Youssef v Bevchain Pty Ltd

The Civil Liability Act 2002

1. The plaintiff's cause of action is squarely within the ambit of the Motor Accidents Compensation Act 1999. The defendant accepts that if Mr Faitua was negligent as alleged then the defendant will be vicariously liable for that negligence. Whether Mr Faitua was negligent, and to what extent, is at issue.

Risk of harm

1. Negligence is governed by Division 2 of Part 1A of the Civil Liability Act entitled "duty of care". Section 5B(2) is a series of reasons why a person will not be negligent in failing to take certain precautions against a "risk of harm".
2. The authorities make it plain that it is critical to accurately identify the relevant risk of harm before considering whether any breach of duty has been established, and before considering whether any of the exceptions set out in s 5B are engaged.
3. As Leeming JA observed in Uniting Church of Australia Property Trust (New South Wales) v Miller 91 NSWLR 752 at [118], the "risk of harm" is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. See also Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 at [106].
4. It seems to me that the relevant risk of harm can properly be described as being: "There may be collisions between forklifts operating on the factory floor, which collisions, if they occur, might cause a driver of a forklift to suffer injury, loss and damage."

Section 5B Civil Liability Act 1999

1. The statement of claim pleads the events as follows: "On or about 17 November 2015 the plaintiff was undertaking his duties as a forklift driver when Mr Faitua drove his forklift and it reversed at speed into the forklift driven by the plaintiff, causing a significant collision wherein the plaintiff suffered significant injury loss and damage."
2. Approaching the relevant risk of harm in the way I have described, the next question is to determine whether there has been a breach of duty to take reasonable care to take precautions to avoid the risk by identifying what precautions (if any) Mr Faitua failed to take in the circumstances and finally to enquire as to whether his failure to take the relevant precautions engages any of the subsections of 5B(1) of the Civil Liability Act which is in the following times: A person is not negligent in failing to take precautions against the risk of harm unless (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) and (b) the risk was not insignificant and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
3. Subsection 2 of s 5B gives some definition to the test to be applied when determining what a reasonable person would have done to take precautions against the risk of harm which matters include: "(a) the probability that the harm would occur if care was not taken; (b) the likely seriousness of the harm (c) the burden of taking precautions to avoid the risk of harm (d) the social utility of the activity that creates the risk of harm."

What happened?

1. As I have said, the incident was captured by CCTV digital footage. Exhibit A is that footage. I have reviewed it on a number of occasions and heard submissions from counsel for both parties in relation to what can be seen.
2. The footage is short but does give a tolerably clear and complete depiction of what happened.
3. When the footage was first tendered and viewed during the hearing, it was not known to anyone that there was a soundtrack to the footage. This was the position during the early part of the plaintiff's evidence. However, it was later discovered that there was a version of the footage which contained a soundtrack on which can be heard various horns being sounded by various forklifts.
4. The significance of the sounding of these horns is something that I will come to.
5. It is clear from the footage that Mr Faitua, whilst engaged in operating his forklift, reversed into the path of the plaintiff's forklift without first looking behind him to make sure it was safe to do so. It is also clear that Mr Faitua was or ought to have been aware at the time that there were at least three other forklifts operating in close proximity to where he was working. In other words, he knew or reasonably ought to have known that if he reversed without first looking, there was a real risk that he might collide with another forklift.
6. The plaintiff either saw Mr Faitua's forklift as he drove towards it or, if he was keeping a reasonable lookout, would have seen that Mr Faitua was engaged in operating the forklift, the task he was performing was difficult and would require his full attention, and that it was likely that Mr Faitua would shortly have to reverse from where he was to manoeuvre the load he was carrying, quite possibly into the path of the plaintiff's forklift.
7. The plaintiff gave emphatic oral evidence that it was his (and he said all other forklift drivers who worked at the site at the time) usual practice to sound his horn when going around blind corners or approaching any other forklift, so as to alert other drivers to the presence of their forklift. He explained that to not do so would be unsafe and contrary to good practice. Based on that usual practice, he is confident that he did sound his horn at least two or perhaps three times leading up to the incident. He said that the horn, if sounded, was loud enough for the operator of another forklift to hear it. He has no memory of sounding his horn in the way he describes but was very confident that he did so by reference to what he described as his invariable practice.
8. The plaintiff also said by reference to the footage, that because Mr Faitua could have manoeuvred his forklift in a manner that kept it out of what the plaintiff described as "his space", he would not have assumed that there was any need for him to do anything to avoid a potential collision, the most obvious thing to do being stopping and waiting for Mr Faitua and his forklift to clear the area. Again, he has no memory of this. His evidence about what he would have assumed is reconstructed based on his review of the video combined with his understanding of his own usual practice.
9. Mr Faitua was not called by the defendant to give evidence, and no explanation for this was provided. My review of the CCTV footage without the use of the soundtrack strongly suggested that no warning was given by the plaintiff to alert Mr Faitua of his presence. This is because whilst the video footage makes it plain that Mr Faitua is concentrating on the work he is performing, there is nothing in his reaction to suggest that he in any way was alerted to the presence of the plaintiff by the sounding of a horn.
10. When the soundtrack of the footage is listened to along with the footage, it is apparent to me that the plaintiff most certainly did not sound his horn two or perhaps three times in good time before he came into proximity with the forklift being driven by Mr Faitua. Rather, it is possible (although I cannot be sure) that he sounded his horn once, almost at the very moment of collision. Thus, on the plaintiff's own evidence, he did not conduct himself in the way he described safe operation required.
11. The factual situation, it seems to me, is as follows: 1. The plaintiff was aware that Mr Faitua was operating his forklift and was likely to reverse from where he was, which would at least possibly place his forklift into the path of the plaintiff. 2. The plaintiff was aware that Mr Faitua was operating in a busy warehouse and was working under significant pressure. It was reasonable for the plaintiff to assume that Mr Faitua was concentrating on the task he was engaged in, viz, getting a pallet off a moving conveyor belt with limited time before the next pallet arrives. 3. The plaintiff did not sound his horn in a way that he described would be safe or take any other steps to warn Mr Faitua of his presence, yet continued to drive his forklift into the position where it was likely Mr Faitua would shortly reverse. 4. Mr Faitua reversed his forklift in circumstances where he knew it was likely that there would be other forklifts in the vicinity without looking behind him. 5. The plaintiff assumed that Mr Faitua would manoeuvre his forklift so as to leave the plaintiff "his space".

