//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWSC 1098
Supreme Court of NSW
2011-09-16
Mr J, Hoeben J
Original judgment source is linked above.
d v Christie & Ors; Manpower Services (Aust) Pty Limited v Christie & Ors [2003] NSWCA 47; (2003) 65 NSWLR 1 at [47] Category: Principal judgment Parties: Rodney John Williams - Plaintiff Twynam Agricultural Group Pty Ltd - First Defendant Inland Watering Pty Limited - Second Defendant Twynam Agricultural Group Pty Ltd - First Cross-Claimant Inland Watering Pty Limited - First Cross-Defendant Inland Watering Pty Limited - Second Cross-Claimant Twynam Agricultural Group Pty Ltd - Second Cross-Defendant Representation: Mr A Lidden SC/Mr PN Khandhar - Plaintiff Mr J Gracie - First Defendant Mr G Parker - Second Defendant Mr J Gracie - First Cross-Claimant Mr G Parker - First Cross-Defendant Mr G Parker - Second Cross-Claimant Stacks/The Law Firm - Plaintiff Lee & Lyons - First Defendant Moray & Agnew - Second Defendant Lee & Lyons - First Cross-Claimant Moray & Agnew - First Cross Defendant Moray & Agnew - Second Cross-Claimant Lee & Lyons - Second Cross-Defendant File Number(s): 2009/297953
Judgment 1HIS HONOUR: Nature of proceedings The first defendant, Twynam Agricultural Group Pty Ltd ("Twynam"), occupied land on which it conducted a mainly cotton growing enterprise known as "Collymongle Farm" at Collarenebri in New South Wales. The second defendant, Inland Watering Pty Limited ("Inland"), supplied labour including the plaintiff to perform irrigation work on the property. 2On 29 November 2006 in the course of his work, the plaintiff was driving a Toyota Hilux motor vehicle from West to East, along a levee road, which formed the border to field 120. At the end of the levee road, separating fields 120 and 121 was a concrete culvert/drop box. The plaintiff collided with the drop box causing the vehicle to overturn. 3The plaintiff has brought proceedings in negligence against Twynam as the occupier of the land and the operator of the farm and against Inland as his employer. The proceedings against Inland are governed by Part 5 of the Workers Compensation Act 1987 (WCA). The proceedings against Twynam are governed by the Civil Liability Act 2002 (CLA). As a result of the accident, the plaintiff suffered serious injuries to his neck. Factual background 4Except as otherwise indicated, I find the facts to be as follows. 5The plaintiff was born in June 1971. Accordingly, he was aged 35 at the time of the accident and is now 40. He left Echuca High School in year 7 at the age of 14. He left school because he had the opportunity of obtaining a job at a lucerne mill. He was not a good student and his schooling was adversely affected by frequent changes of residence. 6After leaving school, the plaintiff lived and worked in rural areas. For many years he worked in the shearing industry, initially as a roustabout and ultimately qualifying as a shearer. In between he performed most other jobs associated with shearing, except that of a wool classer. He also did seasonal farm labouring work, fruit picking and builders labouring. He used travel to where work was available. His work was always in rural areas. Although not qualified, the plaintiff had an interest in mechanics and did work as a backyard mechanic from time to time. 7On 16 September 2006, about eight weeks before the accident, the plaintiff obtained employment with Inland. He was employed as a casual labourer to do irrigation work. He obtained this job with the assistance of friends who were already employed by Inland. One of these persons, Mr Farr, gave evidence in the proceedings. The plaintiff had previously worked at Collymongle Farm in the mid 1990's for two seasons as a cotton picker. 8The plaintiff said that he commenced working for Inland in the hope that it would provide more fulltime work. He said that the shearing industry was too sporadic. The weather would often prevent shearing and the number of sheep was low. At that time there was less work than normal. He accepted that the work for Inland was seasonal and would only be available when it was necessary to irrigate the crops. There was no clear evidence as to how long that seasonal work with Inland would last. The estimate varied from 6 to 12 months. 9The following key personnel worked at Collymongle. Mr Goldsmith was the farm manager. He started as a field manager in 1993. In 1998 he managed another property nearby for the same employer and in 2001 came back to Collymongle to manage it. He was 43 at the time the plaintiff had his accident. The assistant manager at Collymongle since 1992 was Richard McGrath. He was aged 55 when the accident occurred. Mr David Walker was the foreman in charge of the Inland employees working at Collymongle. 10In relation to irrigation, Twynam would undertake the pumping of water from the Barwon River into large storage tanks. It was the job of Inland to move the water from the storage tanks into the cotton fields. This involved the use of irrigation channels, syphon hoses and pumps. 11The plaintiff described his job as follows: "A. We were to drive around in a motor vehicle, check the levels of the channels. If they got too high they would blow channels out and you would have thousands of megalitres of water running everywhere where it shouldn't go. You had to keep the channels level for the men to go along with syphons to irrigate the cotton crops. If the water level dropped the irrigation would stop and you would have to restart all over again, so it was very important to keep your eye on the levels and flows." (T.12.37) "Q. How would it get from the channels into the field? A. It was run through 2-inch polypipe syphons which were about 6 to 8 foot long, 10 foot, something like that. Q. If it was too low gates would have to be opened, would they? A. Yes, either gates were opened or the boys would go out and start more polypipe syphons which would drop the level a bit. They had to shut gates and equalise the pressure and the levels. Q. Aside from doing the driving about and looking at the water levels, what other duties did you do for Inland Watering during that period? A. I was starting the syphons, as I say, to irrigate the cotton fields. Q. Did you have to be taught how to do that? A. Yes." (T.13.1) 12Mr Goldsmith described the irrigation process as follows: "A. Effectively the active irrigating, it's furrow flood irrigation so we would have effectively started syphons and run water down the furrows to flood the land, and that would have drained off within sort of eight to 12 hours and there would have been a growing cotton plant across all of that area so that would have been using moisture. That field would have been, if it was four or five days out of water, would have been damp but not flooded." (T.88.26) 13Twynam required contractors working at Collymongle to comply with the directions and procedures in a handbook entitled "Policies and Procedures Induction" (exhibit 1D(10)). The plaintiff said that at no time before the accident was he shown such a document, nor were its contents explained to him. He said that his duties were not explained to him by the foreman but by friends who worked for Inland, such as Mr Farr. I accept the plaintiff's evidence on this issue. No-one was called from Inland to contradict it. There was no evidence from Twynam as to what, if anything, was done by it to ensure that contractors communicated the contents of the handbook to their employees. 14There was a requirement in the handbook that seatbelts be worn by persons in vehicles using the many internal roads at Collymongle. The extent of these roads can be seen from the map, exhibit 1D(1), and from the photographs. Collymongle was large, being 35,000 hectares. The plaintiff was aware of this requirement. He said that because irrigation labourers and farm workers were continually getting in and out of motor vehicles in order to perform their work, they did not use seatbelts. He said that the requirement to wear seatbelts was not enforced. His evidence was corroborated by that of Mr Farr. 15Mr Goldsmith said that Twynam to the best of its ability enforced the wearing of seatbelts. On that issue he said: "A. Effectively we, to the best of our ability, enforced the, the need for seat belts. I personally always wear my seat belt. It is annoying at times in some of the work we do when you are getting in and out of the vehicle. But certainly, as the farm manager, I see personally I have to set an example so I would never not be wearing my seat belt." (T.99.6) 16The handbook required that persons driving within the Collymongle farm confines obey a 60 kph speed limit, but otherwise adjust the speed of vehicles to comply with road conditions. The plaintiff said that he was aware of the speed limit and was aware that there were two large signs at the entrance to Collymongle which specified such a speed limit. The plaintiff said that this speed limit was frequently exceeded by persons driving within Collymongle and was not enforced. He had seen Mr Walker exceed the speed limit but had not seen either Mr McGrath or Mr Goldsmith do so. 17In relation to the speed limit, Mr Goldsmith said: "A. That effectively we enforced the speed limit. There was, there's actually also lesser speed limits around the workshop and, but we enforced the speed limit wherever we saw somebody exceeding it or we felt somebody was exceeding it. But the property is 35,000 hectares and effectively we can't be everywhere at all times, so I'm not naive enough to, to believe that there wasn't occurrences of people exceeding it. It is just that, it's almost impossible to, to catch them unless you are there." (T.98.22) 18In order to understand the circumstances of the accident, it is necessary to say something about the road on which the plaintiff was driving. It formed part an extensive internal road network within Collymongle. The road followed an approximate West to East direction in the region surrounding the crash location. The crash occurred at a junction with another road, separating fields 120 and 121 (hereafter referred to as the "separation road"). The road was surrounded by cotton fields. 19The road was located on the top of a built up levee bank and had a carriageway width of about 5 metres. The top of the bank was about 1.5 metres above the level of the surrounding topography approaching the junction and was about 1.2 metres above the ground level beyond the junction. The embankments on the sides of the levee were graded at about one vertical to 2 horizontal. 20In an easterly direction, as travelled by the plaintiff, the road was generally straight and level for about 5 km until it passed field 120. The road continued straight and level for another kilometre until it reached field 121. At the junction with the separation road, the road passed through a reverse curve to the left and then right to be offset from its original alignment by about 5 metres as it passed field 121. The road also dipped slightly just before the junction. 21Beyond the leftward offset at the levee junction, the road continued straight and level for about another kilometre before meeting another levee bank. A culvert servicing field 121 was present underneath the levee bank immediately after the junction. Culvert inlets and outlets were located on either side of the bank. The culvert inlets and outlets were known as "drop boxes". The road surface was made of dirt or earth. The degree of compaction of the earth was not known. 22One of the difficulties in this case was that neither of the two experts who gave evidence actually visited the location of the accident and made measurements and observations. Their expressions of opinion were based solely on photographs taken at the accident site not long after the accident. No detailed measurements appear to have been made by anyone of any part of the accident site. 23Exhibit C comprises two photographs which show the approach to the accident site from the direction in which the plaintiff was travelling. The Toyota utility driven by the plaintiff can be seen in its rest position partly on the road beyond the deviation and the culvert inlet. Skid-marks can be seen in the foreground. A single pennant flag attached to a thin pole is shown at the top of the headwall to the drop box. Two additional pennant flags are shown in the foreground, on the right side of the photographs. Another flag is present at the headwall of the culvert outlet opposite the drop box at the crash site in the upper left quadrant of the photographs. 24There was an issue as to whether or not these flags were present at the time of the accident. 25Exhibit B is a photograph which shows a closer view of the same scene. The drop box depicted is that involved in the accident. The top sections of the sidewalls of the drop box have been broken. This did not occur in the accident but as a result of an earlier collision or collisions between a piece of plant and the drop box. The embankment slope reaches up to the sidewall of the drop box. The drop box is located at the start of the culvert running underneath the levee bank. Another opening (which cannot be seen in exhibit B), is present on the far side of the levee bank and can be seen in exhibit C. 26Mr Goldsmith described how the damage to the sidewalls of the drop box occurred: " A. My understanding is we used to lister with D 8 dozers with 12 metre Lister rigs on them which is a very big piece of equipment and my understanding is instead of walking a dozer around this side one of the guys has tried to walk across the tail drain and he has hit it with the outside edge of the Lister rig and smashed it in previously. Q. Breaking in both sides of the walls of the drop box? A. Yes, breaking in this side and taking the top off the other side." (T.110.7) 27Exhibit B also shows a wide tyre mark above the levee embankment slope leading from the top of the drop box towards the front of the utility. The mark terminates at the edge of the road. The small pennant flag on a thin pole is shown at the head wall of the drop box. Debris from the utility can be seen scattered about. The debris appears to have fallen out as the utility was rolling. 28Exhibit C best demonstrates the extent of the deviation in the road at the location where the accident occurred. This deviation was described by the plaintiff's expert, Mr Stuart-Smith, as being akin to a T intersection. Exhibit C also shows another raised levee road in its upper left quadrant on the other side of an irrigation channel. Another view of that levee road and a drop box and culvert underneath it, can be seen in exhibit 1D(2), a photograph which also shows Messrs Goldsmith and McGrath standing next to the vehicle in which the plaintiff was travelling and in the case of Mr Goldsmith, apparently speaking to the plaintiff. 29The extent to which the plaintiff had used the road where the accident occurred and passed through the deviation before the accident was in issue. The plaintiff said that he may have driven through the junction but he had no specific recollection. If he had driven through the junction before the accident, he was unable to say on how many occasions. 30It was suggested to the plaintiff in cross-examination that he had performed irrigation work on fields 120 and 121 on 18-20 November. The inference which was sought to be drawn was that if he had done so, he would have been familiar with the road and junction. The plaintiff said that he did not know whether he had worked on those fields at that time or not. The only evidence which placed the plaintiff in those fields at that time came from Mr Goldsmith when he was giving the contents of a conversation which he said he had with the plaintiff following the accident. Mr Farr gave evidence that he had performed irrigation work in those fields on those dates, but he was not asked whether the plaintiff was working with him at that time. 31I have concluded from the plaintiff's answers to the questions put in relation to that matter and from his evidence as to his lack of knowledge of the internal roadways at Collymongle, that he genuinely has no recollection of whether he worked in those fields on those dates. I am not satisfied that he did so. For reasons which I will set out in due course, I have found the evidence of Mr Goldsmith in relation to that conversation to be unreliable, except where otherwise corroborated. Accordingly, I am not satisfied that the plaintiff did work on fields 120 - 121 before the accident. I am satisfied that because of its complexity and because he had been working there for only eight weeks, the plaintiff was not familiar with the internal road system at Collymongle and in particular was not familiar with the junction where the accident occurred. 