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[2014] NSWSC 1530
Supreme Court of NSW
2013-12-04
Adams J
Original judgment source is linked above.
Judgment Introduction 1The plaintiff worked for the defendant as a general purpose hand on the Manly ferries, with rare exceptions working on Queenscliff as a permanent member of the crew. He lived in the northern beaches area and would take the ferry, almost invariably Queenscliff from Manly to Circular Quay where his shift commenced and he signed on. Of the four ferries servicing the Manly run at the relevant time, Queenscliff, Freshwater and Narrabeen were more or less identical. On the day in question the plaintiff, when moving into the crew's mess from a vestibule (connected to the public area), tripped on a raised sill forming part of the doorway, injuring his foot and developing significant permanent injuries. Although (as I accept) he thought the vessel was Queenscliff, as it happened it was in fact Narrabeen, on which the relevant sill was significantly higher than that on Queenscliff, to which he was habituated. 2It is the plaintiff's case that the sill should have been marked in such a distinct way as to draw attention to its height, in which event the accident would probably not have happened, since he would have been aware, even if instinctively or sub-consciously, of the height as he stepped over the sill. The defendant's case is that the sill was sufficiently marked, that it was not reasonably foreseeable that an experienced crew member such as the plaintiff would not be aware that sills are of various heights throughout all the vessels and might make the mistake of thinking he (or she) was on board a different ship to that on which he normally travelled. Otherwise, the plaintiff had failed to take sufficient care of his own safety. 3Another significant issue concerns the application of s 121 of the Transport Administration Act 1988 (NSW) concerning whether damages should be calculated in accordance with Workers Compensation Act 1987 (NSW) or should be assessed under the Motor Accidents Compensation Act 1999 (NSW). Further controversy concerns the plaintiff's entitlement, if any, to domestic assistance. Transport Administration Act 1988 (NSW) 4Section 121 provides - 121 Application of common law damages for motor accidents to railway and other public transport accidents (1) Chapter 5 (Award of damages) of the Motor Accidents Compensation Act 1999 applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident, not being an award of damages to which that Chapter applies. (2) Accordingly, in that Chapter: (a) a reference to a motor accident includes a reference to a public transport accident, and (b) a reference to a motor vehicle includes a reference to any vehicle or vessel used for public transport. (3) For the purposes of this section, a public transport accident is an accident caused by or arising out of the use of any form of public transport in New South Wales, including public transport in the form of a passenger railway or a water ferry or taxi, but not including: (a) public transport in the form of air transport, or (b) public transport that is operated primarily for tourists, the purposes of recreation or historical interest or that is an amusement device, or (c) an accident for which, or to the extent to which, a person is liable otherwise than in the capacity of the owner or driver of, or other person in charge of, the vehicle or vessel used for public transport. A public transport accident, however, includes an accident of a class declared by the regulations to be a public transport accident, but does not include an accident of a class declared by the regulations not to be a public transport accident. (4) This section does not apply to or in respect of public transport accidents occurring before the commencement of the Motor Accidents Compensation Act 1999. The height of the sill 5(It is surprising that this matter is not the subject of agreement since it seems to be a simple exercise capable of being undertaken by any child able to count and read. I must confess to a degree of irritation that the experts who attended on the same occasion for the purpose of jointly taking and agreeing the measurements gave different figures.) The starting point is that, after the accident, the plaintiff hopped to a nearby chair and, as he looked towards the sill he realised that it was much higher than the familiar sill on Queenscliff and realised at that point that the vessel was not Queenscliff. He said that, sometime before February 2010, when he went to see his solicitors for the first time, he checked the height of the sill with a tape measure, making a note of the measurement of 21cm on a torn off piece of paper towelling. That piece of paper was produced during the hearing in circumstances supporting its genuineness. I also satisfied from its appearance that it is a genuine document and that it was made following the measurement to which the plaintiff deposed. This view is strengthened by the fact that the plaintiff was not cross-examined to suggest fabrication. 6The plaintiff's expert, Mr Adams, inspected Narrabeen on 12 May 2011, stating in his report of 7 October 2012 that the height was 180mm. However, when he remeasured this height on 14 May 2013 he found it to be 213mm. He thought the earlier number was a transcription error from his original note. However, it may be that (as it emerged in evidence), both Mr Adams (and Mr Burge, the defendant's expert) had first measured the sill from the crew mess side rather than from the vestibule side, with the risk that the decking on each side were at different heights. The photographs Mr Adams took on 21 May 2013 showing the rule against the sill demonstrate not only the height but that it is the height of the sill on the vestibule side. The plaintiff also measured the equivalent sill in Queenscliff (I think at about the same time though the evidence is not explicit) to be 14cm. (The transcript states that he measured the sill at "205" but I think this was either his mistake or a mistake in transcription. I accept the measurement was as he noted it at the time.) In respect of that measurement, Mr Adams measured it at 137mm. 7Mr Burge, in his initial report, stated that the sill height in Narrabeen from the mess room direction (that is the side of the sill opposite to that approached by the plaintiff) was 110mm, although he said in evidence that this was a misreading of his note, which was 180mm. In that respect, he and Mr Adams agreed. In May 2013 the measurements taken from the vestibule side, according to the photographs, clearly show a height a little over 210mm and, at that time, there was no significant difference between the height above the decking on either side of the sill. Mr Burge revisited Narrabeen on 12 July 2013 and found the sill height on the mess room side varying between 210mm at the corner point closest to the centre line of the vessel and 220mm at the corner point furthest away from the centre line. This difference is explained by the sloping deck. He noted that the rubber compound deck covering was new and was informed that Narrabeen had recently undergone a major refit. Mr Burge explained the difference between the earlier and later measurements as having resulted from changes during the refit. On 3 December 2013 Mr Burge again measured Narrabeen sill. His diagram of the sill showed that the main body of the sill looking from the vestibule approach, was 180mm high at its centre with a lip (obviously to retain the door when it closed) of 22mm, which would yield an overall height of 202mm. His earliest diagram showed this lip and I am therefore prepared to accept that it was then in place although it is difficult to see from the photographs. However that may be, since the initial measurement of 180cm represented the height of the sill from the mess side and, hence necessarily included the height of the lip, there is plainly a difference between the configuration of the sill in respect of the floor between the time of that measurement (assuming it to be correct - and it was agreed with Mr Adams) and the present time since, necessarily it included the height of the lip. Moreover, the measurements shown on the photographs taken in May 2013 can only be explained by other changes made to the floor height. Overall, I consider the probable heights to be those measured by the plaintiff. The accident 8The plaintiff was rostered for the afternoon shift, which usually started at about 3.30pm and concluded about 1am. In accordance with his usual habit he caught the ferry from Manly Wharf to Circular Quay. He believed that he was on Queenscliff. However, the ships are clearly named and, from a number of views, the fact that it was Narrabeen would have been evident. However, even if he could have seen the name on the bow or stern from where he was on the wharf and boarded the vessel, it may well have been that he did not notice. It is possible, even so, to board without being in a position to see these names. There were other indications of the name of the vessel on the life preservers but whether those preservers were, as it were, in his path at the time of the accident is uncertain although they were there later when they photographed. At all events, the plaintiff may well have simply passed into the boat without actually reading what was on the life preservers. There were other signs within the passenger cabin with the name of the vessel but, again, he had no particular reason to look for or read them on his way to the mess room. I accept the plaintiff's evidence that he simply assumed the vessel was Queenscliff and it did not occur to him that it might be another vessel. 9The plaintiff said that, on the day in question, he entered the crew area as he had done many times before and stepped over what he understood was a storm step, then turned left and needed to turn right where there was another doorway giving access to the crew's mess. This door was open and, as he passed though, he tripped on the sill when his toe caught the top of the step. He could not recall if he actually fell to the deck but immediately noticed pain in his right ankle and hopped to a chair against the opposite wall. His foot started to swell and, as he looked back to the doorway, he said, "I thought something was weird because it was a little bit high". He said that he then realised this was not "my boat" because the sill "was exceedingly higher". No other member of the crew was present when he tripped but, whilst he sat on the chair, a crew member came in who told him he was aboard Narrabeen. 