Breach

1. Applying those factual findings to section 5B of the Civil Liability Act and by reference to what Mr Faitua did or did not do, it seems to me tolerably clear that the risk i.e. that he might collide with another forklift if he reversed without looking behind him to see if one was there, was foreseeable in the sense that it is a risk of which Mr Faitua knew or ought to have known, that risk was not insignificant, and in all the circumstances, a reasonable person in Mr Faitua's position would have taken those precautions (ie. looked behind him).
2. That is because (by reference to s 5B(2)) there was a realistic chance that if he did not look behind him he might collide with another forklift, which collision might cause injury to the driver of that other forklift, the burden of taking the relevant precautions was no more than looking behind him to check where he was going and the social utility of allowing factories to operate with forklifts is not in any way diminished by expecting people who drive forklifts in those factories to keep a proper lookout.
3. In addition to the evidence of the plaintiff and the CCTV footage, there is also in evidence a document on the letterhead of the defendant entitled "Incident Report and Investigation Form" (CB 846).
4. The document is not signed by anyone but was produced by the defendant for the purpose of these proceedings.
5. I infer therefore that it is a business record of the defendant and admissible to prove facts represented within it. However, because it is not signed and the circumstances under which it was created are obscure, the amount of weight it should be given is questionable.
6. Relevantly, and after identifying that the plaintiff did suffer at the time severe pain in his lower back the form contains the following: "Why did it happen?… What happened? FLD reversed into another FLD (FLD being 'fork lift driver') Why? Urgency of removing the pallet from the line to prevent next pallet running into the pallet he was removing (casual - not Noubar) [Noubar being the plaintiff's first name] Why? New casual operator not experienced with removing pallets from AB01 to know the timeline between removing the pallet and the next pallet being moved through. Why? New environment to the employee."
7. Notwithstanding that, the defendant accepts that Mr Faitua did not look behind him before reversing into the path of the plaintiff's forklift. The defendant contends there was no breach of duty, or any breach did not cause the incident. The defendant puts it this way. 1. The Court would not and cannot be satisfied that the plaintiff sounded the horn of his forklift prior to approaching Mr Faitua. 2. That the warehouse was busy and both the plaintiff and Mr Faitua were working under pressure. 3. It is plain, therefore, that the plaintiff knew the defendant was about to reverse his forklift. 4. It may be accepted that Mr Faitua owed a duty to take reasonable care to avoid the foreseeable risk of harm, however, the circumstances of the driving and the location of the incident are important markers of the content of his duty and care needs to be taken in the application of highway authorities to the circumstances under consideration which involve a factory accident in an area which was heavily used by forklifts and not pedestrians - reference was made to what Heydon JA said in Knight v Maclean [2002] NSWCA 314 at [67] and [68]. 5. A duty of care imposes an obligation to exercise reasonable care, it does not impose a duty to prevent potentially harmful conduct. 6. Mr Faitua was at all times acting reasonably. He had a reasonable expectation that the plaintiff would not disrupt his task by entering the area and taking the floor space Mr Faitua needed to reverse his forklift. 7. The failure to keep a proper lookout on the part of Mr Faitua is not determinative. He was in the process of reversing at the time of the plaintiff entered the area. The focus of Mr Faitua's attention at the time was on the security of his load. 8. All of this was in accordance with what was said to be "the general practice of prudent men" and reference was made to what McHugh J said in Dovuro Pty Ltd v Wilkins (2003) 205 CLR 317 at [34].
8. The defendant submits that all of the above leads to the conclusion that the duty of taking reasonable care required Mr Faitua to do no more than he did. He had no reason to expect the plaintiff would enter into his immediate vicinity and in any event Mr Faitua's forklift was in the process of reversing when Mr Youseff entered the area. Accordingly, so the submission goes, there is no breach of duty on the part of Mr Faitua.
9. Insofar as the defendant identifies in the above series of submissions factual matters, they all may be accepted other than I do not accept the non-sounding of the horn by the plaintiff. I find he sounded it only once, almost at the point of impact. This was inconsistent with what he considered safe practice. I also do not accept the proposition that Mr Faitua's forklift was moving at the time he came into the view of the plaintiff. I do not think the footage demonstrates that. It is possible that as Mr Faitua came into view of the plaintiff, he had commenced turning the steering wheel, but I cannot perceive an actual commencement of movement at that time, rather it is slightly later in the sequence.
10. That all being said, the whole event takes no more than 15 seconds, and the period under which the plaintiff had Mr Faitua in view was significantly less than that.
11. To all of this may be added the finding which I do make based on the incident report to which I have referred, that Mr Faitua was a new casual operator and was not experienced with removing pallets in the timeframe required to do so before the next pallet came along. Moreover, someone at the time attributed fault to Mr Faitua's inexperience.
12. Finally, as to the question of whether a reasonable person in all the circumstances might be expected not to reverse a forklift without first looking to see where they were going, the standard operating procedure of the defendant is in evidence at CB 951, at CB 953, the following is stated above a photograph of a forklift driver on his forklift carrying a load looking over his shoulder. "In the event an operator's vision is obscured by the load, operators are to drive backwards and look over their shoulder. Vehicle operators must not rely on using mirrors when driving backwards."
13. That rule is consistent with what I would consider common sense.
14. The defendant's submission comes down to the proposition that the actual cause of the incident was either the plaintiff not sounding his horn or the plaintiff not stopping to allow Mr Faitua room to manoeuvre or a combination of both.
15. The defendant contends that in all the circumstances, nothing that Mr Faitua did or did not do was in a legal sense a cause of the incident.
16. I do not accept that submission, although a lot of what the defendant says has significant relevance to the question of contributory negligence. Fundamentally, I have concluded that notwithstanding the circumstances of pressure and busyness created by the job he was doing, Mr Faitua, if he was acting reasonably, ought to have looked behind him before he reversed into the path of the plaintiff. To look behind him in that way, in all the circumstances, was in my opinion something that he was required to do in order to discharge his duty of care to other forklift drivers. If he had done so, he would have seen the plaintiff and the incident would not have occurred.
17. Accordingly, I have concluded that Mr Faitua did breach his duty of care in the way alleged, and that the identified breach was a significant cause of the incident.