32Exhibit C does show a substantial deviation in the road to the left. The plaintiff's evidence was that so far as he was aware, that was the only deviation of that kind at Collymongle. 33The only other evidence on that subject was from Mr Goldsmith. His evidence was somewhat equivocal. He said: "Q. How many drop boxes are on this property? A. Forty or 50, something like that. Q. And how many of them are proximate to the curve in the road as this one is? A. Every single drop box is on a corner because it's on the corner of a field. Q. What I am asking you is how many are proximate to a curve in the road as this one is? A. I couldn't tell you. " (T.104.47) Q. But what I want to put to you was how many roadways on this place curve like that? A. The, there's, there's bends and curves and channels and, it's an irrigation farm. It is not laid out for, you know, it's, it's a working property. I, I do not have, you know - there is probably not many that are, that are exactly like that one but, but there is curves and dips and channels everywhere. It is the nature of the layout of an irrigation farm. (T.106.23) 34I have concluded on the basis of the plaintiff's evidence and that of Mr Goldsmith that the deviation to the left at this junction was a somewhat unusual one and that there was nothing similar to it at Collymongle. I base that finding on my assessment of the plaintiff as a witness of truth and on the reservations which I have about some of the evidence of Mr Goldsmith. 35What seems clear from the evidence of the plaintiff and Mr Farr, is that the internal road system at Collymongle was quite complex and did not involve simple or straightforward travel by the shortest distance between two points. On this issue, the plaintiff said: " Q. I want to ask you about the spot where the accident occurred. Do you remember now whether you had been over that spot before the day of the accident? A. No. Q. If you were to go in the front gate of this property and go over it right up to the back fence in a vehicle, how long would it take to do it? A. Roughly 30, 40 minutes. Q. And is it or was it then a direct route where you could just take one road right up to the back? A. No. You had to follow certain roads. There's dead-end roads that lead to nothing. You actually have to zigzag and go around to where you had to go." (T.11.9) 36Mr Farr's evidence was: "Q. What you have marked there, sir, is passage right from the top of field 107, travelling down to the left towards the east-- A. Chuck a right. Go back down it. Q. Travelling back along the same road? A. Yeah, because you cross a channel. Q. And then travelling south to the accident scene; is that right? A. No. Travelled west and then I travelled south. ... Q. And sir what you have marked there is that you began the journey at a particular field and you drove south; correct? A. Yes. Q. You then turned left and travelled east? A. Yes. Q. You then stopped, turned around and travelled west? A. No. I didn't stop. Q. Well, you then turned around and travelled west? A. Yes. Q. And you then drove straight back the road from whence you had come south? A. Yes. Q. And then you drove west to the accident site? A. Yes. Q. And that is the explanation, is it, as to how many fields you drove past on the way to the accident? A. It's not a straight road, mate, you know what I mean? ... Q. So what you have marked is a road down which you could have travelled from the north to the south had you so desired? A. That's the road I went, mate. Q. Why did you deviate off to the left then heading towards the east? A. What are you talking about, mate? Q. You have marked up a deviation to the left travelling east. Why did you do that? A. Because you've got to cross a channel, so you've got to go to the east, cross the channel, head west. You understand? Q. So are you saying that - A. Because if I went west straightaway it would have took me eight kilometres further than it would have took me if I went that way. Q. Are you saying sir that it was impossible for you to travel directly south? A. Yes." (T.247.39) 37The accident occurred between midday and 2pm. The plaintiff had as passengers two new workmen, neither of whom spoke English. The location of these persons was unknown at the date of the trial. Neither he nor his passengers were wearing seatbelts. The plaintiff described the accident as follows: "A. I was bringing the two new fellows back from smoko and we went down past this channel and we kept following it along. It was full of water. Q. Were you looking at the water level? A. Yes, I had a look over at the water. You only have to glance and you can see the water. The roads are very narrow. There's channels on all sides in some positions, channel on one side in some positions, a paddock and channel on one side in other positions. They're all very different. I was watching where I was going to a certain extent, having a quick glance out the side, and you come over the top of a levy thing, a little rise in the road, and there was a culvert straight in front of me. Before I even knew it I couldn't do anything about it at the last minute, no chance to dodge it or nothing, couldn't brake. Q. When you say you were glancing to the side, what were you looking at when you were glancing to the side? A. At the channel, the irrigation channel. Q. So which bit of your utility hit this drop box? A. The right-hand back tyre. Q. Why not the front? Had you done anything with the front? A. I think that I was very close to the box as the front tyre missed it and the back wheel caught it and tipped the whole vehicle up on its roof and rolled it over a channel bank." (T.16.15) 38The plaintiff said that none of the four flags shown on exhibit C were present at the time of the accident. He said that when the vehicle came to a standstill, his passengers were able to exit but he was unable to do so. "A. I was laying across, sort of across the driver's seat, and I couldn't move all up my right side. It was very painful. I couldn't move, I couldn't see out the back or the sides of the vehicle. I reached for the two-way with my hand and I said "Help"." (T.17.50) 39It was common ground that Mr Goldsmith was one of the first persons to attend at the accident site. There was a conflict between his evidence and that of Mr McGrath as to who arrived first, but nothing turns on that. The plaintiff had no recollection of Mr Goldsmith being there, nor of Mr Goldsmith speaking to him, 40At trial Mr Goldsmith gave evidence as to this conversation as follows: "A. I asked him what had happened and basically his reply was that he was looking at the cotton that he had irrigated a couple of days before and effectively hadn't been looking where he was going and hit the brakes and skidded and rolled the vehicle." (T.92.11) 41On the day of the accident, Mr Goldsmith completed a Workplace Incident Report (exhibit 1D(12)) which described the accident in the following terms: "A contractor was driving from along the side of a cotton field when he failed to negotiate a slight bend in the road hitting a drop box and rolling the vehicle. The driver had been distracted looking at the cotton in the field and was not looking where he was going. The driver has stated that the speed of the vehicle was around 60 kph. ... The drop box and channels were all marked with safety flags." 42In a statement made on 29 September 2009 Mr Goldsmith gave the contents of the conversation as follows: "25 I then asked Rodney what happened and he said he had been looking at field 120 which they had irrigated a couple of days previously and had been distracted by that and wasn't looking where he was going and which is what caused him to collide with a concrete drop box. ... 28 I asked him what speed he was travelling at and he stated he was doing around 60 km/h - there is a blanket speed limit around the farm of 60 km/h or less if conditions deteriorate." 43In cross-examination it was put to Mr Goldsmith that in his evidence at trial concerning the conversation he had said nothing about being told that the vehicle hit the drop box, something which he had mentioned in the Incident Report and in his 2009 statement. In response Mr Goldsmith said: "A. When I was asked that question earlier my answer was to the best of my recollection this is what he said. Now, it's obvious that he hit the drop box so it may not have been a point of contention when we were discussing it and effectively I wasn't interrogating him at the time. I asked him what happened and his answer was "I was looking at the cotton", he hit the brakes, therefore he wasn't looking at where he was going, he's hit the brakes and he has skidded and rolled. So I don't have an answer other than that. Q. Did he say he hit the drop box or not? That's the question I want you to answer. A. I do not recall. (T.120.2) 44Later under cross-examination on the same topic Mr Goldsmith gave the following evidence: "Q. When you were giving evidence to Mr Gracie you said he told you he hit the brakes, skidded and rolled the vehicle. Remember that? A. Yes. Q. Not a word of it in this statement, is there? A. No. Q. And you know that in this case there might be some significance as to whether he skidded or not, don't you? A. Yes, but there's skid marks in the photographs, so... Q. Did he say he hit the brakes, skidded and rolled the vehicle or didn't he? A. Well, it's, this is a statement I made three years after the accident. We are now how many years after the accident? Q. Nearly five? A. Five. My understanding, my recollection of what he'd said to me on the day was that he'd been distracted by the cotton by looking at the field which meant that he arrived at that corner, let's say going too fast, and has hit the brakes. Some of this is, I did not record him, I did not write down what he said. It's, it's my understanding of the information that he gave me. (T.125.40) ... Q. Did he say to you that he skidded the vehicle, hit the brakes, skidded and rolled over or didn't he? A. Well, to be one hundred per cent absolutely accurate I cannot tell you exactly what he said. Q. Then we've got in your statement, in the same paragraph, 25, hitting the drop box. But that is not what you said he told you when Mr Gracie asked you the question. It was simply hitting the brakes, skidding and rolling over? A. Rolling over the drop box. Q. Hit the brakes, skidded and rolled the vehicle were your words? A. Yes. Q. How could it be different? A. Well, I'm not an expert but my belief is that the drop box didn't actually roll the vehicle. Q. So your belief is that he rolled over during some sort of skidding manoeuvre and just ended up on the other side of the drop box. Is that your belief? A. I'm not an expert so - but the vehicle, the vehicle didn't end up on the drop box, it ended up past the drop box and it rolled past the drop box. So it's, it's up to an expert to say what actually caused it to roll I suppose but-" (T.126.29) "HIS HONOUR: Doing the best you can today which do you think is more accurate? What you said in the statement or what you said today? A. Look, I hadn't reread the statement, I actually haven't seen the statement since I did it. The reality is the statement was probably what, the statement may have been fresher but it was still three years after the accident. You know, I look at the, you know, I've been looking at the photos of the scene today and the reality is, you know, I couldn't sit down and accurately paraphrase exactly what he told me. " (t.129.40) 45I have concluded that Mr Goldsmith's evidence concerning the conversation is unreliable, except where it accords with the Workplace Incident Report, exhibit 1D(12) and with the plaintiff's evidence. It is clear from Mr Goldsmith's answers under cross-examination that he has a tendency to reconstruct matters, rather than be accurate as to exactly what he was told. By way of illustration, it is clear that Mr Goldsmith concluded from his examination of the photographic evidence that the vehicle had skidded before overturning. That conclusion was converted into evidence that the plaintiff told him following the accident that the vehicle had skidded. 46It is also likely that having been told by the plaintiff that he was looking at the cotton fields, Mr Goldsmith concluded that the plaintiff had been distracted and was not looking where he was going as is set out in the Workplace Incident Report. By the time Mr Goldsmith made his 2009 statement, this conclusion had been converted into evidence that the plaintiff said that he had become distracted and was not looking where he was going. I accept that the plaintiff may well have told Mr Goldsmith that as he was driving he was looking at the cotton fields. This is in accord with his recollection and his evidence at trial. It is inherently unlikely that he would have gone on to say that he was distracted and was not looking where he was going. 47Because of the clear tendency on the part of Mr Goldsmith to reconstruct matters, rather than rely upon his actual recollection, it may be that these discrepancies in his recollection of what the plaintiff told him were not deliberate. What clearly emerged under cross-examination, however, is that at the time of trial, Mr Goldsmith had little, if any, actual recollection of what he was told by the plaintiff. 48Because of the inherent unreliability of Mr Goldsmith's evidence about the conversation, I am not prepared to make findings based on his recollection, other than that the plaintiff told him that as he was driving he was from time to time looking at the cotton fields and was driving at a speed of 60 km/h. That is not inconsistent with the plaintiff still keeping a proper lookout as he was driving. 49Although the plaintiff had no recollection of applying his brakes and the vehicle skidding, both experts agreed that the marks shown on exhibit C did represent skid marks and that their proximity to where the plaintiff's vehicle finished led each of them to conclude that those skid marks had been made by the plaintiff's vehicle. 50I have concluded that the plaintiff's recollection on this issue is incorrect. That, however, does not adversely reflect upon the plaintiff's credit. I found the plaintiff to be doing the best he could to assist the Court. I accept that at the time he gave evidence, he had no recollection of having applied the brakes before the vehicle rolled. He suffered serious injuries in the accident and said that his recollection of events after the accident was not complete. In cross-examination on this issue, the plaintiff said: "Q. You also jammed on your brakes very hard, didn't you? A. I don't think I had time to hit the brakes. It come up that fast. It was over a rise and then there was the culvert, bang, right there." (T.43.25) 51The speed at which the plaintiff was travelling became an issue in the proceedings. Twynam submitted that the plaintiff was travelling at an excessive speed, i.e. in excess of 60 km/h. There are a number of difficulties with that submission. 52The choice of a speed limit for use on the internal roads of Collymongle was an arbitrary decision by Twynam. The handbook made that clear when it qualified the speed limit by exhorting drivers to adjust their speed to road conditions. Moreover, both experts said that the intersection could have been negotiated safely at 70 km/h if the driver knew it was there and prepared adequately to drive through it. 53The submission that the plaintiff was travelling at a speed in excess of 60 km/h depended upon it being possible to measure the length of the skid marks leading up to the edge of the drop box. The calculations as to speed made by the two experts were based on a statement in an investigator's report that the length of the skid marks was 23 m. The basis for that figure of 23 m was not established in evidence. It was not known whether it was measured by the investigator, and if so by what means, or whether it was an estimate. The investigator was not called. The parties agreed that the figure of 23 m in the investigator's report could not be relied upon as a basis for calculations of speed by the experts. 