District Court New South Wales

• Medium Neutral Citation: Anthony Quinn v Toll Ipec Pty Limited & Ors, Anthony Quinn v Toll Pty Limited [2011] NSWDC 71
• Hearing dates: 21, 23, 24, 28 February and 1 March 2011
• Decision date: 15 July 2011
• Jurisdiction: Civil
• Before: Letherbarrow SC DCJ

Decision

Verdict and Judgment for the First, Third and Fourth Defendants - File No 2009/333975

Verdict and Judgment for the Plaintiff against the Defendant in the amount of $210,192.42 - File No 2009/337867

• Catchwords: Statutory Interpretation - Injury occasioned during lifting of gates forming part of trailer - whether falls within definition of "injury" under the Motor Accidents Compensation Act 1999 - whether a "defect" within such Act - whether arises from an unsafe system of work - discussion of causation; Negligence - Whether system of work unsafe; Damages - Discussion of principles relating to assessment of damages under Part 5 of the Workers Compensation Act, 1987; Future Economic Loss - Discussion of relevant principles and assessment
• Legislation Cited: Workers Compensation Act, 1987; Motor Accidents Compensation Act 1999; Civil Liability Act, 2002
• Cases Cited: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164; Malec v J C Hutton Pty Limited [1990] HC 20; (1990) 169 CLR 638; Zurich Australia Insurance Ltd v CSR Ltd [2001] NSWCA 261; Mayne Nickless Logistics v Symen [2001] NSWCA 292; Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2004-05) 221 CLR 568; Toll Pty Ltd v Dakic and Another [2006] NSWCA 58; Kallouf v Middis [2008] NSWCA 61
• Category: Principal judgment
• Parties: Anthony Quinn (Plaintiff); Toll Ipec Pty Limited (First Defendant); Toll Equipment (FFM) Pty Limited (Third Defendant); Allianz Australia Insurance Limited (Fourth Defendant); Toll Pty Limited (Defendant - second action)
• Representation: Mr A Lidden SC and Ms I Ryan (Plaintiff); Mr Downing (First and Third Defendants); Mr Cleary (Fourth Defendant); Mr Nock SC and Mr W Austron (Defendant - second action); Brydens Law Office (Plaintiff); Curwoods Lawyers (Fourth Defendant); DLA Phillips Fox (First and Third Defendants); Leigh Virtue & Associates (Defendant)
• File Number(s): 2009/333975 and 2009/337867

Judgment

The Pleadings

1 In these two actions the plaintiff, Anthony Quinn, seeks damages for personal injuries sustained in an accident at his place of employment on 17 April 2003. Both actions were heard together with an order that evidence in one be evidence in the other. In the action commenced earliest in time on 10 March 2009 (the first action), the plaintiff originally joined two defendants, Toll Ipec Pty Limited (the first defendant) and Trudy Anne Margaret Sutton (the second defendant) alleging, inter alia, that one or the other was the owner of a certain registered trailer upon which the plaintiff was injured whilst attempting to "lift and handle" the trailer's steel gates.

2 By the time of trial before me, the pleadings in this first matter had been amended on numerous occasions with the last amendment being the filing of a second further amended statement of claim on 9 December 2009. By that time two additional defendants had been added and despite Trudy Anne Margaret Sutton still being named as the second defendant, a notice of discontinuance had in fact been filed in relation to her on 14 August 2009. The two additional defendants were Toll Equipment (FFM) Pty Limited (the third defendant) and Allianz Australia Insurance Limited (the fourth defendant). It was alleged, inter alia, that the third defendant was the owner of the trailer and its gates with the prime mover to which it was attached being owned by the first defendant. Both these matters were conceded at trial. The fourth defendant, being the compulsory third party insurer of the first defendant's prime mover, had intervened in the proceedings in November 2009 and been ordered by the Judicial Registrar to be added as a defendant. It was also admitted at trial that such insurance extended to the attached trailer owned by the third defendant.

3 The second set of proceedings (the second action) were commenced by statement of claim filed on 4 November 2009 joining as the sole defendant the plaintiff's employer as at 17 April 2003, Toll Pty Limited (the employer defendant), seeking damages from it under Part 5 of the Workers Compensation Act, 1987 (WCA).

4 Both sets of proceedings pleaded numerous particulars of negligence against each of the defendants including that the subject gates were not only in a damaged state at the relevant time but were too heavy to be safely lifted by the plaintiff.

Summary of the Plaintiff's Case

5 It was the plaintiff's case that he was injured whilst trying to remove one of the gates from the slots into which it fitted located along the combing rail of the subject trailer. This was allegedly because either the gate itself and/or one or both of the two pins attached to its base which slid into such slots, were bent, twisted or otherwise damaged which caused the gate to stick as the plaintiff attempted to lift it out of its slots and off the side of the trailer whilst standing on the ground next to it. As a result, the plaintiff had to apply considerable upwards force and in the end the gate allegedly came free of its slots suddenly, resulting in it being propelled upwards during which time the plaintiff managed to keep hold of it but suffered injuries to his neck and left shoulder whereafter he dropped the gate to the ground.

6 Mr Lidden SC, senior counsel for the plaintiff, alleged that on these (and other) facts, the plaintiff's claim fell within the relevant "defect" provisions of the Motor Accidents Compensation Act (MACA) then in force and that fault or negligence was thereby also established. As a result, the plaintiff would succeed against the first and third defendants with damages to be assessed under that Act. Further, the fourth defendant would be required to indemnify the first and third defendants for such damages.

7 It was made clear early in the proceedings that there would be a factual dispute as to whether, inter alia, the gate or its pins were in any way damaged. In such circumstances, Mr Lidden SC argued in the alternative that the gate was too heavy for the plaintiff to safely lift and that this also represented a "defect" in the trailer leading to the same result.

8 It was the plaintiff's further alternative case that if neither circumstance brought the accident within the relevant "defect" provisions, the third defendant was responsible for a breach of duty under the provisions of the Civil Liability Act, 2002 (the CLA) arising from its ownership of the trailer and its gates. In those circumstances, it was common ground that the plaintiff would fail against the first defendant and the fourth defendant would not have to indemnify the third defendant.

9 If the plaintiff was successful in the first action on either basis, it was common ground that the damages to be assessed would also have to be reduced pursuant to s 151Z of the WCA to take into account any share of responsibility in the employer defendant.

10 In relation to the second action, regardless of whether the accident was also characterised as a matter under MACA or the CLA, Mr Lidden SC argued that the plaintiff's employer was liable on the basis, generally speaking, of failing to provide its employee, the plaintiff, with safe plant and equipment and/or a safe system of work.

11 Further, as to the assessment of damages in both actions, it was common ground, as evidenced by the plaintiff's chronology (Exhibit B), that he had sustained many unrelated injuries to numerous parts of his body both before and after the subject accident, leading to multiple surgical procedures together with various other claims for compensation.

12 Despite there being little agreement between the parties as to any of the heads of damage available under the three relevant pieces of legislation, not surprisingly the main issue on damages revolved around the plaintiff's claim for future economic loss. In this regard, relatively shortly after the cervical fusion he had in December 2003, which was accepted by all parties as being caused by the subject accident, the plaintiff had returned to fulltime work with the employer defendant and as at the time of trial had been so working for several years and at a level of about 60 hours per week. In these circumstances, his claim for future economic loss was based, to a significant degree, upon his own evidence that his neck condition and, to a lesser degree that relating to his left shoulder, had reached a point that he believed he would be forced to retire completely within the next few years.

13 One other matter needs to be mentioned. As a result of the plaintiff's initial statement of claim in the first proceedings being filed almost 6 years after the subject accident, his solicitors filed a motion some six months thereafter seeking an order that leave "be granted to maintain these proceedings pursuant to s 109" of MACA.

14 When this motion came on for hearing before another Judge of this court on 23 March 2010, orders "in accordance with the Short Minutes of Order filed in court today" were made by consent. Such short minutes provided relevantly as follows:

"1. Find pursuant to s 109 that the plaintiff has provided a full and satisfactory explanation for delay.

2. Defer the making of an order under s 109 pending the determination of the fourth defendant's contention that leave pursuant to s 109 should not be granted by reason of the fourth defendant's position being prejudiced as a result of the delay in commencing these proceedings.

3. The issue referred to in paragraph 2 stand over for determination at the final hearing in this matter."

15 Consequently, for the plaintiff to succeed in any action under MACA in the first set of proceedings, he not only has to establish, inter alia, that his injury was caused by a "defect" as defined but that he is entitled to an order pursuant to s 109 despite the prejudice alleged by the fourth defendant. Such prejudice is essentially based upon the fact that the subject trailer and gates have been significantly altered since the plaintiff's accident as a result of which the fourth defendant cannot obtain any useful expert evidence upon the "defect" issue.

16 In the circumstances, I intend to determine whether the plaintiff has established that his claim falls within MACA prior to determining the s 109 issue.

Summary of the First and Third Defendants' Case

17 Mr Downing, counsel for the first and third defendants, argued, inter alia, that whatever factual findings were made in relation to how the accident occurred, it arose out of a "defect" with the result that whilst a judgment would be entered against his clients, the fourth defendant would have to indemnify them.

18 Alternatively, if the court found that the matter did not fall within the relevant provisions of MACA, the claim against the first defendant would fail and the argument would become whether, in the circumstances, the third defendant would be held liable pursuant to the provisions of the CLA in its capacity as owner of the trailer. Mr Downing argued that the plaintiff could not succeed against the third defendant on this basis.

19 Mr Downing also argued that the plaintiff was guilty of contributory negligence and that, in relation to the s 151Z issue, the share of responsibility of the employer defendant, if the court got that far, was large.

20 Mr Downing, like counsel for the other defendants, made numerous submissions contrary to those of the plaintiff as to what was an appropriate assessment of damages on the evidence. Despite these submissions, it was not in dispute in either action that the plaintiff was injured as a result of handling the gate in question whilst at work on 17 April 2003 nor, as stated, that this led to the surgery in December 2003 as well as that to his left shoulder in October of that year (although he had injured such shoulder on prior occasions). However, the precise way such injuries occurred and their current effects were the subject of considerable argument.

