NSWNSWSC

Wormleaton v Thomas & Coffey Limited

[2015] NSWSC 260

Supreme Court of NSW|2013-12-05|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2013-12-05

Before

Campbell J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

77 HCA 45; 139 CLR 161; Hanlon v Hanlon Enterprises [2004] NSWSC 930; Kondis v State Transport Authority (1984) 154 CLR 672; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; Liverpool City Council v Laskar [2010] NSWCA 52; Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Morvatjou v Moradkhani [2013] NSWCA 157; Najdovski v Crnojlovic [2008] NSWCA 175; Nicholson v Nicholson (1994) 35 NSWLR 308; O'Brien v McKean (1968) 118 CLR 540 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1; Speed v Thomas Swift & Co (1943) KB 557; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 60 CLR 16 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161. TNT Australia Pty Ltd v Christie [2003] NSWCA 49; Todorovic v Waller (1981) 150 CLR 402; Tran v Younis [2006] NSWCA 188; Shoalhaven City Council v Humphries [2013] NSWCA 390; Ware v Integral Energy [2003] NSWSC 35; Winter v Cardiff Rural District Council [1950] 1 All ER 819 Texts Cited: Glass, McHugh and Douglas, The Liability of Employers (2nd ed 1979, The Law Book Company Ltd) Category: Principal judgment Parties: David Wormleaton (Plaintiff) Thomas & Coffey Limited (First Defendant) Transfield Services Engineering Group Pty Ltd (Second Defendant) Workers Compensation Nominal Insurer (Fourth Defendant) Representation: Counsel: M Cranitch SC with M Perry (Plaintiff) G.J. Parker SC (First and Second Defendants) L Morgan (Fourth Defendant)

[2]

[5]

Undisputed facts

Part of BlueScope's Port Kembla steelworks is known as the Commonwealth Rolling Mills site. In March 2009, BlueScope was carrying out an upgrade of its ore preparation facilities. Transfield was the major contractor for the work. As part of the project BlueScope was trialling a new sinter cooler plant which had been manufactured in Korea. Sinter is used to line the refractory surface of blast furnaces to protect the surface from unnecessary damage during the production of iron. Sinter is produced by combining iron ore, limestone and coke. The mixture is baked in the furnace and then cooled on the sinter cooler which is fitted with "a circular conveyor type cooling bed" (Exhibit K ).
Part of the upgrade project required the sinter cooler to be dismantled from the test area and moved to its permanent location. As the tendered photographs (Exhibits G, J and L) testify, this relocation was a massive operation.
Transfield subcontracted the work of dismantling and relocating the sinter cooler to T&C. The massive componentry of the sinter cooler needed to be lifted by crane. Transfield subcontracted the crane work to a company related to Allstate. Allstate provided the labour for this part of the work being a supervisor, crane operator and two dogmen. Mr Wormleaton was one of the dogman. The full contracts were not in evidence but purchase orders were tendered by Transfield and T&C (Exhibits 1D1 and 19). It is common ground between the parties that nothing turns upon the precise and detailed contractual terms; the case falls to be resolved by application of the law of negligence as modified by statute.
For the purpose of trialling it, the sinter cooler had been constructed over a large culvert excavated in an area of the Commonwealth Rolling Mill having the somewhat picturesque nickname of "Siberia". The excavation was, more or less, wedge-shaped, 6.8m across one end and 12.4m across the other (Exhibit G [9]). The eastern and western ends sloped to the culvert floor which was 1.6m below ground level. The northern and southern ends were vertical, each being supported by a 2.4m high block retaining wall, protruding above the vertical face of the excavation. The circular cooling bed, which was approximately 44m in diameter, had been fitted over the culvert prior to its removal at some earlier point in time not specified by the evidence.
The substructure of the sinter cooler was erected on the culvert floor. Aspects of it are depicted in the many photographs taken after the event (Exhibits G, J and L). The substructure consisted of four large steel frames. Two, located near the northern and southern ends, were bolted to concrete footings, running north-south along the culvert floor (see Exhibit J - p 198). The eastern and western frames provided side bracing to the northern and southern frames. The top beams of the eastern and western frames were bolted to the top beams of the northern and southern frames. The bolt holes can clearly be seen on the third photograph in Exhibit J (p 197). The northern and southern frames were overhung by a large, horizontal steel structure cantilevered over the block retaining wall, also providing support for the super-structure of the sinter cooler.
The vertical steel frames were rectangular in construction, the beams on the longer sides being arranged in the horizontal plane. In addition to two shorter vertical beams, each frame had two cross-members organised in an inverted "v" shape. This is illustrated in the photographs and in diagrams forming part of Exhibit J. The frames were 8.1m long and 2.5m high, each weighing about 1.7 tonnes.
The northern and southern frames ran parallel to the retaining wall, about 700 mm away from it. The area between the frame and the wall (which was overhung by the cantilevered structure) was referred to in the evidence as the tunnel. Access to each tunnel could be gained by a wooden stairway. In its "as constructed" condition, the substructure also consisted of four panels weighing around 6 tonnes. These had been removed before the events leading directly to Mr Wormleaton's injury.
From the photographs, each of the steel beams forming the frames have the appearance of "U" or "I" shaped steel joists consisting of 2 flanges in horizontal planes welded to a single vertical steel member.
A diagram, referred to as attachment 2 in Exhibit J, illustrates how each of the northern and southern frames was bolted to the footings. Each frame was secured by a threaded bar passing through a levelling nut below the lower flange of the bottom beam of the frame, through the flange itself, continuing through a packing plate on the top side of that flange and finally held in place by a securing nut. The threaded bar is referred to as a "hold-down bolt" (Exhibit G [17]). The photographs, and other evidence, demonstrate that there were four hold-down bolts, two at each end of each frame (see for example photos 26 and 27 Exhibit L). It also appears that for a person standing on the culvert floor rather than in the tunnel, the hold-down bolts and their fixing arrangements would have been hidden from view by the vertical part of the bottom beam. There is an issue about whether the northern and southern frames were also secured by a webbed strap slung around the top horizontal beam and attached to the cantilevered structure by means of a block and tackle (see Exhibit J p 207; Exhibit L p 262). I will deal with this issue when dealing with the question of contributory negligence.
The removal of the northern and southern frames was trickier than other lifts carried out on 30th March 2009 as it was not possible to straight-lift them because of the overhanging, cantilevered structure. It was necessary that each frame be tipped, or swung, forward, away from the wall, and clear of the cantilever before it could be lifted away. I understood the witnesses to refer to this technique as "snigging". The safe means of carrying out this lift was not in issue before me. It involved a number of steps: first, a chain sling rigged to the crane-hook is slung over each protruding end of the top horizontal beam of the frame; secondly, the fitters employed by T&C then would loosen or remove the securing nuts on the hold down bolts when the frame was rigged with its weight taken up by the crane; thirdly, the crane would swing the top beam out from under the cantilever; fourthly, the hold down bolts would be cut out by a boilermaker, also employed by T&C, using oxy-acetylene equipment; and, finally, the frame, now clear of the overhang, and cut from its mooring, would to be lifted away. As I will recount this procedure was not followed.

[6]

The events of 30th March 2009

It is necessary to say something about the contractual arrangements so far as they were established in evidence. Exhibit 1D19 is a purchase order issued by Transfield to T&C dated 24th February 2009. The work to be done by T&C is described as follows: Provision of Labour, Materials and Equipment necessary for disassembly of the New Cooler generally as detailed [in other contractual documents not in evidence]. Work is to be done under the direction of Transfield's Mr Mark Sheldon.
Exhibit 1D1 consists of Allstate Crane's worksheet, which includes a safe work method statement. This is the company related to Allstate referred to at [9] above. It states that the scope of works is "lifting steel frame"; the client is named as "Transfield"; the project name is "BHP, BlueScope"; and the location of work is" Port Kembla". The crane crew consists of an operator and two dogmen/riggers. The site supervisor is named as Wayne Fuller.
T&C workers commenced work at 7 am with a toolbox meeting. The Allstate crew, who mostly travelled from Sydney, did not arrive on the site until 9:30 am and participated in their own toolbox meeting conducted by Transfield. It covered general site activities and hazards (Exhibit K [22] - [23]). A T&C supervisor inducted the Allstate crew into the specific site, "Siberia", at which the work would be undertaken. They were shown T&C's Job Safety and Environmental Assessment for the work (JSEA). As will be seen, it did not set out the procedure described at [16] above.
The dismantling work was carried out under the supervision of Peter Richardt, a supervisor employed by T&C (Exhibit K [24] - [29]). A number of crane-lifts of components of the sinter cooler sub-structure had been completed without incident by about 1 pm. About then, Scott Rodgers, a leading hand employed by T&C, discussed the removal of the southern and northern frames with Alan Neves, a rigger employed by T&C, Steve Ashton, a boilermaker also employed by T&C, and Mr Wormleaton (Exhibit K [31]). He gave instructions in accordance with the steps I have discussed above at [16]. These included the requirement for the T&C fitters, Joe Zappia and Frank Kerr, to loosen or remove the securing nuts on the hold-down bolts only after the frame had been securely rigged to the crane. I infer from Exhibit K [31] - [41] that Mr Zappia and Mr Kerr were not a party to these discussions. As I have said, T&C's JSEA, which the fitters would have been shown as part of their own induction, did not mention this essential requirement. After this "discussion", the Allstate crew took a smoko.
Mr Alan Neves gave evidence, which I accept, about the method used for removing the frames by crane in the following terms: (102.45 - 103.5T) Q. …the ones that you had successfully removed, what was the system that you had signed up to? A. The system there was you would sling it up until you have got tension on the crane. And then either one that's got a bit of gas in the bottle, which is the oxy, you remove the bolts and it comes out in a solid form. So you would sling it up until you got tension on the crane and then you would go on and start removing the bolts or whatever is needed. Q. Either undo the nuts that were holding the frame in place? A. Yes. Q. Or cut them with an oxy torch? A. Yes. He described the removal of the eastern and western bracing frames in the following terms (104.5T): …The idea of east and west has to be taken out first, because they pretty much just get lifted up. But the north and south, the idea is, because it is behind underneath like a roof, you have to sort of bring them in, then out like that; you can't lift them straight up.
The structural connection in the case of the eastern and western frames, as I have said, was by bolting them to the northern and southern frames in a box configuration. That connection was broken by using a drift to lever them apart. However, the system was the same; the top beam of the frame was rigged, with the crane taking the weight of the frame before the bolts were removed with the drift. The frame was then lifted away by crane and placed in the "drop zone" or "lay down" area. Mr Neves expected the same procedure, as discussed, to be followed for the southern frame, which was the next frame due to be lifted out of the culvert. The eastern frame, and then the western frame, had been dismantled this way (108.50T).
I infer that while the eastern and western frames were being removed in turn, and the attention of the Allstate crew and Mr Neves was fully engaged in that process, the T&C fitters, Mr Zappia and Mr Kerr, entered the tunnel behind the southern frame and loosened and removed the hold down nuts securing the frame to the footing: (Exhibit K [35]; 118.15 -.20T). In fact, the securing nuts on the northern frame were also loosened or removed during this period (Exhibit 1D21, p 338; Exhibit K [41]).
Mr Neves said at (108.50 - 109.20T): A. When we took out the west side which is the right angle to the one that fell down, by the time we walked picked it up off the crane and brought it over here on the pad we had to lay down everything where you put all your material down, and in our own words they have actually taken the two inside bolts out. Q. Who were they? A. Frank Kerr and Joe Zappia. Q. They were in the pit? A. Yes. Q. For that purpose? A. Yes. Q. But if the work method had been followed, it would have been after it had been tensioned? A. That's right. Q. When you had taken the nuts off? A. Yes. Q. And those nuts weren't visible to someone approaching the frame from the direction in which you and Mr Neves (as said) were approaching; is that right? A. That's right, yes.
I did not understand this evidence as meaning that Mr Neves was an eyewitness to the removal of the bolts, quite the contrary. He only worked out what had happened later (111.10-40T).
Mr Neves described "jumping" onto the frame to sling the chain "and the whole thing just started coming over with my weight" [109.25T].
Mr Wormleaton gave evidence of the discussion about the system of work with T&C's foreman (I take this to be Mr Rodgers). He also said that the frame should be unbolted after the frames had been rigged (22.40T).
Describing the system of work for removing the frames from under the cantilever, he said at (23.15T): I would sling the crane, take the weight, and then they would release the nuts so that we could then hold it, and they would cut the bars off from the bottom, and then I would have snagged it out and lifted it up, because it was under a lip. I understood the references to taking the weight, holding and lifting in that passage to be references to crane operations.
Mr Wormleaton described the injury as having occurred immediately after the smoko (24.5T). I think he is mistaken about this and I prefer the evidence of Mr Neves that the eastern and western beams were removed just before the accident. Smoko must have been earlier.
In his diary account written on the same day, Dean Graham, the other Allstates dogman gave the following description (Exhibit 1D 21) Upon myself and (Mr Wormleaton) consulting the [T&C] team we were working with as to the most safe and efficient method of removing the supporting beams, we proceeded. My understanding of what was to happen was that upon the removal of the supporting beam, the remaining frames were to have their anchor and bolts and plates (located on the bottom beam secured to the concrete footing) loosened so the weight of the frame could be taken up by the crane before having the nuts totally removed or blown off by oxy-acetylene if nuts could not be removed safely. At some stage between lifting/moving the supporting beams and returning to the work area it was apparent that these nuts and plates had been removed. Dave and myself were within 1 metre of the frame discussing where and how to attach chains to the frame as clearance of this lift was an issue. The support beams are the eastern and western frames. There are some differences of detail in Mr Graham's account when compared with Exhibit K, and the evidence of the plaintiff and Mr Neves, but it is substantially to the same effect. I do not understand his statement "it was apparent that these … had been removed" as being evidence that he had then seen that they had been removed. Rather this is an interpolation in his narrative written later the same day where he draws an inference that this is what must have been the case. These workmen would never have approached the frame, in my judgment, had they known that it was unsecured.