54That being so, it was only possible for the experts to calculate a minimum speed at which the vehicle was travelling, but not a maximum speed. This was because none of the photographs showed the skid marks in their entirety. 55An attempt was made by Twynam to remedy that problem by seeking estimates from Messrs Goldsmith and McGrath as to the width of the "separation road" and other features shown in the photographic exhibits. While some evidence was given by those persons to that effect, the basis for that evidence was not revealed. There was no evidence as to whether an actual measurement had been taken of those geographic features, or whether this evidence was but an estimate. I am not satisfied that evidence in this form provides a reliable basis from which a maximum speed, or even a range of speeds could be calculated. 56In those circumstances, the plaintiff's statement, confirmed by Mr Goldsmith immediately following the accident, that he was travelling at 60 km/h has to be given considerable weight. Twynam was not able to point to any feature of the accident site which was inconsistent with the plaintiff's evidence. 57Twynam relied upon a notation in the St George Hospital notes (exhibit 1D(16) as follows - "29/11 - rolled vehicle - 70 km/hr" and on a history in the medical report from Dr Mark Davies of 22 December 2006 that he "was travelling at 70km/h" as a basis for submitting that this was in fact the speed at which the plaintiff was travelling at the time of the accident. In relation to the hospital note, there was no evidence as to the source of that information. The plaintiff said that he was very heavily medicated at the time and had no recollection of having said anything to that effect. In relation to Dr Davies' report, there was no evidence as to the source of that information. He may have inserted that information by reference to the history recorded in the hospital notes. I am not satisfied that the plaintiff was the source of the information recorded in the hospital notes. 58Finally, I am not persuaded that Twynam properly enforced the 60 km/h speed limit. There was ample evidence from the plaintiff and Messrs Goldsmith, McGrath and Farr that this speed limit was regularly exceeded. The steps taken by Twynam to enforce the speed limit were the erection of two signs and the insertion of the speed limit in the handbook. Other than that, little else seems to have been done. There was almost a sense of resignation in the evidence of Mr Goldsmith on the topic (para [16] hereof). Mr McGrath's evidence as to his actions in relation to persons he observed driving in excess of 60 km/h was less than convincing (T.148 - 149). 59What was absent was any form of induction training by Twynam for persons working on Collymongle. There does not seem to have been any attempt to inculcate a culture of driving at a speed of 60 km/h or less. There were apparently no meetings where the importance of the speed limit was reinforced. Other than the erection of signs and the production of the handbook, nothing else seems to have been done by Twynam. Certainly no check seems to have been made of whether contractors were providing copies of the handbook to their employees or instructing them as to its content. 60It follows that even if the plaintiff were driving at a speed in excess of 60 km/h, he was behaving in the same way as other persons working at Collymongle including his own foreman, Mr Walker. Implicit in the somewhat laissez-faire attitude of Twynam, was an apparent acceptance that drivers on the internal roads at Collymongle were regularly exceeding the 60 km/h speed limit. 61A major issue in the proceedings was whether or not the orange flags shown in exhibit C and other photographs were in those positions at the time of the accident. 62Mr Goldsmith described the function performed by the orange flags as follows: " Q. You were aware then in November of that year of the presence of orange flags in and around the property? A. Yes. Q. And they were placed at various places? A. Yes. Q. Were you aware of the reason they were placed in particular places? A. Effectively as part of our OH&S policy we use a safety flag, an orange flag, to denote any point of - effectively any point of danger. It's a marker for the point of channels or culvert points or drop boxes as a way of noting where they are. Q. And had that system been in place for a period of time prior to the November incident? A. When I started there in 8 November '93 that system was in place when I started. ... Q. Had you prior to November 2006 in fact installed those in and around the property yourself? A. Yes, yes. I put safety flags out at times. Effectively there's always ongoing maintenance to the safety flag system as such and we replace them as needed. (T.89.48) ... Q. Did you have in place from 1993 onwards a system of replacing the flags and metal posts from time to time? A. Yes. Q. Did you use consultants involved in that process? A. We had outside consultants between four and six times a year come through the farm, come through the whole property to do an outside safety audit effectively, which was our way, the company's way of ensuring that the properties were maintaining an OH&S standard that was reasonable and not falling into people believing that they were doing the right thing when possibly they weren't. So the outside consultant's job was to come through and give a report denoting anything that they felt was substandard. Q. And to your knowledge did you and the company you work for act upon those recommendations? A. Yes. Q. As and when they were made? A. Yes. HIS HONOUR: Before we leave that topic again may I interrupt briefly? Q. Mr Goldsmith, you said you had a system of replacing the flags. What was that system? A. Effectively we would always have flags in stock in the warehouse. We used to, rainy day jobs for staff was to sit there and make them so we would always have a stock of them. And effectively, the majority of the problem with the majority of them is they fade so every, you know, couple of months when you had somebody free you would say take some safety flags, lap around the farm and replace anything that has faded or missing or frayed. Q. What would happen if a wide piece of farm machinery dislodged a flag? What was the system to A, identify that that had happened and B, replace it? A. Effectively the operators were always told if they took a flag out that they were to stop and replace it. If anybody was driving around and they saw that a flag had been pulled out they would stop and replace it. So the likes of myself or Richard, if they were driving around and we saw that something had been dislodged and effectively it was then either, if, if it was not, not noticed for some reason it would have been picked up in the replacement programme. Q. Apart from what you have told me was there any system in place whereby somebody would regularly go around and check that all the flags were in position? A. Only, not a, not a paper audit or anything. Only the, the farm staff lapping around the farm in the course of their duties would say there's flags missing there or, geez, there is no flag left on that drop box, and send somebody out to put them back in." (T.95.17) 63Mr McGrath's evidence in relation to the flag system was: "Q. The flags from time to time get knocked over by the machinery as it goes along the roads. That's right, isn't it? A. That's correct, yes. Q. And then what happens? A. Then they are replaced. Q. When somebody gets around to it? A. That's correct, yes, or if we are doing some work in that particular area. Q. You have had the occasion, haven't you, where you go into an area and flags are gone; correct? A. Yes. Q. And you don't know how long they have been gone; is that right? A. Correct. Q. Because there's no system of checking them. Is that right? A. Yes, there is, yes. Yes, we replace them, we have a system that we do go around periodically and replace them, yes, mainly in front of the cultivation or irrigation. Q. How often does that happen that there is a cultivation or irrigation, every few months? A. That's correct, yes, yes. Q. So, what, maybe every three months somebody goes around and sees if flags are missing? A. That's correct, yes, yep Q. And would that person only do part of the property? A. No, no. We would make it he does the whole lot, the whole area, yes. Q. And sometimes, depending upon the pressure of work, it might be more than every three months; right? A. That's correct, yes." (T.156.35) 64The plaintiff's evidence under cross-examination was: "Q. Do you see in that photograph one, two, three orange flags? A. I see them there now but they weren't there then. Q. Sir, I suggest to you that those flags were there in the place disclosed on that photograph before and after your accident. Do you deny that? A. I deny that. If they were there I wouldn't have hit that culvert, I would have seen them flags." (T.46.9) 65Mr Goldsmith gave evidence that he did not place the flag in position on the drop box where the accident occurred, nor did he see anyone do so while he was at the scene of the accident. Under cross-examination he adhered to that testimony. He said that he directed his assistant, Mr Adam Kent, to take photographs of the accident scene. These were the photographs tendered at trial. It was accepted by the parties that those were the only photographs taken at the accident site. At the time of trial, Mr Kent's whereabouts was unknown. 66Mr Goldsmith's evidence about the taking of the photographs at trial was slightly different to the statement which he made in 2009. The difference related to the sequence in which the photographs were taken. In that statement he said: "23 ... I did an assessment of the area and took some photographs and handed the camera to one of my employees who took the rest of the photographs." At trial Mr Goldsmith said: "Q. Did you yourself take any photos? A. I think I've taken the last couple of photos. Certainly there is one photo with Richard's vehicle disappearing into the distance, I'm pretty sure I took that. But effectively the bulk of the photos would have been taken by Adam." (T.94.38) 67I have already commented on the unreliability of one part of Mr Goldsmith's evidence. Generally speaking, I found him to be somewhat partisan in giving his evidence and to be protective of Twynam. An example of this can be seen in the Incident Report where the location of the accident is described as a "slight bend in the road". That is certainly not how I would describe the deviation at the junction, but it is indicative of his tendency to minimise any culpability on the part of Twynam. 68The evidence of Mr McGrath on this matter was: " Q. When you were there during that period from start to finish, did you see anyone at all carrying flag poles around and putting them into the ground in the places that you see in exhibit C? A. No." (T.145.21) "Q. And is it the case that wherever there's a danger there's supposed to be one of these little flags? A. That's correct. Q. And so if the road goes over a culvert and there's a drop box on either side of the culvert, there will be a flag; is that right? A. That's correct. Q. Every time? A. Yes. Q. One on one side of the culvert where the drop box is; is that right? A. That's correct. Q. One on the other side of the culvert? A. That's correct. Q. Only one; is that right? A. Well, it just all depends how big the structure is. It may be three on one side and one on the other. Q. The place they are put is generally in the middle of where the drop box is; is that right? A. That's correct." 69Under cross-examination Mr McGrath adhered to his evidence that he did not see anyone put up any flags while he was at the accident site. He said that he did not know who took the photographs and that he did not see anyone taking photographs while he was there. 70Like Mr Goldsmith I found Mr McGrath to be protective of Twynam in his evidence. He had a tendency to agree to broad propositions which he believed favoured Twynam, but under cross-examination would significantly resile from them. The following examples demonstrate that tendency. 71In chief Mr McGrath gave the following evidence: " Q. Did you have any flag poles with you in your truck? A. No, not that I can recall." (T.144.8) .Q. Were you, before the plaintiff's accident, aware of persons on the Collymongle Station exceeding the speed limit? A. Not that I am aware of." (T.147.27) 72When Mr McGrath was cross-examined as to the presence of flags in his vehicle on the day of the accident he said: "Q. What I was asking you about a little while ago was this; Mr Gracie asked you whether you had any flags in your vehicle when you attended the scene. Remember that? A. That is correct. Q. You would always have flags in your vehicle, wouldn't you, in case you came upon one that was missing or damaged? A. Not all the time, no. Sorry. Q. Well, a lot of the time? A. (Witness nodded.) Q. A lot of the time you would have flags in your vehicle for that purpose? A. I would, yes, yes. ... Q. Why would you say that to your memory you had no flags in your vehicle on this occasion? A. I can't answer that, no. Q. Would the reason be, Mr McGrath, that you know it is going to be suggested that people from Collymongle put these flags there after the accident? A. No. Not to my knowledge. I didn't, as I said I didn't see anyone that particular day put any flags in that area. ... Q. You knew that that was an issue in the case, didn't you? A. That is correct, yes. Q. The truthful answer would be, if you were asked the question did you have any flags in your vehicle, well, I probably did? A. That is correct. Q. That would be the truthful answer? A. That is correct, yes, yes. HIS HONOUR Q. Would it be I probably did or I don't remember? A. I beg your pardon? Q. Would it be I probably did or I don't know or I don't remember? A. Well, I don't remember. MR LIDDEN: Q. But you have already told me, haven't you, that mostly you would carry flags? A. That is correct, yes. " (T.159.3) 73In relation to the speed at which vehicles travelled on Collymongle, under cross-examination Mr McGrath said: " Q. When Mr Gracie here was asking you questions a few minutes ago, Mr McGrath, you were asked whether people drove vehicles at a speed of over 60 kilometres an hour and you said not that you are aware of. Remember that? A. That's correct, yes. Q. But really you are aware of it, according to the answer you gave Mr Parker, because on occasions you had told people who were doing more than the speed limit that they shouldn't. Is that right? A. That's correct, yes, yep. Q. Well, which one is true? A. Well, I'm not there with them 24 hours a day, but if I do see some I do quiz them and tell them to slow down, yes. Q. So that's happened from time to time, you have seen drivers going more than 60 kilometres an hour, haven't you? A. That's correct, yes, yes. Q. And you say you've told them not to? A. That's correct, if I see that, yes. Q. If you saw them? A. If I saw them, yes, yes. Q. But you don't flag them down, do you? A. No, no, no. (T.149.9) ... Q. So are we back to you have never seen anyone doing more than 60 kilometres an hour on the property? A. Well, I would probably have to rephrase that and say yes, there's probably people who have been going more than 60, yes, yes. Q. When you have seen that, would it be sometimes they were doing a lot more than 60? A. Well, I would say yes, yes. Q. When Mr Gracie asked you whether you had ever seen anyone speeding, why didn't you tell him that then? A. Well, I just didn't - well, I didn't - just didn't realise - I suppose, yeah, I just forgot my train of thought, I suppose, on the speeding." (T.150.4) 74Mr Farr was an employee of Inland and was doing the same sort of work as the plaintiff. He, however, was a permanent employee and had been doing that work for two years at the time when the plaintiff was injured. He was familiar with the internal road system. His evidence concerning the presence of orange flags at the accident site was as follows: "Q. These little flags that you told us about, the yellow ones on the stick. When you got to the scene where Rodney has his accident were there any there? A. No, there wasn't at that time, no. (T.241.13) ... Q. I want to show you exhibit B. Do you see that little flag at the lip of the culvert? A. Yes. Q. Was that there when you arrived? A. No because I was standing there where the flag was. Q. Well, what were you looking at? A. I was looking at his wheel tracks, mate, where he hit the concrete culvert. (T.242.32) Q. Now, when you left the scene, Mr Farr, were there any flags in the area of where Mr Williams had his accident? A. No. (T.245.13) "Q. One hour before the accident you drove along the road which you understand Mr Williams was driving on when he had his crash. Isn't that right? A. Yeah. Q. Is that right? A. That's right, yeah. Q. As you drove along that straight road you passed orange flags on the left and the right, didn't you? A. No, I did not. Q. Are you saying there were no orange flags? A. Yes, I am. (T.261.35) ... "Q. Sir, whether it was the morning of the accident or whether it was the day before, you did not need yourself orange pennants in order to get safely through that place, did you? A. No, because there was -- Q. I beg your pardon? A. Because there was flags there before and then they were missing, you know what I mean. You know? There's been flags prior to the years and then this particular day there was no flags left. Maybe because the wind blew them away. You know what I mean? A. Have you ever had a close look at the way those flags are fixed into the dirt at that culvert? A. Yes. Q. And what is your observation? A. It's a bit flat. A bit of nylon plastic, or not plastic, but canvas, the actual orange bit and it's a wire spring and it goes into the ground probably about 3 foot and what's sticking out of the ground probably 4 foot. Q. And so you would understand by your last answer that a flag fixed in that way was unlikely to be blown away by the wind; correct? A. Well they do perish and blow off. Q. You mean the pennant itself? A. That's right, yeah. (T.272.23) Q. And when you arrived there at the scene on that day did you keep an eye out for the flags or the pennant - I will use the pennants, right, the orange part - did you keep an eye out for them as you travelled towards the intersection where you had heard the plaintiff had had a crash? A. did I keep an eye out? Yeah. There was no flags there. Q. You didn't need them? A. I didn't need them, no. Q. No? A. But it's not my job to put flags out mate because I'm only a contractor. It's Twynam's place to put flags out. It's their farm. Q. And sir when you arrived did you notice that there were less flags at that intersection than you had seen before or no flags? A. There was no flags there, mate. ... Q. None of the flags that you see in exhibit C on your account were there on that day? A. No. Q. Is it my understanding correctly of your evidence that some of the flags were there the previous day? HIS HONOUR: He hasn't said that. GRACIE: That is why I said is my understanding correct. WITNESS: No, there's no flags there. GRACIE: Q: Not the previous day either? A. No." (T.273.3) "Q. You didn't need to look for flags as you drove towards the intersection when you were going to the site of the plaintiff's car accident because you were familiar with the area? A. That's right. Q. Is that right? A. That's dead right. Q. And the next proposition is you didn't look to see whether there were flags at that intersection when you drove there to attend the scene of the plaintiff's accident? A. Yes, I did. ... Q. From the east to the west there were four flags at that particular T-intersection? A. No, there was not. Q. And I suggest to you that during the time you were there, five minutes on your account, that those flags were there as well? A. No, they were not. Q. And I suggest to you that when you left those flags were also there? A. No, they were not. Q. I also suggest to you sir that you didn't look at all whilst you were there for five minutes as to whether there were flags there or not? A. I looked all right. ... Q. Sir, I suggest to you that you are completely incorrect in thinking that there were no flags there whilst you were there at the scene on that day. What do you say about that? A. No. There was no flags there, mate. (T.274.32) 75I found Mr Farr to be an impressive witness and completely honest. He had no motivation for telling anything other than the truth. While he was a friend of the plaintiff, it was clear that they were not close. There was a robust commonsense about many of Mr Farr's answers which persuaded me that his evidence was also reliable. If I were basing my decision solely upon the demeanour of witnesses, I would accept the evidence of Mr Farr in preference to that of Messrs Goldsmith and McGrath. 76In this case, however, there are other indicia which assist me in concluding, as I do, that the flags depicted on exhibit C were not present in those locations at the time of the accident. 77It is clear from exhibit 1D(2), that the culvert/drop box on the other levee road depicted in the upper right quadrant of that photograph is not marked by any orange flag. At T.156.31 Mr McGrath could offer no explanation for why that had occurred. 78The plaintiff's expert, Mr Stuart-Smith, in his report of 14 July 2010 expressed the following opinion in paragraph 8.1 (p 23) of his report: "Should the tyre mark commencing at the top of the headwall (see post-impact tyre mark in figure 8.2 on previous page) have been made by the utility, as appears to be likely, any flag at the head of the drop box would most likely have been knocked over as the front of the utility passed over the top of the drop box. In other words, should the marks shown in the photograph be those of the utility, it is likely that the flag shown in the photographs at the head of the drop box was placed in position after the crash. This factor does not provide evidence as to whether or not the flag was present before the crash." 79In his evidence at trial, the following exchange took place when Mr Stuart-Smith was directed to that part of his report: "HIS HONOUR: If you assume that the evidence is that the flag is on a flexible steel rod about a foot into the earth, 30 centimetres into the earth and it is designed and apparently has this effect, if it is bumped or knocked it springs back. Would that be an explanation for the flag remaining in situ? WITNESS STUART-SMITH: It could be an explanation, your Honour. I would have thought it more likely, since the wheel appears to have gone roughly where the flag is, that it would still have gouged the flag. I would have thought it unlikely it would have sprung back but it is a little bit hard to tell with the photographs we have exactly where the wheel was, but I think it is unlikely to have come back. HIS HONOUR: Professor Yandell, you have not specifically commented on this in your report. Do you want to say anything at this stage? WITNESS YANDELL: It depends on the elasticity of the device holding it up but I should imagine, since they have to move wide machinery around, they would have it so if it was deflected it would spring back up again." (T.184.27) 80Having regard to the particular photograph (exhibit B) and the position of the flag, I have concluded that Mr Stuart-Smith's opinion on this is to be preferred to that of Professor Yandell. It is difficult to see how the vehicle as it was skidding in a yaw condition could have failed to dislodge the flag depicted in that photograph. This is particularly so when one looks at the broken nature of the earth in which the flag is positioned in the photograph. 81A final consideration was the ad hoc nature of the system of replacing flags described by Messrs Goldsmith and McGrath. It was quite apparent from their evidence that flags were regularly dislodged by the movement of vehicles and machinery on internal roads. It is also clear from the evidence that after two or three months, the flags became so faded that they had to be replaced or they became shredded by the wind so that only the metal rod remained. 82There was no systematic method for replacing such missing or damaged flags. It depended entirely upon someone noticing and reporting that either a flag was missing or damaged, and then for someone to respond to that report by arranging for the flag to be replaced. To the extent that there was any systematic attempt to check on flags being correctly positioned and in good condition, this occurred no more frequently than every three months, and only when there was someone available to perform the activity. In those circumstances, it is not surprising that dangerous locations at Collymongle remained unmarked for considerable periods of time. 83Another cause for concern on that same issue was the reference by Mr Goldsmith to the outside consultants who attended between four and six times a year and who performed an external safety audit for Twynam. No report from those consultants was provided to the Court for any year and particularly the year 2006. The reports predating the accident and post dating the accident from such consultants would have been of importance. No explanation was forthcoming for the absence of those reports. I have concluded that the contents of those reports, had they been provided, would not have assisted Twynam's case. 84It follows that there were substantial defects in the system used by Twynam to maintain flags at locations which had been identified as potentially dangerous. It is not surprising, as exhibit 1D(2) clearly demonstrates, that on occasions flags were not positioned where they should have been. That state of affairs is more consistent with and supportive of the evidence of the plaintiff and Mr Farr, than the somewhat idealised descriptions of the system and its operation given by Messrs Goldsmith and McGrath. 85That analysis supports my conclusion that the evidence of the plaintiff and Mr Farr as to the absence of orange flags at the accident location should be accepted and the evidence of Messrs Goldsmith and McGrath on that issue rejected. I find that at the time of the accident the four orange flags depicted on exhibit C were not present as there depicted and that there were no orange flags at the accident site. 86On the issue of whether flags were present at the junction before the accident, the plaintiff submitted that those photographs in which flags were depicted, did not show him in his vehicle at the time. He submitted that the photographs showing the flags seemed to have been taken at a time after he had been taken away by the ambulance. The Court was invited to infer from this that the flags had been placed in position after the accident at a time when the plaintiff could not see what was being done. 87While there is some support for that submission in that the plaintiff does not appear to be in the Toyota when those photographs were taken, one cannot be completely sure that such is the case. Accordingly, while there is force in the submission, I am not prepared to base my finding as to the flags upon it. 88At the time when he was injured, the plaintiff was in a de facto relationship but did not have any children. He was living in Collarenebri, in a three bedroom home which adjoined a shut down Shell service station. In exchange for providing caretaker services for the service station, he was allowed to live in that accommodation rent free. The plaintiff was living in that accommodation at the time of trial. 89Following the accident, the plaintiff was taken to the Collarenebri Hospital complaining of neck pain, right arm pain and numbness in the right hand and fingers. On the same day he was transferred to the St George Hospital under the care of Dr Mark Davies, neurosurgeon. CT scans carried out at the time showed fractures at the C7 and C2 levels of the cervical spine. There was altered sensation in the right C7 dermatome and pain on all movements of the right arm. 90The plaintiff was kept in the St George Hospital for 3 days while his condition was monitored. At the end of that time he was allowed home wearing a rigid collar 24 hours a day in preparation for an operation on his neck once the acute swelling, bruising and bleeding around the fracture sites had resolved. During that time, the plaintiff said that he was severely disabled and required considerable assistance from his partner. 91The plaintiff was re-admitted to the St George Hospital on 31 January 2007. Dr Davies performed a fusion at the C6/7 level of the spine using pedicle screw fixation with short rods to stabilise the fracture dislocation. Following the operation, the plaintiff was again placed in a rigid collar and was monitored in the St George Hospital for 5 days before discharge to his home. He saw Dr Davies again for review on two occasions on 13 March and 19 June 2007 when progress x-rays of his neck were taken. While at Collarenebri, the plaintiff remained under the care of his local general practitioner, Dr Schmidt. At the time of trial, he was seeing Dr Schmidt every three months. 92The plaintiff said that the surgery improved the pain in his neck but did not eliminate it. He said that the surgery improved the pain in his arm by approximately 50 percent but that he continued to experience pain in that arm and numbness in the fingers of his right hand. He said that he had never been free of neck pain since the accident. He said that his neck pain became worse when performing the following activities: " A. Anything to do with reaching above your head, shoulder height, any sort of weight, pushing lawn mowers, hanging out clothes. General things in aspects like that. Just general stuff." (T.22.29) 93The plaintiff said that he had noticed deterioration in his emotional state since the accident. He said that he had become quite bad tempered and on occasions violent. The relationship between him and his then de facto partner ceased in mid 2007. His mother then came to live with him and provided care for about 8 months. 94In 2008 he formed a new de facto relationship with Ms Adams, but that relationship broke up a few days before the commencement of the trial. The plaintiff attributed that break-up also to his emotional state. He said: "A. It just, it's the same thing. It's in me head. I can't do anything. I get frustrated, I get violent, I get cranky. I feel useless, no good, can't do nothing. Every time I try to do something it plays up, me neck hurts, me arm hurts and I just can't do it." (T.24.10) 95The plaintiff has not sought any treatment for his emotional condition. There was evidence that the plaintiff had in the past suffered from some form of mild schizophrenia. This was not pursued by any of the parties and no evidence of aetiology or prognosis was placed before the Court. Accordingly, I have not taken the schizophrenia into account. 