Taj v David Pearce trading as Sydney Lifting & Rigging

Evidence of the plaintiff

1. The plaintiff and defendant have known each other for as long as 15 years. Over the years, by way of informal arrangement, in recognition of the defendant being allowed to store some of his equipment on the plaintiff's work factory at Padstow, the defendant has helped the plaintiff with deliveries, once or twice a month. The plaintiff stated in cross-examination that it must have been over 100 times that the defendant had helped him to make deliveries. The defendant used, and the plaintiff was aware that he used, two trucks. It was the smaller truck that the defendant used on the date of the accident. The plaintiff said that he was familiar with certain features including the use of the crane on the truck itself.
2. In cross-examination the plaintiff acknowledged that he had previously helped the defendant to strap machinery and sometimes, in the process of uploading the item of machinery, to remove the strapping. He acknowledged that he was familiar with the crane and that the defendant used a sling to assist with the unloading. He also acknowledged that he had previously seen the machine attached to the sling.
3. The plaintiff said that on the date of the accident, the defendant came around at about 8:00am the morning, for the purpose of helping the plaintiff to deliver a Bostitch stapling machine. The plaintiff had already put the machine on a forklift. The defendant strapped in the machine.
4. Under cross-examination the plaintiff accepted that he had observed that the defendant's usual technique for strapping was to put the strapping over the top of the machine in question, rather than partly around the neck of the omission of machinery. The plaintiff disputed the defendant saying to him that he should not have strapped the item of machinery in the way that the plaintiff wanted since it would require someone to get up on the back of the truck to release it. The plaintiff accepted that he directed the defendant to wrap the machine around the crossbar.
5. The defendant then drove his truck to the venue in Parramatta which was about half an hour away, or a 40 minute drive. They arrived at a point in Parramatta not far away from the customer's premises. The plaintiff drove his vehicle separately and pulled up behind the truck.
6. The plaintiff asserts, but the defendant disputes, that the defendant asked him to jump up onto the truck and asked the plaintiff to "prepare the machine to be unloaded". This, the plaintiff says, is what he did. The plaintiff manually tried to assist with the unloading of the machine by loosening the strap to try to create some slack. The plaintiff says that as he bent down to undo the hook, to his horror he saw the machine toppling towards him and he jumped off onto the footpath; landing in a 'push up' position (hands and feet on the ground) and resulting in an injury to his right elbow. He estimated that this process took about three or four minutes. He recalled some discussion with the defendant about the sling. He also recalled asking the defendant "Did you move the crane?" and the defendant answering in the negative.
7. In cross-examination, the plaintiff disputed that the defendant told him to get off the road but he accepted that the defendant had moved to the driver side in preparation to operate the crane ('unpacking' it). The plaintiff said that he saw the defendant move to the front of the truck. The plaintiff did not, however, recall the defendant moving to the front (inside) of the cabin (the front part of the truck). The plaintiff said that he got onto the tray section of the truck (the back section of the truck) after the defendant had extended the boom. The plaintiff recalled that it was only after the boom had been extended that the defendant went to the front part of the truck. He denied that he had only decided to get onto the tray once the defendant was out of sight, although he accepted that at the time he was on the tray, the defendant was not actually in his sight. It was also put to, and denied by, the plaintiff that the defendant had not asked him to get onto the tray. The plaintiff did, however, accept that the defendant had not told him to release the strapping in express terms. The plaintiff said that he did not see the boom being extended from the time that he bent down until the time he jumped off the truck.
8. The plaintiff stated in his evidence that he had no qualifications in terms of the loading or unloading of machinery. He said that his expectation after climbing onto the truck was that after unstrapping the load, the machine would be put in a sling; that the defendant would move the crane so as to unload the machine. This expectation was generated from his observing previous episodes of unloading, notwithstanding that those episodes related to a different type of machine. In previous instances where he had assisted with unloading, he had helped to unstrap the machine following a request by the defendant; although he had not assisted with slinging up the machine on the crane.

Evidence of the defendant

1. The defendant is licensed to 'rig' and 'dog'. He estimated that he had helped transport the plaintiff's machinery 20 to 30 times each year.
2. In his evidence in chief, the defendant said that what usually occurred on these occasions to secure the machine for delivery was that the plaintiff would use his forklift with a fork attachment to put the load on; that the defendant would secure the machine by using ratchet straps over the top of the item (so as to put approximately 2 ½ tonnes worth of downward pressure on the machine to secure it).
3. At the point of the offloading, the defendant would open the crane and put a hook above the load, and get a sling and put that sling on the item of machinery before it was unstrapped, before the crane would finally remove the machine.
4. The defendant recalled that when he arrived at Padstow on the morning in question, consistently with prior dealing, the machine was on the hook and attached for the defendant to arrange for it to be put on the tray. But whereas he expected from prior dealing to tie down the item of machinery by strapping over the machine, on this occasion the plaintiff asked him to strap it in a way so that it was around the neck of the machine. He recalled that he queried this method of strapping with the plaintiff, but that the plaintiff had told him to do it in this particular fashion.
5. After both vehicles had arrived Parramatta, the defendant recalled getting out of his car on the driver's side. He recalled the plaintiff was at the back of the truck on the road and he told the plaintiff to get off the road. The defendant recalled preparing to unload by unpacking the crane and putting it into position and getting the sling, to be used to unload the machine. He initially expected to find the sling in the crane section of the vehicle (which was about the middle part of the truck) but went to the cabin section of the truck to retrieve it. He said that as he was bending down to pick it up from the passenger well within the cabin, he saw the plaintiff jumping off the truck. He denied asking the plaintiff to release the straps or to get on the truck.
6. He recalled that after the fall the plaintiff asked him why he 'slewed the crane' and responding that he had not slewed the crane.
7. Under cross-examination, the defendant said that the whole episode lasted no more than about a minute. He said he did not know whether the plaintiff had gotten up onto the truck from the footpath or from the back of the truck, and was not aware of what the plaintiff had done before he had fallen off the truck.
8. The defendant agreed that the plaintiff had helped him unfasten loads before, in order to assist the defendant to do his job, but he disputed that he had generally told the plaintiff what to do to unload equipment. This was despite him, the defendant, having dogging and rigging qualifications and his not being aware of the plaintiff not having any such qualifications. He accepted that unloading machinery with a crane was a 'high risk'. With reference to the defendant's 'Safe Work Method Statement' (Exhibit B, CB vol 2, p 424) the defendant accepted that, as the driver, he was responsible for the unloading process; even if the plaintiff had previously provided assistance.
9. He accepted that having regard to the nature of the instruction which he says that the plaintiff gave him, concerning the strapping, someone would need to get up onto the truck to loosen the strap. But the defendant denied asking the plaintiff to do this. He also accepted that someone would need to be sure that the sling was onto the crane before anyone attempted to unstrap the machinery and, further, that the weight and height of the machine was such that it would be unstable if it was not properly strapped down. He did not accept that it would be unsafe for someone to attempt to untether it from the truck until the sling was on the crane.
10. It was put to the defendant, but he denied, the proposition that he had asked the plaintiff whether he could prepare the load for the defendant to take the item off the truck. The defendant denied there being any discussion as to what the plaintiff might do to assist with the offloading of the machine. The defendant did not accept that the plaintiff was there to help with the process; even if the plaintiff had helped him unload items on previous occasions.
11. The defendant was asked whether he heard the ratchet system being released before the plaintiff fell off the truck. He said he had not. He was referred to one of the instructions contained in the report of the defendant's liability expert, Dr Gibson, which was to the effect that it was at the point when the defendant was looking for a sling that he heard the webbing strap being released (Exhibit B, CB vol 2, p 397). With the benefit of that reference, the defendant accepted that he "may have" heard the strap. It was then put that he could not simply have heard the plaintiff releasing the ratchet and jumping off when, at that point, the plaintiff was on the other side off the truck. The defendant accepted this.

