Taleb v Woolworths Limited

LEGISLATION CITED: Motor Accidents Compensation Act 1999 Workers Compensation Act 1987

Grljack v Trivan Pty Ltd (In Liq) [1994] 35 NSWLR 82 (Grljak No 1) CASES CITED: Kendrick v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 1288 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd & Anor [2005] NSWCA 423

PARTIES: Jamal Taleb Woolworths Limited

COUNSEL: Mr Boyd of Counsel for Plaintiff Mr Morris of Counsel for Defendant

SOLICITORS: Anthony Porthouse, Kheir & Associates Solicitors Berry Buddle Wilkins

1 The plaintiff was a casual driver employed at the Flemington Produce Markets by Toll Pty Limited. On 25 February 2006 he was driving a pallet jack inside Woolworths Shed X, a large warehouse occupied by Woolworths Limited, when a forklift truck driven by a Woolworths employee hit his right foot. As a result, the plaintiff's right little toe was partially amputated.

2 It is agreed that the matter is to be determined in accordance with the Motor Accidents Compensation Act 1999.

Issues (1) Whether the plaintiff was a credible witness. (2) Whether the driver of the forklift truck was negligent. (3) Whether the plaintiff was guilty of contributory negligence. (4) Whether Toll was negligent, and its contribution as joint tortfeasor. (5) The extent of past and any future economic loss.

3 In relation to both liability and damages, it is important to determine whether the plaintiff was an honest witness.

4 The defendant contended that the plaintiff's evidence should not be accepted unless it was corroborated by reliable evidence.

5 The defendant submitted that, in the period 1995 to 2004, the plaintiff may have been the de facto owner of his brother's demolition business (in which the plaintiff worked), having put the business in his brother's name to conceal assets from the plaintiff's estranged wife. Similarly, the plaintiff may now be the de facto owner of the demolition business (in which the plaintiff works) that is operated by his 20 year - old son.

6 There was no evidence to support these submissions. They were mere speculation. Many members of the plaintiff's family are involved in a demolition business. It is unsurprising that, at one stage, the plaintiff's brother operated a demolition business or that the plaintiff's son conducts such a business.

7 The defendant noted that the plaintiff's evidence about the nature and extent of the work that he undertakes in his son's business was markedly different from the son's evidence.

8 The plaintiff's son presented as an uncertain and evasive witness. I place little reliance on his evidence. However, the unsatisfactory nature of his son's evidence does not necessarily reflect on the plaintiff.

9 Although liability was very much in dispute, in many significant respects the plaintiff's evidence was consistent with that of the forklift driver. The plaintiff made important concessions against interest (for example, that he had a clear view towards the location of the forklift truck). The medical evidence largely supports the claimed disabilities.

10 I find that the plaintiff was a reasonably honest witness, although it is likely that he slightly exaggerated the degree of his disability.

11 Inside the Woolworths X Shed at the Flemington Produce Markets, pallets of produce were stacked in rows. One end of each row adjoined an external truck loading dock. There was a narrow passageway between each row of produce. The passageways fed into a main laneway that was between 5 metres wide (according to the plaintiff) and at least 8 metres wide (according to the forklift driver). The laneway was the main thoroughfare from one end of the warehouse to the other. It carried a significant volume of traffic in both directions.

12 The plaintiff was required to drive a pallet jack (depicted in Exhibit C) to load a row of produce into a large truck parked at the adjacent loading dock (depicted in Exhibit B). The pallet jack was approximately 1.3 metres wide. After loading the produce onto the truck, the plaintiff was required to return paperwork to the on-site Toll office. He decided to drive the pallet jack to the office. Standing sideways on the left side of the pallet jack with his right foot towards the rear of the standing platform, the plaintiff reversed the pallet jack to the end of the passageway in which he had been working. He commenced to reverse it left into the main laneway. The platform on which the plaintiff was standing was 300 - 350 mm above the ground. The plaintiff was wearing steel tipped safety boots.

13 At the same time, a Woolworths employee was driving a forklift (depicted in Exhibit D) down the laneway in the opposite direction, carrying an empty pallet. The width of the forklift was approximately 1.6 - 1.7 metres. The bottom of the pallet was approximately 150 mm (6 inches) from the ground and the tynes (which were inserted between the top and the bottom of the pallet) were approximately 300 mm (12 inches) from the ground, ie at about the same level as the plaintiff's feet. The right side of the forklift was approximately 1 metre (3 feet) from the end of the passageway from which the plaintiff was emerging. The pallet jack had travelled 1 - 2 metres into the laneway when the front of the forklift's right tyne (or, perhaps, the front of the pallet that was being carried on the tynes) impacted with the plaintiff's right foot.