Contributory Negligence

1. Section 138(3) of the Motor Accidents Compensation Act provides that any damages recoverable in respect of the motor accident are to be reduced by such percentages the court thinks "is just and equitable" in all the circumstances.
2. The test is to be found in s 5R of the Civil Liability Act. The proper legal question in determining contributory negligence in respect to s 5R is, how would a reasonable person have acted in the position of the plaintiff, "having the knowledge that the plaintiff ought to have had". It is of course necessary to have regard to the relationship between the parties and the duty of care that the defendant owed the plaintiff when assessing the question of contributory negligence.

Resolution on liability

1. At the risk of repetition, I am satisfied that Mr Faitua breached his duty of care to the plaintiff and others in the way he operated the forklift in a way which did cause the collision. Simply put, he reversed without looking where he was going. I am also satisfied that the plaintiff's own failure to take reasonable care contributed significantly to the collision. The plaintiff drove his forklift into the vicinity of Mr Faitua, knowing Mr Faitua was very likely to shortly reverse into his path and knowing that Mr Faitua was working under pressure. He failed to assume that Mr Faitua might not manoeuvre his forklift so as to avoid collision, and thus failed to take reasonable steps to warn Mr Faitua of his presence, or indeed to stop and wait for Mr Faitua to move on. I do not accept the plaintiff's evidence to the effect that it was reasonable to assume that Mr Faitua would only manoeuvre his forklift so as to leave what the plaintiff described as his "space" clear. Where the boundaries of the "space" are to be found is not at all clear and in any event, I think if the plaintiff was taking reasonable steps himself to avoid collision, such an assumption was not reasonable. Most importantly, the plaintiff failed to sound his horn in the way he described was safe and acceptable practice. He probably sounded it once, but it was too late by then.
2. On that basis, I find that Mr Faitua did breach his duty of care to the plaintiff which did cause the incident, albeit the plaintiff is responsible for 30% by virtue of his own contributory negligence, and thus whatever damages have been occasioned to the plaintiff as a consequence of the incident must be reduced by 30%.

Damages

1. The plaintiff's claim is for economic loss only. He has not been assessed as having the necessary whole of body impairment required under the Motor Accidents Act for an award of General Damages.
2. The plaintiff's claim is for past and future economic loss - his case being that as a consequence of the injuries he has sustained in the collision, he has been unable to work for some time and will be unable to work for the rest of his life.
3. He also makes a significant claim for gratuitous domestic assistance and for out-of-pocket expenses, albeit those out-of-pocket expenses have been almost entirely met by the National Disability Insurance Scheme. This poses a difficult question as to the operation of ss 106 and 107 of the National Disability Insurance Scheme Act 2013 ("NDIS Act").