[7]

The Accident

Mr Wormleaton described what happened to him (24.10T): Once I stepped up on to the beam and the other dogmen stepped on the other end the beam automatically started falling towards us, and I was standing up about over a foot high on the beam, and I yelled to the other dogmen to get out of there, and as I've stepped back off the beam myself I trod on a rock, a big rock, which then threw me on to my back, and I was laying underneath it, so I managed to kick myself out with one leg, screwing myself up into a ball, hoping that I could kick myself out far enough, which I didn't, because the beam come [sic] down and got me leg. As I have already said, Mr Neves gave evidence that he was rigging the other end of the frame "when the whole thing just started coming over with my weight" (109.25T). In his account, (Exhibit 1D21) Mr Graham suggested that he was approaching the frame to rig it with Mr Wormleaton. Other accounts have Mr Graham up at ground level to guide the frame to the drop zone. His position is not recorded on attachment 3 to Exhibit J. However, whether or not he was intending to rig the other end from Mr Wormleaton, I find that he was on the culvert floor. In his contemporaneous account he said he walked towards the frame, about a metre behind Mr Wormleaton. He said: (Exhibit 1D21 page 337) At that point I stopped as I noticed the frame starting to lean and yelled as loud as I could for everyone to get clear; Trying to get clear, I lost my footing on the large gravel, as did Dave; Dave fell unfortunately in the falling zone of the frame and was struck and pinned by the legs as a result causing severe crushing and almost severing his leg as a result. Mr Graham phoned for help and assisted in the removal of the frame from Mr Wormleaton.
The photographs (especially Exhibit L pages 250 to 258) illustrate that the frame was lifted off Mr Wormleaton by the crane. A sling was rigged around the beam which formed the western member of the inverted "v". Once it was lifted, a 50 mm galvanised steel pipe was utilised as a prop to assist in holding up the western end of the frame. Furthermore, from the photographs, I would infer that a web strap attached to a block was rigged around the western extremity of the top beam of the frame and secured to the cantilever above (Exhibit L, p 253, 254 and 255).
Wayne Cobbin attended the site of the accident later the same afternoon at about 3 35pm (Exhibit H p 167). In his factual inspection report signed on 28th April 2009 (Exhibit G [12]), he described the position of the frame in the following terms: This southern frame was laying over toward the north at an angle of approx. 10 degrees (eastern end) to 30 degrees (western end), with the bottom (eastern) end of the frame on the ground and the top (western end of the frame) was being held approximately 1.7 metres off the ground by a flat webbed sling attached to a chain puller (turfer); the chain of the chain puller was then attached to a steel structure behind the block wall. He also referred to the galvanised steel prop (Exhibit J [13]). He referred to the crane (Exhibit J [19]) and described its boom as positioned over the southern frame "and a chain set attached to the frame but not under load at the time of our observation" (Exhibit J [19]). Be that as it may, the frame was obviously lifted by the crane and later secured by the "turfer" and prop.
First aid was rendered to Mr Wormleaton on site. He was later taken to Wollongong Hospital by ambulance where he underwent the initial surgery in an attempt to save his right leg. He was transferred to St George Hospital on 3rd April 2009 where his right leg underwent below the knee amputation. I will expand on these matters when dealing with quantum.

[8]

The liability of Transfield and T&C

That Transfield and T&C have admitted breach of duty of care does not preclude a consideration of the basis of their liability. A consideration of that question is necessary if questions of apportionment and contribution are to be decided.
Moreover, as I have said Transfield and T&C had common legal representation. I infer this was appropriate and permissible because of the contractual arrangements between them, the precise terms of which, it is unnecessary for me to know. By written submissions provided by senior counsel, Transfield and T&C "accept" (MFI 10 [8]) that the fitters loosening the securing nuts "involved breach of the duty of care". With great respect to Senior Counsel to characterise the liability of Transfield and T&C as confined to that which may arise out of the casual negligence of Mr Zappia (and Mr Kerr) is to take a far-too-narrow view of the basis of their legal responsibility. For reasons which I will explain, it may also be somewhat unfair to Mr Zappia and Mr Kerr, who did not give evidence before me.
Whatever the contractual arrangements between Transfield and T&C, the basis of their liability to Mr Wormleaton has to be determined according to the law of negligence. There are two of them, and each of them separately and independently from the other (quite apart from any vicarious liability for the negligence of their employees) owed a duty to Mr Wormleaton to exercise reasonable care to prevent or reduce unnecessary risks of personal injury arising within the proper scope of the obligations undertaken by them respectively.
As the principle contractor, Transfield owed Mr Wormleaton the duty of care described in the decisions of the High Court in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16, and Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1. That category of duty is taken to be defined by the-oft cited statement of principle of Brennan J (as his Honour then was) in Stevens at [47] - [48]. Before setting the passage out, it is worth pointing out that in Leighton Contractors a unanimous Court expressed the duty of a principal contractor, where it arises, as "a duty to use reasonable care to ensure that the system of work for one or more independent contractors is safe" (Leighton Contractors at 11 [20]). In Stevens Brennan J said: An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by himto carry out that activity. The entrepreneur's duty arises simply because he is creating the risk… and hisduty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It doesnot import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility. (Footnotes and citations omitted) I bear in mind that the duty, where it arises, is to use reasonable care to avoid unnecessary risks of injury, it is not an absolute one to avoid any risk of injury.
This case, it seems to me, falls into the category where it is necessary for Transfield to retain and exercise a supervisory power over the shared responsibility of T&C and Allstate. I accept that liability for Mr Wormleaton's injury does not accrue to Transfield merely because of negligence in the area of shared responsibility between T&C and Allstate. It is notable that in the purchase order delivered by Transfield to T&C (Exhibit 1D 19), Transfield said the work of disassembling the sinter cooler would be done "under the direction of Transfield's Mr Mark Sheldon". Moreover, at the commencement of work on 30th March 2009, the tool box meeting attended by the Allstate crew was conducted by Mr Lance Wise of Transfield. Mr Mark Sheldon was one of the persons Inspector Cobbin met with soon after attending the site (Exhibit H [7]). In my judgment, the circumstances of the case including the complexity of the job and the need to co-ordinate the activities of T&C and Allstate made it necessary for Transfield to retain and exercise a supervisory power over the operations. It is clear from the evidence I have recounted that it purported. This is not a case where having organised the activity, Transfield was content to leave "its operation in the hands of independent contractors".
Moreover, the language employed by the Court in Leighton Contractors, "to use reasonable care to ensure that the system of work … is safe" bespeaks a personal non-delegable duty which may be taken to arise out of the principal contractors assumption of continuing care, supervision or control for the safety of the system of work: Kondis v State Transport Authority [1984] HCA 61; 1984 154 CLR 672 at 687; Stevens at [32] - [33]; [45] - [46]. In that latter passage, Wilson and Dawson JJ put to one side any analogy with an employer's duty of care and instead stated: We think that such a duty in this case was non-delegable, although for reasons which can be expressed more simply and in a different way [from Kondis]. Any such duty was, in effect, a duty to exercise care in the co-ordination of theactivities of the various contractors. No question arises of the delegation of that function to any separate contractor and it can hardly have been delegated to them all merely by reason of their having been engaged as independent contractors. In that event the duty would have been negatedand have ceased to exist. Put another way, the duty of co-ordinating the activities of the contractors can hardly have been performed by returning that responsibility to them. In our view, it is for this reason, rather than any special element in the relationship between Brodribb and its contractors, that no question arises of the delegation of any duty which it might have owed to them. It is axiomatic that Transfield is not vicariously liable for the casual negligence of the employees of T&C: Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161.
The question of whether Transfield is liable in negligence is to be determined by the application of the principles established by Part 1A Civil Liability Act and in particular, s 5B. The relevant risk of harm in the present case is that men working in close proximity to these large, heavy frames would be injured by one falling in the process of their disassembly. The relevant precaution against this risk to be considered for the purpose of the law of negligence was implementing and adhering to a system that required the frames to be rigged before the securing bolts were loosened or removed. That precaution in practical terms extended to providing the relevant direction to all workers engaged in the process, perhaps especially to the fitters, by way of a written safe work method statement and an oral direction given at the toolbox meeting in relation to the task. Moreover, as sometimes men forget, close supervision of the activities as they occurred, given the need for co-ordination of the work of two independent contractors, was called for. All of these factors are aspects of the supervision and control which was retained by Transfield in the contract: the work was to be done under the direction of Mr Sheldon.
The risk of personal injury was foreseeable, even to the extent to which the materialisation of the risk depended upon the voluntary acts of Mr Zappia and Mr Kerr in loosening or removing the bolts prematurely: Bus v Sydney County Council (1989) 167 CLR 78. The risk was not insignificant in the sense that it was not extremely unlikely to occur; in fact the probability of the risk materialising if care was not taken was relatively high.
A reasonable person in the position of Transfield would have taken the precautions I have described because if care were not taken, there was in fact a relatively high degree of probability that personal injury would occur which could have been serious. The burden of taking precautions to avoid the risk of harm was not unduly burdensome. It involved no more than Transfield undertaking what it had contractually bound itself to do i.e. provide direction in the sense of supervision and control. By checking the safe work method statements prepared by its contractors, it could easily have seen whether or not the critical precaution i.e. not loosening or removing the bolts prematurely had been articulated; by participating in the toolbox meetings, as it did in the case of the Allstate crew at least, it could have articulated to T&C and Allstate personnel the absolutely critical importance of observing that step; and by having a supervisor at the site it could have co-ordinated the activities of the various trades of the various contractors, keeping an eye on who was doing what when. The question of the social utility of dismantling the sinter cooler does not really arise for consideration.
T&C owed a duty of care of the type described by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injury your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. (See also Bus.)
T&C had undertaken to provide all labour, materials and equipment necessary for the disassembly of the sinter cooler. Under the direction of Transfield, T&C were the main sub-contractor undertaking this complex task. One can see the practical application of this hierarchy in the events of 30th March 2009. A Transfield supervisor inducted the Allstates crew; following the Transfield induction they were then inducted by Mr Peter Reichardt of T&C (Exhibit K [24]); they were shown T&C's JSEA; T&C exercised actual control over the operation, at one point Mr Reichardt requested a load be reslung (Exhibit K[29]); and as I have recounted already, Mr Rodgers gave specific directions as to how the work of removing the northern and southern frame was to be undertaken (Exhibit K[31]). T&C were in charge of the work being done. The Allstates crew had a limited obligation i.e. rigging and lifting the components. And rigging was apparently a shared responsibility given Mr Neves involvement.
Turning to the application of s 5B, and bearing in mind that T&C are in charge of the disassembly work, the relevant risk of harm was the risk of personal injury to the workers involved in the removal of the plant's heavy steel componentry. For the northern and southern frames this risk included the risk arising out of the need to unbolt the frames from their footing before they could be removed.
The case in negligence against T&C is that it failed to take reasonable precautions against that risk. The relevant precaution was instituting and maintaining a safe system of work for the removal of the frames in accordance with the five sequential steps I have set out at [16] above. The risk of harm I have identified was a risk of which T&C actually knew as the facts set out at [16] and [20] demonstrate. Manifestly, the risk was also not insignificant. It had a relatively high probability of materialisation if the steps prescribed were not followed. A reasonable person in T&C's position would have implemented and maintained the safe system prescribed. In fact, T&C sought to exercise reasonable care in that way. Strictly, therefore, it is not necessary to consider the matters referred to in s 5B(2) but as I have said, the probability of personal injury if the safe system was not implemented was relatively high; the injury could be very serious indeed given the size and weight of the steel components; the burden of taking precautions was slight; T&C had the means on hand to implement the system and see that it was maintained by all involved in the removal of the frames; and no issue arises about the social utility of the activity of removing the frames.
In reality T&C's negligence consists of failing to maintain the system that Mr Rodgers sought to implement for the removal of the northern and southern frames in his discussions with Mr Neve, Mr Ashton (the boilermaker) and Mr Wormleaton. I have found that Mr Neve and Mr Zappia, the fitters, were not included in that discussion. The natural inference is they were not told of the system, including the necessary sequence of events, and the part they were to play in it. This omission was negligent.
Moreover, T&C were negligent in failing to include a description of the system for removal of the northern and southern frames in its JSEA. Had it been included, Mr Zappia and Mr Kerr would have read it and in all probability complied with it. It is relevant to record that when prosecuted for breaches of the Occupational Health & Safety Act 2000 (NSW) arising out of Mr Wormleaton's accident, T&C admitted the following facts (Exhibit K [49]): Thomas & Coffey had a JSEA in place at the time of the incident which related to the task of the removal of the outer and inner dip panels. The JSEA identified the risk of "crush injury" and identified the control measures to be used as "* cut and bolts after load rigged up". However, the investigation revealed that Scott Rodgers had added this page to the document after the incident following instructions from Peter Reichardt. This is a significant admission betraying a consciousness of a failure to properly instruct and direct T&C workers in the necessary system for the removal of the frames: s 87(1)(b) Evidence Act 1995 (NSW). On the evidence before me, the "dip panels" are the panels referred to at [13] above..
I have found that the negligence of Transfield and T&C consists of personal, systemic failures on their part. Naturally as employer, T&C would be vicariously liable for any negligence on the part of Mr Zappia and Mr Kerr. As I have remarked already, for the reasons I have given, it would be unfair to lay the whole blame on the accident at the feet of Mr Kerr and Mr Zappia. Mr Kerr and Mr Zappia were not given instructions and direction about the particular system devised for the removal of the northern and southern frames. They were not informed of the importance of adhering to the correct sequence of operations. I would infer, as experienced tradesman, had they been given directions about this system, they would have followed them. Any suggestion that (see Exhibit 1D6(a) and (b)) Mr Zappia and Mr Kerr deliberately flouted express instructions is rejected. Although they did not give evidence, it seems highly improbable that two experienced tradesmen would act in that way.
T&C have formally admitted Mr Kerr and Mr Zappia were negligent. It is not for me to go behind that admission, and I will act on the basis of it. The evidence suggests that the structural connections of the various components of the substructure of the sinter cooler may have varied. However, the evidence demonstrates to my satisfaction that more or less the same procedure was followed in each case. That is, the component to be lifted was rigged to the crane prior to its connection with the rest of the structure being broken. This aside, a reasonable fitter in the position of Mr Zappia or Mr Kerr ought to have appreciated that loosening or removing the bolts from the remaining northern and southern frames was fraught with danger because it involved removing the only remaining means by which these massive frames were held in an upright position (subject to the argument about the "turfers" dealt with below, [54] et seq). This being so, it should have been obvious that they were liable to fall, and if that occurred someone was likely to be seriously injured. Objectively, and from the standpoint of a reasonable fitter, that risk was not insignificant and such a reasonable fitter would have taken the precaution of not loosening or removing the bolts until the frame had been rigged to the crane. This precaution involved no difficulty, inconvenience or expense to the workmen involved.