14 The plaintiff gave evidence that, from a position halfway down the passageway, he had a clear view to the left through the row that had been emptied of produce. He saw the forklift travelling down the laneway on its correct (left) side of the laneway. He reversed the pallet jack to the end of the passageway, slowed down to 4 -5 kph, sounded his horn and then turned left. At the last moment the forklift, which was "coming fast", veered diagonally across onto its incorrect side of the laneway and a tyne struck the plaintiff's foot. It was the plaintiff's evidence that the laneway was marked with a centre line. On either side of the centre line, yellow arrows indicated direction of travel.

15 The forklift driver said that he could not see into the passageway because stacked pallets obscured his view. He was travelling at a "walking pace". He did not hear a horn. The pallet jack came around the corner "fast" and there was no opportunity to take evasive action. Part of his empty pallet impacted with the plaintiff and "exploded". The forklift driver denied that the laneway was marked with a centre line or arrows.

16 While I accept that the plaintiff endeavoured to provide an accurate account of the accident, I find that, in some respects, the plaintiff's account was unreliable. The speed at which the accident occurred and the ensuing trauma may have impacted on the plaintiff's perception and memory of the accident. The Woolworth's forklift driver was an extremely forthright witness (inter alia, he made important admissions against interest), but it is my view that, in at least one respect, his perception of the accident was flawed.

17 I accept the plaintiff's evidence that he had completed the loading of produce and was en route to the Toll office for the purpose of returning paperwork. It follows that, as the plaintiff said, the accident occurred at the end of a row that was empty of produce and through which both the plaintiff and the forklift driver had a reasonable view of approaching traffic, had either chosen to look. Because the forklift driver did not see the plaintiff, he has inferred that he was unable to see him. Having regard to the penetrating nature of the injury and the parallel heights of the plaintiff's foot platform and the tynes, it is likely that the plaintiff's right foot was hit by a tyne rather than by the empty pallet. The pallet may have impacted with another part of the pallet jack, causing it to "explode".

18 I accept the evidence of the forklift driver that there were no centre line or arrow markings in the laneway. The driver's task was to act as "consolidator", driving up and down the laneway to check the height of the rows of pallets, and placing markers on the ground to indicate where pallets should be stacked. He would have been very well aware of ground markings. The plaintiff's recollection may have been influenced by what he perceives should have been the case. Further, I accept the evidence of the forklift driver that he was proceeding in a straight line and did not veer diagonally into the plaintiff's path. In this regard, there is no reason to doubt the evidence of the forklift driver. There was no reason for the forklift driver to travel other than in a straight line. Because he failed to observe the forklift until the last second, the plaintiff may have perceived that the vehicle was travelling diagonally.

19 I am not satisfied that either vehicle was proceeding at an excessive speed. It may be that, because neither driver saw the other until the last second, each perceived that the other was travelling fast.

20 The parties agree that Woolworths is vicariously liable for any negligence on the part of its driver.

21 In a number of respects, the forklift driver failed to take reasonable care. Regardless of the absence of lane markings, he should have driven the forklift on his "correct" (left) side of the laneway as he was on a "road" carrying two-way traffic. In relation to traffic movements in New South Wales, the public is conditioned to expect that, where there is space to do so, traffic will travel on the left side of any roadway. Involuntarily, drivers and pedestrians make observations and behave accordingly. Further, the WorkCover Fork Lift Truck Drivers Guide 1998 (with which the forklift driver was familiar) provided that vehicles should "stay left in two-way traffic aisles" (Exhibit H, p 25). In evidence, the forklift driver agreed that he "should have been driving on the left-hand side" and that, had he done so, he "would have had ample opportunity to observe the loader coming out".

22 The plaintiff submitted that the forklift driver was negligent in that he failed to keep the tynes as low as possible to the ground in accordance with Exhibit H (p 22). The plaintiff contended that the forklift driver could have travelled with the tynes 100 millimetres (4 inches) lower, which would have given a 50 mm (2 inch) clearance and would have avoided the tynes travelling at a height that was parallel to the platform on which the plaintiff was standing. I do not accept that submission. The forklift driver maintained the tynes at a reasonably low level, bearing in mind the frequent presence of spilled produce and the potential that very low tynes would squash the produce, creating a different type of hazard.