10It is clear that the plaintiff had not lifted his foot high enough to completely clear the top of the sill. I accept he had not glanced down as he stepped over, although it is obvious that he had some awareness of its presence. In my view, he stepped over the sill almost instinctively, without paying much attention to what he was doing, looking ahead to where he was going. If he had looked down, as he agreed, he probably would not have tripped. There was a dull metallic surface on the upper horizontal edge but, in the circumstances, this did not give his attention sufficient information to enable him to accurately assess the sill's height. The defendant's submission that the plaintiff was inattentive is, I think fairly made out. However, that is not the end of the matter. In these situations, undertaking an action frequently repeated in a particular environment, we frequently and naturally, though sometimes unwisely, move on auto-pilot, as it were. Had he, in fact, been on Queenscliff he would probably not have tripped, as the corresponding sill would have been about 70mm lower and his foot would have cleared the top edge. 11From 1999 the plaintiff had been a permanent member of the crew of Queenscliff, rarely being required to work on any of the other ferries. He said, on average in each year he would only have served on Freshwater "a couple of times" and "even less" on Narrabeen, usually working on Freshwater or the Collaroy when Queenscliff was out of action for a couple of weeks at a time for one reason or another. The expert evidence 12I have already mentioned the principal experts called on each side. Mr Adams is an ergonomist and safety management consultant with a Bachelor's Degree in Science (Honours) and a Master's Degree in Ergonomics and Safety Management and Diploma in Adult Education. No issue was made as to his expertise and it is not necessary to further detail his very extensive and relevant experience. The defendant's expert, Mr Peter Burge is a consulting marine engineer, marine surveyor, and management and maritime safety consultant. He has a lengthy experience as an officer at sea in the Merchant Navy serving in a range of ships including passenger ferries. In 1990 he served as Chief Engineer Officer in each of the Freshwater class ferries as well as Collaroy and Manly service hydrofoils. He spent an extensive period as manager of passenger and crews at the Sydney Ferries business unit at the State Transit Authority of New South Wales, during which time he was in charge of some 60 ferry masters as well as marine engineers, engine drivers, deckhands and others. In this capacity he was required to investigate numerous incidents involving the navigation, equipment and machinery of the vessels in the Sydney Ferries fleet. (He said nothing about any responsibility in respect of accidents suffered by crew members.) He says that during his 48 year career he has investigated many boating and shipping incidents for private clients, public corporations and statutory authorities. He has also given evidence in various courts and boards of enquiry. I trust however, that it is not unfair to observe that Mr Burge has no qualifications in ergonomics. Mr Adams described the ergonomics' issues as follows - "3.2 Perceptual and cognitive ergonomics. It is appropriate to comment on the perceptual and cognitive ergonomics that are likely to have been relevant to the incident, commencing with definitions of those terms: Perceptual ergonomics is concerned with the way in which we perceive, attend to and respond to stimuli in the environment. What we perceive or notice in any situation is a function of the physical properties of each potential stimulus in the situation, the context in which each stimulus object is set, and their immediate relevance to us. What we notice and attend to in any situation is, therefore, dependent upon our needs and motivation at the time, our past experience with similar situations and objects, and our pre-established knowledge base or information about various aspects or conditions of the situation and the environment. Cognitive ergonomics is concerned with the interaction between the knowledge or information we have in a given situation and the decisions or choices we make (sometimes unconsciously) about the appropriate behaviour or responses to produce in that situation. Equally, this area of study is concerned with our errors and their causes. Of course, the knowledge or information base used for choosing which behaviour to employ is derived from a combination of past knowledge or experience and the perceptions made in the current situation. As noted in the preceding brief description of perceptual ergonomics, what we perceive in a given situation (or, more specifically, what we perceive as being relevant) may be limited by our knowledge and expectations which may cause us to focus attention on aspects that may have less relevance than those aspects to which we do not give attention. 3.2.1 With respect to perceptual ergonomics. 3.2.1.1 Mr Thelander had seen the storm step, and was attempting to step over it when the incident occurred. However, it was neither marked with signs nor painted in a strongly contrasting colour in a manner that might have induced him to direct a greater proportion of his visual attention at the step. In those circumstances he slightly misjudged its height, to the extent that the front section of the shoe on his leading foot caught against the top of that step. 3.2.2.1 Mr Thelander was not simply walking along an open area when he was obliged to step over the storm step. He was moving in a short and reasonably narrow passageway, and was executing a turn to his right through a narrow doorway (only 540 mm wide compared to a more common doorway width of at least 750 mm) while carrying a load (albeit one of modest weight) over his shoulder. Those other aspects of the situation would have necessitated that some of Mr Thelander's visual attention be directed at ensuring that both he and his load cleared the sides of the doorway. This would have interfered with his ability to focus solely on detecting the height of the step and ensuring that he cleared it. 3.2.2 With respect to cognitive ergonomics. 3.2.2.1 Mr Thelander was well aware of the presence of storm steps within many of the doorways he negotiated on a routine basis within the ferries on which he worked, and was aware at the material time of the presence of the subject storm step in his path of travel into the crew mess. 3.2.2.2 Mr Thelander had successfully stepped over storm steps on literally thousands of occasions during his approximately 13 years of service prior to 17 April 2007. That long term experience of working and walking within ferries without tripping and falling when negotiating storm steps is likely to have resulted in him having a relatively low level of concern that he might experience an injurious trip and fall when walking in the subject area at the material time. A low level concern, which is likely to have been contributed to by the phenomenon known as habituation, whereby long exposure to a known risk leads to a reduced level of concern in relation to that risk ... In my opinion the level of visual attention Mr Thelander directed towards the subject storm step at the material time was more probably than not affected by this process of long-term habituation leading him to regard the presence of the change in level as relatively benign. 3.2.2.3 I have accepted that the subject step was unusually high. The unusual height of the step is more probably than not one of the key reasons that Mr Thelander failed to lift his leading foot sufficiently high to clear the step. He would have approached the storm step knowing that it was there and expecting it to have similar characteristics (including height) to the equivalent storm steps he had negotiated so many times before without incident in other ferries. The fact that his leading foot caught on the lip at the top of the subject storm step suggests that if that step had been of an equivalent height to those other steps with which he was very familiar (or even of the same height as it was at the time of my inspection), his leading foot would have cleared the step and he would not have tripped and fallen in the manner he described." 13Essentially, and I hope I do him no injustice, Mr Burge's opinion is that it is notorious that sills on vessels such as Queenscliff and Narrabeen vary in height, that crewman are obliged to traverse them many times during a shift and that any experienced crewman such as the plaintiff would be "thoroughly familiar with the location of fire doors and the fire safety construction of those doors and bulk heads, particularly a doorway which a general purpose hand, such as the plaintiff, might pass through several times during any working shift." This focus on the function of sills is not material and the opinion that the plaintiff should have been familiar with the heights of the sills he came across was, of course, not in dispute. The point is that he was very familiar with the height of the particular sill in Queenscliff but unfamiliar with the height of the corresponding sill in Narrabeen. Mr Burge said that, in his opinion, "the sill height does not pose a risk to an experienced and qualified seafarer or, indeed, to a qualified and experienced general purpose hand serving in a Harbour Ferry". However, this is to miss the point. The question was not whether the sill height as such posed a risk so much as to whether the fact that the relevant sill heights differed and there was no warning or marked visual clue might give rise to a risk of misjudgement to a crew member in the plaintiff's position. Mr Burge characterised the height difference as "slight" but this is because he did not accept the measurements which, ultimately, Mr Adams relied on which I have found to be correct. Mr Burge went on to say - "I accept that there is a minor difference between the sill heights in all three sister vessels. However, Mr Adams has not addressed the fact that all of the General Purpose Hand Seaman working in this class of vessel use the mess room and traverse through its access door always many times in a single shift and therefore would have been aware of the existence of the raised sill and ought to have taken care when traversing through this doorway, regardless of the height of its door sill". As it seems to me, this rather misses the point. Indeed, I think that Mr Adams' opinion rather assumed the matters emphasised by Mr Burge. (I think that Mr Burge used "minor" in the sense of "insignificant".) The plaintiff was not familiar with the height of the sill in Narrabeen, though I accept he would have been aware that sills varied in height in each vessel. That the plaintiff "ought to have taken care" is clear but that is not the question at issue. I should mention, in fairness, that Mr Burge was unaware of any other accident of this kind having occurred whilst he worked for Sydney Ferries. I must confess, however, to a degree of scepticism of the notion that no crew member had ever tripped on a sill on one of the Manly Ferries. Of course, unless serious injury had been suffered it seems improbable that such an incident would have come to Mr Burge's attention 14One scarcely needs an expert to explain that the difference in height between the two sills, though significant, may well not have been obvious to someone in the plaintiff's position who raised his foot to step over it not appreciating that it was some 50 per cent higher than the sill he usually negotiated at this point, so that the height to which he habitually raised his foot would be insufficient to clear the top. The point essentially made on his behalf is, as I understand it, that the height of the sill should have been made more obvious by some warning, as indeed was subsequently done with bright yellow paint on which the word "step" taking up virtually the whole height of the sill was painted in large black letters. This would have provided one of the "cues" to which Mr Adams referred and which we all use in negotiating our way through familiar environments. Was the defendant negligent? 