Mr Byrnes

1. The plaintiff relied upon a report by Mr Mark Byrnes dated 30 June 2020. Mr Burns is a 'Senior Forensic Consultant' of the firm Jamieson Foley, a forensic engineering consultancy firm. I ruled that most opinions expressed by Mr Byrnes could only be treated as a submission for the plaintiff. But in the second part of Section 10 to his report, Mr Byrnes opined that the defendant could have avoided the injury if: 1. the stabiliser legs of the crane were extended to reduce the lateral movement of the truck during the slewing of the crane; 2. the defendant had not slewed the crane boom whilst the plaintiff was on the tray of the truck, which may have caused the truck to sway and thereby destabilise the machine; 3. the defendant slewed the crane to its loading position, prior to the plaintiff climbing onto the tray and prior to the machine being unsecured; and 4. the defendant secured the load to the boom, via a sling, prior to the plaintiff unhooking the load from the tray.

Dr Gibson

1. Dr Thomas Gibson is a biomechanical engineer. He prepared a report for the defendant dated 14 September 2020, providing a mechanical engineer's perspective on how the accident occurred.
2. Dr Gibson had carried out an experiment as to what caused the movement when the crane was placed above the machine; and had identified some lateral movement. It was put to Dr Gibson that the experiment was not useful since the machine which was the subject of the experiment (identified in Figure 9 of the report at Exhibit B, CB vol 2, p 397) had a solid rectangular base (an earlier version of the 'Stitcher' model) which was different to the base of the machine the subject of the proceeding. It was suggested that he could not determine how its stability was affected by the crane being slewed when the machine had been untethered.
3. The thrust of his opinion was that the defendant's methods of loading and securing a loan on the flatbed of the truck were appropriate. The incident could have been avoided had the plaintiff not 'intervened', but rather, adhered to the defendant's method. In this, Dr Gibson assumed that the defendant had not asked the plaintiff to climb onto the tray or release the load restraint. The plaintiff had intervened by climbing, unobserved, onto the truck's tray, whilst the defendant was still in the process of making preparations, and prematurely released the webbing strap securing the machine. This would not have been a problem if the crane had been in place to secure the machine when the strap was released. But without the crane and sling being in place to secure the machine, it was unstable. Either the machine had moved during the transport, and was no longer stable, without the strap, or, (he thought more likely) the plaintiff had disturbed it when releasing the securing strap; causing it to fall.
4. Dr Gibson commented upon the Safe Work Method Statement which set out, relevantly, the work involved, the hazards and risks, and how the control measures were to be implemented, monitored and reviewed. He opined that the defendant was complying with it when transporting the machine on the date of the accident.

Joint report (Ex C)

1. Mr Byrnes' opinion in the second part of Section 10 of his report was the subject of a conclave with Dr Gibson.
2. Aside from opining that the slewing of the crane was not associated with the destabilisation of the machine, Dr Gibson agreed with each of Mr Byrne's views.

Concurrent evidence

1. Mr Byrnes (supported by Mr Gibson) explained that the function of the stabiliser legs was to stabilise the body (of the machine) during the crane operations. Lateral movement could have been prevented if the stabiliser legs had been extended.
2. Mr Byrnes emphasised that whenever the crane is being used, it is an unambiguous requirement of Work Safety regulations that the stabiliser legs be deployed.
3. Mr Byrnes acknowledged that he had not carried out any experiment nor inspected the subject truck, crane or the machine.

The defendant's submissions

1. The defendant submitted that there were two pivotal factual questions. First, whether, after arriving to deliver the machine at Parramatta, the defendant directed the plaintiff to release the straps. Secondly, whether the defendant was operating the crane at the time that the plaintiff released the straps. He submitted that the answer to both questions was in the negative.
2. As to the first question, the plaintiff accepted that the defendant had not asked him to release the straps. At its highest, the plaintiff's evidence was that the defendant asked him to "prepare the machine to be unloaded". But that was not an implied invitation or request for him to release the strapping. It appeared that the plaintiff had had it in his mind, when the defendant had collected the machine earlier in the morning, that because of the unique way that the plaintiff had asked the defendant to strap in the machine and because the defendant had indicated that such method would require someone to actually get up onto the tray, that the plaintiff felt a need to take the initiative and do it himself. The defendant did not ask him to get up on the tray himself, to release the straps. It was improbable that the defendant would ask him to do it without the sling being attached to the machine first.
3. As to the second question, as a first point, the crane was not attached to the machine prior to the plaintiff releasing the strapping. Secondly, the defendant's evidence that he had not operated the crane after it had been placed into a position above the machine was not challenged. Thirdly, the plaintiff himself was aware that the crane was not operational after the plaintiff had got onto the tray of the truck.
4. Otherwise, it was improbable that the machine had moved during the transport to Parramatta. The likely cause identified by Dr Gibson was that the machine fell when the plaintiff had released the straps to it.

The plaintiff's submissions

1. The plaintiff eschewed a submission that the defendant had expressly told him to release the straps, but maintained that in the circumstances the plaintiff reasonably understood the defendant to implicitly suggest that he do so. The plaintiff submitted that the plaintiff's evidence that, upon arrival at Parramatta, the defendant requested that the plaintiff assist him to prepare to unload the machine, should be accepted. Implicit in this, of course, was the submission that the Court should prefer the plaintiff's evidence over the defendant's evidence about communications and the plaintiff's Counsel submitted that there were certain questions affecting the reliability of the defendant's evidence
2. Once it was accepted, however, that the defendant made this request, then the request had to be viewed in the context of earlier circumstances, which included the plaintiff having, at Padstow, assisted the defendant to load the machine, and a conversation between plaintiff and defendant in which the defendant said words to the effect that if the plaintiff wanted the strapping wrapped across (and not over) the machine in an unusual way (or at least differently to the way that machines had previously been wrapped), someone would need to jump onto the tray to unwrap it. The context also included some previous assistance by the plaintiff rendered to the defendant in unloading machinery, by use of a sling; albeit not on machines of this kind; and that he had helped the defendant unstrap machines previously. It was also objectively improbable that the plaintiff would mindlessly have done anything, let alone jump onto the back of the truck to unwrap the machine without something being said by the defendant to encourage him.
3. Although this request did not state it explicitly, there was ambiguity in what the plaintiff should do to help the defendant to prepare to unload the machine. The plaintiff believed that he could assist with preparation of unloading by jumping onto the truck and by releasing the wrapping. This involved a number of steps: first, releasing the ratcheting mechanism (towards the back of the truck); secondly, actually unwrapping the straps around the machine (what Dr Gibson called 'untangling the webbing strap'); and thirdly, unhooking the strap from the coupling.
4. There is no dispute between the parties that the proper or safe way of proceeding was to ensure that a sling was attached to the machine, so as to secure it, before the wrapping was untangled. But that circumstance alone was probably not the reason why the machine moved. There was a time interval between the plaintiff's unwrapping of the machine and its movement. It was more likely that it moved because of the defendant's action in slewing the crane into position above and/or to the side of the machine, which destabilised the machine then in situ, but unsecured.