23 The plaintiff entered a "road" carrying moderate traffic from a side passageway. It was his responsibility to keep a proper lookout for vehicles in the laneway. He had a clear view into the laneway. He may have slowed his vehicle, but he did not stop it. He may have sounded his horn, but he did not do so with sufficient volume or persistence to attract the attention of the forklift driver. Although he was reversing the pallet jack out of a confined area while standing sideways (a difficult manoeuvre), the plaintiff should have checked that the main traffic lane was clear before he moved into it.

24 Both the plaintiff and the forklift driver significantly breached the standards expected of drivers. The Court finds that the plaintiff was 45 % responsible.

25 Section 151Z (2) of the Workers Compensation Act 1987 provides that the damages awarded in favour of an employee are to be reduced in the following circumstances: "(2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer" (emphasis added)

26 The expression "is entitled to take proceedings" refers to an employee's cause of action against an employer, rather than to whether the enforcement of the cause of action would result in an award of damages: Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82 (Grljak No 1). In considering the question of entitlement to take proceedings, it is irrelevant that, if proceedings were taken, the employee would not recover damages because the employee could not satisfy the 15% permanent impairment threshold.

27 Kendrick v Bluescope Steel (AIS) Pty Limited [2007] NSWSC 1288 is an example of a case in which s 151Z (2) was applied in circumstances where there was fault both by a driver of a motor vehicle and by an employer. If Toll was guilty of negligence as an employer, then the damages awarded against Woolworths are to be reduced in accordance with s 151Z (2).

28 Toll had a strong presence on the work site. It had an office within the warehouse. In relation to each work shift, the plaintiff commenced the shift by reporting to the Toll office for directions. He reported back to the Toll office after he had loaded his truck. Given the level of its presence on the warehouse premises, Toll should have been well aware of deficiencies in the working conditions within the warehouse. It should have known that the traffic system was unsafe in that there were no lane markings or arrows in the laneway, and no other clear directions ensuring that traffic kept to its "correct" side of the laneway. Toll should have realised that the lack of markings and directions was a potential danger to its employees because of the risk of collision in an area of significant two-way traffic.

29 Section 151Z (2) (c) and (d) provide that damages are to be reduced in the following way:

(c)the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasoror otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determiend as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages," (emphasis added)

30 In Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423 at [74], McColl JA summarised the operation of s 151Z (2) (c) and (d) as follows: "(b) The figure used in s 151 Z (2) (c) is calculated by the Court: (i) deciding the amount of the contribution the non-employer would (but for Pt 5) be entitled to recover from the employer as a co-tortfeasor or otherwise at common law; (ii) deciding what is "the amount of the contribution recoverable" within the section 151 Z (2) (c) and s 151 Z (2) (d); and (iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker's common law damages from the non-employer tortfeasor are to be reduced: Grljak No 1 (at 88 - 89) Clout (at [29] - [31])." 31 As well as employing the forklift driver, Woolworths was the occupier of the warehouse and had the care, management and control of those premises. As Woolworths was both responsible for the traffic arrangements on the site and employed the negligent forklift driver, its liability is significantly higher than that of Toll. I assess the amount of Toll's contribution at 20%.

32 At the date of the accident, the plaintiff was 42 years old. He came to Australia when he was 14 years old. He completed Year 10 of high school. He obtained a licence to drive semitrailers. In 1985, he qualified as a motor mechanic. For four years, he operated a service station. From 1989 to 1995 he ran a truck hire business. In 1995, the plaintiff separated from his first wife. There was a bitter family law dispute. The plaintiff sold his truck hire business and became a full-time carer for his children, then aged five and seven years.

33 Between 1995 and 2005, the plaintiff was generally unemployed and receiving social security benefits. He lived with his mother and brother. In 2001, the plaintiff remarried and his second wife joined the household. Until 2004, the plaintiff's brother operated a demolition and excavation business and the plaintiff undertook casual work for his brother. In 2004, the plaintiff's brother went overseas. The plaintiff registered a business name, hoping to start a demolition and excavation business with the financial assistance of a friend. However, the friend failed to provide promised financial support and the plaintiff was unable to proceed with the venture.