96The plaintiff returned to light duties with Inland in April or May 2007. It was not clear from the evidence exactly how many hours a week the plaintiff was working, how many weeks he worked or exactly what work he was performing. The plaintiff's evidence was that he was not doing very much and that he was not well enough to return to full duties. His last day of employment with Inland was on 3 June 2008. The plaintiff described the circumstances leading to him ceasing work with Inland as follows: "A. My neck played up because the boys were travelling over rougher roads in the motor vehicles and I couldn't handle it any more so that was the end of it, that was the end of my employment. I was not asked to go back." (T.26.29) 97The plaintiff was able to obtain some work with the NSW Grain Co for about 6 weeks in October/November 2009. When applying for that job, he did not tell his employer about his previous injury. The work involved operating machinery but was physically light. He ceased that job when the work ran out. 98In April 2010 the plaintiff applied for a position as a forklift driver in a cotton gin. The plaintiff underwent a medical examination and was not offered the job. 99When the plaintiff was examined by Dr Hopcroft, orthopaedic surgeon, in December 2009 Dr Hopcroft described his findings on examination as follows: "On examination he is very tall, 6 foot 4 inches in height and weighing only 77 kg. He has marked restriction in movement of his cervical spine inflexion, extension, right and left lateral bending and right and left lateral rotation losing the terminal 20-25 percent of the range. He has a pain free range of movement of his left arm. However, he has marked winging of the right scapular with gross wasting of the serratus anterior noticed especially from the anterior profile with his arms in a 90 degree of abduction. His right shoulder can abduct to 140 degrees and flexes to 140 degrees but he has the unusual symptom of being unable to lift his right shoulder to his chin, a classic sign of serratus anterior weakness." (exhibit G) 100Dr Hopcroft considered the plaintiff to be totally unfit to return to work at that time. 101The plaintiff was seen by Dr Harvey, orthopaedic surgeon, on behalf of Twynam on 9 June 2010. Dr Harvey's findings on examination were very similar to those of Dr Hopcroft. He also found winging of the shoulder blade due to weakness of the serratus anterior muscle. Dr Harvey assessed the plaintiff's fitness for work as follows: "I consider that Mr Williams would be fit for lighter work which did not involve much movement of the head and neck and which didn't involve heavy lifting with the right arm, especially above chest level. Apparently, he is actively seeking lighter work at the present time. Clearly, he was able to do the work at a grain silo in late 2009, and I think he will be able to find similar light work from time to time, but his opportunities of finding suitable work are obviously somewhat restricted living at Collarenebri." (exhibit 1D(13) p 6) 102The plaintiff was seen by Dr Fearnside, neurological surgeon, on behalf of Twynam, on 10 June 2010. Dr Fearnside expressed the following opinion as to the plaintiff's capacity for work: "Mr Williams is unfit for his pre-accident work as an irrigator. He is permanently unfit for heavy manual work. He may well be fit for lighter work, such as operating a machine, if he were able to get up and move about as necessary and if he were not required to lift any weights greater than 7 kg. I consider him to be fit for light work." (exhibit 1D(14) p 5). 103At the time of the trial, the plaintiff was not working and was in receipt of workers' compensation payments. He was still looking for work but was not particularly confident of finding it. He thought that he could do some work in a cotton gin but: ""A ... they also bring in their men from Narrabri and all over the place. They don't employ locals any more. " (T.77.41) Liability TWYNAM 104There was no issue that Twynam was the occupier of Collymongle and at the relevant time, operated a cotton growing enterprise there. As such it owed a duty to those using the internal roads on Collymongle to exercise reasonable care for their safety. Although some of the particulars of negligence in the Amended Statement of Claim ((e), (f) and (g)) are expressed in terms of a "failure to ensure", the case for the plaintiff was not conducted on that basis. The plaintiff's case against Twynam was that it had "failed to take reasonable steps to ensure". 105Twynam exercised day-to-day control over the roads, culverts, drop boxes, irrigation channels and fields within Collymongle. It knew that as well as its own employees, employees of contractors such as Inland, regularly used those roads. It also knew that from time to time the speed limit of 60 km/h was exceeded when those roads were used. In particular, it knew that unless hazards were properly identified and marked, serious adverse consequences for those using the roads could occur. A striking example of that was the death of a worker in the 1980's when his vehicle drove into a drop box. 106Twynam's duty as an occupier was succinctly stated in Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 at 488: "...the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent." 107A further dimension to the content of that duty is that Twynam was conducting a cotton growing business on the property which involved activities by its employees and activities and interactions by employees of contractors such as Inland. That fact also gave rise to a duty on the part of Twynam of the kind described by Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31 where his Honour said: "The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines." 108It is clear, therefore, that the content of the duty owed by Twynam to persons such as the plaintiff, included the taking of reasonable steps to make the internal roads at Collymongle safe for those using them. 109Because of the way in which the case was conducted, it was not the existence of a duty or the content of that duty which was in issue, but whether the duty had been breached. 110Matters to be considered when determining whether breach of duty has occurred are set out in s5B and 5C CLA: "5B(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 111Applying those sections, I am satisfied that the risk of a person driving into the drop box at this junction was foreseeable in the s5B(1)(a) sense. This is clear from the fact that both Mr Goldsmith and Mr McGrath acknowledged that a flag should have been placed on the end of the drop box closest to the road at the junction. Their evidence, of course, was that such a flag had been placed in position but I have found against them on that issue. 112The foreseeability of the risk of harm created by the junction and drop box was all the more obvious when it must have been in the contemplation of Twynam that not all persons using the internal roads at Collymongle would have been familiar with them given the seasonal nature of irrigation activities and the need for Inland to increase its workforce when irrigation activities were being carried out. On this occasion, not only was the plaintiff unfamiliar with the internal road system, but he had as passengers two persons who were also new employees of Inland. 113The foreseeability of the risk of harm is further illustrated when one has regard to the topography where the accident occurred. On the approach to the junction from the direction in which the plaintiff was travelling, he had to negotiate a slight crest before descending to the junction. The precise distance between the crest and the junction was never established but exhibit 1D(7)(B) indicates that it was reasonably close so that unless the plaintiff was familiar with the junction, he did not have a great deal of distance within which to react appropriately to the hazard created by the deviation of the road at the junction and the presence of the drop box. 114There was an issue between Professor Yandell and Mr Stuart-Smith as to whether the junction constituted a hazard. The competing evidence was: "WITNESS YANDELL: It is no more a hazard than a curve on an ordinary public road. WITNESS STUART-SMITH: May I add a comment in response to that? I disagree with what Professor Yandell says. Firstly, it is far more of a hazard than a curve on a public road because it is actually like the end of a road, it is like hitting a T-junction. And in fact we don't know how easy it was to see because of the crest in the road. It might well have been not visible to a driver in fact if you look at the, it appears from the reverse photograph that that could well have been the case. Certainly, that is to a driver looking ahead. ... WITNESS STUART-SMITH: This has got 6 kilometres of straight road leading up to this sudden stopping of the road or offset of the road to the left, is a point I would make, which is slightly different from a subdivision." (T.187.1) 115On this issue I prefer the evidence of Mr Stuart-Smith. While I appreciate the dangers of a Court seeking to interpret photographs for itself, I regard the junction as depicted in exhibit C as constituting a significant hazard. This is particularly so since the top part of the walls of the drop box had been smashed in before the accident and thus the drop box does not appear to be visible as one approaches the junction. 116I have also concluded that Mr Stuart-Smith's interpretation of the Australian Standard (T.185-186) is more reasonable than that of Professor Yandell. In its terms the standard is not restricted to public roads and is clearly relevant to roads of this kind, at least as a reference. Accordingly, the standard suggests that some "regulatory and warning signs, pavement markings and other devices for general use on roads" should have been used where a hazard was identified. 117On Twynam's case, the only part of the junction which was marked was the end of the drop box and that was marked by a single flag. There was nothing to indicate the sudden deviation to the left which occurred at the junction. Given the somewhat unique nature of this junction, the need for a uni-directional hazard indicator such as described by Mr Stuart-Smith was a reasonable precaution and its absence contributed to the foreseeability of the risk of harm which the junction gave rise to. 118This is not to apply impermissible hindsight reasoning in determining the foreseeability of harm. It was already accepted by Twynam that some marking was required at this location. What Mr Stuart-Smith was saying was that a proper response to the risk created by the junction would have involved more than just a single flag. It is not necessary to specify with any particularity how much more than a single flag was required, since I have already found that not even a single flag was in position at the junction. Additional flags, a directional marker or similar device would have reduced the risk created by the junction and the drop box. 119I am also satisfied that the risk created by the junction and drop box in their unmarked form was not insignificant. For the reasons already indicated, there was a real likelihood of an accident occurring unless the junction and drop box were properly marked. If such an accident did occur, the consequences for those persons in a vehicle which drove into the drop box would be serious as exemplified by the death which occurred in the 1980's and the injuries suffered by the plaintiff. 120In relation to s5B(1)(c), Twynam recognised that precautions had to be taken in relation to the junction and drop box and if it had followed its own system, a flag would have marked the edge of the drop box closest to the road. That would have provided some, although not adequate, warning to the plaintiff of the hazard which existed at the junction. 121For the reasons already set out in the factual findings part of this judgment, Twynam's system of maintaining flags in position was defective and there were no flags in position at the junction at the time of the accident. 122As Mr Stuart-Smith opined, because of the geometry of the junction with its significant deviation to the left, more than a single flag was required to warn drivers approaching from the west of this change in direction of the road. I have concluded that in line with Mr Stuart-Smith's opinion, Twynam was negligent not only in failing to have a flag at the junction but in failing to better delineate the change in direction of the road by either having more flags present or preferably, having a unidirectional marker which would provide a warning of this change in direction. 123It is no answer for Twynam to argue that any sign or marker, other than a flag, would be impracticable because it would have been removed or damaged by the movement of large machinery (some of which had a width of 12 metres), which used the internal roads from time to time. Such machinery had a clearance of between 30 and 40 cms above ground level. No acceptable reason was offered as to why the person driving a tractor towing this machinery could not replace any signs which were dislodged by its passage. Moreover, no reason was offered as to why a unidirectional sign or marker could not have been placed on flexible metal rods which would bend with the passage of machines, just as the flags were designed to do. 124In that context, it would have been interesting to have seen the content of the safety audits which were carried out at the request of Twynam, 4-6 times a year. As already indicated, none of those documents were placed before the Court. 125Given the size of the operation being conducted by Twynam at Collymongle, the cost of taking the precautions which have been suggested was minimal and was well within the resources available to Twynam. Twynam did not make any submissions to the contrary at trial. 126In applying s5B CLA the real issue is the adequacy of Twynam's response to the foreseeable risk of injury from a prospective point of view, i.e. given Twynam's state of knowledge at the time of the accident, rather than by way of hindsight. The question is whether a reasonable company in Twynam's position should have responded by having a better system of maintaining marker flags at hazard points and whether more should have been done by way of directional signage at the junction. I have concluded for the reasons already set out that a reasonable company in the position of Twynam should have responded not only by the maintenance of flags at the junction but by marking the left hand deviation. 127It follows that I find that Twynam breached the duty of care which it owed to the plaintiff. In that regard, it is not without significance that when providing safety markers and signage, such as was required at this junction, Twynam should have taken into account inadvertence or miscalculation on the part of those using the road. This is particularly so when it was well known that irrigators such as the plaintiff were required to observe water levels in irrigation channels as they were driving about the property. 128There is nothing in s5C CLA which alters that conclusion. 129In determining whether this breach of duty caused the accident, one has to apply the "but for test" ( Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, (2009) 239 CLR 420 at [44] - [45]). 130It seems clear from the plaintiff's evidence and from the skid-marks that the accident occurred because the plaintiff did not observe the left hand deviation at the junction in sufficient time to permit him to alter course or stop before he ran into the drop box and caused his vehicle to turn over. The plaintiff's evidence was that there were no flags and that he only became aware of a problem when he observed the culvert to be in front of the vehicle. Although he could not remember applying his brakes, it is clear from the evidence of the two experts that he did so but was unable to avoid running into the drop box. It does not matter whether his vehicle was out of control at the time or whether he was still able to steer it to some extent (a matter upon which the experts disagreed). It is sufficient that on his evidence, which I accept, he did not notice the presence of the drop box and therefore the deviation in the road until it was too late to avoid the accident. 131The photographs which are exhibit C indicate how difficult it is to identify the drop box and the deviation from a relatively close distance. At 60 km/h the plaintiff's vehicle was travelling 16.67 metres every second. Even though the precise distance from the crest to the drop box is not known, the photographs make it sufficiently clear that if one allowed a one and a half second reaction time, the plaintiff did not have very much space within which to take avoiding action. Even so, the skid-marks shown in exhibits B and C indicate that he almost succeeded in avoiding the drop box. 132I have concluded that had a flag and/or other appropriate marker or directional sign been present, the plaintiff would have been alerted to the danger in sufficient time to have avoided it and the accident would not have occurred. Alternatively, such a device or devices would have reduced the risk of the plaintiff failing to observe the hazard in time. ( Kulh v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375 at [45] and [104]; Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184 at [80] - [81]). 133Twynam submitted that it was not the absence of a flag and/or other indicator of danger which caused the accident, but the plaintiff's failure to keep a proper lookout and that he was driving at an unsafe speed in the circumstances. Twynam submitted that the plaintiff knew about the existence of the drop box and deviation since he had been working in the adjoining fields in the days before the accident. In those circumstances, Twynam submitted, the only reasonable explanation for the accident was that the plaintiff was not keeping a proper lookout. 