15The commencement point for discussion is not controversial. In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839 the High Court said (omitting references) - "The appellant [rightly] relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury ... If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards ... The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work..." It being accepted that there was a duty of care owed by the defendant to the plaintiff, whether there has been a breach of that duty depends on whether a reasonable person "in the defendant's position would have foreseen... [its] conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff... [and, if so] it is then for the tribunal of fact to determine what a reasonable... [person] would do by way of response to the risk": Wyong Shire Council v Shirt [1980] HCA 12; (1979-80) 146 CLR 40 at 47. The standard of care of employers to employees is "not a low one" (Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 308) and the standard of care requires the possibility of inadvertent and negligent conduct of the person to whom the duty is owed must be taken into account (McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311-312). 16Mr Morris SC, for the defendant, referred me to Seage v State of New South Wales [2008] NSWCA 328 where Macfarlan JA (with whom the other judges agreed) said - "[32] It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture? ..." 17Seage was a case in which the plaintiff, in a fit of pique, moved a heavy desk instead of getting help (which was readily available) to do so, and had injured his back. If I may say so with respect, it is not surprising that, in the result, his employer was not held to be liable. That there is no general proposition of the kind mentioned and exemplified by Macfarlan JA is, of course, (with respect) to be accepted. There is no bright line, but it seems to me that the accident which befell the plaintiff was not of the kind to which his Honour's rhetorical questions were directed. The extent of the duty is to be considered on the facts of each case and, here, the situation was not analogous to those mentioned by his Honour. 18Mr Morris pointed to the following statement in Mr Adams' ultimate report of 28 October 2013 - "2.4 I accept that sills are common installations within doorways of commercial vessels, and that workers on such vessels would be well aware of them and of the need to step over them without tripping for continues safe movement. I also accept that sill heights are not standardised between different vessels, or even within the same vessel. Workers who change vessels from time to time could be expected to routinely assess the height of each still before they attempted to step over it. However, workers who, like Mr Thelander, very rarely changed vessels, and who therefore became skilled at negotiating each of the sills that they regularly encountered within their increasingly familiar work environment, would be unlikely to continue to repeatedly make such redundant assessments, unless and until they knowingly had to work on a different and unfamiliar vessel." 19The defendant contends, accordingly, that Mr Adams accepted that the step was not in any way unsafe or should have been highlighted better but, rather, that it presented a danger which only existed where a worker was unaware that he was on a vessel other than one with which he was familiar. Mr Adams, though, had said during cross-examination that the fact that the sill was not clearly marked might have represented a danger to people new to the area simply because, as I understand him, the risk of misjudging height. 20Mr Roberts SC for the plaintiff puts the case in this way in his written submissions - "It is true ... that what the plaintiff was doing when he suffered injury was a simple task. However it was a combination of the facts that the sill was unusually high; that it was significantly higher than that with which the plaintiff (and other workers who regularly served in Queenscliff) were used to; and it was not highlighted in the manner in which it has been since the plaintiff's accident that combined to make an otherwise simple task a dangerous one in the circumstances". 21As articulated in the written submissions of Mr Morris - "(a) the plaintiff was a trained and experienced deckhand who should have been able to carry out safely the simple task of stepping over a step or sill of which he was aware without the defendant having to take any additional precautions for his safety; (b) it was not established that it was negligent for the defendant to allow there to be a variation in step or sill heights between vessels in the defendant's fleet, or even within the same vessel; (c) if the cause of the plaintiff's accident was in fact his misapprehension as to the identity of the vessel he had boarded, it was not reasonably foreseeable that the plaintiff could have missed multiple visual cues as to the identity of the vessel and, accordingly there was no reasonably foreseeable risk such as to give rise to a need for some additional precaution to be taken by the defendant for the safety of the plaintiff; (d) further, if it be the fact that the plaintiff did not really appreciate the identity of the vessel he had boarded, this underlines how grossly inattentive he was and, further, underlines the fact that it was the plaintiff's own neglect which led to his injury. 13. The plaintiff has admitted to being a long term heavy drinker and clearly was alcohol dependent. It is submitted that this provided a ready explanation for his casual attitude towards his own safety." 22The last of these submissions can be shortly dealt with. Although it is true that the plaintiff was a heavy drinker, he said that he had not been drinking on the day of the accident, although it was possible that, if he did not have a late shift on the previous day, he might have been drinking after the shift ended. Of significance to my mind is the uncontroverted evidence that, when the plaintiff disembarked at Circular Quay he reported his injury to the defendant's senior controlling officer at the time, a Mr Tom Boland, and then went to Manly District Hospital Outpatients Department. The defendant called no evidence from Mr Boland or any other person that, at the time of the accident or when he reported it, there was any indication that he was affected by alcohol or that he was hung over. Nor were the clinical notes from Manly Hospital, which should and very probably would, have borne a note to that effect had the nurse or doctor noticed this. For obvious reasons, possible intoxication is very relevant to treatment. Furthermore, there was no attempt by the defendant to gainsay the plaintiff's evidence that the crews were tested regularly for drugs and alcohol and he would not have taken the risk of drinking because he loved his job. I accept the evidence of the plaintiff in this regard. Accordingly, I reject the reasonable likelihood that the plaintiff was affected by alcohol or, for that matter, drugs at the time of his accident. 23Nor do I accept that the plaintiff had "a casual attitude to his own safety". This was merely momentary inattention. It is obvious that it is a common sense precaution to look where one is going, especially when walking up or down stairs or climbing over a sill such as here. Nevertheless, it is scarcely careless, to my mind, that knowing that the sill was there, to approach it as had been done many times before and misjudge the height. This was not a task requiring calculation or much conscious advertence to other than the sill's presence. Nor was it a sign of carelessness that he did not notice that he was on a different vessel; that is to be expected where there was no reason to be concerned about it. Boarding the ship and moving to the mess area to change his clothes would have been, and might reasonably be expected to be, a largely automatic procedure which did not call for any particular attention and many, if not most, people in the plaintiff's position would have done what he did. 24It is accepted there are a number of sills distributed throughout all the vessels which vary in height to some degree or other. The evidence does not show, however, that there is significant variation between the sills at the same places in each vessel. Indeed, the fact that the sills vary in height indicate that it would be a common sense precaution to call attention to their heights by painting them with an appropriately contrasting colour (a simple enough matter) which would signal the particular height to the inattentive crewmember. After all, crew move through the vessel with particular tasks in mind and it would not at all be surprising if sills are negotiated with a minimum of attention, the foot being raised in accordance with habit rather than attentive observation. Where crewmembers are likely to be rostered onto vessels for extended periods of time, it scarcely needs an expert to understand, as a matter of common experience, that they will tend to become habituated to the dimensions of their work environment and negotiate it without much conscious consideration. It is also obvious that crew are rostered from time to time on vessels with which they may well not be so familiar, and thus the habits naturally built up over a lengthy period become rather less trustworthy and expose them to risk of injury if a mistake is made. 25Here, the plaintiff was not rostered for duty on Narrabeen on the day in question but his accident was, to my mind, the kind of accident which should have been foreseen by the defendant and the risk reduced by painting the sill in the manner later adopted. The sill was in a position where it would only ever be negotiated by a member of the crew or someone in the position of the plaintiff who was travelling on the ferry on the way to or from work. The mere fact that he was a passenger as distinct from rostered on duty on the vessel does not seem to me to have any impact on the nature of the defendant's duty to provide a safe work environment for its employees. 