Credit

1. I considered that the plaintiff was a very good witness. His evidence struck me as plausible, and I thought he tried to answer each question as accurately as he could. I did not consider that he sought to embellish and he did not strike me as having any particular animus against the defendant. I did not consider that his evidence was significantly shaken in cross-examination.
2. I did not consider the defendant's recollections to be as strong as the plaintiff's recollections. I did not draw any adverse impression of his demeanour. But just because his evidence was based substantially upon his usual method or system of operating the crane to offload machines of his truck does not, on that account, render it less credible than if it was based on actual recollection (Pell v The Queen [2020] HCA 12 at [93]). That said, nothing was said indicated in that system what role assistants, be they employees or volunteers, might have in his implementing that system and what the defendant would say to them (assuming there was any such practice) when assisting them. To this extent, evidence of his system by which he was the sole participant in the process of unloading, was beside the point. But I accept the plaintiff's submission that his evidence as to the timing for seeing the plaintiff fall off the truck was implausible. I also accept that there was a material inconsistency in his recollections of telling his expert, Dr Gibson, that after 'unpacking' the crane, he had walked around the front of the truck to access the sling (Exhibit B, CB vol 2, p 396, assumption (h)) and his evidence that he had walked around and passed the plaintiff at the back of it (T 59.17 & 62.24). I also consider it improbable that the plaintiff had, whilst at Padstow, issued some kind of 'directive' to the defendant to wrap, in a sense indicating that he would brook no suggestion to the contrary; so, accordingly, I consider that the defendant exaggerated the effect of that discussion. I formed the impression that the defendant was closely concerned about the effect of his evidence upon his forensic interests.
3. I would generally be inclined to prefer the plaintiff's evidence over the defendant's evidence where there was conflict.

Findings

1. I do not accept that the plaintiff was off on a 'frolic on his own' when he climbed on board the tray and was in the process of unwrapping and causing the machine to become unsecured. In my view, the defendant's submissions do not take adequate account of the context of the prior course of dealings between plaintiff and defendant and the communications and events that had occurred on the morning of the incident, at Padstow. I generally accept the plaintiff's submissions that earlier dealings could be characterised as the plaintiff periodically supplying assistance to the defendant to help the latter provide an informal haulage service to the plaintiff to their mutual benefit; and that this assistance had, on occasions, taken the form of the plaintiff helping to unwrap the machines (T 29.24). I find that on the morning at Padstow, there had been discussion between plaintiff and defendant in which the plaintiff had indicated his desire that the machine be wrapped in a way that was unusual: the wrapping of the machine was to occur around rather than up and over the machine. I do not accept, however, the defendant's account that this was done in any peremptory way, in the sense that the plaintiff was not open to be persuaded otherwise. Nevertheless, in response to that indication, the defendant did point out that if it was wrapped in that way, it would involve someone climbing on board the tray of the truck to unwrap it. There was no discussion, or agreement, whilst in Padstow, as to who that 'someone' would be. The defendant did not say that it would be him.
2. Upon arrival at Parramatta, I find that the defendant asked the plaintiff to help him prepare to unload the machine. It was likely that there would be some discussion about who it was who should jump up onto the tray and unwrap the machine and the plaintiff would have known that the defendant's primary task was to engage the crane in a way which, with the benefit of a sling, would attach it the machinery. The defendant says that in the circumstance that he wrapped the machine, absent any further discussion, he was entitled to expect, or assume, that the plaintiff would not try to unwrap it. I do not accept this contention. The circumstance that it was the defendant who had wrapped it did not inexorably point to him as being the appropriate person to unwrap the machine. There was no suggestion that the physical task of unwrapping was complex or involved the application of special knowledge that the defendant had by reason of his trade. Because of his past observation and assistance rendered by the plaintiff to the defendant, the defendant would have known that the plaintiff was not a complete novice in the unwrapping of machinery. I also consider that I can infer that the defendant knew that the plaintiff had observed him slewing the crane and using a sling to uplift an item of machinery. Viewed in that way, and finding, as I have, that the defendant had requested the plaintiff's assistance to help him to prepare to unload the machine, it is hard for a reasonable bystander to determine what else, save for unwrapping the machine, that the plaintiff was being asked by the defendant to do in jumping up on the tray and render assistance. I consider also that having regard to prior dealings the defendant expected that the plaintiff would wait until the machine was secured to the crane before he proceeded to unwrap it. I consider that he over-estimated the plaintiff's knowledge of the order in which the straps to unloading could safely occur.
3. Accordingly, I find that although the defendant did not expressly ask the plaintiff to unwrap the strapping the plaintiff inferred that this is what the defendant asked him to do.
4. Given that the parties accept that the machine would not have moved if it was affixed to the crane, it is unnecessary to be determinative as to the precise cause/s in which it moved towards the plaintiff.
5. Be that as it may, I find that it is more likely than not that it was a combination of circumstances, involving the strapping of the machine being untangled and the destabilisation of the tray caused by the crane being unpacked (prior to the sling being attached), which caused the machine to move.

Submissions

1. There is no express pleading of a duty of care in the Statement of Claim, but the defendant took no pleading point about that; other than to say that it illuminated the difficulty in the plaintiff's case. Counsel for the defendant submitted that a duty of care could only be found if the Court could find that the plaintiff asked to be involved in the process of unloading. The defendant submitted that the evidence did not permit such a finding. But even if the plaintiff was involved in the process of unloading the machine, where the defendant and the plaintiff were jointly working towards a common outcome, being the delivery of the machine, it is not obvious why a duty of care should arise. In his submission in reply, Counsel for the defendant submitted that in the circumstances that occurred, the defendant had no reasonable expectation that the plaintiff would jump on to the back of the truck and that the defendant had no positive duty to direct the plaintiff to do something when he had no reasonable expectation that the plaintiff would do something. These last two contentions, it seems to me, are arguments against the finding as to what, if any, direction was made. If, as I have found, that it was reasonable for the plaintiff to infer that he had been directed to unwrap the machine, then the defendant's (subjective) expectation would be irrelevant.
2. The plaintiff submitted that the plaintiff and defendant had had a long-standing but informal and mutually beneficial arrangement. This featured the defendant being able to store some equipment in the plaintiff's premises at Padstow and occasionally assisting the plaintiff with the delivery of heavy items of machinery to customers; and the plaintiff receiving a haulage service at a cheaper rate than would otherwise have been the case. But beyond those features, in the past the plaintiff had actively assisted the defendant with the physical haulage of the machinery. Although there was no formal employer-employee relationship, that relationship provided some analogy in the sense that in circumstances, such as in this case, where the defendant had (as I have found) asked the plaintiff to assist him to prepare for the unloading and the plaintiff rendered assistance with the haulage, there was plainly an imbalance in training, qualifications and experience, as between the plaintiff and the defendant, in terms of safety methods for loading and unloading heavy items of machinery; a matter which was known or ought to have been known. This meant that when rendering assistance, it was foreseeable that the plaintiff might not do the safe thing, or do the thing in the safest order. The defendant himself accepted that his Safe Work Method Statement (Exhibit B, CB vol 2, p 424) identified that there was a 'medium' risk of safety attending the unloading of a machine. Although the same document did not specifically identify as a hazard the circumstance of an assistant being on the tray whilst the load was being slung, the document (unlike for some other identified hazards) exclusively designated himself, as the 'driver', with the general responsibility for unloading the item. I note that this document elsewhere divided responsibilities amongst several personnel; indicating that the defendant had generally turned his mind to who was responsible for taking particular steps as part of any particular process.

