The plaintiff's farm is a hobby farm. The defendants submit that the fact that this claim is not a need is in part best illustrated by the plaintiff's desire to be able to drive his excavator to give a neighbour some topsoil, rather than let the neighbour load the topsoil into his truck himself. Further, and in any event, with some small improvement in his capacity to better manage his pain in the morning and the modification of his excavator, that is likely (or possible, being relevant with regards to the Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 assessment of future events) in the near future. The defendants suggested that if the plaintiff continues to manage his pain in the morning better, there is a likelihood, or at least a real chance that he will be able to work six half days that would obviate the need for any assistance - or alternatively, the 3 days that is now claimed.
The plaintiff could not and did not assert that the farm would be commercially viable. There is no evidence that the plaintiff's inability to do this work was productive of any financial loss. While it may be that he would have obtained satisfaction in undertaking this work, the defendants stress that his inability to do this work is not a need created by his injury. There is no suggestion of any health benefit arising from this extra work being undertaken by a labourer 3 days a week.

[58]

Resolution

No significant piece of evidence, nor persuasive submission, was brought to light in respect of the plaintiff's wife's capacity to perform the assistance or mitigate the need for commercial assistance. The plaintiff's physical condition necessitates domestic assistance for the rest of his life. The plaintiff's property is also large, and the surveillance footage demonstrates that it regularly requires maintenance. The plaintiff, due to his injuries, has no ability to perform this work.
The grounds are expensive to maintain, creating a need for assistance with the duties of management and upkeeping. The plaintiff requires 2.88 hours per week of domestic assistance valued at $57 per hour and 27 hours per week for maintenance of the property and home valued at $60 per hour.
The plaintiff is 54 years of age. The date of injury is 2 March 2019. The period from injury to the date of calculation, being 27 February 2023, is approximately 4 years. I do not agree that as submitted by the defendant the plaintiff's future domestic care should be limited to the time, he reaches 67 years. There is no real evidence that the plaintiff intends to move, and even if he did so, he may still have to tend to and maintain sizeable grounds, as it has always been his realised dream to live on the land. The plaintiff's current life expectancy is approximately 30.46 years based on Medium Prospective Life Tables as adopted in Zhang v Golden Eagle International Trading Pty Limited & Ors [2006] NSWCA 25. The 5% multiplier for 31 years is 822 weeks.
I assess future domestic care and assistance to be $1,466,579.50 in accordance with the following calculations: 1. Domestic assistance: 2.88 hours per week x $57 per hour = $164.16 per week 2. Home maintenance and garden care assistance = 27 hours per week x $60 per hour = $1,620.00 per week 3. Total per week = $1,784.16 4. Total claim for future domestic care and assistance = $1,784.16 x 822 = $1,466,579.50

[59]

Construction costs for house

The plaintiff claims $150,000 for the construction costs of the house at Parma, NSW. $30,00 of which would be allocated to a qualified electrician and plumber to complete their tasks. (Ex A 339)

[60]

Plaintiff's submissions

It was submitted that the plaintiff would have performed the balance of labouring work for which he will now have to pay others. Mr Sivonen claims $120,000 (150,000 - 30,000) in accordance with the assessment of Ms Heathcoate (Ex A 339 and 346).

[61]

Defendants' submissions

The defendants submitted that the amount awarded under this head of damage should be nil.
In Ms Heathcoate's report (Ex A 339) the estimated costs claimed by the plaintiff are his estimates in respect of which Ms Heathcote did not have any expertise. That estimate is speculation. The basis of the calculation is not an expert opinion.
This flaw in the evidence becomes even more stark in view of the plaintiff's heavy reliance on the assistance of his Finnish engineer friend who oversaw the construction work. Clearly this work needed to comply with various requirements of the council which the plaintiff was not qualified to satisfy.
The defendants submitted that the basis of any such claim can only be the difference between what he would have to pay a builder and what he could have saved if he did the work himself. There is no evidence that he would have been able to do this work himself for less than a builder.

[62]

Resolution

For reasons set out earlier, I have considered the construction of his house under the heading 'non-economic loss'. If this approach is wrong, I don't make any allowance as to the costs of building a house on the basis that the plaintiff has not provided evidence as to what work he would have done had he not been injured, nor has he provided any building expert report as to the quantum of these costs apart from what he told Ms Heathcoate, an occupational therapist.
Ms Heathcoate at Ex A 339 stated the following: "Dr Bala in regard to the construction completion of Mr Sivonen's new home states in his report: - "In my professional opinion, I do not believe Mr Sivonen has the capacity to participate in the construction of his home due to his ongoing physical, functional and psychological restrictions." Mr Sivonen estimated it will cost about $150,000 to complete the home, $30,000 which would allow for the electrician and plumber to complete their tasks and the rest, he would have completed independently. It is recommended that $120,000 is considered for reimbursement to complete the home. I do not have an estimate of the costs to date."

[63]

Costs

Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff's costs.

[64]

JUDGMENT: 1. The first and second defendants are to pay the plaintiff damages in the sum of $2,769,215.20, arising from an accident that occurred on 2 March 2019. 2. The first and second defendants are to pay the plaintiff's costs up to 23 December 2021 and indemnity costs from 24 December 2021.

[65]

Schedule of damages Non-economic loss $338,400.00 Past out-of-pocket expenses $14,352.00 Future-out-of-pocket expenses $111,259.27 Past economic loss (inclusive of superannuation) $210,154.23 Interest on Past Economic Loss $9,317.42 Past gratuitous care and assistance $158,070.41 Future domestic care and assistance $1,466,579.50 Future economic loss $461,082.37 Total $2,769,215.20

[66]

Amendments 03 October 2023 - Order amendment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2023

Sivonen v Smith

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