26Much was made of the fact that, on the plaintiff's case, the accident resulted from the mistake he made in thinking that he was on Queenscliff instead of Narrabeen. It was submitted that such a mistake was not foreseeable. This is to give ratiocination too much emphasis. A member of the crew, even knowing he or she was on a vessel other than that on which they normally worked, might well not appreciate the difference in sill heights. It is scarcely likely that such a worker would give the matter any particular consideration. Moreover, in going about his or her duties and concentrating on the task at hand, a crewmember might well not notice the difference. A worker habituated to moving about on Queenscliff, even knowing that he or she was on Narrabeen might well still have made the misjudgement made by the plaintiff. Moreover, such workers might well not think about being on another vessel when walking through a doorway. These are mere examples of the ways in which many of us ordinarily behave: when the work is done by robots, no doubt such accidents will not happen. 27That crewmembers might trip over sills is an obvious risk. To use the language of the majority (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ generally agreed on this point) in McLean v Tedman (1984) 155 CLR 306 at 311, "there is simply no basis for saying that the risk of injury was fanciful ... or for brushing it aside because it was insignificant". It seems to me that any reasonable person in the position of the defendant who bothered to give a moment's thought to the issue would have appreciated the risk and reduced the likelihood of tripping by painting the sills in a contrasting colour to provide additional information to the instinctive mind guiding a worker over them. This would not altogether obviate the risk, but would be a reasonable and obvious step to take to reduce it. If the sill here had been painted in a strongly contrasting colour, such as that later applied, I think it more probable than not that the plaintiff would not have tripped over it. I am satisfied therefore, that the defendant was in breach of its duty to the plaintiff by not painting the step in a way which made it evident, even on a passing glance, what its height was. Accordingly, the plaintiff's injury resulted from the defendant's negligence. Contributory negligence 28In McLean v Tedman the plaintiff was a garbage collector injured when he was struck by a motor vehicle when running across the road to empty a bin into the collection truck. The majority said (at 315) - "The issue of contributory negligence has now to be approached on the footing that... [the defendant] failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact." 29In my view, the plaintiff was guilty of inattention or inadvertence, not of negligence. He did not fail to meet the standard of reasonable care to which he was required to conform for his own protection, but merely misjudged the height of the sill and moved over it as he usually would have done in his own vessel. In short, he acted on the mistaken assumption that he was aboard Queenscliff. This was not negligent on his part. Nor was it negligent for him to walk through the door under the mistaken impression (to which, I am sure, he did not consciously advert) that the sill was the same height as that to which he was habituated. Indeed, had he known he was on Narrabeen, the accident might still well have happened, since I think he would not have been alert to the different sill heights and might have reasonably assumed that the vessels were virtually identical. The plaintiff had not in any significant sense disregarded his own safety; he was merely doing what many people would have done in his situation and although, had he acted with greater circumspection, the accident would not have happened, it does not follow that he was guilty of contributory negligence. Public transport accident 30As noted above, under s 121 of the Transport Administration Act, Chapter 5 of the Motor Accidents Compensation Act, relating to award of damages, applies to the award of damages for bodily injury to a person "caused by or arising out of a public transport accident" (emphasis added). But such an accident does not include "an accident for which, or to the extent to which, a person is liable otherwise than in the capacity of the owner or driver of, or other person in charge of, the vehicle or vessel used for public transport": s 121(3)(c). It is submitted on the plaintiff's behalf that the defendant, as it were, wore two hats, one as the plaintiff's employer and the other as the owner or person in charge of the ferry. These two qualities were interdependent in the sense that the defendant would not have been the employer of the plaintiff as a member of the crew unless it was also the owner in charge of the vessel. Accordingly, it is submitted, the defendant is not liable "otherwise" than in its capacity of owner of the ferry. 31The plaintiff referred to Landon v Ferguson [2005] NSWCA 395; (2005) 64 NSWLR 131 in which a State Rail Authority employee was injured while travelling as a train guard on a passenger train from which all its passengers had alighted at the termination station and the train was being driven to train sheds for cleaning, and sued the driver. The defendant contended that, as a train guard, the plaintiff was not using the train for public transport and, further, as all passenger transport functions had been completed, the accident was not, therefore, a "public transport accident" within the meaning of this phrase in s 121(1). Both these contentions failed. The Court held the accident in which the plaintiff was injured was a public transport accident as defined by s 121(3) of the Act so that, pursuant to s 121(1), Chapter 5 of the Motor Accidents Compensation Act governed her claim for damages. In the result, the plaintiff's claim was upheld. It appears that the provisions of s 121(3)(c) were not in issue since the plaintiff had sued the driver of the train and not her employer. 32Thus, the mere fact that the plaintiff was travelling on the ferry on his way to work for the defendant does not mean the accident was not a "public transport accident". However, the crucial question, under s 121(3)(c), is whether the accident is excluded from this description by virtue of the capacity of the defendant giving rise to liability. In my view, the defendant is liable in its capacity as employer of the plaintiff although, as it happened, the accident occurred on its vessel. Accordingly, the plaintiff's damages fall to be determined under the Workers Compensation Act. The plaintiff's injury 33(The injuries suffered by the plaintiff and detailed in the various medical reports are not in issue. Accordingly, I have omitted some of the precise anatomical and medical descriptions of his developing condition and used general descriptions instead. The fundamental issue is the impact of the injuries on his capacity.) 34As I have mentioned, after reporting his injury, the plaintiff attended Manly District Hospital. He was given some pain killers and advised to see his general practitioner which he did on the following Monday, 23 April 2007. He was referred to physiotherapy which the plaintiff commenced but it did not help. Although he was certified as unfit for work, after a fortnight the plaintiff returned on light duties, initially working four hours a day for five days a week in the office at the Balmain shipyard. The plaintiff said that his ankle and foot got worse and he was having difficulty walking and climbing stairs. The plaintiff was reviewed by Dr Peter Lam, an orthopaedic foot and ankle surgeon, following an MRI scan arranged by Dr Ward which showed evidence of injury to his right ankle. On examination on 3 July 2007 Dr Lam noted a small right ankle effusion with swelling and tenderness around several aspects of the ankle and over the lateral talar dome lesion. There was a positive posterior ankle impingement test. Dr Lam organised for the plaintiff to have an ultrasound to further assess his ankle pain and swelling. He thought that ultimately the plaintiff would require an ankle arthroscopy to address the damage to the lateral talar dome osteochondral lesion. On 24 July Dr Lam reviewed the plaintiff again, noting that the MRI scan (I assume a second one) showed tendon damage with evidence of macroscopic tear. The plaintiff reported that his ankle pain and swelling was worse when he walked on stairs, uneven ground and with running and jumping activities. Examination revealed tenderness and swelling along a tendon with an increase in the planovalgus deformity of the right foot and ankle. He was unable to perform a single heel raise due to ankle pain. Dr Lam considered that the deterioration of the tendon led to progressive planovalgus deformity of the right foot and ankle and he thought the plaintiff would benefit from a trial of orthotics to reduce the load on the tendon. He expected that this would give him short term relief (which was indeed the case) but as the condition progressed tendon reconstruction surgery would be necessary. The plaintiff's talar dome lesion would require arthroscopic surgery. 35On 21 August 2007 the plaintiff was examined by Dr Ridhalgh, an orthopaedic surgeon retained by the defendant who noted, on clinical examination of the left leg, marked wasting and inability to stand on his heel or toes. He was exquisitely tender over the posterior malleolus in the position of the tibialis posterior tendon with gross weakness of power of tibialis posterior with the last few degrees flexion and extension lacking. On the other hand the subtalor joint was full and there was no instability in his lateral ligaments. He was tender along the joint line. Dr Ridhalgh believed the more major injury was that of the plaintiff's tibialis posterior tendon which had a rupture whilst the talar dome injury he thought was of secondary importance. He believed these injuries were consistent with a mechanism of tripping over a large concrete step. Dr Ridhalgh thought reconstructive surgery of the tendon would be necessary. 