Summary of the Fourth Defendant's Case

21 The primary argument of Mr Cleary, counsel for the fourth defendant, was that it was not possible to determine on the evidence whether the subject accident occurred when the plaintiff was attempting to remove one of the gates from its slots on the combing rail or when he was lifting it from the ground up onto the trailer. Further, he argued that the evidence did not establish that there was any bend in the gate or damage to its pins. On this basis, Mr Cleary argued that the accident did not fall within the "defect" provisions of MACA and that his client was therefore not liable to indemnify either the first or third defendants. Further, the plaintiff, if he was to succeed at all, would have to do so against either the third defendant under the CLA or the employer defendant in the second set of proceedings under the WCA.

22 Whilst Mr Cleary did not concede the issue, he nevertheless stated that that if the court found that the accident was caused by a bent gate and/or damaged pins, it would be "difficult to argue" that his client would not be liable to indemnify the first and third defendants on the "defect" basis.

Summary of the Employer Defendant's Case

23 Mr Nock SC, senior counsel for the employer defendant in the second set of proceedings, argued, in effect, that his client was not responsible for the accident on any basis. If the accident was caused by a bent gate or damaged pins it fell within MACA pursuant to the "defect" provisions. If it didn't, he argued that the evidence from the plaintiff established that there was a system in pla c e for repairing such items and that whilst this system apparently relied upon truck drivers such as the plaintiff bringing these problems to the attention of the relevant maintenance person, it was nevertheless adequate. Further, there was no evidence to establish that the employer defendant knew of any specific problem existing at the time of the plaintiff's accident.

24 If the court found that the subject accident was not occasioned by any such bend or damage, Mr Nock SC argued that as this impliedly involved a rejection of the plaintiff's evidence as to the way his accident occurred, the court could not, in those circumstances, find that his injuries were caused by the subject gate being too heavy. In short, Mr Nock SC argued that this was not the reason the plaintiff said he was injured.

The Nature of the Evidence

25 In the plaintiff's case the only two witnesses called were himself and his ex-wife, Mrs Narelle Quinn. A considerable amount of documentary evidence was tendered including three reports from an expert engineer, Mr Cowling of 11 April 2008, 13 June 2010 and 24 January 2011 which became Exhibits E 1, 2 and 3 respectively.

26 A large number of ASIC searches in relation to the Toll Group of companies together with a schedule setting out some common details and relevant shareholdings became Exhibit J.

27 The plaintiff's bundle of medical reports was admitted as Exhibit C.

28 There were no witnesses called by the defendants in either action. The first and third defendants presented no evidence at all. The fourth defendant tendered, inter alia, a large number of medical reports and other records relevant to the plaintiff (Exhibit 4D4). It also tendered an expert's report from a Mr Robert Casey, mechanical engineer, of 21 April 2010 (Exhibit 4D3), rather unusually primarily going to the question of prejudice relevant to the s 109 point.

29 The evidence from the employer defendant was limited to two medical reports (Exhibit 1).

The Facts Relevant to the Subject Accident

30 As at April 2003, the plaintiff worked as a truck driver for the employer defendant out of its depot at Moorebank. His duties involved servicing only one customer, an electrical company called Repalec, whose own depot was located about a forty five minute drive away.

31 Each day the plaintiff arrived at work at about 6am when he would usually find the first defendant's prime mover and third defendant's trailer waiting for him. This was the case on the day of his accident. Three photographs depicting the plaintiff next to the subject prime mover and trailer manoeuvring the gates and date stamped 13 August 2003 became Exhibits A1, A2 and A3. The prime mover and trailer were yellow in colour as shown in Exhibits A2 and A3 with A1 apparently depicting them coloured orange apparently due to some development or printing problem.

32 When the plaintiff arrived at the depot each morning the vinyl tautliner or curtain was closed on each side of the trailer. Behind it were the steel gates shown in exhibit A which were secured by means of the two metal pins, one on each bottom corner. Each pin measured about three inches in length and about an inch to an inch and a half in width. As stated these pins fitted into slots or brackets in the combing rail along the edges of the trailer. The evidence establishes that each of these gates was about 1.82 metres in height, 1.5 metres in width and weighed a little over 30 kilograms.

33 It would seem that the deck of the trailer was about 1.4 metres above ground level from the measurements made by Mr Cowling. Despite his suggestion that there were eight gates on each side of the subject trailer, it would seem that in fact there were only six.

34 The large cube shaped containers, referred to in evidence as "cages", shown behind the gates in Exhibit A1 are not on the truck when the plaintiff first arrives at work.

35 The system of work that the plaintiff undertook after such arrival involved a number of steps. Firstly, he undoes the tautliner and slides it back to reveal the gated but unladen trailer. He then grasps the gates one at a time as shown in Exhibit A1 which requires him to stand on his toes and proceeds to lift it thereby causing its two pins to come out of the relevant slots. He then lowers the gate to the ground and rests it against the side of the trailer. He removes a sufficient number of the gates located on the driver's side of the trailer to enable him to load the empty cages onto the trailer by use of a forklift. These cages are stacked one on top of the other and two deep across the bed of the trailer as shown also in Exhibit A1. The plaintiff then lifts the gates back into place, slides the vinyl tautliner shut, secures it and then drives to Repalac's premises where he slides back the tautliner, removes the gates and Repalac employees with the use of their own forklift remove the cages and fill them with goods whereupon they load them back on to the trailer. Thereafter, the plaintiff lifts and secures the gates back into place followed by closing and securing the tautliner. He then drives back to the Moorebank premises when he again opens the tautliner and removes the gates and other depot staff use forklifts to remove the loaded cages which are then dispatched to different destinations by other workers.

36 The plaintiff said that on an average day he may do two of these round trips.

37 As at 2003, the plaintiff said that this system had been in operation for the entire twenty five years that he had worked for the employer defendant up until that time. He said that over this period he had commonly encountered a difficulty with manoeuvring the gate pins into or out of the slots on the combing rail due to the gate being "slightly twisted" or the pin being "twisted" (T53.14). He said that this occurred for two reasons. Firstly, if the gate is lifted out one pin at a time "and it slips, it falls, it will twist the other end of the pin". Secondly, if someone has pushed one of the cages all the way across the deck of the truck it can strike the gates on the other side (T53.20 - 23). He said that such an event can happen either at Moorebank or the customer's depot.

38 The plaintiff said that if such problems eventuated it required "a fair amount of work" to manually get the gate out of the slots and that sometimes if you couldn't get it out "we use a forklift to get it out" (T53.33 - 38).

39 If such problems occurred during a loading operation prior to the plaintiff going "out on the road", nothing would be done by way of repairs but if it had been "twisted for a while" the plaintiff would "go to the maintenance division in the depot and explain to them and they will get around to it when they can" (T53.43 - 50). It could take up to a couple of weeks for such repairs to be undertaken (T54.23 - 33).

40 At the time of his accident the plaintiff said that no "Toll" trailers that he worked with had aluminium gates nor did any have a hanging gate system whereby the gates slid along a cable attached to the roof of the trailer.

41 From time to time, the plaintiff said that he had used "rental trailers", one of which had a hanging gate system and which was a lot easier to use (T55.18 - 26).

42 The plaintiff was then shown a document dated 2 January 2001 which is contained at Appendix B of Exhibit E1. Such document is headed "Toll Express Gosford" and is described as a memorandum to "All Driving Staff" at Gosford with its subject being "Safety Procedure - Lifting of Trailer Gates". It is signed by a Mr Ervan Summerhayes, "Branch Manager". The body of this memorandum states as follows:

"Please be advised that in accordance with Toll safety policy, the procedure for the lifting of trailer gates will be carefully regulated and monitored to prevent excessive strain to neck, shoulders and backs. The lifting of heavy-duty gates is not to be attempted by any driver without assistance. Should you have any problem obtaining such assistance you should contact your supervisor immediately [or the Sydney supervisor if at Smithfield depot]."

43 It was common ground that the name "Toll Express" as at 2003 was a registered business name owned by Toll Transport Pty Limited which company was wholly owned by Toll Holdings Limited which in turn wholly owned the first and third defendants as well as the employer defendant.

44 Mr Quinn said that as at 2003 he had never seen such a document.

45 Mr Lidden SC then asked the plaintiff as to what occurred on the morning of his accident and the following evidence was given (T56.16 - 57.46):

"Q.I want to ask you some questions about the circumstances now of your accident. Where were you when it happened?

A.In the depot, the IPEC depot, in Moorebank.

Q.What were you doing?

A.Unloading the gates off the trailer so I could load it.

Q.Was this first thing in the morning?

A.Yes.

Q.In the course of doing that, what physical task were you actually performing when you noticed a problem?

A.Lifting the gates out of the - out of the brackets, out of the holes.

Q.The state of those gates, please.

A.At the time, a bit twisted.

Q.The degree of physical force you had to apply to get them out?

A.Substantial.

Q.When you were doing it, did you notice a problem?

A.Yes.

Q.What? Physical problem, I mean. What?

A.When I was trying to lift the gate out, one of the pegs jammed and didn't come out, and then it released, and then came out.

Q.Did something happen to your body in that manoeuvre?

A.Yes.

Q.What?

A.Pain in the left shoulder and then the gate went up over my head and I flipped my head round to get out of it - sort of like reflexes, and tried to regather the gate.

Q.When you say the gate went up over your head, I take it it came free suddenly.

A.Yes.

.......

Q.Just describe the way in which that stuck pin became free, please, and the effect it had on the gate that you were holding.

A.Lifting the gate out and it didn't budge at first, and then all of a sudden it budged.

Q.When it did, what happened?

A.Went up over my head.

Q.So just before it budged, how much physical force were you applying to it to try and get it out?

A.Because they're heavy gates, you're ready for the weight anyway but you're not ready for it to jam, so there's a fair bit of lifting needed just to get the gates without them jamming.