Consideration

1. In my view, the plaintiff's submissions should be accepted. Though I accept that there was no formal relationship of the employer-employee kind, having regard to the past assistance and the request, on the date of the accident, for the plaintiff to provide assistance in the form of jumping on board the tray and helping the defendant to prepare to unload the machine, firstly, there was a foreseeable risk that an untrained and inexperienced assistant might do something wrong, in terms of the safe sequencing of the steps for unloading the machine. Secondly, in requesting the plaintiff's assistance, there was implicitly, an assumption of responsibility on the part of the defendant that reasonable steps would be taken to prevent injury to the plaintiff. Given also the plaintiff's lack of qualification, the defendant knew, or should have known, that the plaintiff was likely to rely upon him. I find that a duty of care existed. Subject to what is said in the next section, the duty of care was to take reasonable care for the plaintiff's safety in the unloading of the machine.

The statutory provisions

1. Section 5F defines an obvious risk as the risk that in the circumstances would have been obvious to a reasonable person in the position of the person suffering the harm. Division 4 of Part 1A of the CL Act relevantly has the effect of providing that the defendant has no duty to warn the plaintiff of an obvious risk, unless the plaintiff (relevantly) requested information about it (there being no suggestion that the defendant was providing a professional service) (s 5H).
2. As it happens, no defence of volenti has been pleaded by the defendant, so it is irrelevant to consider whether any presumption of awareness is overcome. This practically means that the operative effect is that, on the premise that 'obvious risk' is established, it will defeat a claim of negligence based upon a failure to warn of the risk. That does not, however, exclude a duty of care in other respects. It is for this reason that the defence of 'obvious risk' needs to be considered after duty but before breach of duty: Schultz v McCormack [2015] NSWCA 330 per McColl JA at [85].
3. In Fallas v Mourlas (2006) 65 NSWLR 418, Tobias JA (at [35]-[36]) construed 'obvious(ness)' in a way that the condition and risk are apparent to and would be recognised by a reasonable person, in the plaintiff's position, exercising ordinary perception, intelligence and judgement. Further, in assessing 'obvious risk', the assessment needs to have regard to the particular circumstances in which the claimant suffered the relevant harm and determine whether the risk which resulted in the suffering would have been obvious to a reasonable person in his position. 'Risk' is identified by reference to the particular circumstances.
4. By its Defence (as amended), the defendant pleaded (at paragraph 10(d)) obvious risk as follows: "The activity of unloading heavy machinery from a truck and suddenly mounting the truck constituted an obvious risk as defined in s 5F…"
5. That is not pellucidly clear, but earlier, as part of the particulars to the defence of contributory negligence, the defendant pleaded (as particular (e) to paragraph 8) that the plaintiff had manifested an absence of care for his own safety by: "Mounting the truck, in a sudden and unexpected manner, in circumstances where the plaintiff was aware, or ought to have been aware, of the risk of the machine toppling over".

Parties' submissions

1. The defendant slightly moved away from the pleaded allegation of obvious risk. It was not the mounting the truck that caused risk. Counsel submitted that it was an obvious risk that an untethered machine of this kind, i.e. one that was not attached to a sling, could move and thereby occasion injury. That being so, by the operation of s 5H of the CL Act, there was no duty to warn the plaintiff about the risk of personal injury associated with it.
2. The plaintiff submitted that, first, irrespective of whether or not the risk was obvious, s 5H(1) was nullified in circumstances where the defendant was a 'professional' and the risk was of personal injury to the plaintiff from a professional service (s 5H(2)(c)). Alternatively, the risk that the machine might fall over even if untethered was not 'obvious' to the plaintiff. Although he had seen the crane being 'slewed' in the past, the plaintiff had not been on the tray of the truck previously. It had certain legs which would appear to stabilise it if there was movement underneath, absent some extraordinary application of force to the surface upon which it appeared.

Findings

1. I do not accept the plaintiff's submission that the exception in s 5H(2)(c) was engaged. I do not accept that the defendant was a 'professional'. He was a licensed tradesperson. There is no definition of 'professional' contained in Part 1A, Division 4 of the CL Act, but conventional tenets of statutory construction indicate that part of the context in which a word has to be construed having regard to the text as a whole. That includes the provisions in Part 1A Division 6 of the CL Act, concerning the standard of care of professionals. True it is that the provisions in that part of the Act do not define who a professional is either, but I consider that s 5H(2)(c) has to be read alongside s 5P. As Mr Villa SC has suggested in his Annotated Civil Liability Act 2002 (NSW) at [1A.5O.050], the decision of Santow J in Prestia v Aknar (1996) 40 NSWLR 165 at 189 contained a useful description of what is meant by a professional or professional activity under trade practices legislation. I do not see why it could not be transposed to the present context. His Honour defined the latter expression as follows: "…intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually, though not invariably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification."
2. That suffices to provide a workable expression of the underlying concept [1] . With no disrespect to him, there is a marked distinction between the services that the defendant was supplying and the activity described in this definition. I note, in this regard, that the arrangement with the plaintiff was undocumented and informal and further, it was, so far as the plaintiff was concerned, quite cheap. If it was a professional service, I would have expected some provision being made for the risks, to property or indeed to persons, associated with the haulage. I do not consider that when hauling the item of machinery in question on the date of the accident, the defendant was a professional or supplying a professional service.
3. The plaintiff did not challenge the defendant's characterisation of the risk.
4. The difficulty in characterisation is that it may proceed at a higher or lesser degree of generality and if it is defined too narrowly, it will tend to negate the defence.
5. In this case, the risk of the machine moving might be said to depend upon a range of other factors other than the mere activity of unwrapping it. It might arise by the person unwrapping it exerting his or her own force on it. It might arise from any destabilisation to the tray causing it to move.
6. I consider in the circumstances that a reasonable person in the plaintiff's position would have known that there was a risk that by unwrapping it, it might move. That being so, the risk of movement and therefore the consequential risk that a moving machine might cause injury caused by unwrapping it was an obvious risk.
7. The consequence is that, when considering the defendant's duty of care, it was not part of his duty to warn the plaintiff that by unwrapping the machine, it might move and consequently injure him.

Statutory provisions and principles

1. The Court must have regard to ss 5B and 5C of the CL Act.
2. Unlike causation, which requires a retrospective inquiry, breach is considered prospectively, free of hindsight bias: Vairy v Wyong Shire Council (2005) 223 CLR 422 (per Hayne J at [128]).
3. It is first necessary to identify the risk of harm. It has been said that the formulation of risk of harm should identify the 'true source of potential injury' (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the 'general causal mechanism of the injury sustained' (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98] see also Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [43]; Coles Supermarkets Australia Pty Limited v Bridge [2018] NSWCA 183 at [22]).
4. Secondly, it is then necessary to consider the precautions that a reasonable person in the defendant's position would take.