Causation

1. Causation is governed by s 5D of the Civil Liability Act which provides: (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. My understanding of those provisions is that generally, the defendant's negligent conduct will be "a cause" of the plaintiff's loss if it is a necessary condition of the occurrence of that loss. This is sometimes, quite unhelpfully, referred to as the "but for" test of causation. Of course, there is a limit to how far one takes "but for", perhaps only identifiable by an application of common sense in any particular case can one identify where the outer parameters of a legal test described as "but for" are to be found. What I think it means is, it is necessary in order to establish factual causation under the statute for a plaintiff to establish that they would not have suffered the particular harm but for the defendant's negligence. See for example Strong v Woolworths Limited (2012) 246 CLR 182. There is a second step to the enquiry which involves the application of a "foreseeability" component to the legal test. Liability for breach of duty to exercise reasonable care to avoid harm does not extend beyond harm that was actually foreseeable at the time of breach - Overseas Tank Ship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 3 at 397-400.
3. In Tabet v Gett [2010] HCA 12 Crennan J said at [111]: "The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. "More probable" means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty."
4. A finding that a defendant's failure to exercise reasonable care caused harm of which the plaintiff complains also requires a court to conclude that it is appropriate for the scope of the defendant's liability to extend that harm. That is, at the level of breach there is a 'foreseeability" question, but there is then a "remoteness" test involved when considering the actual damage claimed. That being said, what is known as the "eggshell skull" principle explained in cases such as Dulieu v White & Sons [1901] 2 KB 669 at 679 per Kennedy J, or Chester v Waverley (1939) 62 CLR 1 per Latham CJ, continues to have application other than in a claim for pure mental harm.
5. There remains a significant difference between legal causation and scientific proof of causation, which assumes importance in this case. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, [2009] HCA 48, the High Court said at [55]: At once it must be recognised that the legal concept of causation differs from the philosophical and scientific notions of causation. It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted it had been recognised that the "but for' test was not always a sufficient test for causation. But s 5D(1) shows, the "but for" test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the unidentified group of exceptional cases contemplated by s 5D(2).

The plaintiff's work history

1. Prior to the incident the plaintiff had for many years worked two full time jobs: one with Australia Post and the other with various employers as a forklift driver.
2. He had a good work history other than he a period of two years in 1988 where, as a result of an accident at work, he suffered injuries to his neck. He was off work and received workers compensation payments for a period of two years.
3. This pre-existing injury and history becomes an important factor in the case.

The plaintiff's current condition

1. As I have said, the plaintiff presents with an extraordinary array of extremely serious and debilitating, yet apparently unrelated symptoms.
2. Whilst one of those symptoms may include a tendency for him to exaggerate to an extent his predicament, I did find the plaintiff to be genuine, as have the scores of doctors who have examined him (details of his medical treatment and medico-legal examinations since the incident are to be found in the agreed chronology (Exhibit B)). I am satisfied that he is suffering symptoms to such an extent that he has no capacity to work, and that will remain the position for the rest of his life. His presentation in the witness box was as a man who is profoundly disabled. His wife's evidence corroborates his and significantly none of the medical witnesses seriously suggest he is feigning his symptoms. I find that his symptoms are genuine. At the very least, as Dr George, who was called by the defendant, said, "the symptoms are real to him".
3. The National Disability Insurance Agency assessed the plaintiff in 2020 as being profoundly disabled and for the period October 2020 to October 2021 approved an assistance plan of $30,707.31, for the period 20 August 2021 to 20 August 2022 the assistance package was increased to $157,826.32, and for the period 6 January 2023 up until 5 January 2025 the plaintiff has been assessed as being entitled to a disability plan totalling $352,358.81.
4. That has been the position since some time in 2020. It was in June 2020 that he was terminated from his job at Australia Post as a consequence of his medical situation (having worked on light duties for some time) and by 2017, he had stopped working for the defendant, whereafter he was subsequently terminated.
5. One of the many summaries of the plaintiff's symptoms is contained in an occupational therapy report by Living Strength, which is at page 157 of the bundle of documents (Exhibit C).
6. Although dated December 2021, my understanding of the evidence is that the below list sets out some of his current and ongoing issues. They are:

• Incomplete spinal cord injury (this is in issue)
• Anxiety
• Depression
• PTSD
• Chronic Adjustment Disorder
• Insomnia
• Chronic pain
• Urinary and bowel dysfunction (requiring the plaintiff to wear nappies)
• Sexual dysfunction
• Sleep apnoea
• Thermal allodynia (temperature related pain) - brought on by cold temperature
• Obesity (the plaintiff is currently 200 kg)
• Left foot drop with limited use movement in left ankle

1. The above summary is broadly consistent with all of the medical evidence, although in his evidence the plaintiff described many and varied other symptoms, including severe back and neck related pain, hand and leg tremors, chest pain and more.

The Issue for Determination

1. The question for me is whether these symptoms are caused by the incident. The plaintiff's case is that they are. The defendant contends the plaintiff has failed to prove that to be so.

The Neurological Case

1. The plaintiff has been treated by, amongst others, Dr Hanna, his general practitioner and Dr Paul Teychenne, who is a consultant neurologist.
2. Dr Teychenne has provided a number of reports to Dr Hanna and some other reports for the purpose of this case. He confidently expresses a diagnosis of "incomplete spinal cord lesion" based on his clinical observations and the history provided to him by the plaintiff that: "The plaintiff suffered in the accident an incomplete spinal cord lesion, following which he developed hypersensitivity or super sensitivity to sensation such as cold sensation, which could feel painful ice cold. This was now extending over the whole body. He had developed marked tremors and it is apparent on my assessment that he had a generalised grade 2 tremor within the whole body and even a tremor of the head which was recurring quite frequently throughout my examinations."
3. Dr Teychenne links all of the plaintiff's symptoms to the incomplete spinal cord lesion he has diagnosed, which in his opinion was caused by the mechanical movements of the plaintiff's body caused by the harm generated by in the incident. Those symptoms are described by Dr Tehchenne as follows:

• He had upper motor neurone weakness in the upper limbs, intrinsic hand muscle weakness and myelopathic weakness in the lower limbs with paresis of the left foot.
• He had super sensitivity particularly to cold sensation throughout the whole body.
• He had a generalised tremor which would engulf the whole body, and which was often associated with myoclonic jerks particularly of the right leg.
• He had loss of sense of taste and smell.
• He had truncal dystonia and akathisia where he would persistently be dancing on his feet in a restless dance.
• He had shooting neuropathic pain from the knees down.
• He had migraine-like cervicogenic headaches associated with phonophobia and vertigo.
• He had imbalance to both the left and right side and a tendency for the left side of his body to physically collapse down.
• He had a slow small stepped gait and he would lose balance particularly walking on an uneven surface.
• An MRI scan of the cervical spine had shown multi-vertebral osteophytes most prominent at C3/4, C4/5 and C5/6. There was a central disc protrusion at T5/6 causing mild flattening of the ventral aspect of the spinal cord and at T8/9 he had a right paracentral focal disc protrusion causing mild flattening of the ventral aspect of the spinal cord. He had a large left paramedian disc extrusion at C6/7 with possible contact on the ventral aspect of the cord at C6/7.

1. As I have said, Dr Teychenne is confident that all of the above symptoms are as a result of the spinal cord lesion he has diagnosed. Moreover, he is of the opinion that this "constellation of symptoms" is consistent with it.
2. Dr Teychenne's opinion is therefore that the plaintiff's current inability to work is as a direct consequence of the injuries he suffered in the incident, and all or most of the plaintiff's symptoms are as a consequence of the partial spinal cord lesion which he has diagnosed. Dr Teychenne's diagnoses and opinion as to causation is the subject of serious contest.
3. The defendant relies on a number of competing medical opinions, most particularly Dr John Walsh, an orthopaedic surgeon, Dr Chris Browne, a rheumatologist, Dr Michael Coroneos, a neurosurgeon, Dr Vidyasagar Casikar, a neurosurgeon, Dr Home, MAS Assessor, Dr Simon McKechnie, a neurosurgeon, and Dr Peter Aslan a urologist.
4. None of the doctors qualified by the defendant or any who have treated the plaintiff, other than Dr Teychenne and Dr Hanna (who accept Dr Teychenne's advice) find themselves able to link the plaintiff's current symptoms to the incident described. More specifically, none of them accept that the pain emanating from the plaintiff's neck down through his upper limbs via his shoulders is connected to the incident. They all conclude that whatever physical injuries he may have suffered during the incident, ought to have long since resolved. That being said, they are unable to identify any medical basis for the symptoms which they accept are genuine. In other words, whilst they conclude that the symptoms are genuine, they cannot offer a medical explanation for them.
5. Dr Walsh concludes: "Mr Youssef has had a jolting injury to his spine following the incident as described. The jolting injury has produced a soft tissue sprain to the muscles and ligaments … I doubt that his current symptoms are necessarily related to the injury he sustained work which would have been a spraining injury to the muscles and ligaments of the spine. There is also some degree of overreaction which makes me suspicious of how genuine his complaints are."
6. Dr Coroneos described the presentation of the plaintiff as consistent with "gross symptom magnification" and concluded "There is no evidence of any injury having occurred to the lumbar spine" and that he cannot determine a neurosurgical diagnosis or injury which explains the plaintiff's presentation. He was unable to determine the neurosurgical injury diagnosis that is compatible with the plaintiff's actual presentation.
7. Dr Casikar concluded: "I am unable to make a neurosurgical diagnosis based on his clinical symptoms. Left hypoesthesia is not a neurological diagnosis. I find it very difficult to accept that a simple very low speed accident with a forklift could produce such severe problems which have not improved over the last six years."
8. Dr Casikar, who like Dr Teychenne gave oral evidence and was cross-examined, emphatically disagreed with Dr Teychenne's opinion. Indeed, he seemed to regard Dr Teychenne as some sort of maverick or charlatan who "always diagnoses incomplete spinal cord lesions". Dr Casikar accepts the plaintiff's symptoms are genuine but is of the opinion that they have no neurological cause.