[9]

Expert evidence

Two reports of David Dubos, dated 21st February 2011 and 8th February 2012 respectively obtained by the plaintiff's solicitors were admitted into evidence on the tender of Transfield and T&C (Exhibit 1D6 (a) and (b)). Mr Dubos is a safety engineer and qualified ergonomist (Exhibit 1D6 p 19). His comprehensive reports have not proved of particular assistance for the resolution of the issues in this case. The facts he assumed are broadly the same as the facts I have found, but he has informed himself by reference to documents not tendered in evidence, including the report of a factual investigation. He has referred to a number of Australian Standards and also the applicable occupational health and safety legislation. The aspects of these sources which he quotes are, with respect, somewhat general and not pertinent to the issues arising for resolution in the present case. These matters were not advanced in argument, perhaps because of the admission of breach of duty. To the extent to which those sources impose obligations on contractors and employers of risk assessment, risk management and risk elimination they are too general to inform a decision resolving the issues in the present case.
In any event, the risk was identified and control measures were adopted for its management. Their failure was a failure in communication and supervision. In the end (Exhibit 1D6 (a) p 18 [95] - [96]) he concluded that the system adopted by T&C should have ensured that no "tampering, removal or destabilisation took place to supporting mechanisms for a 7 tonne steel frame". I agree. He also concluded that Transfield ought to have "insured" that T&C and Allstate "were communicating in terms of safe work method statements … for removal of steel frames on 30 March 2009." I have held that reasonable care required that the system devised for the removal of the frames be communicated to those involved in its implementation. One way of achieving this was to include the procedure in the safe work method statement or JSEA which would have been read by the workers. But this was not the only way of communicating these requirements, and not necessarily the most effective way of doing so. It is possible that the matter was not included in the JSEA because the circumstances called for an adaptation of the system that had been followed in relation to other components. The need for flexibility will not always coincide with an opportunity to rewrite safe work method statements. Clear oral direction from Mr Rodgers to Mr Zappia and Mr Kerr would have sufficed. And, as I have held, closer supervision by Transfield for the purpose of co-ordinating the efforts of two subcontractors performing work pregnant with the risk of serious personal injury was called for.

[10]

Contributory negligence

The case against Mr Wormleaton in contributory negligence is that he failed to observe that a safety harness rigged to the top beam of the southern frame and attached to the cantilever by a "turfer" had been removed before he commenced to rig the frame to the crane. Nor did he check that the securing nuts remained tightly applied to the hold-down bolt. The argument is that reasonable care required Mr Wormleaton to make a "proper inspection" to ascertain the stability of the frame before attempting to rig it. Had he made that inspection and inquiries of others, he would have readily ascertained the truth about the stability of the frame.
The question of contributory negligence is to be decided by application of the principles referred to in s 5R Civil Liability Act. By necessary implication, s 5R incorporates, inter alia, the provisions of Divisions 2 and 3 of Part 1A of the Act.
As I have indicated above, there is an additional important question of primary fact to be decided before considering the inferences available in relation to contributory negligence and that is whether a "safety sling" of the type attached to the northern frame, as depicted in Exhibit J p 207 and Exhibit L p 261-2 had been removed from the southern frame prior to Mr Wormleaton and Mr Neve commencing their attempt to rig it. It is said that the importance of this question of fact is that the removal of the sling would have been obvious to a reasonably careful dogman, and would have put him on inquiry as to whether the other means of holding the frame upright had likewise been removed.
The argument has its genesis in accounts given out of court by Mr Wormleaton. He was interviewed by WorkCover Inspectors on 19th October 2009. Extracts of the interview were tendered as Exhibit 1D20. In response to a question framed in the general terms "what happened?" Mr Wormleaton replied, so far as is relevant for present purposes: Now the procedure, what we were told by their supervisor was that piece of steel had to come out and the bolts had to be cut so we could snigger out from underneath there, lay it down and move it across. We;; [sic] we've gone to smoko and someone in their wisdom decided to unhook the safety harness from the top and cut the bolts before we even come [sic] back. So soon, soon [sic] as me and the other dogman come [sic] ready to do the lift to lift it up so that they could cut the bolts and we could snig it out, we were totally unaware that any bolts had been cut. He also described the "safety harness" as a "come-along". He said it was fastened to the overhanging steel as a safety strap "holding it in place". He asserted that had it remained in place the frame would not have fallen. Later still, he was shown the photograph which is Exhibit L p 261 which is a photograph of the northern frame. He incorrectly identified it as "the one that dislodged and fell". He pointed to the strap that had been "harnessed" he said "as a safety strap". He said that the frame fell because the bolts had been cut and "that strap had been taken off".
I interpolate that had such a strap been in place earlier, its removal should have been noticed by anyone looking at the top beam for the purpose of rigging it to the crane. Had it been present, Mr Wormleaton would have had to remove it to rig that end to the crane.
It should also be pointed out that Mr Wormleaton told Mr Dubos about a "missing safety sling" (Exhibit 1D6(a) p 10 [58] and p 18 [92]).
During cross-examination he was twice challenged about this topic. At 52.25T he initially said "there was a nylon safety harness on one of the frames". Later at 56.10T he said: … because some of them didn't have safety harnesses on. As far as I was aware it was only the last beam that had the safety harness on it. I understand this as a reference to the northern beam. When cross-examined directly about what he told the inspector on the basis of a photograph at p 261, he explained that he was giving the answer as he looked at the picture. He presumed a safety strap had been taken off "because it fell on me" (58.10T).
Later I asked a question in the following terms (93.5T): Q. Mr Wormleaton, did I understand your evidence correctly that at no time did you see or notice a safety harness attached to the support frame which fell on you? A. No. Q. And that the question of the safety harness was first raised with you when the Work Cover inspector showed you that photograph that Mr Parker asked you about? A. Yes. I gave Mr Parker leave to ask further questions (96.15T to 97.40T). He again gave the following explanation (96.25T): I was shown the photograph that's why the question arose because I didn't know nothing until I seen the beam with the strap on it. And I wasn't aware it was the last one. (sic) He continued to maintain he had made a "presumption" because the beam fell.
Were this the only evidence on the topic, I would be inclined to accept the account contained in Exhibit 1D20 i.e. the extracts from the WorkCover interview, as accurate because Mr Wormleaton introduced "the safety harness" into the discussion in response to a completely non leading question. According to that record anyway, the inspector did not ask about the photograph until later in the interview. The extracts from the interview were tendered without objection under s 106 as a prior inconsistent statement. The substance of the account having been put to Mr Wormleaton and him not agreeing to it, leave was not required. Once admitted as an exception to the credibility rule, it stands also as an exception to the hearsay rule (being an out of court statement) under s 60 Evidence Act: Adam v The Queen [2001] HCA 57; 207 CLR 96.
But Mr Wormleaton's evidence is not the only evidence on the topic. Mr Neves was asked about Exhibit L p 261 in his evidence in chief. He correctly identified it as the northern frame. He too referred to the sling as a "come along" which he defined in these terms [110.15T]: … it pulls something, so in order to line bolts up to get a clear hole, you pull either one. Q. So it is not a safety sling as such? A. No. Q. It is a sling designed to move the frame sufficiently for you to get the bolts right, adjusted? A. Yes, yes. ….. Q. But there wasn't a similar one on the frame that fell? A. No. Q. Was there subsequently a sling put on the fallen frame, to your knowledge? A. When the paramedics were there, they were concerned about ‑ because I actually took the load off Dave and the chain was sort of holding the load, and the paramedics were worried in case it was going to sort of fall back down again. But did they put one on? I cannot remember, but I believe they put one on, but I don't remember seeing it. I have already pointed out the measures that were taken after the event to lift the fallen southern frame off Mr Wormleaton and to secure it whilst the ambulance officers attended to him (at [33] above).
Mr Neves, who was employed by T&C at the time of the accident, was not cross-examined on this evidence.
As I have pointed out, Mr Graham's account (Exhibit 1D21) was tendered in Transfield's and T&C's case. Not everything written by Mr Graham can be made out from the poor quality photocopy contained in the tendered materials. Some of it has been cut off in the process. However, on this topic Mr Graham says: As other work colleagues helped Dave and I sat next to him on the gravel to reassure Dave and assess his injuries (next few words cut off in the photocopying process), thigh which I immediately identified as being a sec.. (cut off) anchor plate and nut. I instructed colleagues to stay with Dave as I spoke to emergency services and endeavoured to rebolt and secure with rope the remaining frame which stood unsecured immediately next to us all. Upon instructing others to secure the frames, both the fallen and slung up frame as well as the other which was free standing, I returned to render first aid with SERCO who arrived at that time. SERCO is an acronym unexplained in the evidence. But personnel wearing "visy-vests" with "SERCO" displayed can be seen in some photographs.
On the basis of Mr Neves' and Mr Graham's account I find that there was no "safety harness" on the southern frame at any time before it fell. This accords with the probabilities. Accepting as I have Mr Neves evidence that the eastern and western frames, in that order, had been removed immediately prior to him and Mr Wormleaton approaching the southern frame, there would have been no reason to attach such a "turfer" to the southern (or northern frame) at any time because it had previously formed part of the box structure created by bolting all four frames together, and in any event, was securely bolted to the concrete footings. A sling attached after the eastern or western frame was removed would have served no practical purpose as the southern frame was next in line for removal.
Moreover, Mr Graham's evidence and the photographs are compelling. Mr Graham realised the continuing risk and organised for both frames, the fallen southern frame, as well as the northern frame, to be secured with a webbed harness and a pull chain and block. This is also consistent with Mr Neves evidence, indefinite as it is, that a webbed harness was applied to the southern frame after it had been lifted by a crane following its fall onto Mr Woemleaton. The turfers shown in the photographs were applied after the accident. Mr Wormleaton's evidence is to be preferred to the account given to the inspectors about this.
In making these findings, I bear in mind that the issue of fact goes to the question of contributory negligence and that the onus on that regard lies on Transfield and T&C. I find that there was no "safety harness" fitted to the southern frame, the removal of which should have been noticed by Mr Wormleaton or a reasonable person in his position exercising care for his own safety.
In my judgment, a reasonable person in Mr Wormleaton's position, exercising reasonable care for his own safety, would not have entered the tunnel for the purpose of checking whether the security nuts had been loosened or removed prior to commencing to rig the southern frame for lifting. No one had any reason to suspect that Mr Zappia or Mr Kerr would fail to follow the established sequence of work. None of Mr Wormleaton, Mr Neves' Mr Graham nor, I infer, Mr Ashton, the boilermaker, who was also on the culvert floor, had any apprehension that the securing nuts had been loosened or removed. They had all been present only one hour earlier when Mr Rodgers issued his instructions as to the sequence of work to be followed for the removal of the southern and northern beams. The touchstone of reasonableness does not require one tradesman to check that another tradesman is following this system unless some fact has come to the attention of the former giving him reason to suspect something has gone awry.
Mr Wormleaton was working for Allstate. Allstate's obligation was to lift each component of the sub-structure of the sinter cooler after T&C fitters had disconnected the component from its fellows. This doubtless required a degree of co-ordination and supervision which was the province of Transfield, and perhaps T&C. In any event T&C had prescribed the system, and the sequence in each step would be taken. It was not unreasonable in the absence of knowledge of some fact alerting him to the contrary, for Mr Wormleaton to rely on T&C to play its part in the implementation of its system. As Mr Wormleaton said, it was the system that the Allstate personnel were "told when to lift … and take the weight" by T&C 46.25 - .40T. And (at 53.40T): If Thomas & Coffey had done what they were supposed to do, it wouldn't have been touched. It would have been solid. In the absence of an indication that the fitters had loosened or removed the securing nuts prematurely, it was not unreasonable for a person in Mr Wormleaton's position, or for him, to act on the basis that the prescribed system was being adhered to.
I am not persuaded that Mr Wormleaton was guilty of contributory negligence in failing to make a general inspection of the frame prior to approaching it to rig it.