Q.How far above your head did part of it go?

A.Right up over my head.

Q.Were you still holding on?

A.Yes.

Q.Were you able to retain control of it?

A.I regathered

Q.I'm sorry?

A.I regathered it.

Q.What did you then do with the gate?

A.Dropped."

46 Early in this exchange when the plaintiff described the state of the gate as being "a bit twisted", he clearly hesitated before doing so and did not appear to express this with any confidence. I subsequently drew my observations in this regard to the attention of all parties during addresses.

47 In cross examination by Mr Cleary, after agreeing that the gates were "pretty heavy", the plaintiff gave the following evidence (T112.24 - 44):

Q. Would you agree that these steel gates were quite awkward to manage?

A. Yes.

Q. Firstly, they're quite big?

A. Yes.

Q. Secondly, if they're on the truck, when you hold them, to try and remove it, you're working with your arms at or above shoulder level?

A. About shoulder level, yes.

Q. If you have to lift them, you have to raise your arms above shoulder level?

A. Yes.

Q. At which point, you've got this large and heavy gate up above - substantially above - your body, and above shoulder level?

A. About shoulder level, yes.

Q. So that not only did you have to manipulate the gate in that fashion, but you also had to be careful to balance the gate, because otherwise it could topple while you were trying to deal with it? Is that the case?

A. Yes."

48 After this incident, but prior to going off work for his surgery, the plaintiff continued to work on the same trailer with the same gates but afterwards he said that he was given "a rental trailer with hanging gates" (T62.41 - 63.7).

49 The plaintiff further stated that all the trailers used in his work as at the time of his subject accident "are still around nowadays" but that the gating system has changed as he then described in some detail (T63.27 - 65.33). There are no longer any "Toll" trailers with gates with pins that have to be lifted into position as described. Currently there are two different gate styles. Firstly, the original steel gates are still used but they now have hinges welded to them which are in turn attached to uprights on the sides of the trailer "that hold the roof up, so they swing out". The pins on these swinging gates are now adjustable apparently somewhat like door bolts and when they are raised the gate simply swings open. The plaintiff described this system as "a lot better, a lot easier, no lifting". The second type involves aluminium gates which hang from the trailer's roof and slide. There are still some rental trailers used on occasions which apparently have the gate and pin system as well as some which involve sliding gates.

50 On the day of the plaintiff's accident he consulted the "work doctor", a Dr Lau and whilst some of such doctor's clinical records were item 22 in the fourth defendant's tender bundle (Exhibit 4D4), these relate to a period concluding prior to such accident. There were no reports tendered by any party from Dr Lau.

51 On 13 May 2003, approximately one month after his accident, the plaintiff completed, in his own hand, a compensation claim form which he also signed (Exhibit 4D1). Under the heading "WHAT HAPPENED" the plaintiff wrote:

"Lifting gate onto semi trailer."

52 Dr Lau also referred the plaintiff to Dr Ronald Clark, orthopaedic surgeon, whose numerous reports were tendered by the plaintiff as part of Exhibit C. In his first report of 20 May 2003, which is addressed to Dr Lau, he records:

"He had lifted some gates on a truck and started to experience pain...."

53 On 21 May 2003 the plaintiff commenced a course of cervical traction as an inpatient at Bankstown Hospital. The discharge summary relating to this admission is item 21 in Exhibit 4D4. Beside the words "Presenting Problems", it is recorded:

"(Left) shoulder pain, dropped heavy weight."

54 In a handwritten letter on the letterhead of the Bankstown Health Service in relation to this admission, which is signed by a Dr David Wong "Orthopaedic Intern" (part of Exhibit C), the following history is recorded:

"His neck pain started just before Easter while at work. He was lifting steel gates to put on to a trailer. While he was lifting the weight tipped over."

55 On 11 June 2003 the plaintiff attended upon his long term general practitioner, Dr Un. His handwritten notes are item 26 in Exhibit 4D4. The note of 11 June 2003 is as follows:

"17/4/03 lifted gates onto side of semitrailer."

56 A report from Dr Un addressed to the plaintiff's solicitors dated 10 October 2003 is part of Exhibit C. The history in this report is effectively the same as that recorded in the notes, stating that the plaintiff injured himself:

"...after he lifted gates onto the side of a semitrailer."

57 Dr Un referred the plaintiff to Dr Mark Sheridan, neurosurgeon, who first saw him on 17 June 2003. His numerous reports are also part of Exhibit C. Whilst Dr Sheridan provided a number of earlier reports, the first that contains any history other than a "work injury", is that dated 13 April 2004 addressed to the plaintiff's solicitors. Such history is as follows:

"He was lifting heavy steel gates and suffered..."

58 The plaintiff also tendered a medico legal report from Dr Robert Smith dated 11 July 2003 addressed to the "Claim Manager" of the employer defendant (Exhibit G). In it the following history appears:

"He said he was on the ground lifting the side gates of a semi trailer when one of the pegs allegedly jammed. When it released itself it threw him off balance.

59 The history recorded by Dr Smith is the first which refers to one of the pegs of the gate jamming or sticking.

60 On 16 September 2003 the plaintiff was assessed by Dr Garvan for "Toll NSW Self-Invoice" and in his report dated that day which is also part of Exhibit C, the following history is recorded:

"He was lifting a gate onto the tray of a semi trailer at work on 17 April 2003 when he strained..."

61 On 3 November 2003, the plaintiff was first assessed on a medico legal basis for his solicitors by Dr Conrad and in his report of 5 November 2003, also part of Exhibit C, the following history is recorded:

"He was involved in an accident at work... when he lifted some heavy gates onto a semi-trailer. He thought the load he lifted weighed about 15 kilograms. He said the gates that he was lifting were about six feet wide and so he was gripping the ends of the gates and lifting them off the side of the trailer. He felt pain..."

62 On 23 June 2004, the plaintiff was again assessed on a medico legal basis by Dr Ellis and the history contained in his report flowing from such assessment dated 3 August 2004 is as follows:

"He was lifting the gate of a semi-trailer which was extremely heavy and awkward. His arms were spread and the gate stuck. The gates came loose and came over his head. With a great effort he managed to get the gates back... He had a sharp pain..."

63 The plaintiff also tendered as part of Exhibit C the certificate and reasons of the Medical Assessment Service (MAS) Assessor, Dr Lorraine Jones dated 8 August 2009 in relation to the assessment of the plaintiff that day. She records a history of being told that the gates were "wedged".

64 In relation to expert evidence going to the question of negligence, the plaintiff tendered the abovementioned reports from Mr Cowling, an engineer with qualifications in ergonomics and workplace safety. His first report dated 11 April 2008 (Exhibit E1) reveals that he was provided with, at least, two of the three photographs of the plaintiff which form Exhibit A, as Exhibits A1 and A2 are reproduced as pp 7 and 8, of such report and are referred to as part of the "Documents" with which he was provided as mentioned on p 6.

65 Mr Cowling sets out the factual assumptions he was instructed to accept also at pp 7 and 8 which after referring to the relevant gates are as follows:

"4.These gates had to be lifted on and off the semi-trailer for loading and unloading purposes.

5.As a consequence of lifting the gates on the day of his injury the claimant sustained serious injuries to his neck and left shoulder and arm..."

66 In this final report, Mr Cowling goes on to discuss the safety of the plaintiff's task from a perspective of the difficulty created by the weight and size of the gates and does not refer to any alleged problem caused by the gates or their pins being in any way damaged.

67 There is also no reference to any such damage in his second report dated 13 June 2010 (Exhibit E2) which is a short response to the report of Mr Casey (Exhibit 4D3), itself which makes no such reference either.

68 However, in his third report dated 24 January 2011 (Exhibit E3) Mr Cowling responds to two matters raised in the plaintiff's solicitor's letter to him of 11 January 2011. One of these two matters is as to what Mr Cowling describes as one "of the chief defects of the pin slot system" which is that "the gate pins are far more difficult to remove" than to insert due to reasons such as gravity, rust and "variable settlement during transit" resulting in more force being necessary to remove them than just that necessary to lift their weight. He goes on to state that "even more force may be required" if "those became bent" by which he seems to be referring to the pins.

69 Prior to this comment by Mr Cowling, the only other direct reference to a gate or pins being damaged prior to that contained in the plaintiff's evidence before me is in the statement of claim filed in the first action on 10 March 2009.

The Parties Arguments as to the Facts

70 Mr Lidden SC submitted that I should accept the plaintiff's evidence given in the witness box and find that he was lifting the gate off the truck when it jammed in its slot or slots as a result of it being "a bit twisted" thereby requiring the plaintiff to use extra force which caused it to come free suddenly whereupon he was injured as described. He submitted that histories on claim forms and in doctors' reports are notoriously unreliable and should not be preferred over the plaintiff's sworn evidence.

71 On behalf of the first and third defendants, Mr Downing supported Mr Lidden SC's position.

72 Mr Cleary, on behalf of the Fourth Defendant, argued the appropriate conclusion from the evidence was that the plaintiff sustained injury in the course of lifting one of the large, heavy and cumbersome gates when it overbalanced and the plaintiff attempted to correct it. As stated he submitted that the inconsistencies and vagueness of the evidence was such that no more detailed conclusion could be drawn as to the circumstances of the accident.

73 In support of his argument, Mr Cleary referred to the plaintiff's evidence in chief as "hardly compelling" and pointed out that it did not include any direct observations of damage to any of the pins. Further, he adverted to the inconsistent early histories and the fact that Mr Cowling, at least initially, was not asked to assume that there was any damage to the gate or its pins. In addition he argued that the plaintiff "appeared to have applied his past experience to conclude by way of inference, that the gate or pins must have been damaged" and relied in that regard upon, inter alia, the following exchange in cross examination (T97.25 - 27):

"Q.If it hadn't been damaged, your experience was that you could get them out without too much difficulty?

A:Yes."