34 The Court accepts that, in the period 1995 to 2005, the plaintiff's parental responsibilities somewhat reduced his work capacity, particularly when his children were younger. However, as the plaintiff was living with three other adults for much of the period (two of whom were not working), it is difficult to accept the plaintiff's assertion that parental duties effectively disabled him from working. The Court concludes that part of the reason that the plaintiff did not find full-time work was that he lacked a strong work ethic.

35 In 2005 the plaintiff's sons moved to live with their mother. The plaintiff obtained casual work with Toll, commencing on 7 November 2005. In the three-month period prior to the accident, the plaintiff worked an average of 28.51 hours per week, earning $20.9473 per hour, or $597 per week gross (approximately $507 net).

36 As a result of the accident, the plaintiff sustained a 6 centimetre oblique injury to the sole of the right foot immediately proximal to the weight-bearing portion of the ball of the foot, with an exit wound involving the little toe. The injury transected the right lateral plantar nerve. The wound was debrided and sutured at Westmead Hospital. The wound became infected. In March 2006, the plaintiff was admitted to St George Hospital for amputation of the little toe at the PIP joint. He was discharged on crutches. Thereafter, he underwent extensive physiotherapy.

37 There is no dispute that nerve damage has left the plaintiff with a permanent sensory deficit distal to the scar and loss of sensation in the distribution of the right lateral plantar nerve. The plaintiff complains of complains of numbness and sensory disturbance in the area of the scar and across the underside of the right foot. In addition, he refers to swelling and discomfort in the right foot, aggravated by walking or other weight - bearing activities. The medical evidence supports these complaints as being genuine, albeit a little exaggerated, particularly in relation to swelling. In May 2007, Dr Newman, the plaintiff's treating orthopaedic specialist, reported that the plaintiff "may always struggle with long-distance walking, particularly on rough ground". He doubted that the plaintiff "would be able to comfortably play sport or run".

38 The plaintiff complains of low back pain, saying that he first experienced back pain in March 2006 at about the time that he underwent surgery of the little toe. After sitting or walking for a prolonged period, his back aches.

39 The report of Dr Bajpe, the plaintiff's general practitioner, appears to confirm that the plaintiff complained of lower back pain in March 2006. Dr Bajpe referred the plaintiff for a scan of the lower back, which was unremarkable.

40 Dr Giblin, an orthopaedic surgeon who provided a medicolegal report to the plaintiff's legal representatives in July 2008, viewed the MRI scan taken on 15 September 2006 and noted minor spondylitic changes in the thoraco -lumbar spine with evidence of old Scheuemann's disease. He diagnosed a soft tissue injury to the low back as a result of the accident.

41 A Medical Assessment Service report in June 2010 found that the plaintiff's history, presentation and examination findings were consistent, leading to a diagnosis of amputation of the right little toe at the PIP joint, complete lesion of the right lateral plantar nerve and a soft tissue injury to the back that had "fully resolved". The MAS certificates indicate a whole person impairment of 7 percent.

42 On 1 June 2006, the plaintiff returned to light duties at Toll. At that time, he was using a walking stick. When the plaintiff was asked to undertake lifting, he felt that he could not cope. On 16 June 2006, his employment was terminated.

43 The plaintiff gave evidence that, in about May 2007, he tried to undertake a full day's work as a driver with Ace, delivering soil in a truck and trailer. He was not required to load or unload the soil. After about four hours, he ceased working because he lacked confidence driving the heavy vehicle. He said that, when he applied the brakes, he was unable to apply the necessary pressure and he experienced pain in the foot. His foot felt uncomfortable on the accelerator and he could not keep it steady. The plaintiff said that he is unable to work full-time as a driver because significant driving causes his foot to feel swollen and numb. He must massage the foot in order to maintain feeling. When driving, he has difficulty gauging the pressure that he is applying with his right foot and related difficulty in maintaining consistent pressure and controlling the brake and accelerator pedals, particularly with large vehicles. When driving a truck of any significant size, it is necessary to apply substantial braking pressure with the right foot. Large trucks may have up to 18 gears, requiring frequent and controlled movements of the right foot between brake and accelerator.

44 The plaintiff said that, on one occasion, he attempted a supervising job, but could work no more than half a day. He said that he had sought work with other employers, but they were unwilling to employ someone who had been on compensation. His evidence was vague in relation to when, where and with whom he had made enquiries.