[11]

The liability of Allstate

As the passage quoted from Leighton Contractors above demonstrates, the duty of care owed by an employer to an employee is non-delegable and for that reason is generally considered "more stringent" because "the requirement of reasonable care … extends to seeing that care is taken": Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520 at 550. Of the application of this principle, Mason P, in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 at 12 [47] - [48]: The authorities … 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. The second requirement, namely that the plaintiff's injury occur within the scope of the special relationship, is frequently passed over because the requirement is clearly satisfied in the particular case. But the issue cannot be ignored and it has significance in cases such as the present.
Although "stringent" the duty of care of an employer is not absolute, it is one to take reasonable care to avoid exposing employees to unnecessary risks of injury: Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at 98.
Because an employer's liability can arise without personal fault, it is tempting to say that liability in Allstate follows more or less automatically from the liability of Transfield and T&C, but this is not a correct approach.
It is beyond argument that an aspect of the employer's non-delegable duty of care is the obligation to take reasonable care to provide a safe system of work for the its employees: Kondis v State Transport Authority (1984) 154 CLR 672 at 694. In Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 at 57, a case where an employee was performing his work in a system of work devised by a principal contractor, the Court described the employer's obligation as an "independent obligation to satisfy itself of the safety of the system" (see also Shoalhaven City Council v Humphries [2013] NSWCA 390 at [8]).
The expression "system of work" is usually taken as suggesting an ongoing series of similar of somewhat similar operations: see Glass, McHugh and Douglas, The Liability of Employers (2nd ed 1979, The Law Book Company Ltd) at 20-21; Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 825. The obligation, however, extends to the provision of a safe system of work in relation to a single isolated operation, at least when the circumstances are such that it is not reasonable to leave the matter in the hands of an experienced tradesman: Speed v Thomas Swift & Co (1943) KB 557. Glass, McHugh and Douglas say at p 23: Simple uncomplicated operations such as the method of using his tools of trade by a tradesman could not reasonably require the provision of a system by the employer. Nor will there be much scope for alleging the necessity for a system in the case of casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised. I accept that this is not such a case.
But the present case raises a particular issue about Mason P's "second requirement" whether Mr Wormleaton's injury occurred within the scope of the employer/employee relationship. In Dib Group Pty Ltd T/as Hill & Co. v Cole [2009] NSWCA 210 at [54] - [55] Basten JA expressed the following principles: The employer's duty, however effected, to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control. Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises? These questions are analogous to the approach to be adopted with respect to the acquisition of plant and equipment discussed in Davie. In such a case, it is not sensible, nor consistent with the requirement to take reasonable care, to treat the employer as "delegating" its duty to provide safe equipment to the manufacturer or supplier. So long as it has acted reasonably, the employer will not be liable for injury to its employee resulting from a defect in equipment or plant not identifiable by reasonable care on the part of the employer, even though the defect is the result of negligent manufacture.
The case is clearly one where the premises and the system of work are not under Allstates' control. Allstates had control of the actual lift of the components by crane. It had no control over the general process of disassembly or over T&C's employees. It had no power to co-ordinate their activities and those of T&C, even if this was an area of "shared responsibility".
Transfield and T&C argue, relying on Mr Dubos's opinions, that Allstates negligence consists of failing to detail the system to be followed in the safe work statement and failing to provide supervision of Mr Wormleaton, Mr Graham and the crane operator in the performance of their work. Reference was made to Fairfield City Council v Coupe [2001] NSWCA 195.
Mr Coupe's employer left him to work at a municipal swimming pool subject to the directions of a council officer. He was injured when he cut his hands severely on un-deburred steel bars supporting the pool deck when he was cleaning the deck panels. Leaving Mr Coupe to work under the direction of the council officer was negligent because no precaution available to the employer established by the evidence was taken to protect him from the foreseeable risk that the steel bars would be sharp.
In my judgment Coupe is not a case in point. Mr Coupe was at all times working under the retained control and direction of his employer; his services were not hired out to the Council. But it falls into a different category of cases from this case. In some respects Coupe is overtaken by TNT v Christie.
In the present case, it is true to say that the safe working statement provided to its employees by Allstate was expressed in the most general terms and did not address the particular difficulties of removing the southern and northern frames. Moreover, the supervisor, Mr Fuller, it seems to be common ground, was not present at the time this work was undertaken, leaving the Allstate workers to take directions from the T&C supervisors.
The problem in this case was not the safety of the system, but failure in its implementation, which would not have occurred had Transfield fulfilled its obligation to direct the work and co-ordinate the activities of T&C and Allstate. These were considerations beyond the control of Allstate. Had Mr Fuller been present and said to Mr Reichardt or Mr Rodgers, "What system is to be followed for removing the southern and northern frames?" he could have made no objection to the answer he would have been given. Had the system been fully described in the JSEA Mr Fuller would have read it at the toolbox meeting and approved of it. The system devised for this trickier lift accorded with the requirements of reasonable care for the safety of the workers. But Mr Fuller could take no steps to ensure that T&C's fitters did not act prematurely because they were beyond his control. No one else at Allstate had that power of control over them or any other aspect of T&C's operations.
In my judgment, the particular risk which materialised in this case was beyond the scope of the employer/employee relationship in the sense discussed by Mason P in TNT v Christie. If I am wrong about this, as in Shoalhaven City Council it perhaps could be said that Allstate breached its duty of care by failing to make any inquiry of T&C about the system it devised for lifting the northern and southern frames. But also as in Shoalhaven City Council, as I have said, had inquiry been made, and the details of the system to be implemented explained, a reasonable employer in the position of Allstate would have been satisfied with the response. If there had been a breach on the part of Allstate, it was not causative of Mr Wormleaton's injury in accordance with the common law applicable in a work injury damages case (see s3B Civil Liability Act 2002), and the employer, in my judgment is not liable to Mr Wormleaton in negligence. Allstate is not a "tortfeasor liable in respect of the same damage" for the purpose of statutory contribution.

[14]

Quantum

The plaintiff was born on 10 November 1963; he was 45 years old at the date of the accident; and now aged 51 years and 4 months. He is a married man with an adult daughter and son. His son has been severely disabled from birth.
He was born and raised in Australia until about the age of 10 when his family returned to the United Kingdom where he completed his schooling at the age of 16. He was schooled to the equivalent of the School Certificate. He then undertook a carpentry apprenticeship, qualifying as a tradesman after three years. He returned to Australia in 1984 and initially worked in his trade as a carpenter. He later obtained certificates as a rigger, dogman and crane operator and moved into that work for a period of time. However, he had been out of the industry for some years, in circumstances which I will recount below, until he obtained a job with Allstate on 10th March 2009.
As I have said above, after the accident he was taken by ambulance to Wollongong Hospital. He was found to have suffered a very severe crush injury to his right leg, extending from his foot to his right knee. The injury involved severe vascular injury, fractures of his tibia and the subluxation of his knee. This latter injury involved multi-ligamentous disruption and fracture of the patella. Urgent surgery at Wollongong Hospital involved treating the fractures with an external fixation frame. Vascular surgeons attempted grafting and repair of the popliteal artery and posterior tibial artery. He was transferred from the Intensive Care Unit to St George Hospital on 2nd April 2009 and came under the care of Dr Robert Molnar, Orthopaedic Surgeon. On arrival at St George, clinical examination demonstrated Mr Wormleaton had an unstable knee which remained subluxed with widespread and serious ligamentous disruption and fracture of the patella. Neurovascular examination demonstrated Mr Wormleaton's right foot to be mottled with an absent palpable, or Doppler obtainable, pulse. His foot was insensate. Dr Molnar advised below the knee amputation.
He was taken to surgery on 3rd April 2009, examination under anaesthetic confirmed that his right foot was non-viable. On surgical exploration, there was dead muscle material throughout the right leg and the repairs of the neurovascular structures carried out in Wollongong were on the whole found to be unsuccessful. Dr Molnar decided to proceed with the below the knee amputation, which was performed 10 centimetres below the knee.
At surgery, the injuries to the region of Mr Wormleaton's right knee were also explored, and it was necessary to remove gross contamination by gravel from this area. Much necrotic material was removed and Mr Wormleaton was found to have suffered a large degloving injury to the outside aspect of his right knee. Again, much necrotic muscle required debridement. Some bony material from the patella was removed and a major reconstruction of the ligaments of the right knee involving both the lateral and medial capsules was undertaken. A further external fixation device was fitted to reduce the subluxation in the knee.
Plastic surgery was carried out by Dr Ilias Kotronakis to improve the amputation on 7th April 2009 and there was further surgery involving washout, debridement and change of right stump and left leg dressings on 11th April 2009. The left leg was the donor site for vascular and skin grafts taken for the various procedures. Following his operations Mr Wormleaton suffered post-surgical delirium involving hallucinations. He received psychiatric care for this condition.
Mr Woemleaton was discharged from St George Hospital on 27th April 2009 with the fixation device still in place.
On 5th June 2009 at Westmead Hospital Dr Molnar removed the fixation device and examined the knee under anaesthetic obtaining range of movement from 0 to 40 degrees "without excessive force". Following this surgery, Mr Wormleaton developed significant phantom limb pain which continues to affect him from time to time.
I interpolate that it is important to the resolution of the issues in relation to damages, to bear in mind, that apart from the amputation, the plaintiff suffered a severe traumatic disruption of the structure of his knee. Dr Molnar was pleased with Mr Wormleaton's progress, describing it as "remarkable" in October 2009. But from about that time Mr Wormleaton was beset by persistent areas of wound breakdown and significant recurrent infection. He was also left with a degree of fixed flexion deformity and his range of knee movement was greatly reduced. From about November 2009, Dr Molnar prognosticated that the serious injury to the right knee would likely lead to degenerative arthritis and there is no doubt that this has occurred.
He first saw Associate Professor J.E. Marosszeky, a rehabilitation physician, for the casting and fitting of a prosthetic limb in or about August 2009. Up until that time Mr Wormleaton had been ambulating on crutches. Associate Professor Marosszeky expressed the following opinion in his first report of 6th August 2009 (Exhibit O 1): As a result of his accident [Mr Wormleaton] has restricted flexion and extension of his knee joint on his prosthetic side. There is also substantial scarring on his residual limb. Because of these issues, the most appropriate prosthetic limb for him would be the proprio foot and ankle with a silicon dispension system. The proprio foot and ankle is a prosthetic device that allows active plantar flexion and dorsi flexion of the foot which allows the patient to ambulate more naturally. (Emphasis added; original italics).
When he first saw Associate Professor Marosszeky for a preliminary assessment the stump was swollen and scarred, there was limited range of movement in his knee and some degree of reduction of movement in his right hip. He required physiotherapy. "An interim prosthesis" was fitted on 4th August 2009 and a permanent prosthesis on 24th November 2009. As at December 2009, Associate Professor Marosszeky said (Exhibit O(2)): He stopped attending physio on 2nd December, able to complete walking on a flat surface for 257 metres unaided. At that time, he still had; significant knee contracture, not adequately controlled, phantom limb pain and leg pain while weight bearing. He needed rest breaks after every 20 minutes of walking. On the evidence of Mr Wormleaton and his wife before me his capacity has not improved much, if at all, since then. Their evidence about this was not strongly challenged, and I accept it.
The infections continued to be a real source of trouble for Mr Wormleaton at least until the early part of 2013. Each of the doctors who have examined him have commented upon them. Despite extensive investigation, including by way of MRI scans, no source of the infection was identified. Fortunately, he does not seem to have developed infection in the bone. Since the early part of 2013, occasional infections have been recurred, but not to the same serious extent as previously.
He has been unable to do any of the heavier work around the home that he was formerly accustomed to. And he depends upon his wife to help with that. He still suffers pain, and has difficulties with his prosthesis. I that latter problem is because of his knee. When out of the house he needs to use a walking stick. I will expand on this when dealing Mr Wormleaton's prosthetic needs. His car has been modified to enable him to drive, but he has difficulty driving for long distances. In 2010 he made an attempt on his own life by overdosing on the Gabapentin he had been prescribed. That prescription has been discontinued, but he still requires the strong pain killers Oxycontin and Endone, the latter for so called "break through pain", which he has been prescribed since his discharge from St George Hospital. These narcotic medications are mostly effective in controlling the pain he formerly suffered. He says that if he does not take his Oxycontin he has a problem with pain (34.10T). His GP, Dr Warwick Mackay now prescribes these and is trying to wean him off them, or at least reduce his in-take. He formerly spent much time with his disabled son, camping, boating, fishing and riding 4-wheeled motor bikes. They would walk the dog together, but all of these activities are lost to him now because of the severity of his disability. As a claim is made under s 15B Civil Liability Act 2002 I will not take the loss of capacity to engage in these activities with his son into account in assessing damages for non-economic loss: s15B(5)(b). Prior to his accident he was a very competent water skier, a pursuit he loved. His level of proficiency was such that he could single ski. This pursuit is lost to him now because he is no longer physically strong enough and has lost confidence. He easily becomes frustrated and irritated by and at his limitations.