The Psychiatric Case

1. The duty to prevent mental harm is dealt with by s 32 of the Civil Liability Act which is in the following terms: (1) A person ("the defendant" ) does not owe a duty of care to another person ("the plaintiff" ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following-- (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
2. This not a case of "pure mental harm" as it is accepted that the plaintiff suffered some reasonably serious physical injuries in the incident. So, the legal question becomes, ought the defendant have foreseen that a person of normal fortitude might, in the circumstances of this case, suffer a "recognisable psychiatric illness if reasonable care is not taken".
3. In my view, it is foreseeable that such a person might suffer some form of psychiatric illness if they were involved in an accident that causes them immediate physical pain and suffering, Both Dr Younan and Dr George gave evidence that the onset of diagnosed depression and anxiety is not uncommon in the aftermath of such events nor is PTSD - albeit not as common. That is not to say that somatic symptom disorder would be foreseeable but that is not the question.
4. It is important to again emphasise that whilst there is considerable disagreement between the medical experts as to an explanation for the vast array of symptoms with which the plaintiff presents, there is no medical opinion to the effect that the plaintiff is feigning the symptoms.
5. As I have said, Dr Teychenne is convinced that all of what the plaintiff presents with is as a consequence of the incomplete cervical spinal cord lesion that he has diagnosed. However, as I have pointed out, there are problems with Dr Teychenne's emphatic diagnosis.
6. If Dr Teychenne is not correct in his diagnosis, and I have concluded that on its own I would not be satisfied, then there appears to be no physical medical explanation for the plaintiff's symptoms at all, other than vague attempts to link it to obesity or sleep apnoea.
7. The question then becomes, is there a psychiatric explanation? The plaintiff has been treated by Dr Younan, a consultant psychiatrist since April 2020.
8. In a comprehensive report dated 3 November 2020, Dr Younan concludes that he has diagnosed the plaintiff with:

• Generalised anxiety disorder manifested by excessive worry, which is difficult to control, and sleep disorder, difficulty concentrating, muscle tension and jerky movements.
• Social anxiety disorder as manifested by anxiety in social situations, avoidance of those situations.
• Specific phobia of visiting hospitals and of needles.
• Post-traumatic stress disorder as manifested by exposure to what was perceived as a severe injury and the recurrent distressing memories relating to it, nightmares, periods of which he feels absent-minded, anxiety and driving the car, attempts to limit driving, negative beliefs of himself, diminished interest and exaggerated startled response and sleep disorder.
• Persistent depressive disorder as manifested by depressant mood most of the time, insomnia, fatigue, low self-esteem and feeling hopeless.

1. Dr Younan's prognosis is "guarded".
2. He thinks that the plaintiff has achieved "maximum level of improvement". Dr Younan assumes there is a physical explanation for most of the plaintiff's symptoms but expresses no opinion as to what that might be.
3. The defendant qualified Dr Graham George, a psychiatrist who has examined the plaintiff for the purpose of this case on a number of occasions and produced three reports.
4. In the first of those reports dated 15 February 2019 Dr George concludes: "Generally, I believe that any psychiatric condition with which he presents relates to his morbid obesity. He is around 200 kg now. He moves slowly, cannot sit in normal chairs and has trouble rising and sitting".
5. He continues: "I did not find him with any psychiatric disorder on the day of assessment. More than likely he has had undiagnosed obstructive sleep apnoea for a number of years. This condition can be associated with cognitive deterioration and mood disorder over time."
6. In a report dated 2 March 2021, Dr George does not depart from his earlier opinion.
7. However, in his third report of 25 May 2023 Dr George concludes: "On this occasion, I would diagnose him with somatic symptom disorder in combination with a persistent depressive disorder. Whether or not he has had any neurocognitive disturbance, secondary to obstructive sleep apnoea has not been documented through any neuro physiological testing."
8. Dr George accepts the veracity of the plaintiff's complaints concerning his physical symptoms.
9. He says: "However it does appear that over time he has continued with symptoms, and it is best to refer to the different orthopaedic reports on the nature of his injury."
10. His ultimate conclusion can be summarised as follows: "My view is that his presentation at this point of time does not relate to the injury in the workplace. He presents with a variety of symptoms which do not appear consistent generally and as a result on this occasion I have diagnosed him with a somatic symptom disorder in association with a persistent depressive disorder, a condition which relates to his morbid obesity and complaints of mobility as well as a decrease in general activity level."
11. Or as follows: "On this occasion he has presented with a different constellation of symptoms to a large degree and as a result I have made a diagnosis of somatic symptom disorder and persistent depressive disorder not related to the subject injury."
12. Dr George does not in his third report at any point explain why he thinks the somatic symptom disorder and persistent depressive disorder which he has diagnosed, do not relate to the injuries suffered by the plaintiff in the incident unless one reads his opinion by reference to his earlier reports wherein, he puts down complaints of a psychiatric nature the plaintiff may have as related to his sleep apnoea and/or his obesity.
13. Dr Younan gave oral evidence and was cross-examined. I accept his evidence. However, it was not suggested by Dr Younan nor by counsel for the plaintiff, that if the plaintiff were only to succeed on a finding consistent with Dr Younan's diagnosis that it could be sensibly suggested that his current physical and mental state is as a result of the incident.

Resolution as to Causation

1. The position I am left in is that with hesitation I have rejected Dr George's opinion that the syndrome he has identified is not connected to the incident. I appreciate that I have done so without countervailing medical opinion but rather have taken into account all of the evidence before me to come to that conclusion.
2. I also have not been persuaded by Dr Teychenne's diagnosis and connection of that diagnosis with the incident. However, I have not rejected Dr Teychenne's evidence. My conclusion is that if the case was based on his evidence alone, I would not be persuaded to the appropriate standard as to legal causation.
3. It would be legally wrong for me to judge the matter by keeping the two different medical explanations separate. Rather, I need to consider the question by reference to all of the evidence which relevantly is Dr Teychenne's and Dr George's opinions.
4. When I consider the matter in that way, viz that there are two explanations propounded by the plaintiff, and, without attributing any onus on the defendant, there is no explanation put forward by any of the defendant's medical witnesses, I am satisfied that the symptoms suffered by the plaintiff and his consequent inability to work are the consequence of and are therefore caused by the negligence of Mr Faitua for which the defendant is liable.