36The plaintiff was reviewed again on 11 September 2007 with continuing ankle pain and tendon dysfunction. Dr Lam thought surgery would be necessary with a long period of physiotherapy and rehabilitation of up to about 12 months. In the meantime, the plaintiff had upgraded his light duty hours to 8 hours a day performing clerical work. Surgery on 18 October 2007 involved the reconstruction of the tendon, insertion of a sinus tarsi implant and a calcaneal plate. Following surgery the plaintiff had been required to wear a foot brace (called a "moon boot") and utilise crutches. He continued to be reviewed by Dr Lam. About two months after the operation and whilst still wearing a moon boot and using crutches he returned to clerical work at the defendant's Balmain shipyard. His evidence was that he could not walk properly without crutches but, about three or four months post-operatively he was able to leave off the moon boot. He underwent physiotherapy and tried orthotics. The plaintiff continued to suffer severe pain in his leg and ankle and was finding it difficult to walk and unable to climb. Nor could he do many things around the house. 37The plaintiff saw Dr Ridhalgh again on 11 June 2008. Dr Ridhalgh noted that he was then working four days a week, seven and half hours a day, on Friday attending for physiotherapy. He told Dr Ridhalgh that his job mainly involved window cleaning which he did sitting down and that it was planned to upgrade his activities to 40 hours a week in the near future. Dr Ridhalgh noted there were some restrictions on length of time for standing and he has not been allowed to do any squatting. He could walk for about two hours a day at work and, when he was not working, he would walk about half an hour a day. He had stopped taking Panadeine Forte except very occasionally every few weeks or after physiotherapy. He occasionally got pain and throbbing when he had been standing for a while but this stopped when he sat down. He still had lateral pain particularly on dorsiflexion and medial pain on inversion and eversion. The plaintiff complained to Dr Ridhalgh of some residual irritation of the medial calcaneal nerve with pins and needles and electric shock going back over his leg. Dr Ridhalgh did not suggest any exaggeration of symptoms and thought he was recovering from the reconstructive surgery and doing quite well, though with some residual pain, discomfort and irritation, in short he was still suffering from his "work related condition". He thought it was likely to resolve over the ensuing six months. Dr Ridhalgh predicted that it would be necessary in due course to remove the implant of the sinus tarsi. He concluded - "At this stage he is not fit to return to work as a General Purpose Hand because of ladder work and the need to go up and down stairs. I expect that following removal of the sinus tarsi implant he will probably be upgraded to full work activities six weeks after that. It may, however, take a further six months until all his symptoms have decreased." 38On 16 July 2008 Dr Lam reviewed the plaintiff again. There were reports of continuing pain including over the implant area with walking but no pain over the calcaneus. Dr Lam advised that the irritation from the implant should resolve with its removal and referred him for ultrasound for assessment. On 11 September 2008 the implant was removed together with the calcaneal plate and the plaintiff underwent bone surgery of the right lateral calcaneus. 39Unfortunately, after the implant was removed, the plaintiff's symptoms did not improve and he continued to attempt work on restricted duties, mostly involving cleaning up mess rooms and doing odd jobs. The plaintiff continued to see Dr Lam with some but far from incomplete pain relief. He attempted to use orthotics and was continuing with physiotherapy, feeling (according to the report of 1 July 2009) that he was making slow gradual improvement, with his ankle feeling good at the start of the day but the pain often worse at the end of the day overall. His satisfactory progress stopped when he started stair exercises, which caused ankle pain and associating swelling. He had, however, been able to return to 40 hours of work a week, performing restricted duties. The plaintiff said that in July 2009 he attempted to return to work as a deck hand for a period of two weeks with an assistant but he could not get up and down stairs properly or up and down ladders and could not lift heavy mooring lines. All those things, he said, "hurt like hell". In August, Dr Lam noted an ultrasound revealed tenosynovitis around the tendon reconstruction although its cause was unclear. 40On 26 August 2009 the plaintiff was seen again by Dr Ridhalgh, who noted that he walked with a pain avoiding gait with muscle wasting above and below the knee, abnormal sensation on the lateral calcaneal nerve and restriction of movement of the right ankle. Dr Ridhalgh, answering questions asked by the defendant's insurer, stated that he believed the plaintiff's employment had contributed to his current impairment level and that his injuries had stabilised or reached maximum medical improvement leaving him with permanent impairment. He was still working on restricted duties eight hours a day, five days a week but only on the bottom deck, being unable to use ladders and restricted ability to use stairs. Medial pain in the right knee and lateral plantar nerve pain was continuing, worse with activity and relieved by rest. 41In mid-September the plaintiff had an ultrasound guided cortisone injection which, he said, significantly reduced his tenosynovitis pain (by at least 70 per cent). When he saw Dr Lam on 21 October 2009 he reported he was then on a four week trial of performing pre-injury duties for eight hours a day, five days a week following which, he was hoping to return to normal hours, usually 10 to 12 hours a day. 42Dr Lam reviewed the plaintiff again on 9 December 2009. The plaintiff reported that the effects of the cortisone injection had worn off and he was experiencing increased pain at the site of the reconstruction. The plaintiff told Dr Lam that he was able to perform eight hours of work per day for five days and cope with the constant walking and standing nature of the work as well as cleaning. He could stand for about 45 minutes before having to rest with seated activity. However, he could not work on vessels which move and sway as this caused increased irritation of the ankle. He could not climb ladders to enter the engine room and was unable to squat and bend. Dr Lam noted recent evidence that platelet rich plasma injections might help with tendon inflammation pain and referred the plaintiff to Dr Ibrahim, a sports physician, for a trial of ultrasound guided PRP injection. He thought that if the plaintiff's pain improved he might be able to resume his pre-injury duties two to three months after injection. However, if the injection did not improve his situation Dr Lam thought he might require hindfoot fusion surgery which would mean a 12 month delay before he could return to pre-injury duties. The plaintiff's evidence was that about this time the pain "was extreme all the time", the work seeming to make it worse. The plaintiff undertook the course of injections as recommended and noticed some relief but this only lasted about a week. When Dr Lam saw the plaintiff on 7 April 2010 he considered that the plaintiff should undergo a hindfoot fusion procedure which would eliminate his hind foot motion and thus avoid excessive loading of the reconstruction and allow the reconstruction and tenosynovitis to settle. Of course, fusion necessarily involves some restriction of movement but Dr Lam thought his pre-surgery degree of ankle motion should continue. The increased load on the ankle joint can lead to early onset of ankle arthritis which, if it became symptomatic, could require further surgery, possibly involving an ankle replacement. 43Whilst the plaintiff was waiting for the fusion to be approved (by the insurer) he was medically retired on 9 April 2010. The defendant organised for him to see a rehabilitation provider but the referral took place just before he was due to undergo the fusion, which occurred on 24 June 2010. It appears that the plaintiff developed severe post-operative infection and was required to wear three separate casts for about five months after the operation. In November 2010 the cast was removed and replaced with a moon boot which he needed to wear for a number of months. He commenced physiotherapy but this did not improve his range of movement. He needed crutches for moving. The plaintiff's rehabilitation provider gave him what amounted to a useless list of many jobs since he was unable to do any of them because he was unable to get around without crutches, for example, one of the proposed jobs was as a truck driver and the other as a storeman. These are surprising suggestions, to say the least. 44Sadly, the plaintiff's problems were not confined to his foot. He had started to use a walking stick in 2011. As the year went by, he noticed that he lost sensation in the fingers of the right hand and developed pain in the hand going up the elbow, getting worse with use of the stick. His general practitioner referred him to Dr Hile, a hands and wrists surgeon. Dr Hile saw him in mid-September 2011. Describing the clinical signs and nerve conduction studies of 26 June 2011 showing changes at the level of the elbow and probable changes at the level of the hand, Dr Hile diagnosed a developing ulna nerve palsy with signs of compression both at the elbow and palm. Although the doctor expressed the cause in terms of possibility, I would conclude that very probably these symptoms resulted from external pressure resulting from using crutches and his walking stick. Dr Hile arranged hand physiotherapy and suggested an elbow night extension splint. The plaintiff needed to prevent external pressure by using padding on his walking stick and avoid leaning on his elbow. He predicted, as I understand his report, a likelihood of surgical treatment. On 31 October 2011 Dr Hile noted that managing the plaintiff's symptoms non-operatively had been unsuccessful with the only option available being surgery to avoid permanent nerve damage. On 12 December 2011 the plaintiff underwent a right ulna nerve decompression at his elbow and in his palm. Signs of damage were observed. Five weeks later, on 13 January 2012, Dr Hile reported that the plaintiff's wounds were well healed but improvement in his background nerve symptoms were likely to take 6 to 12 months. He had scar sensitivity, decreased range of movement at his elbow and required continued hand physiotherapy. Of course, he could not use