134I have already found that the plaintiff was unfamiliar with the internal roads at Collymongle and in particular this junction. The only evidence which places the plaintiff in fields 120 - 121 before the accident is unreliable. The plaintiff had no recollection to that effect. Even if the plaintiff were performing work in those fields in the days before the accident, it does not follow that he was familiar with the hazard created at the junction by the deviation and drop box. It is one thing to be performing work in a field near a road junction, but quite a different thing to be driving through that junction on roads with which one is generally unfamiliar, particularly when the junction occurs after approximately 6 km of straight road. Accordingly, the plaintiff could have been working in the fields near the junction but still have been unfamiliar with the hazard presented by the junction. 135I have already found that the plaintiff was travelling at a speed of 60 km/h. Such a speed was consistent with 6 km of straight road leading up to the junction. It is also consistent with the driving activity taking place during daylight hours without any adverse environmental factors having been identified. The only circumstance which might have rendered the speed excessive was the hazard created at the junction of which the plaintiff was unaware. 136The plaintiff said that as he was driving he did from time to time look at the irrigation channels as his job required. He did not say that he was not keeping a proper lookout. I have rejected the evidence of Mr Goldsmith to that effect for reasons already given. The only basis for suggesting that the plaintiff was not keeping a proper lookout was that the vehicle did come in contact with the drop box. As already indicated, far from the presence of the drop box and the road deviation being obvious, they were difficult to identify without the presence of flags and/or some other marker. Accordingly, the fact of the accident does not lead to a conclusion that the plaintiff must not have been keeping a proper lookout. 137As an indication that the plaintiff cannot have been keeping a proper lookout, Twynam submitted that because no other driver had previously collided with this drop box, the plaintiff could not have been keeping a proper lookout. This does not follow. It may be that other persons using this road were like Mr Farr, familiar with the internal roads since they had been working at Collymongle for a number of years. The plaintiff, of course, had only been working there for a little over eight weeks. Nothing is known of the level of experience of other drivers using that road at the time. 138I am satisfied that factual causation in accordance with s5D CLA has been established by the plaintiff. The accident was caused by a failure to have in place flags and/or an appropriate marker or sign indicating the deviation. Had the deviation and the drop box been thus identified, I am satisfied that the plaintiff would likely have observed those indicia and adjusted the course of his vehicle accordingly. In that regard, it should not be overlooked that if the deviation which was essentially permanent had been properly signposted, the plaintiff may well have been alerted to the hazard on earlier occasions and thus have been better able to recognise the hazard on this occasion. 139Twynam relied upon ss5F and 5G CLA and submitted that because the risk of injury from the drop box constituted an "obvious risk", the plaintiff should be presumed to have been aware of it. Those sections provide: "5F(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable 5G(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." 140Relying upon those sections, Twynam submitted that the risk of colliding with the culvert at the corner of a field was capable of being appreciated by any reasonable person. It compared the plaintiff's actions with those of Mr Farr. 141As already indicated, the distinction between the plaintiff and Mr Farr is obvious. The plaintiff was a new employee. Mr Farr had worked at Collymongle for at least two years. What was known to Mr Farr was not necessarily known to the plaintiff. 142That the deviation and drop box did not constitute an "obvious risk" is clear from Twynam's acceptance through Mr Goldsmith and Mr McGrath that the drop box should have been marked by a flag. In addition, my observation of exhibit C conforms with the evidence of Mr Stuart-Smith that the junction did present a hazard of such a kind that not only a flag but also a directional marker should have been placed in position. 143Finally, I have accepted the plaintiff's evidence that he was not aware of the risk constituted by the deviation and the drop box. 144The plaintiff has established his case in negligence against Twynam. INLAND 145The plaintiff was an employee of Inland. As such Inland owed the plaintiff a duty to act reasonably in providing him with a safe system of work and a safe place of work. It is of significance that Inland had its own foreman on site, David Walker, and the plaintiff worked under his direction. 146The duty of care owed by Inland to the plaintiff was non-delegable. The meaning of that concept was analysed by Mason J in Lepore v State of New South Wales & Anor [2001] 52 NSWLR 420 at 426 [28] - [32] where his Honour said: "[28] The concept of a non-delegable duty of care has been discussed in a number of High Court decisions: see Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and Scott v Davis (2000) 74 ALJR 1410 at 1456 ... Employers, hospitals and school authorities are the clearest categories of relationships giving rise to such a duty. [29] The expression "non-delegable duty" is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate. A non-delegable duty is said to be personal or direct, rather than vicarious, but even this difference is more semantic than substantial. (These two points are made by Professor J P Swanton in "Non-delegable Duties: Liability for the Negligence of Independent Contractors - Part 1" (1991) 4 Journal of Contract Law 183; "Non-delegable Duties: Liability for the Negligence of Independent Contractors - Part 11" (1992) 5 Journal of Contract Law 26. I have been much assisted by this learned article. See also J Swanton, "Master's Liability for the Wilful Tortious Conduct of His Servant" (1985) 16 University of Western Australia Law Review 1.) [30] To similar effect are the remarks of Giles JA (Handley JA and Stein JA agreeing) in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236-238. His Honour said (at 238): "Where the person owing the duty of care must ensure that the third party exercise reasonable care, and is liable if the third party does not do so, it can be seen why the non-delegable duty of care has been described as a disguised form of vicarious liability (J G Fleming, The Law of Torts, 9th ed (1998) Sydney, LBC at 434) and even as a logical fraud (G Williams, "Liability for Independent Contractors" (1956) Cam LJ 180 at 193). The person who owes the non-delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person's duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else's failure to take care. The concept of non-delegable duty of care has nonetheless been recognised for over a century (see Pickard v Smith (1861) 10 CB (NS) 470; 142 ER 535; Dalton v Henry Angus & Co (1881) 6 App Cas 740), and is thoroughly established in the law including in the decisions of the High Court. Indeed, it extends to liability for the failure to take care of third parties who are not independent contractors, in the traditional sense: eg, Commonwealth v Introvigne (1982) 150 CLR 258." ... [32] Where the non-delegable duty is one of care (and most reported cases deal with this situation) the duty is expressed as requiring the defendant to ensure that reasonable care is taken: Kondis (at 686), Burnie Port Authority (at 550). The result is, as Gummow J expressed it in Scott (at 1456 [248]; 280 [248]) that: "the characterisation of a duty as non-delegable involves, in effect, the imposition of strict liability upon the defendant who owes that duty". ..." 147Mason P expanded on those observations in TNT Australia Pty Limited v Christie & Ors; Crown Equipment Pty Limited v Christie & Ors; Manpower Services (Aust) Pty Limited v Christie & Ors [2003] NSWCA 47; (2003) 65 NSWLR 1 at [47]: "47 The authorities cited in par [32] of this extract demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care." 148In this case, Inland's duty to provide a safe place of work and a safe system of work was breached in that Twynam negligently failed to properly mark and signpost the junction where the accident occurred. As the authorities quoted make clear, Inland was not able to delegate its responsibility for providing a safe place of work and a safe system of work to Twynam. It follows that Twynam's negligence in relation to the junction became Inland's negligence. The unsafe nature of the junction constituted a breach of Inland's obligation to provide the plaintiff with a safe place of work and a safe system of work. 149That such a result follows was made clear in Christie at [61] where Mason P said: "61 But negligence in the servicing or maintenance of the jack is different altogether. An employer's duty of care with respect to plant and equipment extends to the exercise of reasonable care in its maintenance and repair. Here the employer (Manpower) chose to delegate this responsibility to TNT and TNT chose to delegate this responsibility to an independent contractor, ie Crown. But such conduct could not relieve Manpower or TNT of legal responsibility if it could be shown that the plaintiff employee's injury was the result of negligence in regard to the maintenance and repair of the equipment." 150It follows that the plaintiff has established liability against Inland. Apportionment 151It is necessary for the calculation of damages and the application of Pt 5 WCA that liability in tort be apportioned between Twynam and Inland. This is also necessary because of the claim by Inland, pursuant to s151Z(1)(d) WCA for repayment to it of payments of workers compensation made to or on behalf of the plaintiff. 152It seems to me that the majority of liability should be borne by Twynam. The construction of roads, irrigation channels, the positioning of drop boxes and culverts and the identification and designation of these admitted hazards were the responsibility of Twynam as occupier of the farm and as the company conducting the farming enterprise. It recognised the need to properly mark such hazards, but failed to do so in the case of this particular hazard. 153Inland, although the employer of the plaintiff could not control where these hazards were located and was not expected to mark or otherwise identify every such hazard on the property. On the other land, it did have its own foreman present who it can reasonably be accepted, would have been aware of the failure on the part of Twynam to properly maintain its system of using flags to mark hazards and could and should have brought this to the attention of Messrs Goldsmith and McGrath, being the senior managers of Twynam on site. He does not appear to have done so. Inland's foreman, Mr Walker, was not called and no explanation was offered for its failure to call him. I infer that his evidence would not have assisted Inland. 154Taking those matters into consideration, I would apportion tortious liability as to 75 percent against Twynam and 25 percent against Inland. Contributory negligence 155The defendants asserted that the plaintiff was guilty of contributory negligence in the following respects: (i) Failing to keep a proper lookout so that he failed to observe that the road deviated to the left and the presence of the culvert which was marked by a flag. (ii) Failing to wear a seatbelt. 156I have already dealt with the question of whether or not the plaintiff was keeping a proper lookout when considering primary liability. I was satisfied on the evidence that the plaintiff was keeping a proper lookout, given my earlier finding that there were no flags at the junction. In relation to contributory negligence, the defendants carry the onus of proof. For the reasons already articulated, the defendants have not satisfied me that the plaintiff was guilty of contributory negligence in failing to keep a proper lookout. 157The question of whether the plaintiff's failure to wear a seatbelt amounted to contributory negligence is more complex. The plaintiff was aware of the requirement that seatbelts be worn. He said that he was not wearing a seatbelt because it was inconvenient in that his job required him to get in and out of a motor vehicle every few minutes. 158On this occasion, however, the plaintiff appears to have been driving to his place of work after "smoko". It is not clear whether there was any requirement for the plaintiff to get in and out of his vehicle during that journey. No questions were put to him on that issue. However, the overall impression which I gained from his evidence was that the journey on which he was injured was not one of those where the vehicle would be stopping every few minutes, but was a continuous journey. 159The plaintiff said that the wearing of seatbelts was not enforced by Twynam or by Inland. Messrs Goldsmith and McGrath denied that such was the case and said that they sought to enforce the requirement whenever they saw someone driving without using a seatbelt. They did point out, however, that it was extremely difficult to detect whether someone was wearing a seatbelt when a vehicle drove past. 160In the end it is not necessary to resolve the question of whether Twynam and Inland appropriately enforced the wearing of seatbelts or not. In this case there is no evidence that the wearing of a seatbelt would have prevented the injury, or limited the extent of injury. There is no medical or ergonomic evidence to that effect. Significantly, the plaintiff's two passengers, who were also not wearing seatbelts, suffered no injuries in the accident. It may be that the plaintiff's height of 6'4" would have led to him suffering injury in a rollover regardless of whether he was restrained by a seatbelt or not. 161Accordingly, even if I were to find that the plaintiff failed to take reasonable care for his own safety because he was not wearing a seatbelt, I could not find that this failure had made any contribution to the injuries which he suffered. To do so would involve speculation, not fact finding or inference. 162It follows that contributory negligence on the basis of a failure to wear a seatbelt has not been made out. Claim by Inland pursuant to s151Z(1)(d) WCA 163Inland has cross-claimed pursuant to s151Z(1)(d) WCA against Twynam for repayment of compensation paid under WCA to or on behalf of the plaintiff. That section relevantly provides: "151Z(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: ... (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages);" 164I have found that both Twynam and Inland are liable to the plaintiff. This does not prevent Inland from maintaining its claim for repayment of compensation paid by it, but it does limit the amount of that compensation ( Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270; I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486). It follows that Inland is entitled to judgment against Twynam on its cross-claim, adjusted to take account of its own liability in tort of 25 percent. Inland is also entitled to interest on that compensation. The precise amount of the judgment can be calculated by the parties and provided to the Court in the form of Minutes of Order. 165It was agreed by the parties that the following payments of compensation had been made by Inland under the WCA: Weekly payments $ 96,641.99 Medical expenses (section 60) $ 66,974.06 Permanent loss of function (section 66) $ 42,500 Pain and suffering (section 67) $ 20,000 Total $226,116.05 Twynam's claim in contract 166Twynam submitted that at the time the plaintiff was injured it had a written contract with Inland. It submitted that it was entitled to rely upon the following provisions in that contract. "12 The contractor: (a) Acknowledges that Twynam has provided the contractor with a copy of Twynam's standard Contractors Handbook; (b) Acknowledges that it has read and understands the Contractors Handbook; and (c) Agrees to abide with and comply with the provisions of the Contractors Handbook. 