74 Mr Cleary also relied upon the plaintiff's acceptance in cross examination (T113.22 - 44) of the proposition that if you lifted a gate off the trailer by a manoeuvre that did not ensure that each of the pins were withdrawn at the same time with the gate being lifted parallel to the side of the trailer, the pins could become jammed even, apparently, in the absence of any damage.

75 Finally, Mr Cleary referred to the plaintiff's explanation given during re-examination (T145.42) that the version in the claim form was "just a rough" as being unconvincing especially in circumstances where he agreed that his memory as to the event was better in 2003 than in 2011 (T128.36).

76 Mr Nock SC made no submissions as to whether the gate or pins were damaged other than arguing that if I accept the plaintiff's version given in the witness box the matter falls under MACA and, if I don't, I cannot find how the accident occurred and the plaintiff therefore fails against the employer defendant.

Factual Findings as to the Accident

77 I have already mentioned that the plaintiff's evidence of the gate being twisted was not expressed with any confidence but rather in a hesitant fashion which immediately raised in my mind the question whether such evidence was accurate as opposed to, for example, being reconstruction.

78 Whilst histories are often quite inaccurate, in the present matter, the plaintiff admitted in cross examination (T128.38 - 40) that at least three times in 2003 he actually did give the history that he was injured "lifting gates onto the semitrailer", albeit he also said he still believed that he was lifting the gates off it (T129.9 - 13).

79 Further, the instructions given to Mr Cowling prior to 2011 contain no suggestion that any of the gates or their pins were damaged. In addition, the photographs comprising Exhibit A showing the plaintiff handling the actual gates do not include any close up depiction of the pins, even in an undamaged state. Though the plaintiff disagreed, (T115.31 - 116.2), a photograph depicting such a close up might well have been expected to have been taken if it was to be suggested that the pins were damaged at the time of the plaintiff's accident.

80 In all the circumstances, I find that the gate was neither a "bit twisted" as alleged by the plaintiff, nor that he was lifting it off the trailer when he was injured, nor that one of the pins became stuck in that process, nor, indeed, that a pin was in fact damaged.

81 In stating this I do not suggest that the plaintiff was attempting to mislead the court in any way but simply that his memory has suffered from the effluxion of time with the result that he has reconstructed what occurred or confused what happened with what may have had occurred without injury on one of the many other occasions when he carried out this lifting task.

82 I do, however, accept the version given by the plaintiff, inter alia, on his claim form and find that on 17 April 2003 he was injured as he was lifting the gate on to the semi-trailer. I also find on the balance of probabilities that at some point of this lift he lost control of the gate and it tipped over and thereafter he dropped it. This accords with the early more detailed history recorded by Dr Wong at the Bankstown Hospital.

The "Defect" Issue

83 In order for the plaintiff to succeed in his primary submission that the circumstances of his accident fell within the provisions of MACA, it would be necessary to find that they fell within the definition of "injury" as at 17 April 2003, which was in the following terms:

"Injury

(a)means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and caused during:

(i)the driving of the vehicle;

(ii)a collision or action taken to avoid a collision, with the vehicle; or

(iii)the vehicle's running out of control; or

(iv)such use or operation by a defect in the vehicle..."

84 Ignoring for the moment the question of "fault", there is no dispute that the subject trailer and gates were being used or operated by the plaintiff at the relevant time. What is in dispute is whether there was a "defect" in the vehicle and whether such defect "caused" the plaintiff's injury during such use or operation.

85 As a result of my finding that neither the relevant gate nor its pins were damaged at the relevant time, the question that needs to be determined is whether there was still a "defect" in the gate which caused the plaintiff injury? There was no issue before me that the gate was part of the vehicle.

86 A useful discussion of the authorities applicable to this question is contained in Toll Pty Limited v Dakic & Anor [2006] NSWCA 58. At [12] Giles JA stated:

"In Zurich Australia Insurance Ltd v CSR Ltd [2001] NSWCA 261, Spigelman CJ considered in detail what could be a defect, Mason P and Handley JA agreeing. There could be a defect if something was unfit for the purpose for which it was designed or the use for which it was intended: at [46]. A vehicle was not defective only because its operation in a particular manner might lead to injury, but the manner in which it was intended to operate might determine whether there was a defect in the vehicle: at [68]. The facts in that case were quite specific, the ramp of the trailer being fitted within a single handle on the outside and "the absence of provision for anything more than one handle, being on only one side of the ramp, indicat[ing] that the ramp was designed for circumstances in which only a single worker conducted the lift"(at [40]). The trailer was so designed that it was intended to be used by one person lifting the ramp, which exposed the person to risk of injury, and there was a defect in the vehicle (at [70])."

87 In Toll Pty Limited v Dakic and Anor the court declined to reconsider Zurich Australia Ltd v CSR Ltd.

88 In Mayne Nickless Logistics v Symen [2001] NSWCA 292, the Court of Appeal held that a strap permanently fixed to the back of a trailer, into which the trailer's removable ramp slotted, and which tore causing the ramp to fall, was a "defect" such that MACA was applicable.

89 In the present case, adopting the approach of fitness for a designed or intended purpose from Zurich Australia Insurance Ltd v CSR Ltd, I find that there was no "defect" in the gate or trailer. The gate could be lifted by more than one person. There was nothing in its design or its intended use which required it to be lifted by only one person. Commercial exigencies may have meant gates were lifted by one person, but the fact that could occur does not mean the gate or trailer into which it fits is defective.

90 The only arguable "defect" was in the lifting and fitting of the gates in the method adopted, namely by using one person to do so. As Santow JA emphasised in Toll Pty Ltd v Dakic and Anor a "vehicle is not 'defective' only because its operation in a particular manner may lead to injury" (at [68]). Further, such "defect" must be not only in the vehicle, but in its (intended) use or operation" (At [87]).

91 However, there is some tension between the approach suggested in Zurich Australia Insurance Ltd v CSR Ltd and the later decision of the High Court in Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2004 - 05). Whilst the High Court was dealing with the provisions of the Motor Accidents Act, 1988, (MAA) the relevant definition of "injury" is identical to that under consideration here.

92 In Allianz Australia Ltd v GSF Australia Pty Ltd the court determined that in interpreting the intended meaning of "caused...by a defect in the vehicle", the object of the Act and the content of the relevant second reading speech must be taken into account. In this regard, both the MAA and the MACA legislation provide that a construction which would promote the objects of the Act is to be preferred to one that would not do so (s 2B of MAA of s 6 of MACA). Such objects (s 2A of MAA and s 5 of MACA) are materially identical and relevantly include the need to keep premiums affordable and the overall costs of the scheme within reasonable bounds.

93 The second reading speech evinces a clear intention to restrict the applicability of third party insurance by adopting a narrower interpretation of "injury" qualified in terms of its cause. As Gummow, Hayne and Heydon JJ stated at [101] - [102] in Allianz Australia Ltd v GSF Australia Pty Ltd:

"The text of the new definition of "injury" manifests legislative policy of restricting previous overbroad interpretations of the CTP insurance legislation... The definition of 'injury' looks, for the CTP insurance system, to notions of proximate cause found in insurance law..."

94 McHugh J in Allianz Australia Ltd v GSF Australia Pty Ltd, after referring to the legislature's intention, stated at [61]:

"...the best construction of the definition is that...there must be a close physical connection between the defect and the injury and that physical causation must exist in circumstances that would make it consistent with the subject scope and purpose of the Act for the Act to apply to the injury."

95 In Toll Pty Ltd v Dakic and Anor, the Court of Appeal applied Allianz Australia Ltd v GSF Australia Pty Ltd to the facts of an accident governed by MACA whilst also referring to Zurich Australia Ltd v CSR Ltd and Mayne Nickless Logistics v Symen. In conclusion Giles JA stated at [15]:

"Each case depends upon its own facts, but must be decided with the guidance of Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, taking from the legislative history that the definition of injury was to be "tightened...by reference to its cause...Causation comes into identifying a defect, because the putative defect must have caused the injury, and the defect had to be 'in' the (vehicle)."

96 As the defect in Toll Pty Ltd v Dakic & Anor was only in the operation of the trailer in a particular manner (being when it was overloaded thereby limiting available space), Santow JA also found that there was no "defect". Further, he emphasised the necessity to examine the facts to establish what was the real cause of the injury which he found to be the employer's unsafe system of work which had "a stronger causal operation than the inanimate state of the stationary vehicle..."(at [109]).

97 In the present matter, I further find that the proximate cause of injury to the plaintiff was not anything to do with the gate itself but rather the system of work which required the plaintiff to use it in a particular manner, namely to lift it onto the trailer by himself.

98 Accordingly, I find that the plaintiff's accident does not fall under the provisions of MACA. There will therefore be judgment in favour of the first and fourth defendants in the first action.

99 If I had been persuaded that the plaintiff was injured whilst attempting to lift the gate off the trailer due to its size, weight and the awkwardness of the manoeuvre as opposed to any damage occasioned to it, I still would have found that the proximate cause of the injury was the system of work as opposed to any "defect" in the gate. This would also have been my finding if one of the pins had become jammed due to the gate being lifted off at an angle.

100 Indeed, even if the gate or one of its pins had been damaged by being struck by one of the cages during a loading operation leading to it jamming as alleged, it is still quite arguable, in my view, that the real cause of any accident was the employer defendant's failure to have in place a safe loading operation or an appropriate system of maintenance or repair other than that described by the plaintiff where the maintenance division would "get around to it when they can", perhaps resulting in a delay of several weeks.

101 As a result of my finding that the matter does not fall under MACA, it is unnecessary to determine the prejudice question under s 109 raised by the fourth defendant.

The Claim Against the Third Defendant under the CLA

102 As I have determined that the plaintiff's accident does not fall within MACA, I therefore now have to consider his alternative claim against the third defendant as owner of the subject trailer and gates as pleaded in paragraph 11 of his Second Further Amended Statement of Claim.

103 Such paragraph alleges that the third defendant "at common law" owed the plaintiff a duty of care "in respect to the condition of the said trailer". In argument, it was conceded by Mr Lidden SC that the CLA applied to this alternative claim. As I understand Mr Lidden SC's argument, a duty arises from the third defendant's ownership and also because of the inter relation of the various Toll companies.