either crutch or walking stick with his right hand and therefore he started to use a Canadian crutch in his left hand. Within about six months of doing this he developed pain in his left arm, although the symptoms were not so serious as those affecting his right arm. 45The plaintiff gave evidence of undergoing a four week pain management program in November 2011 at Royal North Shore Hospital as an outpatient. He gained some understanding on how to manage his pain with home exercises and elastic supports for his arm, hand and legs. He undertakes a lot of hydrotherapy as well. Regrettably, he needs to take substantial quantities of pain killing drugs. The plaintiff's evidence is that he continues to suffer pain in his leg, ankle and foot, which worsens when he is up and about. His leg swells up. When he sits for any length of time his leg goes numb up to his knee and he needs to get up and hop around to restore circulation. When he is lying down his leg is always cold and always painful, although lying down gives slight relief. He needs a crutch to walk but needs to rest after 20 to 30 steps, hopping up and down a little bit and then going again. About 10 days or so before he gave evidence on 2 December 2013 he was provided with a mobility scooter by the defendant's insurer. The plaintiff says that the fingers in his right hand are permanently numb and he has difficulty lifting anything with his right hand. 46The plaintiff qualified Dr Millons, a specialist orthopaedic surgeon, who examined the plaintiff on 16 June 2011 and, a little over a year later, on 12 September 2012. Dr Millons took a history consistent with that to which I have already referred and concluded - "Mr Thelander has been left with a right ankle which has marked restriction of movement through it. He seems quite lame. He cannot fully weight bear on his right leg because of pain and he relies heavily on his walking stick. He has developed a chronic pain syndrome for which he is about to undergo pain management at the ADAPT Program, which seems a very reasonable way to go since surgery is unlikely to offer him anything further. Mr Thelander does appear to have tried to work intermittently from the time of his accident but he was never able to cope with full duties on the ferry. He has not worked now for the last fourteen months. There does not appear to have been any great change in his condition for a long time. I believe that treatment should now follow conservative lines. Pain management is important in helping him come to terms with everything somewhat better than he seems to have done and perhaps to help him modify his alcohol intake and change his medication. He might benefit from gentle exercise in warm water. That could give him some temporary relief from his pain. Mr Thelander is very frustrated about his current position. I believe that once he has been through the pain management program it would be appropriate that he undergo some formal vocational and functional assessment to see if there might be some suitable avenue of employment along which he might be directed or for which he might be retrained. He would clearly be quite unfit to return to his duties on the ferries. He is only likely to be suited to some light, part-time, semi-sedentary work in an office or store environment. Current Disabilities There is marked pain and restriction of movement at the right foot and ankle. There is considerable loss of ability and agility. There is an inability for stand for long, walk far, negotiate stairs and uneven terrain and an inability to squat. There is restriction on his activities of daily living. He is relatively independent in his personal activities of daily living. He has difficulty with his home duties." Dr Millons noted the development of some symptoms of ulna neuritis in the right hand as a result of the plaintiff's use of a walking stick which, he noted, was about to change, and hopefully relieve those symptoms. The doctor concluded that the plaintiff's "prognosis is poor ... [and] continuing problems would appear inevitable". 47Dr Millons saw the plaintiff again, as I have mentioned, on 13 September 2012 for review. In short, he concluded that the plaintiff's condition had not improved but noted that he had since developed problems with ulna neuritis in the right upper limb for which surgery was necessary. Dr Millons noted that, clinically, there were some ulna nerve deficits with altered sensation in the distribution of the ulna nerve, more in the hand than in the forearm with perhaps some slight weakness in the ulna nerve supplied muscles. The plaintiff also had a stiff right wrist and elbow with secondary stiffness at the shoulder resulting from some underuse of the right upper limb. He said that he did not know of any measure that would be likely to alter the situation for him. As to his fitness for work, Dr Millons thought that it was unlikely that he would be able to return to the workforce, adding - "With limited mobility and problems with his right and major upper limb, one would really have to consider him unlikely to return to the workforce in any suitable capacity other than perhaps doing a couple of hours of light duties in a sheltered workshop." 48In respect of domestic assistance the plaintiff, in Dr Millons' opinion, required this in the order of six hours a week to help him with the tasks he was unable to perform. 49The defendant qualified Dr Pillimer, a specialist orthopaedic surgeon, who examined the plaintiff on 28 March 2012. Dr Pillimer took a history by and large consistent with those to which I have already adverted. Dr Pillimer's diagnosis is consistent with those of the other doctors to which I have already referred. He concluded that the plaintiff was totally unfit for any type of employment at the present time and considered that there was not "very much more one could offer him in the present time" that, as I take the doctor's report, would improve his fitness for employment. Indeed, he said that he thought rehabilitation "would be ineffective". He did not suggest that this was because of the attitude of the plaintiff or any other relevant contributing factor aside from his physical problems. His prognosis was that the plaintiff would have significant ongoing problems with his right foot and ankle region in the long term, although it was difficult to be specific about his ulna nerve, given that the operation had occurred some three and half months previously. On 21 November 2012 Dr Pillimer saw the plaintiff again but, as I read his report, with no significant change. Dr Pillimer was asked to comment on Dr Millons' view of the plaintiff's requirements for domestic assistance and said that his opinion was that a maximum of say two hours per week of domestic assistance seemed reasonable but qualified the opinion by noting "this is not really an orthopaedic assessment". 50Lastly, the defendant qualified Dr Kafitaris, who does not appear to have any material specialty except as a general practitioner. So far as the plaintiff's medical condition was concerned, Dr Kafitaris did not refer to the upper limb difficulties of the plaintiff (not surprising since at the time of his examination the physical problems of the plaintiff related to his right foot and ankle). Dr Kafitaris thought that the plaintiff was entirely fit for sedentary duties which did not involve standing or walking for periods of any more than a few minutes with a lifting limit of five kilograms. He said that he would be fit for a wide variety of seated process work, assembly work or other clerical type duties. Given the other medical evidence I have not found this opinion convincing. Suitability for work 51The plaintiff had unsuccessfully applied for 10 jobs a fortnight when the rehabilitation provider was available to him. He agreed that he had not applied for any job in 2013. At the same time, no job was suggested to him as possibly appropriate. It is submitted by Mr Morris that the plaintiff has made no attempt to rehabilitate himself or to return to the workforce in any capacity. This submission is both unfair and inaccurate. The plaintiff in fact did attempt to find work. I am not entirely sure what is meant by the submission about his failure to rehabilitate himself. He was never cross-examined to suggest that he did not conscientiously undertake all the exercises which he was required to make and he certainly underwent painful and uncomfortable surgery. I have referred to his working for the defendant when he was able to do so. It was not suggested to him that he shirked any of the duties to which he was assigned or in any way did not conscientiously undertake them. So far as returning to the workforce is concerned, Mr Morris was unable to suggest to the plaintiff any job which he might have been able to undertake. The submission that he could have obtained or would be able to obtain a job is therefore without merit. Indeed, it is evident that, apart from submissions, its case was actually run on the basis that it accepted Dr Millons' and Dr Pillimer's opinions which I have set out above. It is true, as Mr Morris submits, the plaintiff admits to heavy drinking which has pre-dated his injury. However, the fact is that despite his earlier drinking habits, he was able to hold down his job with the defendant although it may be that he had some back trouble which prevented him from undertaking some of the jobs routinely undertaken by deckhands and his fellow workers have made up this shortfall. At the same time, I accept the defendant's submission that his drinking increases the adverse vicissitudes he faces. The plaintiff's credit 52The plaintiff was cross-examined on his evidence in a previous case involving a claim for damages following an alleged assault. I accept the defendant's submission that, especially as regards his claims about incapacity in that case, there is good reason for doubting the plaintiff's veracity. Mr Morris submitted that I should be sceptical about the truthfulness of the plaintiff's evidence in this case, particularly so far as his capacity is concerned. I agree with this submission, as far as it goes. However, I am entitled to have regard to my own assessment of the plaintiff's credibility and need also to bear in mind the very large measure of agreement amongst the medical witnesses. Bearing in mind that to some extent it requires acceptance of his history, the probabilities favour acceptance of his evidence about this matter. Accordingly, although there is a question about the plaintiff's honesty which has led me more closely to examine the evidence and approach his testimony with a degree of scepticism, in the end I have accepted the truthfulness of his evidence on the material matters. The measure of damages 53In accordance with my conclusion that the motor accidents scheme does not apply to this accident by virtue of the provisions of s 121 of the Transport Administration Act, it is necessary to assess the plaintiff's entitlements in accordance with the Workers Compensation Act which relevantly provides - s 151G Only damages for past and future loss of earnings may be awarded (1) The only damages that may be awarded are: (a) damages for past economic loss due to loss of earnings, and (b) damages for future economic loss due to the deprivation or impairment of earning capacity. (2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897. 