Assessment of Damages

1. The plaintiff's claim is for past and future expenses and past and future economic loss.

The Future

1. Before turning to the specifics, there is a serious question in this matter as to what "vicissitudes" should be assumed by me for the purpose of making my assessment of the hypothetical future employment and/or need for assistance of the plaintiff together with his general life expectancy.
2. Section 127 of the Motor Accidents Compensation Act requires a discount on future economic loss at the "prescribed discount rate". That prescribed rate brings into play the "5% tables" to be applied to loss of earning capacity and to be applied for any compensation for expenses or loss expected in the future.
3. My understanding is that the 5% tables are intended to take into account the value to a person in receiving at an accelerated rate monies that they would otherwise receive at point(s) in the future. In other words, it takes into account the present-day value of future money.
4. In New South Wales, it seems to be accepted that there is then a further 15% discount for what is often described in the cases as the "usual vicissitudes of life". Where that 15% comes from historically and whether it was ever based on any science is unclear to me.
5. Nonetheless, it seems to be embedded in the case law that this is a discount to be applied to take into account these "usual vicissitudes".
6. This approach has been criticised academically - see for example Luntz, Assessment of Damages for Personal Injury and Death, 5th Ed (710 - 177).
7. Be that as it may, it is also accepted that a court is required to assess whether a particular plaintiff seeking compensation for monies potentially lost in the future is more or less likely than usual to suffer some other adverse consequences in that same future so as to make them less or more likely than others to work (for example) to retirement age.
8. In this case, the plaintiff had, significant physical health issues at the time of the incident which to my view made it unlikely firstly, that he would have managed to continue working until his scheduled retirement age, and perhaps that he would not live to the expected life expectancy assumed by the tables.
9. The particular matters I have in mind are firstly the pre-existing cervical spine injury which Dr Teychenne accepts made him more vulnerable to the spinal lesion which he has diagnosed, the fact the symptoms from that injury were ongoing, albeit not to the stage of preventing him from working, the extreme obesity of the plaintiff at the time of the incident, doing the best I can understanding that such of the evidence is always imprecise on these sort of matters, he was around 150kg at that time and the sleep apnoea from which he suffered all leads me to the conclusion that there is a much higher likelihood of the plaintiff having encountered some sort of catastrophic injury or medical episode of the type that this case is concerned, or his obesity and other issues bringing on some other serious illness that the usual discount must be considerably increased.
10. The plaintiff accepts that there should be a greater discount than usually applied. He suggests it should be 25%. This is no more than an evaluative judgment by me, and I cannot point with precision how I get to this result, but doing the best I can I think that the discount for vicissitudes in this case should be 33% rather than the "usual" 15%.
11. In the approach I've taken I have considered the observation in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 per Ipp JA (Mason P agreeing) at [103] and Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 at [18].
12. The next difficulty in this assessment is the various claims the plaintiff is making for past expenses incurred and expected future expenses of a similar nature, all of which seem to have been met to date by the National Disability Insurance Scheme (NDIS).
13. There are two problems. First, the plaintiff at no time has ever particularised this part of his claim. It is not in the statement of claim nor in the most recent version of the statement of particulars. Moreover, the particulars provided seem to expressly rule out such a claim. The second is that there is a seriously difficult question of the proper construction of the NDIS Act because the question becomes, why is it that the plaintiff is entitled to claim money for expenses which he has not been paid but rather had been paid by the Government.
14. It seems this question is bedevilled with complexity, difficulty and obscurity. Surprisingly to my mind there is no provision in the NDIS Act to the effect that any monies recovered by a plaintiff in this situation are charged in favour of the Commonwealth.
15. Rather, s 106 of the NDIS Act provides that if an amount of compensation is fixed under a judgment such as this, for amounts that had prior to the day of judgment (s 106(b)) had been paid by the NDIS and the judgment specifies a portion (defined by s 106(c)) as the "past NDIS support component" then that amount becomes pursuant to s 106(2) payable (in this case by the plaintiff) to the NDIS.
16. Similar questions as to the opaque meaning of these provisions of the NDIS Act have been considered albeit in circumstances of infant settlement approval applications in Sharp v Home Care Service of New South Wales (2018) NSWSC 1319 per Lonergan J; Towers v Hevilift Ltd [2020] QSC 77 (where the matter was apparently by agreement) and James v USM Events Pty Ltd [2022] QSC 63 at [556] - [558] per Brown J, where the question of whether the repayment was a question for discretionary claim by the NDIS was discussed.
17. None of these cases are really on point.
18. The legislative structure is that sections 104, 105, 105A and 105B empowers the CEO of the NDIS to bring claims against potential wrongdoers effectively in the name of the plaintiff to recover amounts that might otherwise be recoverable by the injured party. There are provisions for the service of notices and the like that make monies which would otherwise be repayable to the injured party payable to the NDIS. However, no such notices have been given in this case.
19. I am left with s 107 which by subsection (2) would mean that if I were to award the plaintiff compensation which covers the same scope as the care and expenses paid for by the NDIS scheme to date, then the plaintiff would have a legal obligation to pay that money to the NDIS. However, unlike other legislation of this kind, there does not seem to be any charge in favour of the NDIS in relation to that money.