[15]

Relevant past medical history

On 21st January 2004 Mr Wormleaton, his wife and his daughter were the victims of a terrible and repugnant home invasion. Mrs Wormleaton and her daughter were sexually assaulted while Mr Wormleaton was forced to watch. He was attacked with a machete, fracturing his left arm and severing the ulna nerve, in a defensive injury. The nerve was surgically repaired and he has gradually recovered most function in his left arm. At the trial he demonstrated that he had some degree of flexion deformity in his ring and little finger. He also said he had some difficulty with fine motor movements. I should record that in their joint report (Exhibit C p 12.D4) neither Dr Harrison (for the plaintiff) nor Dr Schutz (for the defendants) expressed any doubt that Mr Wormleaton has made a good functional recovery in relation to his left arm.
Given the attack on his wife and daughter, which he witnessed, and the attack on himself with a machete, it is perhaps entirely unsurprising that he suffered a post-traumatic stress disorder. And this condition gave rise to severe symptoms at times. In a misguided form of self-treatment he smoked large quantities of marijuana, as many as 50 cones a day, and sometimes used the illegal drug ice. Again, in this context, it is probably unsurprising that his symptoms from time to time became psychotic in nature. He attempted to take his own life more than once, and in August 2008 was admitted to a psychiatric unit as an involuntary patient.
He has been prescribed Zoloft and Seroguel since the accident in March 2009. He was not on these medications as at the date of the accident. They were prescribed for him at St George Hospital by the psychiatric team who treated his post-surgical delirium. He was discharged from St George Hospital with a medication regime that included these drugs. The plan apparently, however, was to taper off these medications. He was still taking them when he was under the care of Associate Professor Marosszeky. He regarded them as prescribed for Mr Wormleaton's "bipolar disorder". Given the pre-March 2009 history there is much to be said for this view. However, in his report of 5th September 2012 (Exhibit T.2), Dr MacKay said he was prescribing Zoloft and Seroquel for the emotional sequelae to the injury. Dr MacKay said that he was also counselling Mr Wormleaton. There is no expert psychiatric evidence in the case about the effects of the work injury.
Evidence tendered in the plaintiff's case (Exhibits P6, T and U) establishes the condition of post-traumatic stress disorder related the home invasion. Dr Neil Schutz (Exhibit U), in his report of 1st November 2005 confirms the diagnosis and, up to then, that Mr Wormleaton had been unable to work effectively since the attack. Exhibit P6 is the referral note from Dr MacKay to Dr Schulz dated 9th October 2005. Dr MacKay confirms that Mr Wormleaton had been unable to work since the home invasion and "has become depressed".
Mr Wormleaton has consistently given the history that he was forced to close the concrete stencilling business he was then running because of the injuries suffered in the home invasion. And this history is recorded in Dr Schutz' report. Ms Sally Hopwood, a clinical psychologist, implies that he has been unable to work since 21st January 2004 (Exhibit U). Mr Wormleaton's tax return for the 2004 financial year (part of Exhibit 1D5) records only a relatively modest amount for unemployment benefits during that period. There is no business income. Notwithstanding this, I am prepared to accept his evidence that he conducted a concreting business up until the home invasion. He was not challenged about the truth of this, and he declined to answer questions about what may not have been in his tax returns.
The physical and psychiatric injuries then suffered kept him out of the workforce until the 2009 financial year. I accept that he returned to work as a forklift driver with a business known as Wilson Cranes, a few months before starting with Allstate on 10th March 2009. By 10th March 2009 I am satisfied that he had recovered from his injuries sufficiently to perform full time heavy manual work as a dogman. Mrs Wormleaton, whose evidence I accept, said that her husband had no trouble doing the full range of his usual domestic activities before the accident of March 2009. She was asked this question: Q. Now, did his mental health problems affect him on an ongoing basis before this accident? A. The last probably 12 months or so he hadn't shown any signs; he was actually going to work every day, he was coming home excited about his day and more like the normal Dave. (135.45T). Mrs Wormleaton confirmed that he suffered hallucinations following the surgery at St George Hospital, but from her observation she said she did not notice any ongoing problems with mental health issues these days (136.20T).

[16]

Damages for non-economic loss

The plaintiff was relatively young at the age of 45 as at the date of this serious accident. His current life expectancy is in the order of 34 years. He has lost a leg and has suffered a severe injury to his knee which causes significant problems on a continuing basis. This is likely to deteriorate as the post traumatic arthritis worsens. He has undergone six bouts of surgery, including the final surgery removing the fixation device. He has ongoing pain, including sharp phantom pains, the treatment of which requires the use of narcotic medication. There is significant surgical scarring to Mr Wormleaton's right stump, the donor sites on his left leg, and otherwise relating to the problems of infection. He has the disfigurement of the amputation itself. The ongoing problem with post-surgical infection created serious difficulties for four years and continues, although not as severely. There is a complete disruption of his activities of daily life. His ability to work, from which like most people he derived satisfaction, is greatly diminished; he is unable to perform the activities he performed at home; and his leisure pursuits are lost to him. He has suffered from the post-surgical delirium and some degree of emotional disturbance, frustration and irritability because of the severity of his injuries, quite apart from his pre-existing psychological or psychiatric problems.
The defendant submitted that the appropriate award as a proportion of a most extreme case of personal injury was 50 per cent; plaintiff's counsel submitted 80 per cent.
Section 16 Civil Liability Act calls for the making of an evaluative judgment. Nonetheless, matters of degree, impression and judgment are involved. I am required nonetheless to make an assessment on an objective scale. Bearing in mind my findings of fact, I assess the severity of Mr Wormleaton's non- economic loss expressed as a proportion of a most extreme case as 66 per cent. This entitles him to an allowance of $377,500 under the statute..

[18]

Past economic loss

There is a significant issue as to past and future economic loss. The issues are whether Mr Wormleaton has a useful residual earning capacity, and the extent to which his undoubted substantial diminution of earning capacity has been, and may be productive of financial loss (Graham v Baker (1961) HCA 48; 106 CLR 340 at 347). The decision I make about these issues will apply to both past and future economic loss. Both parties approached the factual issues on that basis. Naturally, the defendants accepted that there would be a prolonged period of total incapacity, but argued that by now Mr Wormleaton ought to be seen as being capable of working in suitable employment obtainable on the open labour market, reducing the financial loss he might otherwise have suffered. Mr Wormleaton argued that he was totally unfit for work, that is to say, that his previous earning capacity had been totally extinguished by the accident at least to the extent to which he might reasonably be expected to find work on the open labour market.
Transfield and T&C also pointed to the fact that his tax returns between 2004 and 2005 demonstrated that effectively Mr Wormleaton had been in receipt of government benefits until not long before commencing with Allstate. During that period he suffered from significant physical and psychological injuries, the latter made worse by his use of illicit drugs. He had been hospitalised twice, once in July 2006 and again in August 2008, because of his psychiatric condition. In August 2008 he had attempted to take his own life. It was said that these considerations were bound to have a bearing upon Mr Wormleaton's employability thereafter. His past earnings were some evidence of his future prospects.
Transfield and T&C further argued that even when he found the job with Allstate it was casual. Allstate's records between 10th and 30th March 2009 demonstrate that Mr Wormleaton only worked between 15 to 20 hours per week. That fact and the chequered, to say the least, employment history disclosed by the tax returns meant, on the probabilities, that I cannot be satisfied that Mr Wormleaton, at the age of 45, would have found his way back into full time work as a dogman in which he would have continued for the rest of his working life until age 67.
Mr Wormleaton argued that his apparently poor record between 2004 and 2009 was to be explained by the effects of the home invasion from which he gradually recovered, notwithstanding the suicide attempt in August 2008. He pointed to the evidence of his wife, that, as of March 2009 he was back to his old self. From this I should infer that the psychological problems had very largely diminished. It was argued that I should be satisfied on the balance of probabilities that Mr Wormleaton would have found himself in full time work as a dogman with Allstate or a similar organisation in which he would have continued for the rest of his working life.
It was Mr Wormleaton's evidence that he could not see himself being gainfully employed now (84.5T). During the years that he had been on workers' compensation, notwithstanding that he had been interviewed and assessed by vocational assessors and psychologists, he had not been rehabilitated or retrained into any other form of work. He did not think he could teach carpentry or his other occupational skills at a TAFE. He said, "I think you have to have a special skill to be a teacher" (85.25T). I agree. Dr Brian Zeman, a rehabilitation specialist (Exhibit 1D9 (a) and (b)) regarded Mr Wormleaton as fit for sedentary and light physical work. He noted the pre-existing wasting and loss of a degree of dexterity in the left hand. From the point of view of his right leg injury, he regarded Mr Wormleaton's work options as limited. Mr Burchett, a vocational psychologist (Exhibit 1D10) found that he was of average intellectual ability, and thought Mr Wormleaton fit for work in a variety of clerical positions capable of producing an income of around $880 per week gross. I interpolate that Mr Wormleaton has never done this type of work. Even when conducting his concreting business, he employed a person to do the office work.
Dr John Harrison, an orthopaedic surgeon and Dr Edward Schutz, a general surgeon and occupational physician gave concurrent evidence before me. Dr Harrison was very pessimistic about the prospect of Mr Wormleaton being re-employed in useful employment (235.15-25T). Dr Schutz was of the view that Mr Wormleaton could perform light factory work if it was available (235.45T). He agreed with Dr Harrison that there would be a need to ween Mr Wormleaton off the narcotic medication. In cross-examination, Dr Schutz agreed that "it would be difficult, if not impossible" in Mr Wormleaton's circumstances "to find any sort of suitable work".
At 167.5 - 68.5T, Ms Fiona Lyon and Ms Sanja Zeman, the occupational therapists who gave concurrent evidence, agreed that Mr Wormleaton would be unable to return to work because there are "so many barriers to his employment" and not enough "steps upward". Ms Lyon said "his employment would not be durable, even with the most benevolent employer" (167.30T).
I appreciate that many amputees and even double amputees are able to return to the workforce and lead very productive lives. However, the defendants have to take Mr Wormleaton as they find him. As I have said already, the issue is not restricted to his below knee amputation. It extends to the severe injury to his knee, which makes ambulation, even with the assistance of a sophisticated prosthesis, difficult and painful. Moreover, his dependence over long years on the narcotic medication creates issues for some occupations. I accept that in theory Mr Wormleaton could perform light, sedentary work. However, he would require retraining, and a reduction in his narcotic medication, the latter for at least some occupations. One has to be realistic and consider his prospects in the labour market. It is not persuasive, with respect, to identify a list of clerical jobs from a data base. Such a catalogue on its own does not provide evidence of what an injured person can realistically do and earn.
I find it extremely unlikely, with the injuries suffered in the accident and his resulting disabilities that Mr Wormleaton could have got, or will ever be able to get, back into useful work. However, the question is essentially hypothetical and perhaps something should be allowed for the, albeit small, possibility that he may: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1.
I turn to the second element of Graham v Baker, that is to say the question of the extent to which the diminution of Mr Wormleaton's earning capacity may have been, and will be, productive of financial loss. To undertake this task, Mr Parker referred me to Morvatjou v Moradkhani [2013] NSWCA 157 at [50] - [92]. Essentially, he made two points: first to the extent to which pre-injury income is relevant evidence, the tax returns were demonstrative of an unsatisfactory work history unlikely to improve as Mr Wormleaton approached middle age; and secondly, a related point, that I could not be satisfied that Mr Wormleaton would ever find full time work as a dogman, and if he did it would not be on a permanent basis.
This is not a case where Mr Wormleaton gave evidence that his tax returns did not disclose the full extent of his earnings: Morvatjou at [57]. Rather, Mr Wormleaton declined to answer questions about whether there were any earnings not brought to tax. I would not draw an adverse inference from him claiming the privilege against self-incrimination. Indeed, I draw no inference from that circumstance either way. In these circumstances, in my judgment it is not necessary to closely consider McColl JA's analysis in Morvatjou. Nor is this an occasion for the restraint exercised by the courts in evaluating evidence given by a plaintiff of undisclosed earnings.
The circumstances of the present case, in my judgment, are quite different. There is an acceptable explanation. The home invasion of 2004 and its consequences provide an acceptable explanation for the paucity of the disclosed earnings in the five years leading up to 30 March 2009.
Moreover, I accept the evidence of Mr Wormleaton and Mrs Wormleaton, supported as it is by the medical evidence that his injuries had improved and he was able to perform the full range of duties of a dogman rigger as at March 2009, notwithstanding the slight residual physical disabilities from the home invasion injuries.
These considerations bring into play the principle discussed by McHugh J in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16: Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred. (Emphasis added) (See also Tran v Younis [2006] NSWCA 188)
I am satisfied that as at 30th March 2009, Mr Wormleaton was, as I have said, fit, and fully fit, for the heavy manual work of a dogman/rigger on a full time basis and would have taken up that work with Allstate or another employer if offered. On this basis, the proper starting point for valuing the diminution of his earning capacity is the earnings of a full time dogman/rigger. Naturally, however, even for the past, it is appropriate to take account of the possibility that he would have been unsuccessful in finding full time work, or maintaining it on a permanent basis. This latter point is illustrated by the consideration that Allstate went into liquidation and is now deregistered: Malec.
The evidence is that had Mr Wormleaton been employed full time for Allstate as at March 2009, he would have been paid $1,477.80 per week gross (Exhibit V). Counsel for the plaintiff have calculated that the after tax figure is $1,120.00. According, to the Furzer Crestani Handbook (p 27) the consumer price index for Sydney has increased 14.7 per cent between June 2008 and June 2014. There was a similar movement in the average weekly earnings of full time adult workers in New South Wales between February 2009 and May 2014 according to Australian Bureau of Statistics figures published in the Furzer Crestani Handbook (p 11). Applying a 14.7 per cent increase in the figure of $1,120 per week the current rate is $1,284 per week. As a starting point, for the past, I propose to average these two figures. This produces a result of $1,202. The period from 30th March 2009 to judgment is a little over 310 weeks. The total is $372,620. I propose to discount this figure by 15 per cent to take account of the real possibility of unemployment, sickness and the home invasion injuries coming back on Mr Wormleaton. The figure I allow is $316,727.