Defendant's submissions

1. The risk of harm is not pleaded in the Statement of Claim. The defendant submits that the other factual allegations in the Statement of Claim would permit of a characterisation of the risk of harm as being the risk that in directing the plaintiff to climb onto the tray on the truck, to remove the straps securing the machine, prior to it being affixed (via a sling) to the crane, the machine would move and cause the plaintiff to take evasive action causing personal injury to himself. He did not submit that such risk was not foreseeable or not insignificant.
2. The defendant submits that once the pivotal factual findings referred to earlier are determined in its favour, that disposes of the case on liability. That would be because any risk of harm was generated by the plaintiff himself and there was nothing the defendant could do to prevent such harm materializing.
3. The defendant submits that Mr Byrnes' views at Section 10 of his report did not lead to any contrary conclusion. He had not actually seen the crane in question and made erroneous assumptions as to the position of the plaintiff during the operation. The reference to the stabiliser legs was insignificant in circumstances where Dr Gibson had, in the course of his experiment, found that the slewing of the boom produced minimal lateral movement.
4. At its highest, the defendant submits, the case against him must be that it was negligent to instruct the plaintiff to prepare to unload the machine. Even if it was found that the defendant had (impliedly) told him to release the straps, there could be no implication that this be done prior to the sling being fixed to the machine since, at the time the machine moved, the defendant had not actually retrieved the sling.

Plaintiff's submissions

1. The plaintiff submitted what the risk of harm was in not dissimilar terms to the defendant. His formulation was that the risk of harm was that a person might be injured if positioned in the vicinity of the stitcher and of it falling over.
2. The plaintiff submits the risk of harm was foreseeable in circumstances where the machine had been transported on the back of a truck, the back of the truck had moved from side to side when the crane was slung, and the stabilisers were not engaged; the machine may be disturbed when the straps were untethered on the back of the truck; and this risk was not insignificant.
3. The plaintiff then submits that the uncontested evidence from the defendant and the expert was that had the machine been attached to the boom via a sling prior to unhooking the load from the tray.

Consideration

1. I find that the risk of harm was the risk that in unwrapping the machine when the sling was not attached to it, the machine might move in a way that was likely to contact and injure the person unwrapping it.
2. I accept the plaintiff's submission that the risk of harm was both foreseeable and not insignificant. As noted, the defendant did not contend to the contrary. Logically, that should not surprise since the defendant submitted that the risk of movement was an obvious risk.
3. In terms of the criteria referred to in s 5C, I accept that, stated at a higher level of generality, in the circumstance that I have found that he requested the plaintiff to assist him, he required a safety plan that would have regard to his assistant's safety. The defendant's reliance upon Dr Gibson's evidence that the defendant's safety plan, for unloading, was appropriate was premised upon or assumed the absence of the defendant's request that the plaintiff assist him and, indeed, the absence of the involvement of an assistant. Once that premise or assumption was invalidated, his opinion as to the appropriateness of the plan carried no weight. More specifically, I find the reasonable precaution that the defendant should have taken was to inform the plaintiff that he should not take any step in assisting to unload the machine until it was attached or secured to the crane, via the sling, being the steps that he was intending to undertake. The risk that it might move without being attached to the sling was not so low as to require no action by the defendant. That hardly presented any burden to the defendant. If the machine fell, given its weight there was a serious risk of physical injury to the plaintiff.
4. As indicated, in circumstances where the plaintiff requested his assistance, involving his climbing on to the tray, it was incumbent upon the defendant to recalibrate his existing safety plan to factor in the plaintiff's involvement. This involved a requirement for him to convey to the plaintiff what steps would be needed to unload, who was responsible for each step, and the timing in which each step was required. I regard all this as being common sense. None of this occurred in the circumstances, with the result that the elementary step of attaching the machine to the crane, via the sling did not occur before the plaintiff unwrapped the machine.
5. I find that the failure to inform the plaintiff of this necessary step before the plaintiff should take any act in preparation of unloading constituted a failure to implement a safe procedure for unloading and that it thereby was a failure to take a reasonable precaution in response to a foreseeable and not insignificant risk of harm, and was therefore negligent.

CAUSATION

1. The plaintiff bears the onus of proof on all matters relating to causation, being principally ss 5D(1)(a) and 5D(1)(b): s 5E of the CL Act. Factual causation requires the plaintiff to establish that the unreasonable failure to take a precaution was a necessary condition of the occurrence of the harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14].

Submissions

1. The defendant submits that was no act or omission by the defendant which caused the risk of harm to the plaintiff to materialize. That is because, for the reasons set out above, the defendant was not operating the crane at the time of the plaintiff's accident, did not direct the plaintiff to be present on the flatbed tray of the truck and/or was not aware of the plaintiff's presence on the flatbed tray of the truck. The defendant did not make any submissions as to the 'scope of liability' element of causation.
2. The plaintiff submits that factual causation was made out since if the machine had first been attached to the crane via the sling, it would not have fallen over causing the plaintiff to take the evasive action resulting in his injury.

Consideration

1. As I found in relation to breach, at a higher level, the injury resulted from an incomplete and inadequate level of preparation for the unloading, in terms of the defendant's failure to communicate what steps were necessary to unload the machine to the plaintiff; and that, specifically, the plaintiff was not informed of the need for the machine to be secured, via the sling, to the crane before any unwrapping could occur. I further find that had the defendant informed the plaintiff of this step, then it was more likely than not (and probably certain) that the plaintiff would have followed it. If he had awaited the step of the defendant securing the machine by the crane before unwrapping it, I am satisfied that the injury would not have resulted.
2. Factual causation has thus been established. As indicated, neither party submitted that if the factual causation element was satisfied the Court would not be satisfied that the scope of liability element was also established. Accordingly, I find that it was. Causation is made out.

Principles

1. Contributory negligence is determined by enquiring whether there has been a departure from the application of reasonable care for the persons own safety: T and X Company Pty Ltd v Chivas [2014] NSWCA 235 at [4].
2. The principles in s 5R of the CL Act modify the common law - they do not actually create the defence (ACQ Pty Ltd v Cook (2008) 72 NSWLR 318 at [158].

Parties' submissions

1. The defendant submitted that on the premise that negligence was found, a significant reduction should be made for damages on this account. The premise for the finding is necessarily that the Court would have found that the defendant instructed the plaintiff to climb on to the truck to release the straps on the machine and to do so without the machine being affixed, via the sling, to the crane.
2. On that premise, the defendant submits that a reasonable person in the plaintiff's position, who went on to release the straps, knew or should have known that the machine was heavy; that it could move once the straps were released; and that it was not affixed via the sling when he released the straps. The defendant's Counsel, in his submissions in reply, also submitted that the plaintiff admitted awareness that the machine might move if untethered.
3. The plaintiff submitted that he was only following the directions of the defendant. He invoked the analogy of an employee following the directions of an employer, in furtherance of the employer's business where the employer had control of the process and anything that he did could not be characterised as rising beyond mere inadvertence.