104 Whilst the third defendant called no evidence in the proceedings, Mr Lidden SC argued in his written submissions that the "inevitable inferences in the present case", apparently also establishing negligence, include the following:

(i) for the purpose of his employment with the employer defendant, the plaintiff is supplied with the third defendant's trailer;

(ii) the business being run from the premises where the plaintiff was employed was known as "Toll Ipec", which is a business operated by the first defendant, Toll Ipec pty Limited;

(iii) the third defendant's trailer is marked with the livery of the first defendant (see Exhibit A3);

(iv) the third defendant "governs the condition in which the trailers are supplied" including the gating system used thereon;

(v) as part of the "Toll Group" the third defendant knew of the dangers associated in lifting steel gates or should have so known;

(vi) after the publishing of Appendix B to Exhibit E1 by Toll Express Gosfrod and by inference its own inquires and as a result of the plaintiff's accident, the gate system on the trailer was modified and such modifications were done by the third defendant.

105 I have already found that the subject gate was not damaged nor that it contained a defect within the meaning of that term in MACA. There is no suggestion that the trailer slots themselves were damaged. Several of the particulars of negligence pleaded in paragraph 11, which also repeats all of those contained in paragraph 10, refer to supplying or requiring the plaintiff to use gates which were damaged or which the third defendant failed to repair or maintain and which are no longer relevant due to my findings. Most, if not all, of the remaining particulars are drafted as failures alleged on the part of the plaintiff's employer.

106 It is clear that the third defendant is not the plaintiff's employer. Whilst as owner of the trailer and gates it may have a duty to take reasonable care to avoid those persons using them being injured as a result of some inherent danger such as a manufacturing defect or design fault of which it was or should have been aware, in the present case none in my view existed. There was also no damage to the trailer or gates which the third defendant might as owner, depending upon the circumstances, have had a duty to repair or warn the plaintiff about.

107 In the present matter there is simply insufficient evidence to determine that a duty was owed to the plaintiff by the third defendant, let alone its scope or whether it was breached in a way particularised in paragraphs 10 and 11.

108 The plaintiff's alternative claim under the CLA must fail and there will be judgment in favour of the third defendant.

109 Therefore, the plaintiff has failed entirely in the first action.

The Second Action

110 Pursuant to s 151 of the WCA, the plaintiff's claim against the employer defendant is to be determined as to liability by applying the general common law of negligence except to the extent that the Act expressly provides otherwise. No such provisions are applicable to the current matter.

111 In paragraph 5 of his statement of claim against the employer defendant, the plaintiff alleges that the duty of care he was owed in relation to the system of work involving the lifting and handling of the said gates was breached in the manner particularised.

112 As I understood Mr Nock SC's position, it is accepted that an employer's non-delegable duty of care was owed in the circumstances. As stated, his primary submission was that if I rejected the plaintiff's version of how the accident occurred as given in the witness box, I could not find that he was injured as a result of the subject gates being too heavy. This was because in these circumstances I would be unable to determine how the accident occurred. Mr Nock SC further argued that the plaintiff did not give evidence that he found the gates to be too heavy and in the absence of such evidence I could not find that this was the cause of the accident.

113 In response, Mr Lidden SC submitted the allegations that the gates were too heavy and the system in place as to their lifting was unsafe were clearly particularised and the subject of expert evidence. He further submitted that whilst the plaintiff's affirmative case as given in the witness box might not accord with the factual findings ultimately made by the court, in no way does this prohibit the court from determining liability in favour of the plaintiff based upon these factual findings as long as such a case has been particularised.

114 I accept Mr Lidden SC's submissions that the court is not so prohibited. My task is to determine, on the evidence, whether the plaintiff has established his claim as particularised against the employer defendant.

115 I have already found that the plaintiff was injured whilst lifting the gate onto the trailer. I have also found that at some point during this lift the gate tipped over and thereafter he dropped it.

116 There is no doubt that the gates as depicted in Exhibit A are quite large. There is also no doubt that lifting them from ground level to a sufficient height so that their pins can be inserted into the slots, requires the plaintiff to undertake a difficult manoeuvre as shown in Exhibits A1 and A2. The plaintiff needs to lift from an initial crouched position to a position which requires him to be standing on his toes as shown in Exhibit A1 and at this point to hold the gates above chest height. Throughout the lift he needs to balance these large gates so that they remain vertical and do not tip. As stated, the gates weigh a little more than 30kgs.

117 The plaintiff's evidence, particularly in the cross examination referred to, confirms the difficulty of this task.

118 The potential risks in undertaking this kind of manoeuvre, to my mind, are obvious and clearly foreseeable. Apart from the weight of the gates and the distance over which each lift takes place, unless precise control is maintained so as to ensure the gate remains vertical, it could easily tip over. In the circumstances, I find such risks include suffering injury either as a result of the weight being lifted or by losing control of the gate and trying to recover such control or a combination of both.

119 Whilst I do not need expert evidence to reach the finding I have just made, such evidence is provided in the primary report of the plaintiff's expert engineer, Mr Cowling, which is essentially unchallenged. The report from the fourth defendant's expert, Mr Casey (Exhibit 4D3) does not traverse Mr Cowling's conclusions in any meaningful way apart from stating that he, Mr Casey, was prevented "from providing nearly all meaningful comment in relation to the attachment of the gates" due to the fact that they had been modified since the plaintiff's accident. In particular, despite noting the "thrust" of Mr Cowling's primary report (Exhibit E1) is that "the gates were too heavy" (para 30) Mr Casey makes no further comment upon this aspect of the matter.

120 In Exhibit E1, Mr Cowling refers to the "hazardous and difficult" nature of the task including lifting the gates on to the semi trailer (p 9) and further discusses the problems caused by the weight of the gates and the need to lift them above the height of the trailer (pp 10 - 11). Whilst the calculation he performs on pp 11 - 13 is apparently referable to more than one lift as well as to a height slightly higher than that estimated by Mr Casey, after reading his report as a whole, I believe there is little doubt that Mr Cowling considers each lift as "hazardous and difficult".

121 The next question is what would the reasonable employer have done in the circumstances where it owed the relevant duty and knew or ought to have known of the clearly foreseeable risk of injury as described?

122 Mr Cowling suggests (at pp 14 - 16) a number of measures which would have, if adopted, either avoided the risk of injury entirely or significantly reduced it. He states that all are reasonably practical alternate systems of work (p 5). Further, Mr Nock SC made no submissions on this aspect of the case nor did he present any evidence that the suggested alternatives were in any way impractical, or unreasonable. The alternatives discussed by Mr Cowling are as follows:

(i) substituting high strength aluminium in lieu of steel in the manufacture of the gates thereby "significantly reduc(ing) the weight of the gate";

(ii) providing a raised platform or loading dock for the person doing the lifting to stand on thereby making the task "somewhat easier" as the need to balance the gate is reduced and it is handled over a shorter vertical distance;

(iii) requiring the gates be lifted by two persons trained in suitable lifting techniques;

(iv) utilising a system of gates which provide "mechanical assistance" such as a "sliding hoist arrangement" or a system whereby the gates slide along an overhead track.

123 Alternative (i) might involve some expense if aluminium gates are not available from the trailer manufacturer and have to be custom built but does not seem unreasonable or impractical.

124 Alternative (ii) seems quite straight forward and is quite reasonable and practical.

125 Alternative (iii) is not only straightforward but simple common sense. However, Mr Cowling acknowledges that if this meant all trucks had to carry a two person crew it would require "a very significant additional cost" and was impliedly unreasonable. In such circumstances, Mr Cowling suggested the reasonable and practical alternative that an instruction be issued along the lines of the memorandum from Toll Express Gosford (Appendix B to Exhibit E1) forbidding drivers attempting to lift such gates without assistance and requiring them to contact their supervisor if assistance could not be found. Whilst the contents or existence of this memorandum cannot be sheeted home in the current matter to the employer defendant, it does at least show that an employer in the industry had adopted this alternative over two years before the plaintiff's accident. If it was adopted in the present matter, I am satisfied that the plaintiff would have followed it, especially in circumstances where he gave the evidence referred to in cross examination as to the generally "awkward" nature of the task involving gates which were "pretty heavy" and which required care to be used to avoid them toppling over. He also agreed with Mr Cleary in cross examination that if two persons were involved, the lifting of the gates would have been much easier and safer (T131.20 - 27).

126 Alternative (iv) suggests the use of systems which, according to Mr Cowling, did not become commercially available in Australia until 2003, the year of the plaintiff's accident. Whilst the plaintiff gave evidence that when he returned to work after his neck surgery in December 2003 he was given a hire trailer with hanging gates (T63.5 - 8), by this time it was January 2004 (T61.26 - 29). Similarly, whilst there are no longer any "Toll" trailers which required gates to be lifted, this changeover occurred after the plaintiff's said surgery.

127 However, a lot of the Toll Ipec trailers at the plaintiff's workplace like that being used by him when he was injured had their gates modified after his accident as shown and described in Mr Casey's report. As mentioned, this resulted in them being welded to hinges attached to vertical uprights so they swung open thereby giving access to the trailer without the need to lift them on or off (T63.46 - 64.10, T65.17 - 28).

128 Whilst the plaintiff was unaware when the Toll Ipec trailers started to be modified to this fixed swinging gate system (T65.17 - 20), such modifications were obviously capable of being undertaken well prior to the advent of the new sliding gate trailers. These modifications have also been undertaken to all the old trailers (T63.37 - 49) which now make up 50 percent of the fleet with the remaining 50 percent being new sliding gate trailers (T65.26 - 29).

129 Accordingly, the modifications of the old trailers to the swinging gate system was, in my view, also an available and reasonably practical alternative.

130 I therefore find that there were several reasonably practical alternatives available to the employer defendant which would have so avoided or significantly reduced the risk of the plaintiff being injured. I further find that a reasonable employer would have adopted at least one of them.