[24]

Damages for past gratuitous attendant care services - s 15 Civil Liability Act

I accept the evidence of Mr Wormleaton and Mrs Wormleaton that because of his injury Mrs Wormleaton has been providing to her husband attendant care services of a gratuitous nature within the meaning of s 15 of the Civil Liability Act. Given the severity of his injuries, the recurrent infections and his need for assistance with personal care over the years, there is no real issue that the requirements of s 15(2) and (3) have been satisfied. The occupational therapists, Ms Lyon, for the plaintiff, and Ms Zeman, for the defendants, conferred and produced a joint report agreeing upon the assessment of the provision of these services by Mrs Wormleaton to her husband. The defendant accepts the joint report with two exceptions. First, it is argued that no services are recoverable during Mr Wormleaton's hospitalisation. The plaintiff now concedes this: Nicholson v Nicholson (1994) 35 NSWLR 308 at 322. This excludes what the joint report (Exhibit 1D3) refers to as stage 1. The defendant also challenges the allowance made by the joint experts during stage 3 for emotional support (7 hours per week). The defendants relied upon CSR Limited v Eddy [2005] HCA 64; 226 CLR 1, a case concerning the common law rather than the statutory modifications of the Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 principle.
In Eddy the majority (Gleeson CJ, Gummow and Heydon JJ), admittedly in overruling the decision in Sullivan v Gordon (1999) 47 NSWLR 319, accepted an argument "Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others" (Emphasis added). I accept that emotional support is not a "service" that one is capable of rendering to oneself. I appreciate that the definition of attendant care services in s 15 extends to "services that aim to alleviate the consequences of an injury" but it is difficult categorise the provision of emotional support, as the provision of such a service.
The reasoning of the occupational therapists expressed in their report related to Mr Wormleaton "psychological decompensation"; the emotional support of one hour per day was directed to the maintenance of his psychological state.
People are social being beings and most of us appreciate the company of family, friends and colleagues. But the benefits we derive from that society is not a service provided by those others to us. Nor can we, as I have said, provide that support to ourselves.
Moreover, there is no diagnosis of any psychiatric or psychological injury in the present case, other than the post-surgical delirium. To the extent to which Mr Wormleaton became distressed when his wife left the house, or paranoid in his behaviours (see Exhibit 1D3, stage 3) these matters were more likely a manifestation of the underlying psychological condition resulting from the home invasion. I reject the claim for emotional support under s 15 Civil Liability Act.
Mr Wormleaton maintained the claim over and above that agreed upon in the joint report. In written submissions, other evidence was referred to.
These matters are always difficult to assess. The evidence from the lay witnesses as to the extent of needs actually met is often understandably imprecise or vague. Those difficulties are overcome by the precision brought to bear by expert occupational therapists. With some exceptions, I propose to accept the views of the occupational therapists for the past. The first exception relates to the allowance of 3.79 hours for external or yard maintenance around the home previously performed by Mr Wormleaton. Miss Lyon and Ms Zeman explained that the assessment of 3.79 hours was based upon a statistical average, published by the Australian Bureau of Statistics as to the time spent by Australians working their yards and gardens (166.30 - .45T).
Mrs Wormleaton assessed this work at "maybe an hour and a half" or "at least a couple of hours" (129.5T) and Mr Wormleaton said "probably six hours per week" (37.30T). However, as I have said these estimates are often vague and imprecise.
In assessing such matters, one is entitled to rely upon one's own experience of life as a juror would. 3.79 hours has too much of an artificial air of precision about it to be reliable evidence. It is one thing to rely on statistics for rates of inflation, or changes in wage rates for various occupations. It is quite another to gauge the incidence of work required in a given home by reference to them. I understand that they may give an expert something to measure things by. But I would have thought something in the order of 6 hours per week is more realistic. And I will adjust the figures for the past to take account of that finding. I reject the claim for care during the period of hospitalisation applying Nicholson. For stage 2 from 29th April 2009 to 6th June 2009, (5.6 weeks) making the adjustment for outside work, I allow 21 hours per week at the statutory rate of $23.00 per hour - $2,704.80. The experts' stage 3 is from 7th June 2009 to 29th July 2009, a period of 7.6 weeks, disallowing the claim for emotional support, and adjusting the allowance for outside work, I allow 16.5 hours at $23 per hour - $2,884.20.
For stage 4 the experts divided it into two periods, taking account of Mr Wormleaton regaining his licence after his car was modified and he was trained in its use. The range is 6.04 hours to 9.04 hours. This is the second exception to my general acceptance of the views of the joint experts. I have formed the view that the experts have underestimated both Mr Wormleaton's needs and the services actually provided by Mrs Wormleaton during this period. Nothing has been allowed for attending to wound management during periods of flare-up of the infection or continuing assistance with bathing. From Mrs Wormleaton's evidence, I am satisfied that Mr Wormleaton is not independent in wound management when necessary - she said "he's not really good with that type of thing" (128.25T). She agreed that she did not need to assist Mr Wormleaton in and out of the bath "but he still makes quite a mess, water and that type of thing" (128.10T), which she has to clean up. I accept that the incidents of infection have declined and that the need for assistance therefore is somewhat reduced. Bearing these things in mind and making the adjustment for outside work, I assess the allowance for care during the period from 30th July 2009 to the date of judgment as 10 hours per week. This is a period of 293 weeks, 10 hours at $25 per hour - $73,250. For the total past voluntary care provided I allow $78,603.00.

[26]

Damages for loss of capacity to provide domestic services - s 15B Civil Liability Act 2002

As I have pointed out at [99] above, the plaintiff was very involved in what I would call diversionary activities with his severely disabled son. He has lost the capacity to engage in those activities with his son. Mr Wormleaton advances a claim for damages in respect of this loss of capacity calculated in accordance with the provisions of s 15B Civil Liability Act. As will be obvious from what appears above, I have not included in the damages for non-economic loss I have awarded to Mr Wormleaton a component that compensates him for the loss of that capacity: s 15B(5).
Under s 15B(2), damages may be paid to Mr Wormleaton for the loss of his capacity to provide gratuitous domestic services to his son if the conditions in paragraphs (a) to (d) of that subsection are satisfied. The debate before me centred around two issues: first whether the activities I have referred to were domestic services; and secondly whether the intensity and duration thresholds in paragraph (c) of subsection (2) were satisfied.
In Liverpool City Council v Laskar [2010] NSWCA 52 at [58] Whealy JA said: By contrast, the phrase "domestic services" in s 15B does not envisage as a matter of necessity that a claimant's dependents will be injured or require special care treatment because of physical or mental disability. Nevertheless, s 15B(2)(b) recognises that the damages may only be awarded where the claimant's dependents were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity. The key to s 15B is the relationship of dependency, coupled with the reasons why it is that dependent's were not and will not be capable of performing the services themselves. The meaning to be given to the phrase "domestic services" in any particular context will vary according to the nature of the dependency, the obligations the relationship will normally impose, and the history of the provision of past domestic services. At its most basic, in the case of children, domestic services must mean at least looking after and caring for those children where they themselves are incapable of performing the services themselves by reason of their age or physical or mental incapacity. This point of distinction was recognised by Campbell JA in Amaca Pty Ltd v Novek at [97-101]. His Honour saw a clear distinction between looking after children, on the one hand, and performing domestic duties such as cleaning up and preparing meals for the children, on the other.
However, at [61] his Honour went on to say: The language of s 15B(2), on the other hand, clearly supports the proposition that, in a given situation, domestic services will equate to services that are unable to be performed by reason of age, physical or mental incapacity. This suggests they will, in a given factual setting, go beyond the provision of mere housework and the like. His Honour held that the phrase "domestic services" should be given its ordinary meaning. His Honour identified that there are limits, but it was unnecessary to survey the limits of the meaning of the words in the case at hand.
His Honour did refer to Eddy at [61] - [62] where the majority perhaps could be taken to drawing a distinction between "domestic services" on the one hand, and "the wide range of educative services healthy parents supply their children of an academic, sporting or cultural kind", on the other. With great respect, it was not clear why the possible distinction identified by the majority in the High Court helps in interpreting s 15B: as was pointed out in Amaca Pty Ltd v Phillips [2014] NSWCA 249 by Ward JA at [52] and Barrett JA at [1] that as s 15B permits an award under a head of damage not recognised by the common law, "the statute alone defines the circumstances in which those damages may be ordered and the way in which they are to be assessed".
As learned senior counsel for Transfield and T&C pointed out in his written submissions, Ms Lyon (Exhibit 1D3 p 7) stated prior to the subject accident Mr Wormleaton adopted the role of facilitating Michael's involvement in avocational activities - including camping, jet skiing, fishing, dirt bike riding, dog walking etc. Essentially this related to undertaking of gross motor leisure activities. The dog walking apparently occurred most days. And there were other activities. For instance Ms Roslyn Fenton, in her report of 2nd November 2010 (Exhibit 1D(14), p 40): [Mr Wormleaton] would walk the dog with Michael on a daily basis and would spend time with Michael on the weekends doing activities such as kicking a ball at the park, teaching him about fixing cars, water sports, quad bike riding and fishing. These are activities which Michael was unable to participate in independently due to a combination of his physical and intellectual disability.
Ms Fenton assessed this involvement at 6.5 hours per week and Ms Lyons at 6 hours per week.
A number of medical reports about Michael's condition were tendered in evidence as Exhibit Q. In her report of 30th April 2009 Dr Barbara Field said that Michael suffers from spastic quadriplegic cerebral palsy. He is able to walk and run. His right hand is functional but he uses his left hand to assist. He is in receipt of a disability support pension and Mrs Wormleaton receives a carer's pension in respect of him. In a report of 25th October 2012 forming part of Exhibit P, Dr McKay said that Michael suffered from "cerebral palsy, hydrocephalus with mild intellectual disability, multiple orthopaedic procedures with permanent physical impairment… he needs permanent assistance with his activities of daily living, especially Bathing, Personal Hygiene, Food Preparation. He needs this assistance for the rest of his life." I am satisfied that Michael is a dependent of Mr Wormleaton in that he is his son who was wholly or partly dependent upon him as at 30th March 2009 when the liability in the present case arose. Given his obvious disabilities, I am also of the view that the type of avocational or diversional services that Mr Wormleaton provided to his son are gratuitous domestic services within the meaning of s 15B, having regard to the circumstances of the Wormleaton household and Michael's need for assistance to perform activities others without his disabilities would provide for themselves. In the ordinary case of parent and child of ordinary fitness and mental ability spending leisure time together mat not amount to the provision of domestic services. But that is not this case.
The conditions of entitlement do not include a requirement that the services be replaced or replicated by any other person. This is an important contradistinction between s 15 and s 15B. The latter is concerned with the loss of capacity on the part of the provider of the services, that is to say the person who is making a claim.
I am satisfied that Mr Wormleaton provided Michael with the services described by Ms Fenton and Ms Lyons "before" 30th March 2009 when the liability of Transfield and T&C arose. Michael was not capable of performing those services himself by reason of his physical and mental incapacity as established by the medical evidence in the case. Given the extent and breadth of the services, I am satisfied that but for Mr Wormleaton's injuries he would have provided the services to Michael for at least 6 hours per week and for a period of at least 6 consecutive months. This, in my judgment is obvious from the wide description of the nature of the domestic services he provided.
I am also satisfied that Michael's need for the provision of those services of that intensity and for that duration continues and his need is reasonable in all the circumstances.
There is some evidence that there has been a replacement of the services by Mr Wormleaton's brother. That has been occasional only. But as I have said the provision of the services by his brother is not a statutory condition of entitlement.
It is not put that any disentitling provision is engaged in the circumstances of this case.
I bear in mind the provisions of s 15B(4). In my judgment the proper approach is to award a sum calculated by reference to an ongoing need of 6 hours per week at what I will refer to as the gratuitous care rate under s 15 continuing for a period of 18 years until Mr Wormleaton reaches the age of 70. It is unrealistic to expect that Mr Wormleaton would have provided the services, beyond that age, at an intensity of at least 6 hours per week. Past loss of capacity to provide gratuitous domestic services to Michael is allowed for 310 weeks at 6 hours per week at $24 per hour producing a total of $44,640.
Future loss of capacity to provide domestic serves for 18 years is calculated by the 5 per cent multiplier of 625 x 6 hours per week by $25 per hour. The total is $93,750.