Consideration

1. I take into account that a reasonable person in the plaintiff's position would rely upon the skill and judgment of the defendant, who was relevantly licensed and, by regulation, responsible for ensuring the safe unloading of the machinery. But that is no complete answer to a defence of contributory negligence (Astley v Austrust Ltd (1999) 197 CLR 1).
2. I have found that the defendant requested the plaintiff's assistance to help him prepare to unload the machine. But I have stopped short of finding that the defendant expressly asked him to untether the machine, even if it was not unreasonable for the plaintiff to infer that this was what the defendant meant, and I have made no finding as to at which stage of the unloading process he should do so. In short, I have found that there was an ambiguity, or perhaps more accurately, incompleteness in the instructions that the defendant provided to the plaintiff as to when he should assist.
3. On his case, there is no evidence that the plaintiff expressed concern or raised inquiry with the defendant about the consequences of releasing the strap, in terms of the likely movement of the machine; or the timing for when he should release the strap.
4. I consider that a reasonable person in the plaintiff's position would have been very concerned about both of those matters. The plaintiff is not be taken as to be completely ignorant of risk - he had previously assisted the defendant with affixing and releasing straps on other machines (although not this one). Further, given that (a) this was his first time on the tray of the truck and (b) this machine was originally strapped by the defendant, at the plaintiff's request, in an unusual way, a reasonable person's, in the plaintiff's position, apprehension of the risk of movement in the process of offloading would expect to be heightened. The plaintiff showed no inquisitiveness to, initially, clarify that the defendant wanted him to unwrap the machine; and thereafter determine when he should do so in accordance with the other steps in the process of unloading it.
5. In terms of comparative culpability, I accept that the defendant was responsible for the process of unloading and his negligence was more culpable than the plaintiff's lack of inquiry. A comparison of causal responsibility is more evenly matched; but the defendant's evidently superior awareness of the unloading process indicates that this consideration weighs more heavily against him than it does the plaintiff.
6. Taking into account the defendant's skill and greater level of experience, for which the defendant was paid on the date of the accident, and with reference to the considerations of comparative culpability and causal attribution to the harm, I would ascribe the proportion of contributory negligence to be 30%.

The plaintiff's evidence

1. There is no dispute that the plaintiff suffered an injury to his right elbow following the accident.
2. The plaintiff says that he still experiences pain in his right elbow. The pain tends to come and go. He has managed the pain by taking Brufen. Although he had taken physiotherapy up until five or six months after his second surgery in January 2019, he no longer receives physiotherapy.

Mrs Taj's evidence

1. Mrs Taj was called to corroborate the plaintiff's continuing complaints of pain in his right elbow; manifested, apparently, when working long days, in recreational activity of swimming and during the winter months.
2. After the accident, the plaintiff went to Sutherland Hospital. He returned the next day to have the first of two surgeries. The first one was performed by Dr Szomor and involved the insertion of screws into his right elbow. The plaintiff received physiotherapy and prescribed medication after this.
3. After a return to work the plaintiff's situation had not improved and he received a second opinion. By mid-June 2018, he was still in constant pain and felt looseness in his right elbow. His physiotherapist casually suggested that he might consider a second operation.
4. On 27 June 2018, Dr Matthew Yalizis, an orthopaedic surgeon (with specialty in shoulder, elbow and trauma surgery) reviewed a CT scan, which showed prominent screw heads. On examination, he found crepitus over the radial head with pronation and supination. This was causing pain, especially in the posterolateral recess. He booked the plaintiff, on a public waiting list, for removal of the 'hardware'.
5. This second operation occurred in January 2019, when the plaintiff had an arthrotomy, the removal of scar tissue and ligamentous stabilisation. This was performed by Dr Yalizis. Dr Yalizis recorded that the surgery had revealed scar around the posterolateral aspect of his elbow, which probably accounted for this clicking and crepitus. Dr Yalizis considered that his pain was probably accounted for by residual instability in his elbow joint posteorlaterally. The plaintiff came out of it with a splint. On 20 February 2019, Dr Yalizis reported on seeing the plaintiff and noted his progress in the range of motion of his right elbow and had encouraged motion exercises. He wanted to see him again in two months' time, but there is no record of the plaintiff having done so.

Plaintiff's expert evidence

1. The plaintiff relies upon the medico-legal report of Dr John Bentivoglio, an orthopaedic surgeon, dated 4 September 2019. Dr Bentivoglio consulted with the plaintiff on 3 September 2019. On that occasion, the plaintiff presented with pain over the lateral aspect of his right elbow half the time. The pain arises from activity. He reported that the locking of his elbow gives rise to the maximum disability.
2. Dr Bentivoglio opined that because of the nature of the plaintiff's fracture, he was at considerable risk of developing degenerative change involving the radioulnar and radiocapitellar joints. He did not consider that any further surgical treatment would make any difference to his symptoms. His prognosis was guarded to poor. He had reached the maximum medical improvement and his condition had stabilised.
3. Dr Bentivoglio assessed a 2% upper extremity impairment, as a result of decreased extension of the right elbow; and a further 1% upper extremity impairment as a result of decreased pronation involving the right forearm. Overall he assessed a 6% Whole Person Impairment.

Defendant's expert evidence

1. The defendant relied upon medico-legal opinions from Dr Frank Machart, an orthopaedic surgeon, and Dr Seamus Dalton, a Consultant Physician in rehabilitation medicine.
2. Dr Machart accepted that the plaintiff had minor imperfections on the articular surface causing ongoing symptoms. He foresaw the possibility that the plaintiff may develop osteoarthritis in his right elbow; which might not be evident for 10 to 15 years. His symptoms were unlikely to change. He did not consider that there was likely to be much change in the symptoms in the short to medium term.
3. Dr Dalton examined the plaintiff on 30 June 2020 and extensively reviewed clinical records. He found that the plaintiff had been left with an excellent range of flexion and almost full range of forearm rotation, but he still lacked 15 degrees of extension at the elbow, which was painless. He also indicated that there were early signs of post-traumatic degenerative change in the elbow which account for his residual symptoms. He accepted that the plaintiff experienced stiffness and degrees of lateral pain after heaving lifting. He did not consider that the plaintiff required further treatment or therapy and accepted as valid his occasional use of anti-inflammatory medication.

Parties' submissions

1. The defendant made no written submission about the nature and extent of the plaintiff's injuries and disabilities.
2. The plaintiff submitted that Dr Dalton's evidence was most probative of the plaintiff's current condition and prognosis. The plaintiff had impressively continued to work through pain, even where using a spanner and screwdrivers caused pain. It was not uncommon for complications for a communicated fracture of the radio head to include pain, crepitus, loss of extension and an increased risk of post-traumatic arthritis. In other words, this is not a case of degenerative change likely to take its own course, but one that the accident has heightened that risk. The plaintiff now has to live with this for the rest of his life.

Consideration

1. I prefer the evidence of Dr Bentivoglio and Dr Dalton over the evidence of Dr Machart in finding that the plaintiff continues to feel pain and some restriction in the use of his right elbow. I also agree with the plaintiff that the views of Dr Dalton, as an expert in rehabilitation medicine and, coincidentally the last of the medico-legal experts to examine the plaintiff, carry the most weight. I also accept the plaintiff's evidence to this effect, supported as it was also by his wife. As indicated, I found the plaintiff to be a witness of credit.