131 Accordingly, I find that the employer defendant has breached its duty to the plaintiff.

Contributory Negligence

132 Whilst the employer defendant pleaded five particulars of contributory negligence in paragraph 5 of its defence, Mr Nock SC made no submissions on this issue nor did he ask any questions related to it. However, whilst he informed me during the trial that paragraph 6 of the defence was "not pressed", he did not do likewise in relation to paragraph 5. Accordingly, I intend to deal with the issue as particularised, albeit briefly.

133 Paragraph 5(a) effectively pleads the general issue and is, without anything further, meaningless.

134 Paragraph 5(b) pleads a failure to "request assistance from other workers". Whilst the plaintiff was asked some questions both in chief and cross examination (but not by Mr Nock SC) about using a forklift or seeking assistance from another person, this was in the context of freeing stuck gates (T97.46 - 49) and I have already found that this sticking did not occur on the occasion of this lift. It was also the case that the plaintiff himself used the forklift if necessary (T97.33 - 36, T98.26 - 28). More to the point, the plaintiff was asked no question by any party to suggest such assistance was available. In these circumstances, I am not satisfied that the employer defendant has discharged its onus in relation to this particular.

135 Paragraph 5(c) pleads a failure to "follow instructions and training given". The plaintiff was asked no questions about any training or instructions except by Mr Lidden SC in re-examination when he said he had never been told "how to extract the gates" (T148.4 - 5). There was no evidence that he was in fact given any training or instructions about anything let alone that he did not follow same. Again, I am not satisfied that the relevant onus has been discharged.

136 Paragraph 5(d) pleads a failure to advise the employer defendant "of any pre-existing disability which might affect his capacity to carry out his duties". This particular was also the subject of no questions nor evidence and has not been established.

137 Paragraph 5(e) pleads a failure "to utilise appropriate lifting and manual handling techniques, of which the plaintiff was aware". This particular was similarly the subject of no questions nor evidence and has not been established.

138 Accordingly, I find that the employer defendant has not established any contributory negligence on the part of the plaintiff.

Other Pleaded Defences

139 Paragraph 7 of the employer defendant's defence pleads that the plaintiff's damages should be reduced due to a failure to mitigate pursuant to s 151L of the WCA. Mr Nock SC made no submissions in relation to this paragraph and as the plaintiff is currently working fulltime in his old job, I am at a loss as to this plea's basis. In any event, I have borne in mind the plaintiff's duty to mitigate when arriving at the assessment of damages set out below.

140 Paragraph 8 of the defence pleads that any injuries or disabilities suffered by the plaintiff "were caused by the negligence of persons other than the defendant and as such the plaintiff's damages are to be reduced pursuant to s 15Z (sic) of the" WCA. Mr Nock SC made no submissions in relation to this paragraph either. Assuming that the correct reference is to s 151Z of the WCA, this plea, even if it has some legal basis, is irrelevant, as I have found that the only negligence established in the present two actions is that of the employer defendant and it has not been suggested that there is negligence in any other person or legal entity.

Assessment of Damages Against the Employer Defendant - The Applicable Law

141 Pursuant to s 151E of the WCA any damages that the plaintiff is entitled to against the employer defendant as a result of the latter's negligence are to be assessed pursuant to the modified common law provisions as set out in Division 3 of Part 5 thereof. In particular, s 151G provides that in cases such as the present, the only damages that may be awarded are those assessed in relation to past and future economic loss. There is no issue that the plaintiff has satisfied the gateway provision to such damages contained in s 151H.

Summary of the Plaintiff's Economic Loss Claim

142 As to past economic loss, it was agreed that the plaintiff is entitled in these proceedings to the amount of weekly compensation he received for the relatively short periods that he had off work as a result of the subject accident and for those where he had returned to work on light duties prior to recommencing full duties. The agreed figure is $8,493.68. In addition, it was agreed that an amount equivalent to 20 percent of that figure, namely $1,698.74, should be allowed pursuant to the principle enunciated in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. The sum of these two amounts is $10,192.42 which I accordingly award to the plaintiff.

143 By way of past economic loss, Mr Lidden SC also sought an amount of $10,000 for lost overtime. As to this aspect of the claim, the plaintiff gave no direct evidence, nor did he tender any evidence by way of wage or other records from the employer defendant. Nevertheless, Mr Lidden SC submitted that this was the only explanation for the drop in his gross income as disclosed in his tax returns, which form part of Exhibit D, for the 2003 and 2004 financial years when compared to the 2000 and 2001 financial years. Mr Lidden SC argued that this drop was in the order of approximately $16,000 which he rounded down to the $10,000 claimed to take account of any tax payable.

144 As to future economic loss, in accordance with the plaintiff's statement of particulars, Mr Lidden SC submitted that due to the plaintiff's accident related disabilities he will, on the balance of probabilities, be forced to retire from his current position by the time he turns 55 in December 2012. Thereafter, Mr Lidden SC argued that he would have "no practical residual earning capacity" and would be "effectively unemployable".

145 As to the amount claimed, Mr Lidden SC sought the sum of $1,200 net per week which was the estimate given by the plaintiff in evidence as to his current wage (T72.5 - 73.1). As to the period over which this sum was claimed, Mr Lidden SC led evidence from the plaintiff that "retirement age is 67 at the moment" (T73.6 - 18). However, the plaintiff's schedule of damages later addressed upon only sought such figure to age 65, apparently on the basis of an exchange between Mr Lidden SC and myself during the course of another case in which he was involved (T190.27 - 46).

146 Pursuant to s 151IA of the WCA, no future economic loss can be claimed in matters of this kind after "pension age...as defined in the Social Security Act, 1991 of the Commonwealth...". During my researches after reserving my decision in the current matter, I found that pursuant to s 23(5A) of such latter mentioned Act the applicable pension age in relation to this plaintiff is 67 years. I then drew this to the notice of the parties in both actions whom all accepted this was correct. Therefore, I intend to deal with Mr Lidden's SC's schedule on the basis that it sought the amount of $1,200 net per week commencing at age 55 and running until age 67 which would result in a capitalised amount of over $500,000 before any deduction for contingencies.

Summary of the Employer Defendant's Position as to Economic Loss

147 The only amount at issue in relation to past economic loss is the $10,000 claimed for loss of overtime. Whilst Mr Nock SC made no detailed submission in relation to this aspect of the claim, it was clear from certain comments that he made during the hearing (T195.23 - 36; T202.19 - 27) that he believed there was simply no evidence to support it.

148 As to future economic loss, Mr Nock SC submitted that the plaintiff was, on the evidence, clearly fit to continue in his current position until at least 65 and that if he could not, it was not as a result of the subject accident but rather due to his numerous other unrelated disabilities. In the result, Mr Nock SC submitted that "there is virtually no (future economic loss) claim against us as unattractive as that may seem..." (T271.39 - 50).

The Economic Loss Evidence

149 The evidence from the plaintiff as to this issue consists of his own and his ex-wife's oral evidence, his chronology (Exhibit B), his taxation materials (Exhibit D) and the bundle of medical reports tendered on his behalf (Exhibit C).

150 In turn, the employer defendant relied upon two medical reports from Dr Smith, orthopaedic surgeon (Exhibit 1), as well as the numerous medical reports and other documents tendered by the fourth defendant in the first action (Exhibits 4D2 and 4D4).

151 Whilst I have considered all of the evidence, I do not intend to embark upon a lengthy summary of it but rather to refer to certain aspects that I consider particularly relevant.

152 As mentioned as at the date of trial, the plaintiff had worked for the employer defendant for over 30 years, primarily as a "driver loader", commencing when he was just 20 years of age. Despite numerous prior injuries both at work and outside, several of which required surgery, he always returned to his employment quite quickly and there is no doubt that he possesses an admirably strong work ethic. Indeed, following the major neck surgery performed upon him in December 2003 he returned to work in under a month. He now works 60 hours per week on full duties and has done so for several years apart from some time taken off in relation to certain unrelated injuries that have since befallen him.

153 As at the date of his subject accident in April 2003, the plaintiff was similarly working fulltime and performing all aspects of his work (T45.27 - 35), although there is little doubt that the disabilities resulting from his numerous prior accidents and injuries were causing him a degree of difficulty. In this regard, he agreed during cross examination that as at the time of trial he was still suffering numerous unrelated symptoms to different parts of his body. Such symptoms also "flared up" on occasion in his right ankle, low back and right shoulder (which he had injured and had surgery upon in 2006) which he agreed made it "difficult" for him to perform his work "at times" (T75.1 - 76.4). He further agreed that all these symptoms together with those associated with the subject accident, prompted him to tell Dr Ellis in 2008 that he "felt like 30 years of hard work was catching up" with him (T77.22 - 30).

154 Despite these earlier (and later) injuries, there is no evidence that the plaintiff was taking any amount of time off work as a result thereof as at the time of trial. Indeed, the plaintiff said that the longest he had ever had off work in all the years that he worked for the employer defendant prior to the subject accident was, apart from holidays, "at the most two maybe three weeks". Further, he said that if all the periods he had off work due to the injuries that he could remember over such years were added together, they would probably only total twelve months (T81.28 - 34). Also, he gave evidence that he was still playing competitive soccer as he approached his 40th birthday, albeit resulting in him injuring his right knee around this time which required cruciate ligament surgery, thereby ending his involvement in that recreational activity (T82.20 - 47; Exhibit B).

155 The plaintiff's ex-wife, Narelle Robyn Quinn, gave evidence as to, inter alia, the plaintiff's personality prior to the subject accident. They were married in 1982 and separated in 2005. Mrs Quinn stated that after his unrelated earlier accidents, the plaintiff always was "extremely keen" to get back to work and prior to the subject accident when he so returned he quickly was "back to his old self, back to normal" (T149.46 - 150.28).

156 An examination of the numerous pre-accident medical and other records comprising Exhibit 4D4 support the position described above and I find that as at the date of the subject accident the plaintiff was fit for his fulltime work with the employer defendant despite his various ongoing unrelated problems which would occasionally flare up.