45 I conclude that the plaintiff has not make a concerted effort to obtain employment and is not particularly interested in exploring employment options outside his zone of comfort and experience.

46 Since February 2009, the plaintiff has worked part-time for his son, who operates a demolition and excavation business known as K and A Civil Contractors Pty Limited. The plaintiff works between one and three days a week (depending upon the availability of work), earning $22 per hour (or $462 per week gross, working seven hours per day for three days). In recent weeks, he has earned approximately $350 per week. The work involves supervising job sites, pricing jobs, fuelling machinery and, occasionally, driving a vehicle for a couple of hours.

47 In April 2007, Dr Bajpe reported that the plaintiff's right foot and back pain restricted his capacity to undertake "physical work as well as prolonged driving".

48 On 15 May 2007, Dr Newman reported that, as the plaintiff's sensory loss was permanent, he "may not be safe or confident to drive a truck in the future". However, on 23 July 2010 Dr Newman modified this opinion, stating: "I have no idea why the relatively small area of numbness should impair driving ability … I see no reason why h e should not be able to safely and comfortably drive a truck."

49 In July 2008, Dr Giblin stated: "(The plaintiff) is permanently unfit for prolonged periods of uninterrupted heavy bending, lifting and twisting and permanently unfit to use his right foot for prolonged periods of walking or standing, or related heavy impact activities. 50 He would be fit for a degree of driving so long as it did not require heavy constant pressing on the sole of the right foot. 51 He remains fit for his current work environment as (a supervisor on a demolition and excavation site)."

52 Dr Maxwell, an orthopaedic surgeon, provided a medicolegal report to Woolworths in which he stated that there were no ongoing work restrictions as a result of the accident. Dr Maxwell doubted the veracity of the plaintiff's complaints of intermittent low back pain.

53 The defendant agreed that the plaintiff is entitled to loss of wages from the date of the accident to 1 June 2006, when he returned to work. The defendant submitted that, since 16 June 2006, when the Toll terminated his employment, the plaintiff has suffered no significant incapacity and no economic loss as a result of the accident.

54 When considering the question of future economic loss, the Court must consider the plaintiff's most likely future circumstances but for the injury: s 126 of the Act. But for the injury, the plaintiff would probably have continued to work for Toll or another employer, possibly in the demolition/excavation business. The driving of heavy vehicles would probably have been a significant part of the work. His work history prior to the accident suggests that he probably would not have had a consistent record of full - time employment

55 I accept that the plaintiff feels disquiet at the prospect of driving a heavy vehicle. Such driving involves frequent use of the right foot and it is often necessary to apply considerable pressure with the right foot. While the plaintiff's right foot disability could be described as "minor" for most purposes, I accept that it does disable him from driving heavy vehicles for any significant distance or period of time. Medical practitioners who have taken another view may have lacked an understanding of the driving of heavy vehicles.

56 Although the plaintiff can no longer engage in the sustained driving of heavy vehicles, he is not disabled from most other work. Currently, he works three days a week when work is available with his son. The plaintiff is quite capable of working full - time or almost full - time in a position such as supervisor. Since June 2006, he has been capable of doing so.

57 Because of his inability to drive heavy vehicles, I estimate the plaintiff's net weekly loss at $70 per week since 16 June 2006.

58 In relation to the future, I allow a cushion of $35,000 by way of compensation for loss of earning capacity. That figure takes lost superannuation and contingencies into account.

59 The plaintiff accepts that he does not attain the 15% whole person impairment under s131 of the Act and that he cannot recover damages for non-economic loss.

60 A very modest allowance should be made for future medical consultations. The evidence does not establish that the plaintiff needs future medication, or the cost of any such medication.

Past treatment expenses (agreed) $19,366.71

Future treatment expenses $1,500.00

Fox v Wood (agreed) $1,500.00

Loss of income 25/2/06 - 1/06/06 (14 weeks at $507 net pw) $7,098.00

Associated loss of superannuation at 11% $780.78

Loss of income 19/6/06 - 21/10/10 (226 weeks at $70) $15,820.00

Associated loss of superannuation at 11% $1,740.20

Future lost earning capacity (including lost superannuation) $35,000.00 Total $82,805.69

Less 45% $45,543.13

Less 20% $36,434.50

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