13 The contractor agrees to and does hereby indemnify Twynam from and against all damages, losses, costs and expenses incurred by Twynam as a result of the failure by the contractor for any reason to comply with any of its obligations under this agreement." 167Twynam submitted that by reference to a breach of clause 12 and/or the indemnity in clause 13, Inland was obliged to fully indemnify it in respect of any damages which it was obliged to pay to the plaintiff. 168Inland submitted that there was no evidence before the Court to establish a written contract containing these terms between Twynam and Inland. It relied upon the fact that two forms of contract were produced in evidence and neither of them had as the contracting parties, the defendants in these proceedings. In one contract the only contracting party identified was Twynam Investments Pty Ltd and in the other contract, the contracting parties were Inland Recruitment and Training Pty Limited and Twynam Investments Pty Ltd. It submitted that Twynam had not produced a copy of the contract upon which it relied nor was it able to point to any novation agreement which might make the defendants in these proceedings, i.e. Twynam and Inland, parties to the contract which it had produced. In those circumstances, Inland submitted that Twynam's claim in contract must fail. 169Twynam sought to meet that submission by relying upon a letter on Inland letterhead from Kerry Noye, who was identified in the letter as "Managing Director". That letter purported to provide a copy of the contract between Inland and Twynam. In fact the document annexed to that letter did no more than identify Twynam Investments Pty Limited as one of the contracting parties. Twynam submitted that this was not decisive since it was clear from the terms of the letter that Ms Noye was asserting that this was the form of contract between Twynam and Inland. Twynam submitted that it and Inland had conducted themselves as if this were the contract between them. In that regard, Twynam relied upon Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424. 170The problem with that submission is that the covering letter from Kerry Noye does not establish that the document annexed to it was the contract. It does no more than indicate the belief of the author. The author was not called by Twynam to explain the basis of that belief. No oral evidence was called by Twynam to the effect that despite the name of the party on the contract, this in fact was the document used to regulate relations between Twynam and Inland. It follows that there was no evidence before the Court that Twynam and Inland regarded this document as the contract which regulated their business relationship in November 2006. 171For Twynam to establish its claim in contract, it had to explain the anomaly in the document attached to the letter of Kerry Noye, i.e. that one of the contracting parties was identified as Twynam Investments Pty Limited. In the absence of any such explanation, the Court could not be satisfied that this was the contract between Twynam and Inland. This is particularly so when there was another document in existence in similar terms to that annexed to the letter which identified the contracting parties as Twynam Investments Pty Limited and Inland Recruitment and Training Pty Limited. The origin of that second document also remained unexplained. 172On that state of the evidence, Twynam's claim in contract cannot succeed and there must be a verdict entered for Inland. 173If I am wrong in that conclusion, the clauses sought to be relied upon by Twynam were not effective to pass on its liability to Inland. 174In view of my findings as to how the accident occurred, there was no breach of clause 12 as asserted by Twynam which was causally connected to the accident. 175In relation to the indemnity clause, Andar Transport made it clear that indemnity clauses of this kind are to be construed strictly and are to be read contra proferentem. Twynam had prepared the contract. In the case of ambiguity, the indemnity clause is to be construed in favour of the party on whom it was sought to impose the obligation ( Andar at [23]). 176Construed in that way, the indemnity in the contract is ineffective on the facts of this case, to pass on Twynam's liability to Inland. The contractor agrees to indemnify Twynam against losses incurred by it as a result of a failure by the contractor to comply with any of its obligations under the agreement. In this case, the loss suffered by Twynam occurred as a result of its own conduct not that of the contractor and not by reference to any breach by the contractor of its obligations under the agreement ( Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114). 177Accordingly, even if Twynam had succeeded in proving that the document attached to the letter from Kerry Noye did regulate the contractual relations between it and Inland as of November 2006, that contract was not effective to pass to Inland Twynam's liability for the plaintiff's damages. DAMAGES TWYNAM 178There was some measure of agreement between the parties as to damages and where this occurred, I have indicated the nature of the agreement. The plaintiff's damages against Twynam are to be calculated in accordance with the CLA. Non-economic loss 179The plaintiff was born in June 1971. He is now aged 40. He was 35 when he was injured. The medical evidence is all one way. The plaintiff is going to suffer pain in his neck and right arm for the rest of his life. He has a life expectancy of approximately 48 years. 180Not only will the plaintiff experience pain, he will be limited in what he can do. If he is able to obtain work (which is unlikely) that work will, at best be of an intermittent kind and will be restricted to light duties. In reality he faces a future of living on social services when he becomes entitled to them. 181The plaintiff is also restricted as to what he can do around the house. Tasks which an able-bodied person of his age would be able to do quickly, efficiently and painlessly, he will have to perform slowly, carefully and with the likelihood of pain occurring. 182That having been said, with some qualifications the plaintiff does appear to be able to look after himself provided he is careful and provided he performs actions slowly. The plaintiff is able to drive and has friends whom he visits. 183The plaintiff's affect when he was giving his evidence was flat and he did appear to be depressed and emotionally upset. Since his partner of 3 years had left him shortly before the trial commenced, this was not surprising. While I could well understand how the plaintiff could be depressed as a result of his injuries and the change in his lifestyle, there was no psychiatric or other evidence before me which would enable me to accurately assess the plaintiff's emotional state. 184In December 2009 Dr Hopcroft summarised the plaintiff's capacity as follows: "The patient remains totally unfit to contemplate a return to work as he is right handed dominant and is rapidly losing the function of his right arm around his right peri-scapular musculature. I believe he is very likely to face radiological studies should the nerve conduction study not confirm the nerve to the serratus anterior as having been compromised and the patient will require review by his treating neurosurgeon to see what further intervention may offer him any improvement in his overall neck and right upper limb function." 185In June 2010 Dr Harvey said: "Mr Williams did make one attempt to return to his pre-accident work, but he said the pain did recur after he had been working there a short time. I think that perhaps some time in the future he may find he could get back to this type of work which does not appear to be particularly heavy. The main problem appears to be driving over rough ground which jars the neck. Certainly, I think that he would be fit for lighter work as described above. Mr Williams describes how he has returned to all his pre-accident domestic activities, but he does state that he has difficulty with the heavier tasks, such as mowing the lawn and cutting wood which appear to be very reasonable under the circumstances." 186Dr Fearnside in June 2010 said: "Mr Williams' condition has stabilised and he has reached maximum medical improvement. He is unlikely to experience much in the way of improvement in his symptoms now, noting the time which has elapsed since the original injury is 3 years and 7 months. Symptoms are likely to persist at much the same level in the foreseeable future." 187Doing the best I can on the somewhat limited material available, I would assess the plaintiff's entitlement to damages for non-economic loss as 45 percent of a most extreme case, i.e. $225,000. Out-of-pocket expenses 188Past out-of-pocket expenses were agreed between the parties at $66,750. All of this amount had been paid by Inland under the WCA. 189In relation to future out-of-pocket expenses, the evidence was sparse in the extreme. Dr Hopcroft surmised that the plaintiff's condition might deteriorate and that further tests and treatment might be required. Drs Fearnside and Harvey considered that the plaintiff's condition was relatively stable. I am not satisfied on the state of the medical evidence that the plaintiff's condition is likely to deteriorate but there may be periods when exacerbations occur and these should be allowed for. 190Dr Hopcroft made three appointments for the plaintiff to be seen by a neurosurgeon but the plaintiff did not attend those appointments. On his evidence, he is seeing Dr Schmidt every three months, but otherwise is not receiving any medical treatment. He has undergone only one period of physiotherapy and that was very much in the past. The plaintiff seems to be somewhat resistant to seeking medical treatment but this might change as he gets older. 191The plaintiff appears to be a stoic character and I do not think that he will seek very much in the way of medical treatment in the future. Doing the best I can and keeping in mind that he does have a life expectancy of 48 years during which there may be some exacerbations, I would allow $30,000 for future out-of-pocket expenses. Domestic assistance 192I accept the plaintiff's evidence that following the accident and for at least three months following the operation, he was unable to do very much for himself and required considerable assistance from his partner. I would assess the plaintiff as entitled to the maximum rate of care under s15 CLA, i.e. 20 weeks at $901 per week - $18,020 for that period. 193Thereafter the evidence as to assistance provided to the plaintiff is sparse. We know that in about mid 2007 the plaintiff's partner left him and for a period of about 8 months his mother came to live with him and provided assistance for him. We also know that the plaintiff was performing light work for Inland for unknown periods during the latter half of 2007 and during the first half of 2008. 194The plaintiff appears to have commenced a new relationship in 2008 which lasted until the beginning of August this year. It is clear from the plaintiff's evidence that he did not think much of the housekeeping capacity of this partner. No detail was given as to what services she performed for him, except for a general assertion that he required assistance. 195I do accept, however, that tasks such as vacuuming, scrubbing a floor, placing clothes on a line or any other task, which required him to work at shoulder height or above, were beyond him. Quite clearly his mother would not have come to live with him unless she believed he required assistance. 196The medical opinion on this issue is conflicting. While Dr Hopcroft did not specifically refer to the need for assistance, his opinion as to the plaintiff's capacity for work is consistent with the plaintiff requiring some assistance with domestic chores. Dr Harvey accepted that the plaintiff would have difficulty with heavier tasks such as mowing the lawn and cutting wood, but otherwise understood that the plaintiff had returned to all his pre-accident domestic activities. Dr Fearnside said: "Mr Williams described the restrictions on his capacity to perform domestic and household tasks. On balance, I do not think that Mr Williams requires any domestic assistance nor does he require any assistance with person care." 197That expression of opinion by Dr Fearnside referred to the description given to him by the plaintiff in June 2010 as to his capacity as follows: "With regard to activities of daily living, he was independent in self-care. At home he could assist with the domestic chores but was unable to hang washing on the line or mow the lawn. He had a car and could drive for short periods. Sitting could aggravate the pain, but standing was not a cause of increased pain. Walking helped the symptoms. He slept reasonably well. He had a limited ability to socialise now, because he had been out of work for some years and in some financial stress. He was able to go shopping but for small purchases." 198I am satisfied that up to the middle of 2008, which is about the time when his mother ceased to provide care for him, he received at least 6 hours of domestic assistance per week, i.e. 60 weeks at $22.70 per hour - $8,172. 199Thereafter I am not satisfied that the plaintiff regularly received domestic assistance from his partner of 6 hours or more per week. He may well have received this level of assistance on occasions, but I do not accept that this assistance would have been for 6 hours or more on a regular basis. There may have been some weeks when he received that level of assistance but others when he did not. Doing the best I can and having regard to the provisions of the Act, I find that the plaintiff would only have received domestic assistance at the level of 6 hours or more for half of the period between mid 2008 and the beginning of August 2011. That equates to 82 weeks at $24 per hour - $11,808. 200I award in favour of the plaintiff the amount of $38,000 for past domestic services. 201In relation to the future, the plaintiff clearly has a need for some domestic assistance. If he has money available, that need is likely to be met by paid assistance. The sort of help which I envisage is someone to do the heavy domestic work which the plaintiff is unable to do, such as is associated with him living in a three bedroom house on his own. This would involve floor scrubbing and generally heavy domestic cleaning. I believe that need could be met by the attendance of a paid cleaner every two weeks for 6 hours. I see that need existing for the rest of the plaintiff's life. $40 per hour as the rate for a professional cleaner was agreed by the parties. Accordingly, I award $115,992 to the plaintiff for future paid domestic assistance. Economic loss and loss of earning capacity 202There was no issue between the parties that the plaintiff's injuries were such that he would not again be able to engage in heavy work. It was accepted that he could not return to full duties with Inland or work of a similar kind. From the time when he ceased work with Inland, until the date of trial he received assistance from two rehabilitation organisations that had been retained by the workers compensation insurer. He did not receive any retraining from these organisations but was provided with some counselling. Those rehabilitation organisations did not, however, obtain any employment for him. 203I accept that the plaintiff was able to perform some light work from about the middle of 2007, as evidenced by the light duties which he performed for Inland and the work with the NSW Grain Co for about six weeks in October - November 2009. That capacity to work, however, was very limited. The limitations imposed by the defendants' doctors make that clear (see [100] - [101] hereof). Dr Hopcroft said that he was "fit for lighter work which did not involve much movement of the head and neck and which didn't involve heavy lifting with the right arm especially above chest level". It is difficult to envisage any kind of work which did not involve much movement of the head and neck. 204Dr Fearnside said that he might be "fit for lighter work such as operating a machine if he were able to get up and move about as necessary and if he were not required to lift any weights greater than 7 kg." Again, it is difficult to envisage jobs which would accommodate those kinds of limitations. 