20. Surprisingly, there is not express provision that the plaintiff is entitled to recover money he has not lost, but rather has been paid for him by the Government scheme. Implicit in the obligation to repay in certain circumstances created by s 106 is the assumption that such a right exists, but on the other hand, s 107 gives the NDIS a direct right of recovering that same money against a person who might be liable to the injured party for compensation.
21. It seems to me, although this is by no means clear, that the better construction of the Act is that implicitly it gives the plaintiff the right to recover against the defendant for monies that have been paid for his benefit or on his behalf by the NDIS.
22. One thing that is clear is that if he receives compensation for that aspect of his claim, he has a legal obligation to pass that money on to the NDIS scheme. If he does not recover, he has no such obligation and will have suffered no loss.
23. This is all very strange and surprising. Unless I am missing something some legislative reform by the Commonwealth might be in order. At the very least, the situation should be clarified.
24. The real difficulty is that the legislation says nothing about the future. In this case the plaintiff is the recipient of what is an ongoing determination by the NDIS into the future which is providing very generous payments for his benefit.
25. There is nothing in the Act that suggests that if I were to make an order for such amounts (being an estimate as to what the plaintiff's requirements might be in the future) that that would bring an end to his receipt of payments by the NDIS, although I assume that somewhere within the Act the decision by the NDIS is ultimately discretionary and the fact that the plaintiff has been awarded damages by a court based on an estimate as to what future requirements may be, might I suppose be taken into account by the NDIS when exercising that power. Although I stress, I have not heard full argument on this topic and express no concluded view.
26. In all the circumstances, taking into account the difficulties in relation to the NDIS legislation to which I have referred, and also noting that the only obligation that I can identify on a successful plaintiff in this sort of case to repay money to the Commonwealth, is in circumstances where there is an express finding that compensation is being awarded for that same purpose, and taking into account the fact that none of this was particularised and I think it unfair on the defendant to meet the claim on the run where at the very least, it would be entitled to contest the reasonableness of the expenses, I have decided to not award any amount for commercial assistance either in the past or the future.
27. Finally, I turn to the question of gratuitous domestic assistance. The suggestion is that the plaintiff's wife has or will be providing gratuitous assistance as a consequence of the injury sustained. However, the only assistance that I can perceive the plaintiff's wife has been providing to him is the same assistance she provided to him before his injuries, viz, she did the cooking, housework and other domestic duties. True it is that she is now doing a little more; she is assisting with his toileting and bathing, but that would not come anywhere near the six-hour minimum threshold for such a claim.
28. Accordingly, I am not going to allow anything for past and future domestic assistance of a gratuitous kind.
29. Turning then to what I will allow (all of which is subject to firstly, my finding as to 30% contributory negligence and my finding of a 33% allowance for future vicissitudes over and above the 5% table) as a matter of principle without determining actual quantum. (The figures set out below are the amounts claimed by the plaintiff, they do not represent findings by me.) I have yet to make any findings as to the actual amounts as, frankly, not much time was spent in submissions on any of them and some I do not understand, and in some cases I do not follow the arithmetic. I will indicate in principle what categories of damage I will allow and not allow, and direct the parties to either agree as to quantification or to relist the matter for short argument before me if they cannot. 1. Allow medical expenses paid to date [to be agreed] [$27,510]. 2. Allow medical expenses paid by the workers compensation insurer [to be agreed] [$73,360.41]. 3. Allow expenses paid by Medicare [ to be agreed]. 4. Reject the claim for NDIS estimate of recoverable amount: [$304,329.42]. 5. Future expenses: $181.70 x 845 weeks - 5% - 33%: [are these being paid by NDIS? If so, not allowed]. 6. Allow past economic loss: $196,548.00 [to be agreed] [It is not clear to me how this is calculated]. 7. Allow superannuation for the past and future at 14% [to be agreed]. 8. Allow future economic loss: $1,250 x [473.9 - 5% ] - 33% [to be agreed] [$444,281.25]. 9. Reject the claim for past domestic care and assistance: [not allowed] 10. Reject the claim for future domestic care and assistance: [not allowed] 11. Allow equipment and home modifications [to be agreed] [$44,721.44]. 12. Reject the claim for past and future gratuitous domestic assistance.

Conclusion

1. In summary I have found: 1. That the defendant is liable to the plaintiff for the injuries and loss he suffered as a result of the incident on 17 November 2015. 2. Those damages are to be reduced by 30% to take into account the contributory negligence of the plaintiff. 3. I will allow claims for past out-of-pocket expenses (other than paid by the NDIS). 4. I decline the claim for future out-of-pocket expenses. 5. I will allow a claim the claim for past economic loss. 6. I will allow the claim for future economic loss. 7. I decline the claim for past domestic care and assistance. 8. I decline the claim for future domestic care and assistance.
2. Any of the above heads of damages which project hypothetically into the future should be discounted by 33%, over and above the 5% tables, to take into account the particular vicissitudes of this case. All damages should be reduced by 30% to take into account my finding as to contributory negligence.

Orders

1. The orders I make are: 1. Judgment for the plaintiff. 2. Direct the parties to bring in short minutes as to the quantum of damages, including calculations as to interest, within seven days of publication of these reasons. 3. If the parties cannot agree within that time, direct them to relist the matter before me to determine any outstanding issues as to quantum.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2023