54In addition, it will be necessary to apply s 151A dealing with the effect of the recovery of damages on compensation and s 151L in respect of mitigation of damages. 55Taking s 151L first, the plaintiff has undergone appropriate medical treatment and sought suitable employment from his employer, working as much as and as soon as he was able. In May 2011 the defendant's rehabilitation provider ceased giving the plaintiff any rehabilitation services. I do not consider, in light of his physical problems, including his pain, that the plaintiff is fit for any physical work for which he might be employed. In my view also, the plaintiff has complied with his obligations under Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). These issues are required to be taken into account in assessing damages. I am satisfied that there is no basis for reducing the damages to which the plaintiff would otherwise be entitled because of the matters to which this section refers. 56Since, under s 151G, damages may only be awarded for past economic loss due to loss of earnings and future economic loss due to the deprivation or impairment of earning capacity, his claims for domestic assistance do not arise for consideration, nor is he entitled to general damages. Nevertheless, against the possibility that my conclusion about the effect of s 121 of the Transport Administration Act is mistaken, I consider those heads of damages in due course. Of course, under the Motor Accidents Compensation Act, it would be necessary to assess economic loss. Leaving aside the claim for domestic assistance, both past and future, which is disputed by the defendant, no submissions were made responding to the submissions of counsel for the plaintiff as to past loss of earnings, past superannuation loss, Fox v Wood, future loss of earning capacity or future superannuation loss. Accordingly, as it seems to me, I must infer that those matters are not in dispute. Nevertheless, I should set out the basis for the figures proposed on the plaintiff's behalf which, I should say at the outset strike me as being reasonable. 57So far as past economic loss is concerned, Mr Menary SC for the plaintiff points to the difficulty with precisely quantifying this loss because, whilst the defendant provided a list of payments as at 4 December 2013, there is no break up in relation to weekly payments of compensation of the payments made in the particular relevant periods. As the submission notes, the plaintiff had various periods of work, between the date of his injury and the termination of his employment on 9 April 2010, when he was back at work performing "suitable duties", sometimes with severely restricted hours of work. The precise calculation of past economic loss requires information about these periods, the hours he was working and what wages, as distinct from the workers compensation payments, he was being paid. The list of payments provided by the defendant do not permit such an analysis, although the defendant is obliged to provide proper particulars of the payments it has made which it seeks to recover. This problem was pointed out in the plaintiff's written submissions made some six weeks before those of the defendant but the defendant did not seek to provide further particulars. The plaintiff's claim was therefore formulated for the particular purpose of this head of damages upon the basis that for the entire period until termination he has been compensated by weekly payments of compensation for all periods of incapacity, whether total or partial. Accordingly, he makes no claim over and above the amount of compensation payments made up to 9 April 2010 for past economic loss to that date. 58Since his termination the plaintiff has received weekly payments of compensation appropriate for a worker with two dependent children. It is submitted, however, that he has lost the difference between net weekly payments of compensation and the net income he would have earned had he remained employed as a general purpose hand by the defendant. I accept that, had no accident occurred, he would indeed have been likely to have been retained by the defendant at least as a general purpose hand. It seems to me that the basis put forward by the plaintiff for calculating this head of loss is appropriate. 59The past economic loss, clear of workers compensation payments has been calculated in a schedule which it is not, in the circumstances, necessary to set out. I should mention that the net wage of a general purpose hand has been extracted from information provided by the Maritime Union of Australia. The intention to do so was foreshadowed during the trial and, as no objection was taken by the defendant, it is appropriate to rely on it. The calculation results in a net loss of wages, clear of payments of compensation in the amount of $122,757. It is also submitted by the plaintiff that, had he not been injured, he would have been entitled to receive on 28 July 2012 a payment as part of the "transfer package" involved in the privatisation of Sydney Ferries, equivalent to 30 weeks' salary. As at the relevant date his weekly salary was $1,499.44 yielding a lump sum of $44,980, subject to taxation. At the applicable rate of 43.15 per cent the lump sum would be reduced to $34,567. 60The defendant has submitted that it appeared to be the plaintiff's case that he would have been taken on by the private employer and continued his employment despite his ongoing back troubles and the fact that "he clearly has a drinking problem". I have already referred to the fact that there is no evidence that the plaintiff's work before the accident was inhibited or affected by his drinking problem. As a matter of reality, I consider that it is probable that indeed he would have continued to be employed by the new employer. As I understand it, at all events, the defendant does not submit otherwise. 61So far as past loss of superannuation entitlements is concerned they have been calculated as follows - Weekly payments of compensation to 4 December 2012 - $195,333 Weekly payments from 4 December 2012 to 10 March 2013 - 18 weeks at $643.33 = $11,579 Total gross payments of compensation = $206,913 9 per cent of $206,913 = $18,622 Net loss of earnings clear of compensation = $122,757 11 per cent of $122,757 = $13,503 Total loss of superannuation entitlements to date = $32,125 62In respect of Fox v Wood, it submitted for the plaintiff that, since payments of compensation made when he was performing light duties would have been relatively highly taxed and his tax rate after termination was only of the order of 13.65 per cent an appropriate tax rate to apply to the total weekly payments of compensation is 19 per cent. This strikes me as a reasonable assessment of the appropriate figure for this purpose. 19 per cent of $206,913 is $39,313. 63In respect of future loss of earning capacity, as the submissions made on behalf of the plaintiff concede, it is necessary to state the assumptions upon which this award is based, with the plaintiff bearing the onus of proving the basis accords with the plaintiff's "most likely future circumstances but for the injury": s 126 of the Motor Accidents Compensation Act. This is merely another way of describing the conventional mode of establishing damages under this head. It is submitted on the plaintiff's behalf that, had he not been injured, he would have continued in the defendant's employment to retirement age. This was the effect of his evidence and I accept that this is the probable course of the plaintiff's working life. It is, however, submitted that the plaintiff had no medical or other condition likely to impinge on his ability to continue in employment with the defendant. As I have already mentioned, I think that he did have a back problem which was, to some extent a limitation in his ability to perform all his duties. At the same time, he coped with this problem with the assistance of his workmates and there is no reason to think that this situation would not have continued. The defendant called no evidence to suggest that the plaintiff, in fact, had not been performing his duties in an appropriate manner, still less that the fact of his back problem would have been likely to have led to earlier termination than retirement in the ordinary course. The information from the Maritime Union Australia shows that, had he not been injured, his wage would have been $1,183.92 per week net of tax. 64I have already said that considering the plaintiff's global physical condition resulting from the accident, he is for all practical purposes unable to be rehabilitated into any type of paid employment and his earning capacity has been destroyed as a result of the accident. I accept the plaintiff's submission that the relevant multiplier for 26 years (that is to the plaintiff's 67th birthday) is 768.7. This yields a sum of $910,079 from which, conventionally, a discount of 15 per cent would be made for vicissitudes. It is submitted by the plaintiff that the defendant has not proved any fact which would require an increase in the conventional discount and also, citing Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002), a tendency of courts to make apparently intuitive deductions for the vicissitudes of life has almost certainly led to more plaintiffs being undercompensated then there are plaintiffs who have been overcompensated. As I have pointed out, the defendant submits that the plaintiff's drinking habits are such as to reasonably give rise to the apprehension that he is more at risk than persons who drink moderately of the ills which, it affect people with this unfortunate habit. Of course, this is essentially incommensurable. In the end, I have decided on a discount of 18 per cent for vicissitudes, yielding the sum for future loss of earning capacity of $746,265. In respect of loss of future superannuation, the plaintiff is entitled to recover the value of the contributions under the superannuation guarantee legislation. I accept the plaintiff's submission that, for a 41 year old plaintiff the appropriate calculation is to allow 14.19 per cent of the net