[27]

Prosthetics

As I have said above, from the outset Mr Wormleaton has been prescribed a prosthetic with a proprio foot. This is a computerised or electronic device, sometimes called an intelligent prosthesis, which mimics natural foot and ankle movement. He also has a simpler "wet" prosthetic referred to as SACH (soft ankle cushioned heel device: 226.25T) prosthetic. This is suitable for showering and can be worn in a pool. It has a fixed foot. He does not have a third prosthesis suitable for high energy activity as has been recommended for him. As I have said above, the proprio foot was prescribed by Associate Professor Marosszeky for the reasons he gave, set out at [96] above. Mr Cameron Ward, a clinical prosthetist was part of the rehabilitation team at Westmead who worked with Associate Professor Marosszeky and he has been involved in Mr Wormleaton's care since. His four reports are Exhibit B 1-4 and he gave oral evidence before me. The whole prosthesis involving what is referred to as a total surface bearing socket, two silicon liners and the proprio foot system currently costs $38,809. The cost of the wet prosthesis is $10,083; the high activity prosthesis with a Harmony cushion socket costs about $17,000.
In evidence Mr Ward explained that the reason for prescribing the prosthesis with the proprio foot was Mr Wormleaton's "considerably limited knee flexion". The proprio foot mimics normal plantar flexion and dorsi flexion (182.45T). He gave the following evidence (183.5T): The most important [foot function]… during the swing phase, is the dorsi flexion, the lifting of the toes; and then the most important in the propulsion phase or the toe‑off phase is the plantar flexion. He explained that the main reason he prescribes the proprio foot for Mr Wormleaton was "because of his restricted knee flexion, the issue then becomes clearance of the toe during swing phase" (183.10T). The device gives Mr Wormleaton the ability to walk in a safe manner. With his knee problems it is necessary to calibrate and recalibrate the proprio foot from time to time to ensure adequate foot clearance when walking to avoid stumbles from toe strikes (183.40T). There is a superior socket system, which is the harmony system, but having regard to the degree of Mr Wormleaton's amputation, there is insufficient room for the proprio foot to be fitted with a harmony socket. The socket may be more comfortable but the advantages of foot and ankle movement would be lost (184.50T).
In cross-examination Mr Ward agreed, given Mr Wormleaton's apparently very restricted level of activity, that a proprio foot is certainly not ideal. He expressed the view that on the assumption of that very restricted activity, the prosthesis "is far less successful than most" (191.10 - .25T). Mr Ward said that the difficulties in Mr Wormleaton's case came from "his particular issue in his knee joint" (192.5T). The proprio foot also has advantages in pushing off to assist when rising from a chair where a normal prosthetic foot has no movement. Mr Wormleaton's knee disability disables him from taking advantage of that function of the proprio foot (193.25T). To achieve adequate clearance of foot swing during gait with a standard prosthesis, it would be necessary to shorten it further, which would lead to a more irregular gait (193.45 - 194.35T).
Mr Wormleaton gave evidence that before the proprio foot was fitted he had been provided with a temporary "inert" prosthesis. He said that "even on a flat surface I still have trouble walking without scuffing me [sic] toe with a normal foot, because the knee doesn't bend to take that give" (30.35T). He had a number of falls. He said that he could not walk with the inert foot. Every time he would put it on he would trip or stumble. This is why he now prefers baths to showers. He was concerned that he might fall through the shower screen door if he fell wearing the standard leg.
Of the proprio foot he said (30.25T): "I'm unable to walk correctly without the proprio foot, because my knee doesn't bend, so if I walk on any incline my toes hit the ground and trip me, so that's why I don't use a normal leg." I should interpret that being electronic the proprio foot is not waterproof and cannot be worn in the shower.
He was asked the following question and gave the following answer (31.10T): Q. You know it's been suggested that because you don't walk long distances you don't need the PROPRIO leg. What do you say about that? A. That would give me no quality of life. At least this gives me 15 minutes of walking on me feet, so I can get around now, but I couldn't with the other way. In cross-examination at (82.30 - 83.30T) in response to the question that the proprio foot "is not very successful", Mr Wormleaton said: A. It is far more successful than without the proprio foot because I have got one of them at home as well. Q. But the prosthesis as a generality only permits you to walk for about 15 minutes, is that right? A. Yep. Q. After 15 minutes, you have to take it off, is that right? A. Have a rest, yeah. Q. And it is the prosthesis with the computerised ankle moving that you are using, correct. And you agree with me, do you not, that it is not a very successful prosthesis? A. No, contrary. It is ‑ I'd be hopeless without it. I have got a wet leg at home and cannot walk on it. I use that once a year. …. Q. But the leg you walk on is not very successful, right? A. Well, 15 minutes walking is better than not walking at all.
Without the proprio foot he would be restricted to a wheel chair or crutches. He cannot use a manual wheel chair on slopes.
In cross-examination (169.5T - 170.10T) Ms Zeman and Ms Lyon agreed that using crutches would mean that the skin on his stump would not break down through chaffing in the socket, however, Ms Lyon questioned whether he would be able to support himself because of his previous left arm injury. I am not persuaded that would be a difficulty. On the other hand Ms Zeman said "I certainly wouldn't want him on crutches for 4 hours a day and transferring all his weight through his shoulders and upper limbs, that would cause secondary problems".
In the concurrent expert oral evidence, Dr Harrison said that the proprio foot is able to be adapted to the way Mr Wormleaton walks. It almost anticipates heel strike, creating a toe up position so the toe does not catch as Mr Wormleaton walks with a limited angle of movement at the knee. Dr Harrison considers that it enhances his ability to get around with a bad gait pattern (226.35T). Dr Harrison considered it prevented falls (220.35T).
The case against the proprio foot is largely based upon what is characterised as its limited utility in Mr Wormleaton's case. As in absolute terms, he seems to be able to use it so little, then why have it. Dr Brian Zeman, in his report of 14th February 2012 (Exhibit 1D9(a)) said (p 117): He may benefit from a prosthesis. The current prescription for a computerised active foot (proprio foot/ankle) is unnecessary and excessive. He does not walk sufficiently to benefit from its function. His right knee range of movement is very limited and also defeats the purpose of the proprio foot. He considered that the SACH type foot with a waterproof stump, which he described as "more basic" would be suitable. From other evidence, I understand that the SACH foot can be adjusted with the toe up to reduce toe strike induced falls. Dr Zeman expressed the same view in his second report of 22nd October 2003 (Exhibit 1D9(b)). He considered that the harmony system described by Mr Ward in his third report might be more appropriate "although his stump size does not fluctuate sufficiently to warrant the harmony system".
In his first report of 30th May 2011 (Exhibit 1D4(a)), Dr Edward Schutz recorded that when he examined Mr Wormleaton that he had a very "angry" stump with a draining abscess. I infer for this reason that he had attended in a wheel chair, albeit wearing his prosthesis which Dr Schutz described as a "very modern below-knee prosthesis which appeared to have normal length and alignment" (p 5). He left using a walking stick. He did not comment adversely on the prosthesis, but made reference to Mr Wormleaton's apparent lack of agility.
Dr Schutz saw Mr Wormleaton again on 6th August 2013 and prepared a report dated 21st August 2013 (Exhibit 1D4(b)). Mr Wormleaton again presented wearing his prosthesis and using a walking stick. On this occasion there was no evidence of an infection. Again, whilst noting the limitations of mobility Dr Schutz did not make any adverse comment on the suitability of the prosthesis. In the joint orthopaedic report of 6th November 2013 (Exhibit C) Dr Schutz questioned the appropriateness of the proprio foot for the following reasons (p 9): 1. Mr Wormleaton's knee joint and stump are not "normal or close to normal". The right knee is arthritic and Dr Schutz thought it stable; 2. The recurrent infections made the stump painful and the prosthesis painful to use; 3. Use of the prosthesis placed additional demands upon the arthritic knee, making it more painful. This was counter-productive; it might be different if Mr Wormleaton was getting demonstrably more out of it, say the ability to walk 1 kilometre or more. Dr Schutz thought a reassessment was called for by the whole rehabilitation team, including the surgeon, rehabilitation physician and orthotist. In oral testimony Dr Schutz said (227.10T), "if he was able to use the prosthesis for any extent then I would agree with" its prescription. Dr Schutz thought the provision of a more comfortable socket, eliminating painful knee movement and a less sophisticated foot adjusted with the toe up "so it doesn't catch", would be satisfactory.
I should return to Mr Wormleaton's evidence that when out of his home he uses a walking stick for support. I noticed that he walked to the witness box using a stick, which I asked him about at (93.15 - .25T). He told me he used the stick all the time when out of the home because he is "wobbly". He said that he loses balance when he is walking with his leg. Inside the home he can regain his balance by putting his hand on the wall or holding furniture.
The resolution of this issue requires the application of legal principle, namely the compensatory rule which has been expressed in many different formulations. In Todorovic v Waller [1981] HCA 72; 150 CLR 402 at 412 it was put this way: A plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries.
To some extent there may also be a rule of restraint expressed by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661: Yet the sum to be awarded in compensation is not calculable by any mathematical process. At best, it is and must remain a matter of judgment. First, the range of the recurrent amount likely to be reasonably required must be considered. The question here is not what are the ideal requirements, but what are the reasonable requirements of the [injured plaintiff]. The jury must be warned, in my opinion, against blindly accepting the views of medical practitioners. What is reasonably required is a matter for the jury - or for the judge if sitting alone.
I acknowledge the obvious: I am bound by High Court authority. It may be observed, however, that: the demise of trial by jury in personal injuries cases; a greater emphasis in modern times on the judicial obligation to provide reasons; and the advent of statutory schemes requiring steps in the judicial process to be spelt out have brought "mathematical processes in the assessment of damages for personal injury very much to the fore". As Basten JA is Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [17]: Careful calculation of the individual heads of damage allowed in personal injury matters … is now universal practice. It conforms to modern standards of transparency in decision-making. It is required by (statute) … It is now commonplace… for an appellate court to undertake a careful assessment of each head of damage to see whether the amount awarded by the trial judge is in some respect erroneous.
When applying the compensatory principle to this head damage, it is well to bear in mind that one is not simply dealing with "the range of the recurrent amount likely to be reasonably required". The provision of a suitable prosthesis is not merely to be viewed as a matter of out of pocket expense. The provision of a suitable prosthesis goes a long way to restoring the person, at least so far as mechanical ingenuity can. The test seems to be "whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant's liability in damages", the provision of the proprio foot "as nearly as possible" puts Mr Wormleaton "in the same position as if he had not sustained the injuries" notwithstanding that the functionality he derives from it is less than ideal, and his use of it is limited: Medlin at 11; Todorovic at 412.
Applying the test I have stated in the immediately preceding paragraph, I am of the opinion that the provision of the proprio foot is reasonable in the relevant legal sense. I accept the evidence of the plaintiff, Associate Professor Marosszeky, Mr Ward and Dr Harrison in preference to the evidence of Dr Zeman and Dr Schutz.
In particular, I accept the plaintiff's evidence that he has found the SACH prosthesis of such limited benefit that he wears it only about once a year. I do not regard it as reasonable, in the sense discussed, that Mr Wormleaton should be left without a prosthesis with the use of a set of crutches and a manual wheel chair. As I have said the provision of a suitable prosthesis restores the man as well as treating the injury.
Mr Ward explained that the harmony socket was not appropriate in Mr Wormleaton's case because of the length of his stump below the knee. In any event Dr Zeman thought that there was insufficient fluctuation in stump circumference to justify its use. It was evident that Dr Schutz had in mind a socket that would stiffen the knee to eliminate any painful flexion at all. One can see the sense in this, but it would leave Mr Wormleaton, if at all given what he has said about his "wet leg", walking in a stiff-legged fashion. As Mr Ward observed, adopting other prosthetics would render Mr Wormleaton's gait even more irregular.
A party to litigation, of course, is not the judge of what is reasonable. But I was impressed by Mr Wormleaton's evidence that at least the proprio foot, limited as its utility may be, gives him "quality of life". That seems to me to be an appropriate application, in all the circumstances I have referred to, of the compensatory principle. I propose to allow damages assessed in accordance with the cost of the proprio foot. Given that Mr Wormleaton does not use his "wet leg" much, it will not wear out as readily as expected (198.45T). Mr Ward pointed out that there are occasions when it is necessary even if Mr Wormleaton prefers not to use it, such as staying away from home when he may have to shower rather than bathe. Something should be allowed for its replacement in the future, but not at a rate of one every three years. As Mr Wormleaton has difficulty ambulating there is no need for the high activity prosthesis (199.15T).