Evidence

1. The plaintiff was born in 1964 and was aged 52 at the date of the accident. The plaintiff is of Iranian extraction. He came to Australia, by boat, in 1986. He took courses in English and mechanics. He was employed between 1988 and 1998, and in 1998 he commenced his own business, called 'Print Mechanical Services Pty Ltd'. His specialty is in fixing stapling equipment. Amongst other things, the business of the company involves the importation and sale of stapling machines and local refurbishment. The plaintiff considered that he provided work of a niche market, with no real competition, at least in New South Wales. He says he has a base of loyal clients.
2. After the accident, he was off work for 3 months. He received, and continues to receive, the assistance of an old friend, Mr Joe Djion, who helps out with the heavy lifting and strapping wires. The plaintiff found that after the accident, he has lost strength in his right arm. The plaintiff estimates that Mr Djion helps him out approximately 10 - 12 hours a week at a rate of $25 per hour, on average, but it appears that there is no formal arrangement. The plaintiff was not challenged in his evidence of this estimate.
3. Tax returns revealed that the plaintiff received the following income the plaintiff received from his company as 'salary' from providing labour to the company: 2012-13 $21,000 2013-14 $12,000 2014-15 $53,000 2015-16 $24,500 2016-17 $27,000 2017-18 $35,000 2018-19 $38,000
4. The plaintiff would like to continue to work indefinitely, but he is unable to move any heavy machinery anymore and would, in Mr Djion's absence, need to engage a sub-contractor.
5. Dr Machart considered that there was unlikely to be diminished capacity for work; notwithstanding that the plaintiff had minor incapacity in relation to heaving lifting.
6. Dr Dalton considered that the plaintiff would be capable of working in his current role up to normal retirement age, but acknowledged that he may find it difficult to work on heavier machines if (as he expected) he developed arthritis in the elbow; in which case he would rely increasingly upon casual labour from time to time.

Non-economic loss

1. The plaintiff submitted that the plaintiff's non-economic loss should be assessed at 30% of a most extreme case.
2. The defendant submitted that it should be assessed at 22% of a most extreme case; noting that the plaintiff had returned to work and was generally asymptomatic, unless he was doing heavy work tasks.
3. In my view, the defendant understates the frequency with which the plaintiff continues to experience pain in his elbow; and although the lay evidence was sparse, it also ignores the evidence of Mrs Taj about the continuing effects of restriction and pain upon the plaintiff's recreational activity of swimming. I also place significant weight upon Dr Dalton's view as to the contribution of the accident to the risk of the plaintiff developing post-traumatic arthritis.
4. I assess the non-economic loss at the level of 28% of a most extreme case. That yields a sum of $96,180.

Out of pocket expenses

1. In terms of out of pocket expenses, the parties agree that they should be in the sum of $2,222.60.
2. A claim is made for $12,000 for the future, a sum representing $15 a week. Although that may be more than his current expenditure, given the possibility of post-traumatic arthritis, such expenditure is likely to increase.
3. The defendant argues only for a buffer sum of $1,500.
4. There is no suggestion that the plaintiff will have any further surgical treatment or is receiving any further physiotherapy. Dr Bentivoglio believed that further treatment will make no difference to his symptoms. I accept Dr Dalton's view that occasional use of anti-inflammatory medication would be reasonable. I also accept the strong possibility that given the plaintiff's strong desire to continue his craft for as long as he possibly can, and the prospect of post-traumatic arthritis, he may need more than what he currently spends on analgesics.
5. I would award $6,000.

Loss of earning capacity

1. In terms of economic loss, the plaintiff's claim is in two parts: for the period of 228 weeks, after the plaintiff had returned to work, up to trial, the weekly rate is reduced to $120 per week. To this claim of past economic loss, superannuation is also claimed.
2. For loss of future earning capacity, the plaintiff claims a figure of $200 a week for 14 years (with a multiplier of 529.13) at which point the plaintiff will turn 70 years of age, with a buffer of $50,000 after that. Loss of future superannuation is imposed on that.
3. The defendant submitted that no claim should be made for economic loss. This is because, in circumstances where the plaintiff worked through a corporate vehicle, there was no evidence of financial loss to the company (such as a forensic accountant's opinion as to a fall in its profitability or value); nor any diminution in 'dividends' that the plaintiff had received from the company. All that the evidence showed, at its highest, was personal income derived from the plaintiff, which had actually increased. Reference was made to the Court of Appeal's decision in Gumbert v Gumbert [2000] NSWCA 17 (per Heydon JA at [26]) for the requirement of precise evidence of loss of earnings.
4. Further, nothing could be made of the plaintiff's evidence that he had paid his friend Joe to assist him with work. That was not shown to have any net effect, in terms of expenditure (nor was it reflected in the deductible expenses in the plaintiff's personal tax returns).
5. In response to the defendant's reference to Husher v Husher (1999) 197 CLR 138, the plaintiff's Counsel submitted that the plaintiff controlled this business entirely. That being so, whatever profitability it earns is entirely the product of his labour. The plaintiff submitted that the plaintiff's evidence that he began to receive assistance from his friend Joe some relatively short time after the incident was an obvious and necessary step in mitigation of loss that would otherwise be caused to the business, and that it should be open to the Court to value the cost of that replacement labour as a reasonable proxy for the loss the plaintiff personally suffered; if only deducted as the cost would have amounted to a deductible expense for the business. After the plaintiff returned to work after an absence of 3 months, his net earnings for the financial year in which the accident occurred amounted to $400 net per week. Up to trial, for 228 weeks, allowance should be made for $45,600.
6. In his submission in reply, Counsel for the defendant said that the problem with making allowance for the casual labour of Joe was that that the plaintiff had not shown what effect that assistance had on the company's profitability. He hypothesised that given the range of the company's activities - not all of which involved physical handling of heavy machinery - the employment of Joe might have generated internal efficiencies, such as by freeing up the plaintiff to engage in other parts of the business' operations. That, however, was a matter which could have been explored if the plaintiff had furnished proper financial statements.
7. As to the future loss of capacity, the plaintiff submits that the figure of $400 net per week should continue to be awarded until the age of 70, but against the possibility that the plaintiff wishes the business to continue, he will require labour replacement at a likely cost of $200 per week. A further cushion sum of $50,000 should be awarded to take into account the probability that he will need to incur expenditure on casual replacement labour as the effects of his elbow injury increasingly incapacitates him.
8. In his submission in reply as to future loss, the defendant submitted that this could have been proved by opinion evidence of a forensic accountant, but was not.