loss. This yields the sum of $105,895. Past gratuitous assistance 65Before the injury, the plaintiff did not need any domestic assistance or care. He did his own cooking and that for his children when they stayed with him. He was able of course to do his own washing and he kept his home unit tidy. His two sons are now aged 11 years and 9 years and stay with him from Friday night to Sunday one week and Wednesday night in the other week although, during the football season they stay with him three nights a week. Following his injury, these custody arrangements continued but his mother assisted with meals by putting them into containers which were frozen and used as the plaintiff needed them. His mother took over the task of washing clothes including those of his children. The plaintiff could do small amounts of shopping which he did daily because of his limited ability to carry and it was necessary for his mother to do the vacuuming to clean his unit. The plaintiff said that, after his injury, particularly whilst wearing the moon boot or needing crutches everything became difficult to do, including meal preparation. When he prepares the meals for his children he works in the kitchen on a swivel chair so that he can swing to the fridge and can swing back and he can make a sandwich with his left hand. Dinner is more difficult. He is unable to handle a heavy pot easily and, of course, when it has hot contents this is dangerous since he drops the pot often. He can use an oven or a microwave but, for example, taking a roast out of the oven is not practicably possible. So far as washing is concerned, his mother does that both for him and children when they stay but he does no ironing. Before the accident he ironed his "good stuff". The unit, of course, needs to be vacuumed but he is unable to do so and it is done by his mother. His mother also does the shopping for the food which she cooks so that he does not have to undertake a large grocery shopping expedition. The vacuuming occurs sometimes once a week, sometimes once a fortnight. This is not a large job because his is only a small one bedroom unit. I do not doubt that he finds the need to rely on his mother irksome. He said, "As a grown man, I should be able to do it myself". When he was asked whether he was prepared to employ someone to do these tasks he said "To ease the burden on my mum, yep". I have no doubt from the way he gave this evidence that this was a truthful statement about his feelings. He is able to drive. He does not have a washing machine or a dryer, though he has room for these. The only reason, as I understand his evidence, that he is unable to do washing and drying is that he could not hang the clothes out on a clothesline. I think the effect of this evidence is that if he did have a washer and dryer he would be able to undertake these tasks. It seems to me that preparing seven or so evening meals a week, cleaning, including vacuuming on a weekly basis would, in my estimation take something like 6 hours a week, more when he was recovering from surgery and, of course, as his right arm and hand became adversely affected. He has no feeling in the fingers of his right hand, which makes doing any kind of work with that hand very difficult, for obvious reasons. The defendant pointed out that the plaintiff was able to drive his car and shop for himself. That is true to some extent but, as I have pointed out, this was in the context of his mother doing the big shop. To do a series of small shops each day is not sufficient. The defendant submitted, in relation to this matter, that the plaintiff was able to attend the pub on a regular basis. I do not understand the relevance of this observation. Frankly, it seems to me to be inappropriately contemptuous. The plaintiff did not agree that he was able to cook simple meals but could make sandwiches with his left hand. It may be that he could cook simple meals such as boiling an egg or warming up pre-prepared or frozen food but it is obvious that this is not sufficient for appropriate sustenance. It seems to me self-evident that it is important that the plaintiff maintain appropriate nutrition, not only for health reasons but also for his well-being. 66It was submitted by Mr Morris that no real attempt was made to quantify the care which was reasonably required. I do not agree. I think the plaintiff's description of the tasks he was able and those he was unable to undertake is sufficient for a reasonable assessment to be made of his needs in this regard. It is true that no corroborative or explanatory evidence was called from the plaintiff's mother but, since it was not put to the plaintiff that he was not telling the truth about his difficulties, this does not amount to much. Moreover, these are matters well able to be approached in a common sense way. 67In the result, I am persuaded that attendant care services of at least six hours per week and for a period of at least six consecutive months were necessary and provided up to trial. For long periods of many months more assistance would have been required. In my view the threshold prescribed by s 141B(3) of the Motor Accidents Compensation Act is satisfied. Overall, I consider that the allowance for the provision of past attendant care services should be calculated on an average of seven hours per week from the date of his injury to the present. The average hourly rate calculated in accordance with s 141B(4) of the Motor Accidents Compensation Act for that period is $25 per hour. 394 weeks have now expired since his accident, yielding an appropriate award of $68,950. 68So far as future domestic assistance is concerned, I accept that, if the plaintiff were able to do so, he would prefer paid assistance to that provided by his mother. I think I should also accept that his mother is significantly older than he is (now 41 years of age). He did not need any of her help before he had his accident and there is no reason to suppose that, if other help were available, the plaintiff would impose upon her to undertake these tasks. It is submitted that future care should be assessed at $35 an hour although no evidence has been adduced to prove such an hourly rate. It was proposed that, if the defendant did not agree with this sum, the plaintiff would seek to re-open to tender brief documentary evidence on the issue. The defendant has not, as it happened, taken issue with the amount proposed. This is scarcely surprising since these assessments are frequently made in litigation of this kind and the relevant figures are well known. Six hours' assistance a week comes to $210 per week for his remaining life expectancy of 43 years, yielding the sum of $197,000.22. 69So far as past out of pocket expenses are concerned, the defendant's insurer had paid hospital, medical and other treatment expenses on the plaintiff's behalf in the sum of $100,148. This sum is no doubt greater having regard to the date difference. In respect of future treatment expenses are concerned I accept that the plaintiff needs a range of pain killing medications. There is no agreement between the parties as to the cost of medication some of which, I accept, is quite expensive. It is conceded on behalf of the plaintiff that the appropriate measure should be calculated on the basis of the pharmaceutical benefit scheme safety net threshold of $1,421.20 per annum. I accept also (and the defendant at all events does not dispute this) the plaintiff would be required to attend his general practitioner at least once every two months to obtain prescriptions for his medication, Endone and Oxycontin in particular requiring regular, not long term, prescriptions. It is submitted that six short general practitioners consultations should be assessed at $75 each with a resulting annual cost of $450. Again, I think this is reasonable and, at all events, it is not disputed by the defendant. 70I have mentioned that the defendant's insurer has provided him with a mobility scooter which, I accept, is reasonable in all the circumstances, of course, this will require replacement as will the battery. The evidence of the plaintiff was that the two will need replacement about every four years. The batteries cost $550 each. The plaintiff did not have the particulars of the cost of the scooter at trial but understands the cost to have been $4,071. The defendant has not sought to take issue with this sum and I conclude that it agrees with it. Consequently, replacement of scooter and batteries would cost $5,171 every four years, an annual expenditure of $1293. 71The total of the future treatment expenses is, accordingly, $3,164 annually that is $60.85 per week. The multiplier for the plaintiff's future life expectancy of 44 years is 944.5. I allow under this head, therefore $57,472.83. 72Under s 134 of the Motor Accidents Compensation Act, the maximum amount allowable for non-economic loss is $477,000. It is not disputed that the amount which may be awarded is at large and there is no requirement for proportionality. The plaintiff submits that it is appropriate to take into account the severity of the plaintiff's injuries, their permanent effects, the multiple parts of the plaintiff's body affected, the effect on his psyche and the fact that these effects have now been suffered by him, with some variation from time to time since 21 April 2007. There is no realistic prospect of improvement so that, as is pointed out on his behalf, for significantly more than half his lifetime (median life expectancy being 84 years) he will be significantly affected not only by chronic pain but by physical limitations adversely impacting upon his enjoyment of life. 73It is submitted on the plaintiff's behalf that the sum of $280,000 is an appropriate award for general damages. The defendant has not sought to take issue with this sum though its primary submission is that it should have a verdict in its favour. In my view, $280,000 is a reasonable amount under this head. Conclusion 74There must be judgment for the plaintiff. I direct the plaintiff to file orders consistent with my judgment (in respect only of the heads of damage available under the Workers Compensation Act). Unless negotiations have affected the costs position, they will follow the event. I give leave to the parties to file and serve written submissions on the question of costs in the event that the appropriate order cannot be agreed. In respect of the order as to damages, failing agreement the parties have leave to apply on three days' notice.
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: 06 November 2014
Thelander
Sydney Ferries Corporation
[1986] HCA 20
[2005] HCA 14
(1986) 160 CLR 301
(2005) 214 ALR 349
(2005) 79 ALJR 839
(1981) 148 CLR 438
(2005) 64 NSWLR 131
(1984) 155 CLR 306