[28]

Future cost of prosthetics

There is an issue between the parties about the appropriate means of assessing the future cost of prosthetics. Mr Wormleaton argues that the correct method of capitalising the present value of the likely cost over Mr Wormleaton's lifetime is by calculating the recurrent cost over the three year life cycle of the prosthesis as a weekly sum, then capitalise it by application of the 5 per cent actuarial tables. Mr Cranitch referred to Hanlon v Hanlon Enterprises [2004] NSWSC 930; and Ware v Integral Energy [2003] NSWSC 351. It does not seem to me that either decision describes a single mandatory approach. Certainly, each decision, however, proceeds on the basis contended for by the plaintiff.
On Mr Parker's argument, as the prosthesis will need to be replaced every three years, strictly it should be dealt with on a deferral basis to take account of the accelerated receipt of damages. The argument is that as the prosthesis falls due for replacement every three years the correct approach is to defer each of the eleven replacement prosthesis until it is due. However, learned senior counsel suggests a broad approach which involves calculating at present value, the total cost of all prostheses likely to be required until the end of the plaintiff's expected life and defer that sum until the replacement midpoint.
In my judgment the approach contended for by the defendant better accords with the compensatory principle.
Both suggested methods take account of the need to discount because of the advantage accruing to a plaintiff by receipt of damages now in respect of expenditure that will not be incurred for years, indeed many years, in the future. Although a court has no concern with the manner in which a plaintiff uses the damages awarded to him, more than compensation is awarded if no account is taken "of the earning power of the money that is presently to be awarded": Chesapeake and Ohio Railway Co. v Kelly (1916) 241 US 485 at 489; Todorovic at 412 - 413. It is well recognised that there are some conceptual differences between the assessment of damages for loss of earning capacity on the one hand, and the assessment of damages for future outgoings on the other hand: Todorovic at 450; O'Brien v McKean (1968) 118 CLR 540 at 548 - 9.
In O'Brien at 555 Windeyer J said: If the present consequences of future periodic monetary earnings lost, or of future monetary expenses created, are to be determined and equated to a sum presently payable, the only sure starting point must, it seems to me, be the ascertainment of a present capital value, calculated at some rate of interest, of those receipts or outgoings. …. In personal injury cases the resultant of the computation is, at best, a factor which assists, but does not compel or conclude, the final assessment.
As the expenditure on the cost of prosthetics is not of a nature to be incurred week in and week out, or month by month, the approach contended for by Transfield and T&C better accords with the compensatory principle bearing in mind the award of damages provides an "investable fund" O'Brien at 548.
As I understand the evidence of Mr Ward in both written and oral form, the total cost of the current prosthesis including socket, liners and proprio foot is $38,809. The cost of the wet leg is $10,083. For the reasons I have given, I will not allow this on the basis that it is to be replaced every 3 years. Given the minimum use to which it is being put and the evidence referred to, I think a fair approach is to allow for replacement every 9 or 10 years. For ease of calculation I will add $3,300 to the cost of his usual prosthesis. This brings the total every 3 years to $42,109. His life expectancy is 34 years, meaning that this expenditure will most likely be incurred 11 times over the rest of his life. At a total cost of $463,199. Deferring this to a midpoint, as suggested by Mr Parker of 15 years, the multiplier is 0.481 and the figure is $222,798 which I will allow for replacement prostheses.
In his reports, Mr Ward gave evidence that each prosthesis requires 8 to 10 hours of labour for adjustments, maintenance and repairs each year at a current rate of $230 per hour. I will allow $2,300 per annum. This is a weekly amount of $44. With the 5 per cent multiplier of 865.9 applied, the total sum for Mr Wormleaton's expected lifetime is $38,099.

[29]

Costs of future surgery

In his reports, Dr Schutz raised the prospect that the amputation may need to be revised. In his second report he referred to the possibility of an above the knee amputation. From his reports and from his oral testimony, I understand that his concern in this regard relates to the recurrent infections which have beset Mr Wormleaton, although they currently seem much better controlled. As he explained it, Dr Schutz's concern was that the infections may lead to osteomyelitis in the bone which would require further amputation to remove the infected bone. He also explained that any above the knee amputation would be at about the midshaft of the femur, which is quite close to the commencement of the torso. I think it fair to say that he regards this as a possibility only. No investigation, including MRI scan has suggested, notwithstanding the previous problems, that Mr Wormleaton suffers from osteomyelitis. As I understand his evidence, I would regard this as a possibility with a low probability of occurring.
Dr Harrison did not mention the possibility of further amputation in his two reports (Exhibit D1 and 2), but there was obviously discussions between the experts about this possibility at their conference. The prospect is fully discussed in the joint report at p 3.4, p 6.p2, p 7.p2 and p 10.d1 and p 11.d2.
As I understand it, Dr Harrison's opinion is based upon concern for the post traumatic arthritis in Mr Wormleaton's right knee, which, as has been pointed out already has a markedly restricted range of movement as well as a fixed flexion deformity. Dr Harrison and Dr Schutz expressed the view that conventional surgical approaches to treating the arthritis if it progressed to the stage where surgery was warranted would be inappropriate. These surgical approaches, may in some circumstances call for an arthrodesis which should not be performed in the case of a patient with a below the knee amputation.
In evidence Mr Wormleaton said he would undergo an above the knee amputation "if it is required" (41.35T).
Over the objection of the defendant, I allowed Mr Wormleaton to amend his particulars to advance claims for the cost of that future surgery and any additional costs of prosthetics to accommodate an above the knee amputation ([2013] NSWSC 1813). As I remarked at the time, this consideration would bring into play the principles discussed in Malec.
The evidence of Dr Harrison is that the cost of the amputation, including anaesthetists, hospitalisation and the like, in today's terms, is $20,000. The costs of prosthetics is slightly more problematic. There are two options, one involves a titanium implant which extends beyond the stump as an extension of the patient's femur, which clicks in to a prosthetic knee and lower limb. The process is referred to as osseointergration. Dr Harrison said that this type of technology has come out of the advancements that have been made in treating young service personnel casualties from the recent wars in Afghanistan and Iraq. According to Mr Ward the total cost such a prosthesis, including a microprocessor knee joint, is in the vicinity of $95,000. Mr Ward explained that this process was the safest above knee prosthetic on the market. In evidence tendered by leave after my decision was reserved (Exhibit 13A), Mr David Hughes, also a senior prosthetist, estimated the cost at $64,000. Replacement would be required every 6 years. He estimated maintenance, adjustment and consumables at $3,200 per year.
The other option discussed by Mr Ward did not involve osteointergration. Rather, its componentry included a socket, microprocessor knee and a standard, but not necessarily a SACH, foot. The proprio foot would be unnecessary because the difficulty with knee flexion would no longer be relevant (197.30T). This setup would cost about $36,000, or slightly less than the present setup for which I have made an allowance.
Neither Dr Harrison nor Dr Schutz, on their physical examination of Mr Wormleaton's right knee found any evidence of internal instability either due to the massive ligamentous injury he suffered or the progression of his arthritis. Dr Schutz pointed out that is a favourable prognostic sign. Moreover, there is no evidence of osteomyelitis and the previous problem with infection seems more under control. Mr Wormleaton does not seem to have seen an orthopaedic surgeon for treatment in recent years and there has been no suggestion that any revision of the amputation whether below or above the knee is presently necessary.
On this evidence, I regard the chance of Mr Wormleaton being required to undergo an above the knee amputation to treat a late developing consequence of the defendant's negligence as very unlikely to occur. Given the reasoned opinion of the joint experts, I could not say that the prospect of it is so unlikely as to be speculative. On the other hand, were it to occur, I think it extremely unlikely that a man of Mr Wormleaton's age would be offered osteointergration. It seems much more likely that he would be offered a more conventional prosthesis involving a microprocessor knee. And as Mr Ward pointed out, this is, as it transpires, a little less expensive than the existing prosthesis with a proprio foot. Indeed, I would regard the prospect of Mr Wormleaton both undergoing an above the knee amputation and him being offered an osteointergrated prosthesis as being so unlikely as to fall into the realm of the purely speculative. Accordingly, I will make no allowance in respect of osteointergration but it is appropriate to allow something for the possibility of future surgery. I confess that it is difficult to engage in little more than guesswork in this area; a figure of $5,000 seems not unreasonable.

[30]

Non prosthetic future expenditure

Each of the occupational therapists, Ms Lyon, Ms Zeman and Ms Fenton have suggested a range of curative aids and some home modifications to accommodate Mr Wormleaton's disabilities (see 1D7 page 46; 1D14 page 43 and Exhibit R2). These include: some degree of home modification, mainly to the bathroom, shower chair, manual wheel chair and an electric scooter. No oral evidence was directed to these matters at the hearing. But as all the experts agree; nothing is said against it; and it is claimed, I think it appropriate to make an allowance in respect of the matters, all of which will require some replacement over the years. I have not added up all the items on every schedule. They roughly seem to fall in to the same broad range. Ms Zeman estimated the cost of bathroom modifications in a permanent home (the Wormleaton's are currently renting) at $8,000. I will allow this figure.
Ms Lyon estimated the purchase cost of the various aides and therapeutic apparati at $7,185. I will allow this figure. She has given estimates of the frequency of replacement and adopting her costings, this amounts to $19 per week on an ongoing basis. Strictly this should be approached on a deferred basis, as I have said already, but given the relative modesty of the individual items, I am of the view that no injustice is done by dealing with the matter as a recurrent weekly expenditure. Discounting is still involved.
Of the other items claimed, I think it reasonable to allow a GP attendance once a month given the range of narcotic pharmaceuticals being prescribed for Mr Wormleaton and I will allow the amount claimed of $23 per week. Chemist expenses are agreed at $34 per week. Mr Wormleaton has not seen a specialist, on the evidence, for some time. The general tenor of the evidence is that frequent specialist attendances are not called for and I will allow one consultation, on average, with an orthopaedic specialist per annum. The amount claimed is $200 and I will allow $5 per week. There is no evidence of a satisfactory nature that he requires psychological treatment, certainly not for the effects of the injury of 31st March 2009 and I will disallow that claim. I bring forward the amount of $19 per week from [196]. These items total $81 per week. I will allow them for 34 years using the 5 per cent multiplier of 865.9. The figure is $70,137.00.
Other claims are made for the prospect of future radiological examinations and possible hospital admissions. In the past when his infections have been severe, MRI scans have been undertaken in an attempt to locate the nidus of the infection and to check on the condition of his bones. I will allow $3,000 as a cushion for future radiological needs.
I do not propose to allow anything over and above the allowance already made for future hospital admissions. It seems to me on the evidence I have recounted, the only prospect of future hospitalisation will be if the chance of a further amputation materialises. From what Dr Harrison has said, he cannot have other surgery for his arthritic knee and if in future, osteomyelitis occurs in the bones of his stump, amputation is likely to be the preferred treatment.

[31]

Summary of Damages

I provide the following summary of the damages awarded. Non-Economic Loss 66% $377,500.00 Past out of pocket expenses $219,235.00 Past Economic Loss $316,727.00 Past employer superannuation contributions $34,839.00 Interest on past economic loss $23,250.00 Fox v Wood $19,919.00 Future economic loss $487,591.00 Future employer superannuation contributions $63,143.00 Damages for past gratuitous care under s 15 CLA $78,839.00 Future gratuitous care $173,180.00 Past s 15B damages $44,640.00 Future s 15B damages $93,750.00 Future cost of prosthetics $222,798.00 Maintenance, repairs, adjustments for prosthetics $38,099.00 Allowance for chance of future surgery $5,000.00 Bathroom modification $8,000.00 Aids and apparati $7,185.00 Ongoing medical needs $70,137.00 Future radiological needs $3,000.00 Total damages $2,286,832.00
I will pronounce orders today to give effect to my reasons. However, as there has been a delay in giving judgment, I will delay entry of the orders to enable the parties to check my calculations and to make any application that may be necessary due to any change in the amount of workers' compensation paid so far as it affects the allowances I have made. Moreover, this enables me to comply with the provisions of s 23(2) Civil Liability Act to notify the parties of the terms of the award I propose to make, to give them a reasonable opportunity to negotiate a structured settlement.
I am informed by the parties that they agree that the effect of the cost provisions of the Workers Compensation Regulation 2010 (NSW) is that neither Mr Wormleaton nor Allstate have a right to legal costs against the other regardless of the outcome of his claim for work injury damages which has failed.
My orders are: 1. Judgment in favour of the plaintiff against the first defendant in the sum of $2,286,832.00; 2. Judgment in favour of the plaintiff against the second defendant in the sum of $2,286,832.00; 3. Satisfaction of one of the judgments in orders (1) and (2) discharges the other pro tanto; 4. Judgment for the fourth defendant against the plaintiff; 5. The first and second defendant's to pay the plaintiff's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed; 6. The plaintiff and the fourth defendant to bear his and its own costs of the work injury damages proceedings; 7. For the purposes of s 23 Civil Liability Act 2002 defer entry of judgment until Wednesday, 1st April 2015; 8. List the matter for entry of final orders before me at 9:30 am on Wednesday 1st April 2015; 9. Reserve liberty to the parties to apply in respect of mathematical miscalculations, changes in workers' compensation rates, and for the purposes of s 23 Civil Liability Act on written notice to my associate and to each other no later than 4 pm 27th March 2015. All applications will be dealt with on 1st April 2015.

Wormleaton v Thomas & Coffey Limited - [2015] NSWSC 260 - NSWSC 2013 case summary — Zoe

Wormleaton v Thomas & Coffey Limited

At a glance

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Judgment (32 paragraphs)

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Legislation Cited (6)

Cases Cited (37)

Cited By (1)