205On the basis of the plaintiff's evidence, which I accept, and on the basis of the medical evidence, I find that the work which the plaintiff did between the date of the accident and the date of trial represented the only work reasonably available to him during that period. 206The difficulty with assessing the plaintiff's damages for past economic loss is that the Court was not provided with any taxation returns or any record of the plaintiff's earnings, except for the eight weeks that he was working for Inland before he was injured. There was no evidence before the Court of what the plaintiff had earned, either as a general labourer or as a shearer, nor was there any evidence as to what a shearer or general labourer in rural areas was capable of earning. 207During the eight weeks that he worked for Inland, the plaintiff's earnings averaged $490 net per week. Even that figure is somewhat misleading since his hours of work varied significantly from week to week. During his eight weeks with Inland the hours worked per week were 33, 38.5, 67, 22, 17, 16, 34 and 81. His net earnings per week therefore varied from $197.20 to $1,020. 208While it was generally agreed that the work at Collymongle was seasonal, the length of the season was never established. Initially (T.109.21) Mr Goldsmith said that the period during which irrigation for the cotton crop was required lasted about 26 weeks, i.e. October - February/March). Later he agreed that irrigation would also take place between March and October in relation to the wheat crop (T.123.40). Accordingly, had the plaintiff continued to work for Inland at Collymongle, he may have worked 10 - 12 months a year. 209Given the enormous variation in the plaintiff's earnings from week to week during the eight weeks that he worked for Inland, it may be unfair to the plaintiff to take as his average earnings an amount of $490 net per week. It could have been higher. On the other hand, if the plaintiff had remained a casual he may have had to supplement his earnings from Inland by working as a shearer or rural labourer as he had in the past. Although the Court was invited to use as a measure of the plaintiff's potential earnings, average weekly earnings of employees in New South Wales (which at the time of the accident were $1053 gross per week), the difference between those earnings and that which the plaintiff was earning is so great as to largely invalidate such a comparison. 210Doing the best I can on the limited material available, I am prepared to accept the submission of Inland that $490 net per week represents a reasonable assessment of the plaintiff's past economic loss, had he not been injured. There may be an element of over compensation in that figure if one takes into account that the plaintiff may not have worked for a full 12 months, and may not have worked continuously for Inland. On the other hand, there may be an element of under compensation if the work for Inland had included more weeks of 67 hours and 81 hours than the small 8 week sample available to the Court indicates. 211In making that calculation, I have deducted six weeks at $490 net per week to have regard to the six weeks that he worked for the NSW Grain Co in October/November 2009. I have ignored the light duties which the plaintiff performed between mid 2007 and June 2008. No material was provided by Inland which set out how many weeks the plaintiff worked and what remuneration he received. There were some time sheets produced by Twynam (exhibit 1D(15)) but these were not complete and made no reference to remuneration. It may be that all, or a substantial part, of the remuneration which he received during that period was subsidised or supplemented by payments by the workers compensation insurer. 212On the approach which I propose to adopt the plaintiff is entitled to past economic loss calculated for 241 weeks at $490 net per week, i.e $118,090. 213Future loss of earning capacity is even more difficult to calculate than past economic loss. What is clear from the medical evidence is that the plaintiff has been substantially disabled and that that disability has caused economic loss. The Court has to do the best that it can to provide compensation which is adequate to the plaintiff and fair to the defendants, based on the limited evidence available - State of New South Wales v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 at [65] and [87]. Heydon JA with whom Mason P and Handley JA agreed on this point said: "87 In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. ..." 214Section 13 CLA governs the assessment of future loss of earning capacity against Twynam. It provides: "13 (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 215Relevant to that calculation and also to the assessment of damages for future economic loss against Inland is the statement of principle in Husher v Husher & Anor (1999) HCA 47, (1999) 197 CLR 138 at [6] - [7] where the plurality said: "6 Before dealing with Seymour v Gough and some of the decisions in Queensland that preceded it, it is as well to recall some matters that are well settled. A person who is physically injured by the negligence of another may suffer damage in a number of ways. As has long been established, the damages to be awarded to the victim are "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation". If the victim's pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment. 7 Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss". Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained." 216The meaning of s126 Motor Accidents Compensation Act 1999 (MAC Act), which is in identical terms to s13 CLA, was considered in Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145, (2004) 41 MVR 235; Penrith City Council v Parks [2004] NSWCA 201, Nominal Defendant v Lane [2004] NSWCA 405. Section 13 CLA was considered in Burton v Brooks [2011] NSWCA 175. The effect of those decisions is as follows: (1) The Court must assess the "most likely" of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration); (2) Assess the plaintiff's economic prospects as a consequence of the accident; (3) Compensate the claimant for the difference between (1) and (2) including, where appropriate, through the use of a buffer; (4) Adjust (3) by an appropriate percentage for vicissitudes, to reflect the possibility that the plaintiff may not have achieved one even had the accident not occurred; (5) Include a statement of the assumptions made as the plaintiff's most likely future circumstances for the appropriate percentage adjustment. 217In this case, I am satisfied that had the plaintiff not been injured, he would have continued to reside in his subsidised accommodation and would have worked in rural occupations, as he had done in the past. Had he been successful in being made a permanent employee of Inland, he would have continued employment with that company. There is, however, nothing to indicate what the plaintiff's prospects were of becoming a permanent employee. 218The difficulty for the Court, however, is to determine what the plaintiff would have earned had he not been injured. The only evidence before the Court is that for the eight weeks that he was employed by Inland in October/November 2006, his average earnings were $490 net per week. Those average earnings were significantly below average weekly earnings for male employees in New South Wales at the time, i.e. $790 net per week. That comparison indicates that in a general sense the figure of $490 net per week may be a reasonable reflection of what the plaintiff was likely to have earned had he not been injured, given that rural earnings tend to be less than those in the city and that the plaintiff usually did not work for a whole year. It also takes into account that apart from work as a shearer, the work which he normally performed was of a labouring and unskilled kind. 219By reference to average weekly earnings of male employees in New South Wales, it is clear that there has been an increase in earnings of approximately 15 percent between November 2006 and the present time. Accordingly, the figure of $490 net per week should be increased by that percentage to give an indication of what its present equivalent would be, i.e. $564 net per week. 220On the other hand, the figure of $490 net per week may involve a significant under compensation for the plaintiff. That is because it fails to adequately reflect that in two weeks of the eight week period, he worked for 67 hours and 81 hours and earned significantly more in those two weeks than $490 net. As a result of his injuries, the plaintiff has lost the capacity to make those higher earnings on those occasions when long hours of work were available. 221When one takes those factors into account, $564 net per week probably represents a reasonable basis for calculating future economic loss in that it balances out the sporadic and somewhat seasonal nature of rural work on the one hand, and the capacity to earn substantial sums of money when that work was available. 222Twynam and Inland submitted that the plaintiff had a residual earning capacity which should be reflected in any damages for future economic loss. They submitted that the plaintiff had been able to perform some light work for Inland and NSW Grain Co. They referred to the evidence of the plaintiff that he had in the past worked in a cotton gin and could drive a forklift truck. The estimates of his residual working capacity varied between $100 net per week and $240. 223Those submissions do not, in my opinion, reflect the reality of the plaintiff's situation insofar as work is concerned. While Drs Harvey and Fearnside said that he was fit for light duties, the limitations which they imposed were such that the prospects of the plaintiff obtaining work of that kind in a rural area would be so low as to be non-existent. 224In reaching that conclusion, I have had regard to the following matters. The plaintiff has always lived and worked in rural areas. He has free accommodation at the present time. In those circumstances, it would be unreasonable to expect the plaintiff to go to a city in the hope of obtaining work. 225In his evidentiary statement (exhibit D) the plaintiff gave a description of the nearest towns and the distances he would have to travel if he obtained work there. Since the accident, he has applied for work in a cotton gin but after a medical examination, was not given the job. The plaintiff also pointed out that the entities running the cotton gins had their own pool of labour and were not employing "locals" such as him. In any event, the plaintiff does not have a licence to drive a forklift which is now a requirement for that kind of work and was not given any retraining by the two rehabilitation organisations to whom he was referred by the workers compensation insurer. 226I have concluded that although in theory the plaintiff has a capacity to perform light work, the reality is that he is unemployable. This is because he would only be able to seek such work in rural areas and because the restrictions on the sort of work he is able to do are such that light work of that kind is not available. The defendants were not able to identify a specific job which the plaintiff would have been able to perform or an employer who would be prepared to employ him in his injured state. 227Given the nature of the plaintiff's pre-injury employment, which was of a very physical kind, I am not satisfied that he would have been able to work beyond the age of 65. Future economic loss should therefore be calculated on the basis of 24.75 years to retirement, the multiplier for which under the 5 percent tables is 749.8. 228I would normally apply the conventional deduction of 15 percent for vicissitudes to the calculation of the plaintiff's future economic loss. In this case, however, some account needs to be taken of the uneven nature of the plaintiff's employment to which the plaintiff himself referred, e.g. problems with the weather interfering with work and work not often being available for a full 12 months. In those circumstances, I propose to deduct 25 percent for vicissitudes. On that approach the plaintiff's entitlement to future economic loss is $317,165. 229Fox v Wood has been agreed at $10,270. 230Past superannuation is calculated at 11 percent of the past economic loss, ie. $12,990. Similarly, the plaintiff's loss of superannuation for the future is also to be calculated on the basis of 11 percent of future economic loss, i.e. $34,888. 231In summary, the plaintiff's entitlement to damages, in accordance with the CLA, is as follows: Non economic loss $225,000 Past out-of-pocket expenses $ 66,750 Future out-of-pocket expenses $ 30,000 Past economic loss $118,090 Past superannuation loss $ 12,990 Future economic loss $317,165 Future superannuation loss $ 34,888 Fox v Wood $ 10,270 Past domestic assistance $ 38,000 Future domestic assistance $115,992 Total $969,145
INLAND 232If the plaintiff were able to establish liability against it, Inland did not dispute that the plaintiff was entitled, pursuant to s151H WCA to an assessment of damages in accordance with that Act. Section 151G WCA limits those damages to economic loss only. Accordingly, without allowing for apportionment of liability, the plaintiff's total entitlement to damages against Inland is as follows: Past economic loss $118,090 Past superannuation loss $ 12,990 Future economic loss $317,165 Future superannuation loss $ 34,888 Fox v Wood $ 10,270 Total $493,403
233The above calculations do not finalise the question of damages. The damages to which the plaintiff is entitled against Twynam have to be further adjusted in order to have regard to the provisions of s151Z(2) WCA. That section relevantly provides: "151Z(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, the following provisions have effect: (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 tortfeasor or otherwise exceeds the amount of the contribution recoverable." 234Applying the formula mandated by s151Z(2), and without allowing for apportionment of liability, the total damages recoverable by the plaintiff against Twynam are $850,209. Conclusion 235It follows that the plaintiff is entitled to judgment against both Twynam and Inland in accordance with my apportionment of liability. Those judgments will need to have regard to payments of compensation. Inland is entitled to a judgment against Twynam in respect of its payments of compensation to the plaintiff, subject to an adjustment for interest and to take account of its 25 percent responsibility for the plaintiff's injuries. Twynam's cross-claim based on an alleged breach of contract by Inland fails. 236I direct the parties to prepare Short Minutes of Order in accordance with these reasons within 14 days. Such Short Minutes of Order are to be placed before the Court on 30 September 2011 at 9.30am. In default of agreement, each party is to prepare its own Short Minutes of order to be placed before the Court on that date. If the parties identify any errors in calculation in these reasons, those errors are to be brought to the attention of the Court on that date. 237I reserve the question of costs. No submissions have been made on that question. Should the parties wish to make submissions as to costs, directions will be given on Friday, 30 September 2011 for the making of those submissions.
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: 29 September 2011
Williams
Twynam Agricultural Group Pty Ltd & Anor
[2004] HCA 28
(2009) 239 CLR 420
(1999) 197 CLR 138
(1997) 14 NSWCCR 486
(2011) 276 ALR 375
(1996) 40 NSWLR 270
(2004) 41 MVR 235
(2000) 54 NSWLR 536
(1986) 160 CLR 16
(2003) 65 NSWLR 1
(1984) 154 CLR 672
(1994) 179 CLR 520
(1997) 188 CLR 313
(2000) 74 ALJR 1410
(1999) 48 NSWLR 214
(1982) 150 CLR 258
[2011] HCA 11