157 In relation to the effects of the subject accident, Mr Lidden SC argued that it, amongst all the plaintiff's other accidents and injuries was the one that "nailed him".

158 It is common ground that as a direct consequence of this accident the plaintiff required a left shoulder decompression procedure performed by Dr Clark, orthopaedic surgeon, in October 2003 as well as the major C5-6 discectomy and fusion procedure performed by Dr Sheridan, neurosurgeon, in December 2003. The plaintiff described his position at trial in relation to the level of disability in his neck and left shoulder at some length (T65.40 - 69.14). Whilst his left shoulder was helped by such surgery, he stated that his neck was not improved thereby. I have little doubt, despite the plaintiff's somewhat understated evidence, that he has a significant ongoing disability in his neck and some problems with his left shoulder as a consequence of the subject accident.

159 As to his ability to continue in his present job, which is similar to his pre-accident position except the gates on the trailer he now operates do not have to be lifted, the plaintiff gave the following evidence in chief (T73.20 - 27):

"Q. You know how you're coping with the work that you're doing. Assuming that Toll decide that they'll keep you on, how many years do you think you've got in you doing this work?

A. Not a lot doing this job.

Q.If I ask you to do your best as to how long you think, with the way you feel at the moment, you'd be able to continue, how long?

A. Driving trucks, two or three years."

160 In cross examination, the plaintiff gave some further evidence concerning his estimate of when he thought he would have to retire which is as follows (T109.31 - 110.2; T111.4 - 21):

"Q. Mr Quinn, do you remember in answer to a question from Mr Lidden yesterday you were asked - he asked you about how much longer you thought you could continue in your current driving job for Toll.

A. Yes.

Q. You said you thought about two to three years.

A. Yes.

Q. It's true, isn't it, that despite all of the injuries, including the injuries that you suffered back in April 2003, you've been very hard working in your time at Toll?

A. Yes.

Q. And you've continued to do your driving work, despite a number of conditions in different parts of your body, which have made it a bit difficult for you at times.

A. Yes.

Q. And your intention is to try and continue on in that job as long as you can.

A. Yes.

Q. You're managing with it now?

A. Just."

...

"Q. What I'm suggesting to you is that, as far as your neck and left shoulder are concerned, you're still able to do the work that's involved in your job as a driver with Toll.

A. I'm having trouble doing the job I'm doing at the moment, yes.

Q. But what I'm suggesting to you is that, if you were, in the years to come, to stop that work, it would be more to do with your other conditions than your neck, which in fact has improved over the last number of years, and has been stable over the last couple of years?

A. No. No.

Q. I'm suggesting to you that you're able, and your intention is - sorry, I'll do this in two parts. You're able to continue working beyond 2 to 3 years?

A. No.

Q. And I'm suggesting to you that your intention is to continue on as long as your body holds up, which would, you hope, be beyond 2 to 3 years?

A. I don't think so."

161 In re-examination the plaintiff gave the evidence set out below (T145.44 - 147.41) as to the impact that his unrelated disabilities had upon his belief as to his likely need to retire:

"Q. You were asked some questions yesterday, by Mr Downing, about other areas of problems in your body, and you remember I asked you some about

A. Yes.

Q. You were asked some questions today, by him, about your decision as to the future with our work. Do you remember that?

A. Yes.

Q. How significant is your neck in that decision, compared to any other things that are wrong?

A. The neck is the main reason why I won't be around much longer on trucks.

Q. For what particular reasons with your work?

A. I just - I struggle a lot - with a lot of sleep. I can't sleep, I can't get comfortable. I can't - I'm having trouble, long hours driving trucks, staying awake. I can't keep doing it. I need to, you know.

...

Q. You have told us, or Mr Downing, I think essentially, that your knees are of little if any consequence these days.

A. Yes.

Q. So far as problems are concerned. Still some shoulder difficulties?

A. Yes.

Q. Still some back difficulties?

A. Yes.

Q. Right ankle, still some problems?

A. Yes.

...

LIDDEN: You will have forgotten it now, no doubt, Mr Quinn. I'll ask you again. It will take a minute.

Q. You told Mr Downing about your continuing problems as a result of everything that has happened to you. Do you remember that?

Q. You told him your knees were of no significance, or no great significance. Do you remember that?

A. Yes.

Q. The problem with your ankles still?

A. Yes.

Q. Low back pain on and off, you said.

A. Yes.

Q. Shoulder problems both sides.

A. Yes.

Q. Neck?

A. Yes.

Q. That's pretty much the extent of them, is it?

A. Yes.

Q. I want you to concentrate on the things that were involved in this accident, that we're all here about, your neck and what happened to your left shoulder. Are you with me?

A. Yeah.

...

Q. If there was nothing wrong with your neck would you be contemplating retirement in two or three years?

A. No.

Q. As to that decision, that you've told us you've made, and accepting your invitation to apply a percentage to it concerning your neck and shoulder, how important is it as a percentage, your neck and shoulder problems, in that decision?

A. To give up work in a couple of years?

Q. Yes.

A. I'd say the neck and the shoulder would be 70, maybe more, per cent of the reason why I'll have to give it up."

162 Mrs Quinn gave some limited evidence as to the effect of the subject accident upon the plaintiff stating, inter alia, that he had never returned to his "old self" like he had always done after his earlier unrelated injuries (T151.17 - 22).

163 The medical evidence bearing upon the plaintiff's loss of earning capacity and his potential early retirement, including its causes, is neither extensive nor consistent.

164 Dr Clark in his report addressed to the plaintiff's solicitors dated 14 July 2010, does not mention the plaintiff's neck condition and states that he returned to normal duties consequent upon the left shoulder surgery that Dr Clark performed in October 2003. In relation to the plaintiff's unrelated right shoulder condition, he notes significant problems in it as at July 2010 which he regarded as permanent.

165 Dr Sheridan's most recent opinion is contained in his report of 13 April 2004 and relates to an examination of the plaintiff in January 2004. At such time the plaintiff wanted to return to full duties which Dr Sheridan felt was "appropriate" and the plaintiff thereafter failed to return for a scheduled follow up. Dr Sheridan opined that the plaintiff would "be left with some persisting neck symptoms" associated with a "risk of further deterioration" but made no other relevant comment.

166 Dr Ellis, orthopaedic surgeon, who saw the plaintiff on a medico legal basis for his solicitors, last examined him in August 2008. In his report referable to such examination of 3 September 2008, Dr Ellis states at p 6:

"The patient is just fit for the work that he is doing. He is working 60 hours weekly using forklifts and driving semitrailers. He regularly lifts weights of 10kg and can handle 20kg weights. He avoids weights 30kg or more.

Prognosis: As far as his cervical spine and Left shoulder is concerned he has carried out his present work more than the last twelve months without losing any time off work. He is 50 years of age and strongly built.

He has a constellation of injuries of both knees, both shoulders, the cervical spine, lumbar spine and Right scaphoid fracture. I observe that his Left shoulder is more restricted in motion than it was three years ago, it does not prevent him from working. It would be conjectural to say how long this patient will continue working at his present occupation.

His Left shoulder and his cervical spine impairments are not likely to cause him to cease work over the next two or three years but the patient's attitude that he will continue as long as he can as he is now is not likely to persist in view of his multiple injuries, in my opinion, for more than the next five years."

167 Dr Conrad, surgeon, also saw the plaintiff on a medico legal basis for his solicitors. His first comment concerning the plaintiff's possible early retirement is on p 2 of his report dated 4 August 2008 where he records:

"There is a possibility that his working life will be curtailed and in the expectation that he would normally work until aged 65 years this curtailment may be in the order of some five years.

His prognosis is uncertain."

168 In his most recent report of 5 May 2010, Dr Conrad, after describing the plaintiff's condition as "permanent and stable" states as follows:

"Mr Quinn is extremely well motivated and continues to work for Toll Ipec, as a driver and loader and he is able to do this providing he does short distance driving and he does not do excessive lifting or heavy repetitive loading or unloading. He says that the gates are now aluminium and are less heavy to lift. He should not be lifting heavy metal gates and he should not lift much more than 5kgs in weight and he should not lift anything above shoulder level with his left arm.

Should his girlfriend not be able to assist with housework and garden maintenance, he might need about six hours per week of Home Care assistance."

169 Dr Bodel, orthopaedic surgeon, also saw the plaintiff on a similar medico legal basis for his solicitors. In his report of 7 December 2009 on p 4 under the heading "Our client's capacity and fitness for work in general, particularly as to the effects of the injury", he records:

"In spite of his ongoing complaints this gentleman has returned to his pre-injury truck driving work.

He is keen to remain in this as long as he can.

With care he should be able to continue in some form of truck driving activity for at least another eight to ten years but then after that may have to modify his duties further. He should still be capable of remaining in the workforce until retirement age in modified work."

170 In his last report of 27 May 2010, Dr Bodel states that the plaintiff has returned to his "pre-injury duties" and opines that "Hopefully he can continue until normal retirement age as long as he is careful".

171 Dr Smith, who saw the plaintiff on a medico legal basis at the request of the solicitors for the employer defendant, noted in his latest report dated 12 July 2010 that the plaintiff was working "in his usual occupation without restrictions". He opined that the plaintiff should "avoid overhead work that is continuous or repetitive, because it is likely to aggravate his arthritic neck" which Dr Smith believed had been "exacerbated" by the subject accident. Under the heading "Prognosis" on p 5, he further opined:

"Overall his prognosis is that he can continue working for Toll.

It isn't possible to suggest that one can always continue to the age of 65. There are many men who don't live that long.

He has a manual occupation and it is conceivable he may not be able to continue to the age of 65. I would expect him to be able to continue for the next five years, perhaps even 10 years. He may well be able to continue until the age of 65. No one can guarantee that outcome, but there is no reason to suggest on the basis of today's examination that he can't do that."

172 Dr Smith does not make it clear if any "conceivable" early retirement is likely to be a result of the disabilities sustained as a result of the subject accident or a combination of those together with the various unrelated problems that he also discusses.