Consideration

1. In this context, damages are recoverable for the loss of capacity to earn income, not for the actual loss of salary (Paff v Speed (1961) 105 CLR 549 per Windeyer J at 566). The Court's task is to value the loss of capacity to earn money, and pre-accident earnings are only an aid in assessment in providing a measure of the loss of earning capacity (Ruby v Marsh (1975) 132 CLR 642 per Barwick CJ at 642; State of New South Wales v Moss (2000) 54 NSWLR 536 at [71]).
2. Here the plaintiff ran a small business through a corporate vehicle. Aside from a bookkeeper, he operated the business entirely by himself. The defendant correctly accepts that in the absence of any claim by his corporate vehicle, he can recover the loss he personally sustained by reason of reduced distributions from the company's profits, where he can prove that the reduction is causally related to his right elbow injury: Selby v The Commonwealth (1946) 47 SR (NSW) 150 per Jordan CJ at 152. Particularly, that is so where it is the labour of a single individual which contributes to the company's profit, subject to the requirement for it to mitigate loss by engaging substitute labour, where a plaintiff is off work for a short period, the company's capital has been sterilised until the plaintiff can resume work. The loss for which damages are payable is the diminution he suffered in return from the business of the company.
3. As a qualification to the general principle stated above, the High Court observed that, whether for the past or for the future, what the plaintiff is compensated for is not only a diminution of his earning capacity; but the economic consequences flowing from that loss of earning capacity (Husher v Husher at [7] & [17]), being what the plaintiff would have had under his control. Practically, this requires consideration of what could the plaintiff have done in the workforce but for the accident and what sum of money the plaintiff would have had at his disposal: Husher v Husher at [23]. The onus falls upon the plaintiff to provide evidence of the claimed diminution in earning capacity - more must be proved than the mere suggestion of loss (Kallouf v Middis [2008] NSWCA 61 at [52]-[54]).
4. Although Mrs Taj was an equal shareholder, prior to the accident, it was the plaintiff's labour which was entirely responsible for generating the profits of the corporate vehicle he used to trade. Nevertheless, there was no evidence of what arrangements were made for the distribution of profits, as between the plaintiff and his wife, either before or after the accident. The Court does not know, for example, whether the plaintiff had made any income-splitting arrangement with his wife from the profits of the business; which might yield taxation benefits to either of them. There is reference in the plaintiff's personal tax returns to income received by Mrs Taj, but the indications are that Mrs Taj receives income from her services as a hospital administrator and as a driving instructor.
5. Here, the plaintiff was off work for 3 months. That is indicative of a loss of some capacity to earn. His evidence was that since then he has continued to operate his business, albeit with some vaguely defined assistance he has received from his friend Joe Djion. But subject to the initial period of 3 months, he still works full-time and it is because he does so that, on days which are particularly arduous, he continues to suffer pain, for which he will be compensated by awards for non-economic loss and treatment expenses.
6. As indicated, the plaintiff adduced evidence of the income he was deriving from his labour supplied to his company's business in his personal tax returns. They do not reveal a picture of marked deterioration, although what has been actually earned in the past is not conclusive.
7. The incapacitating effect of indications of degenerative change, has not, so far, had any effect upon the plaintiff's earning capacity.
8. I find that there is an insufficiency in evidence to show the financial consequences of any loss of earning capacity in the period from the accident up to the trial. The plaintiff's income derived from his salary from the business and his personal (taxable) income generally has increased since the accident. I am generally disposed to not make an award for past loss of earning capacity.
9. As to Joe's assistance, I accept the defendant's submission that the difficulty is that no proof is shown of his contribution to the company's bottom line. It is not even clear whether the company is itself paying Joe, or whether the plaintiff is personally providing payment.
10. The weight of a party's evidence is assessed with reference to its capacity to produce it. I am not persuaded that any undoubted impairment in the plaintiff's physical capacity has produced such impairment of his earning capacity so as to generate financial loss.
11. The absence of records of past financial loss to the company, from which the plaintiff derives his 'salary', is of some lesser significance to evaluating lost capacity for the future, since the Court's task is to consider and weigh the possibilities (Malec v JC Hutton Pty Ltd (1990) 169 CLR 638). Although the period since the accident up to the trial indicates that there has been no loss in salary that the plaintiff has earned, accepting, as I do, the plaintiff's evidence about the informal assistance rendered by Joe, it is that assistance which has allowed the business to continue to run with the plaintiff's physical restriction. I do not assume that such assistance will be supplied indefinitely to the business. The evidence of existing signs of degenerative change, unrelated to the accident, and Dr Dalton's concern about post-traumatic arthritis, which is related to the accident, may bring forward the plaintiff's intended retirement date and this is a contingency that needs to be taken into account. I consider it probable that his capacity to withstand pain is likely to diminish as time goes on with the likely result of diminishing his capacity to physically contribute. If he was unable to work, unless the company was prepared to hire casual labour, the company would fold and, given the narrowness of the plaintiff's skills and his age, he would be seriously impaired if prior to his stated retirement age, he was forced onto the open market to find alternative employment.
12. I consider that it is appropriate to award a buffer sum. I assume, for the purposes of s 13 of the CL Act, that the plaintiff wants to continue to supply labour to his company until the age of 70, but that is subject to the risk of further exacerbation of degenerative change in the joint wholly or partly hindering from doing so. Further, at least at some point in that period, he will not receive the benefit of Joe's help. Further contingencies which need to be factored in include the possibility of great competition for the plaintiff's business and the risk of technological obsolescence for the machinery currently sold or distributed.
13. I make allowance for the sum of $40,000.

Lawn-mowing services

1. The plaintiff is married and has two adult children; one of whom continues to live at home. The plaintiff and his wife occupy a house with a large yard. Prior to the accident, he used to look after it. From about 2 weeks after the accident, they have engaged a gardener to come in. He later said that the lawn needs to be mown a couple of times per month in the summer, and once per month in the winter. He estimated that the long hedges needed to be trimmed twice a year, at the sum of $6,000, and the ordinary grass clipping would cost $50-$60 on each occasion.
2. In cross-examination, the plaintiff was asked why the son could not have helped with the mind of the lawn. The plaintiff said that he was very busy being a school teacher.
3. Dr Bentivoglio opined that the plaintiff would continue to require assistance with garden maintenance and lawn mowing indefinitely. Dr Machart did not see any need for allowance for gratuitous assistance, domestic or yard work, notwithstanding that he acknowledged that the plaintiff had difficulty in pulling the cord of a lawn mower. He suggested that the plaintiff get a mower with electronic starter. Dr Dalton did not accept that his need for domestic assistance exceeded 6 hours a week for 6 months.
4. Claims for past and future care are made. As to the past, the plaintiff claims $75 per week for 133 weeks. As to the future, a claim is made on the footing that the plaintiff will require $75 per week for another 28 years.
5. The defendant submitted that allowance should be made for past gardening assistance for the sum of $8,760, based on the frequency and rate at which the gardener has been paid.
6. The defendant also submitted that allowance should be made for future gardening assistance. Primarily, he submitted that a buffer sum should be awarded for 10 years only, given that the pain in his elbow is likely to abate as he will no longer have a requirement to lift heavy machinery, and will be able to resume normal activities like gardening.
7. In his closing submissions, Counsel for the plaintiff narrowed his claim to one of the commercial cost of lawn-mowing services. He did not quibble with the calculations of the defendant's Counsel for the cost of past services.

Consideration

1. I agree with the defendant's submission as to past lawn-mowing services.
2. In relation to the future, whilst the defendant's primary argument has logic on its side, I do not accept that it is realistic in a context where, at least for the foreseeable future, the plaintiff is likely to continue to place pressure on his elbow. I accept the defendant's alternative submission that allowance should be made for commercial care (at a rate of $42 per week) up to his expected life expectancy, which with the deduction of 15% for vicissitudes, yields a sum of $28,902.72.

Total Damages

1. Subject to deduction for contributory negligence, damages are assessed as follows. Non-economic loss $96,180.00 Past out of pocket expenses $2,222.60 Future out of pocket expenses $6,000.00 Future loss of earning capacity $40,000.00 Lawn-mowing services (past) $8,760.00 Lawn-mowing services (future) $28,902.72 Total $182,065.32
2. Taking into account the 30% deduction for contributory negligence, that would reduce the plaintiff's damages recoverable to the sum of $127,445.72.

ORDERS

1. The Court orders that: 1. Verdict and Judgment for the plaintiff for the sum of $127,445.72. 2. The defendant is to pay the plaintiff's costs as agreed or assessed. 3. Liberty to apply for variation of the costs order is granted on 7 days' notice and if such liberty is invoked, application is to be made by filing a notice of motion with supporting affidavit evidence. 4. Exhibits are to be returned within 28 days of these orders.

Endnote

1. See also the commentary of Leeming JA, sitting at first instance, in Zhang v Hordas (No. 2) [2018] NSWSC 432 at [140]-[144]. 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: 07 December 2020