Consideration

173 In relation to the plaintiff's alleged overtime loss which, as I understand Mr Lidden SC's submission, is confined to the period from his accident in April 2003 until mid 2004 (T197.21 - 27), I am not persuaded that anything should be allowed on the basis of the evidence.

174 Firstly, as stated, the plaintiff gave no evidence whatsoever in relation to overtime, let alone that it was available both before and after his subject accident and that he did it before same but was unable to do it after due to his relevant injuries. Secondly, as also mentioned, there are no wage or other records relevant to this issue in evidence.

175 Mr Lidden SC's argument relies, as I understand it, on the evidence that the plaintiff's pre-accident position involved him working 60 hours per week and that when he returned for a period on light duties thereafter "there's no suggestion that he worked 60 hours a week" (T197.7 - 8), together with what can be drawn from his tax returns. In this respect, Mr Lidden SC submitted that the relevant returns were those for the 2003 and 2004 financial years which show a considerable drop in gross income from the 2001 financial year.

176 The handwritten schedule at the front of Exhibit D would appear to be prepared from the plaintiff's assessment notices, which are also part of Exhibit D, as opposed to his actual tax returns, although the gross figures are reasonably similar. The tax returns show a gross income from the plaintiff's employment in the 2001 financial year of $70,817 reducing to $63,526 in the 2002 financial year and further reducing to $58,785 in the 2003 financial year and increasing thereafter.

177 In argument, Mr Lidden SC pointed out that in the 2002 financial year the plaintiff "had the elbow injury" (T197.15) from which, I assume, I am to accept without direct evidence as the explanation for the drop in that year. The further drop in the 2003 year is apparently alleged to be due to the subject loss of overtime although I note that the plaintiff's accident took place in mid April 2003, approximately ten weeks before the end of that financial year. As I understand the relevant legislation, a worker receives his normal wages, without overtime, for at least this period after an injury and consequently this seems too short a time to explain such a drop in gross income from the previous year. If this is not correct, I am still in a position of having to speculate as to why this apparent drop in gross income in the 2003 year took place.

178 Even if the evidence could be said to amount to more than speculation, I am simply not satisfied on the balance of probabilities that any loss of overtime has been established.

179 In dealing with the plaintiff's claim for future economic loss, before passing to a brief consideration of the relevant authorities and my consequent findings, I intend to deal with the evidence concerning the plaintiff's likely current net weekly earnings.

180 Mr Lidden SC submitted that I should accept the plaintiff's evidence that such earnings were $1,200 net per week as at the date of trial, particularly when he was not cross examined on this evidence. Whilst this latter proposition is correct, the plaintiff's evidence was clearly an estimate and his wage records are also not in evidence. Further, his tax returns were tendered in his own case and disclose a gross income for the 2010 financial year of $71,661 which is the same figure set out in the Notice of Assessment for that year. Such documents establish a net weekly income for that year of approximately $1,060 which figure I prefer as the best evidence as to the plaintiff's likely current net weekly income.

181 I believe it highly unlikely that this average figure of $1,060 had increased to the extent of $140 net per week by the time the plaintiff gave his oral evidence before me in February 2011 especially when the documents in Exhibit D establishes that his average net weekly income was somewhat higher in the 2009 financial year (approximately $1,080) and had dropped a little in the 2010 financial year.

182 The principles relating to the assessment of damages for economic loss under the common law are clear from the authorities. The following useful summary of such principles is set out in the joint judgment of McColl JA and Hall J sitting as the Court of Appeal in Kallouf v Middis [2008] NSWCA 61:

"46 Damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347) per Dixon CJ, Kitto and Taylor JJ. As McHugh J said in Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 (at 16) "the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff's ability to earn income."

47 Although it is loss of earning capacity and not loss of earnings that is the subject of compensation, the rate of wages being earned and the rate of wage likely to be earned in the future afford a basis for assessing compensation for the loss of earning capacity. Expectation of working life is also an element in that assessment: Arthur Robinson (Grafton) Pty Limited v Carter [1968] HCA 9; (1968) 122 CLR 649 (at 658) per Barwick CJ; see also State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [66] - [67]) per Heydon JA.

48 It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position he or she would have been in if injury had not been sustained. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is one about the likely course of future events and evidence of past events does not always provide certain guidance about the future: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [7] - [8] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

49 Any assessment in respect of the impairment of future earning capacity necessarily involves a consideration of possibilities. In some cases, it would be an error in treating as certain the fact that a plaintiff would lose wages for a period of years from the date of trial. Where incapacity is established as at the date of trial, what is to be evaluated will be the extent of the possibility that the plaintiff may not work in the future or may lose time from work and determine the allowance of proper compensation in respect of that possibility. That evaluation will depend upon the evidence. Where there is no evidence to support a conclusion that, as a matter of certainty, an injured plaintiff would not earn monies from employment for a number of years post trial, then such a finding would involve an error of principle: Ahmedi v Ahmedi (1991) 23 NSWLR 288 (at 302) per Clarke JA, Handley JA agreeing."

183 The proposition that the assessment "involves a consideration of possibilities" was emphasised by the High Court in Malec v J C Hutton Pty Limited [1990] HC 20; (1990) 169 CLR 638 where it was described as "an evaluation of possibilities" (at 639).

184 In the present case, the medical evidence referred to above discloses a fairly broad range of opinion as to when and why the plaintiff may be forced to retire. The plaintiff's own evidence is rather more pessimistic than such medical opinion with the exception of that from Dr Ellis, although such doctor's opinion that he was likely to have to retire by approximately September 2013 clearly takes into account the plaintiff's disabilities resulting from all of his injuries suffered over the years including those arising from the subject accident.

185 Dr Conrad suggests that there is a "possibility" the plaintiff will have to retire at 60 due to the disabilities sustained in the subject accident.

186 Dr Bodel initially opines that the plaintiff may have to retire from truck driving around the age of 60 to 62, apparently as a result of the subject accident, but should thereafter be able to remain in the workforce "until retirement age in modified work". As stated in his most recent report, Dr Bodel states that the plaintiff may in fact be able to remain in his driving job "until normal retirement age".

187 Dr Smith "expects" him to be able to cope with his current employment until approximately age 58, "perhaps even" 63 and he "may well be able to continue" to 65 but, as mentioned, it is not clear to what degree Dr Smith takes into account his unrelated problems.

188 Dr Bodel also opined that if the plaintiff is forced to give away his current employment, he may remain fit for "modified" work. Whilst this may be theoretically correct, in my view, the plaintiff will undoubtedly have major difficulties in finding any such work, especially in light of his age and the subject accident related disabilities. I find that it is quite likely he would then be essentially unemployable. As to this question the employer defendant has presented no direct evidence. Further, it has not led any evidence that it will provide the plaintiff with some form of lighter work if he becomes unfit for his current position.

189 The position is not made any clearer due to there being no direct medical opinion going to the question of whether the plaintiff would have, on the probabilities, had to retire before the age of 67 in light of his unrelated disabilities if the subject accident did not occur. In this respect, the employer defendant did not seek to discharge its evidential onus as discussed in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

190 Nevertheless, it is clear from the evidence, including that given by the plaintiff himself, that his unrelated disabilities are not insignificant.

191 After considering all the evidence, I find that, even without the subject accident, there was a possibility that the plaintiff would have had to retire before he turned 67 in any event. However, bearing in mind his obviously strong work ethic, I find it unlikely that this would have occurred before he turned 65.

192 The plaintiff is presently aged approximately 53.5 years. Arguably, he is in the best position of anyone to estimate his capacity to continue to work in his current position. His estimate that this will occur within the next couple of years may turn out to be well founded although it could also be heavily influenced by his unrelated disabilities.

193 It is clear from the above discussion that there are several variables and unknowns in the current matter. Nevertheless, the plaintiff, in my view, has sustained a very significant diminution in his earning capacity as a result of the subject accident and I accept his evidence as to his difficulties at work occasioned primarily by his neck condition. I find he is likely to have to retire several years earlier than he would have otherwise as a result of it. I have already found that without the subject accident related disabilities he probably would have been able to last in his current position to around the age of 65.

194 In these circumstances, I propose to assess the plaintiff's future loss of earning capacity on a lump sum or "buffer" basis as, despite my findings, there are still some variables and unknowns in play.

195 The question then becomes how should such a buffer be calculated? Whilst this is not a matter susceptible to mathematical analysis some guidance can be provided by looking at different scenarios.

196 Every year that the plaintiff cannot remain in the workforce due to his neck disability will occasion a loss to him of over $50,000 net even though any such loss of course needs to be discounted due to being awarded at the present time.

197 An amount of $1,060 net per week capitalised at 5 percent commencing when the plaintiff turns 60 (6.5 year deferral factor .729) and running for 5 years (5 percent multiplier 231.5) but not further discounted due to the relatively short period involved, results in a figure of $178,889. This assumes retirement at 60 due to the subject accident but also that the plaintiff would have had to retire at 65 in any event.

198 A loss of $700 net per week capitalised at 5 percent commencing in 2 years (deferred factor .907) but running for 9.5 years (5 percent multiplier 396.5) and similarly not further discounted, results in a figure of $251,738. This assumes retirement from his current position in 2 years but also a residual capacity thereafter of some $360 net per week until age 65.

199 After considering all the evidence and weighing the various possibilities as to the plaintiff's future, I have come to the conclusion that his loss of earning capacity warrants a substantial sum and I award him the sum of $200,000.

Summary

200 Accordingly, a summary of the plaintiff's heads of damage as assessed against the employer defendant is as follows:

(i)	Past wage loss	$8,493.68
(ii)	Fox v Wood	$1,698.74
(iii)	Future loss of earning capacity	$200,000.00
Total		$210,192.42

Orders

1. Verdict and judgment for the first, third and fourth defendants in File No 2009/333975.

2. Verdict and judgment for the plaintiff against the defendant in File No 2009/337867 in the sum of $210,192.42.

I will now hear the parties as to costs.

**********

Decision last updated: 25 January 2013