New South Wales Supreme Court CITATION : Miljus v CSR Ltd (No. 4) [2010] NSWSC 1325 HEARING DATE(S) : 24-26 May 2010; 28 May 2010; 31 May 2010 - 3 June 2010; 7 June 2010; 1-3 September 2010. JUDGMENT DATE : 14 December 2010 JURISDICTION : COMMON LAW JUDGMENT OF : Davies J DECISION : (1) Verdict for the Defendant. (2) Plaintiff to pay the Defendant's costs. CATCHWORDS : TORTS - negligence - duty of care - builder in occupation of site - Plaintiff delivering concrete to the site - contract between builder and concrete supplier - independent contractor to concrete supplier employs Plaintiff - Plaintiff injured delivering concrete to the site - Plaintiff's truck overturns on public roadway leading to the building site - whether builder owes duty of care to the Plaintiff in respect of the roadway - self-imposed duties - absence of reliance by the Plaintiff - no duty of care. Civil Liability Act 2002 Construction Safety Regulations 1950 LEGISLATION CITED : Factories, Shops and Industries Act 1962 Occupational Health and Safety Regulation 2001 Roads Act 1993 CATEGORY : Principal judgment ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89 Ballina Shire Council v Daley (1991) NSWCA 18 CSR Limited v Elliott (unreported – NSWCA – 23 June 1994) Davey v Skinner (1961) SR (NSW) 648 Fraser v Victorian Railways Commissioners (1909) 8 CLR 54 Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 Knight v Sheffield Corporation [1942] 2 All ER 411 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 CASES CITED : Mercer v South Eastern and Chatham Railway Companies' Managing Committee [1922] 2 KB 549 Miljus v CSR Ltd [2010] NSWSC 569 Miljus v CSR Ltd (No 2) [2010] NSWSC 598 Overseas Tankship (UK) Limited v The Miller Steamship Co Pty Ltd (Wagon Mound) (No 2) [1967] 1 AC 617 Pacific Steel Constructions Pty Limited v Barahona [2009] NSWCA 406 Portelli v Tabriska Pty Ltd [2009] NSWCA 17 Pyrenees Shire Council v Day (1998) 192 CLR 330 Radovanovic v Brisbane City Council [2001] QSC 264 Ring v Rigby [2005] NSWCA 357 Smith v South Eastern Railway [1896] 1 QB 178 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Sydney Water Corporation v Abramovic [2007] NSWCA 248 Wyong Shire Council v Shirt (1980) 146 CLR 40 PARTIES : Damien Miljus (Plaintiff) Watpow Construction Pty Ltd (Second Defendant) FILE NUMBER(S) : SC 2008/289579 COUNSEL : B Gross QC & C J Callaway (Plaintiff) M Scott & B Bradley (Second Defendant) SOLICITORS : Schreuder Partners (Plaintiff) Gadens Lawyers (Second Defendant) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DAVIES J 14 DECEMBER 2010 2008/289579 MILJUS V CSR LIMITED & ORS (NO. 4) JUDGMENT Background 1 The accident that gave rise to the proceedings occurred on 20 March 2001. The Plaintiff was employed by a company called Edensor Transport Pty Ltd, which was a company of which he and his father were the 2 shareholders and directors. Edensor had a sub-contract arrangement with CSR to deliver concrete from CSR to various building sites. 2 On the day in question the Plaintiff was delivering concrete mix to a site at 8 Rignold Street, Seaforth where Watpow Constructions Pty Ltd (the Defendant) was constructing a swimming pool. To deliver the concrete to the property the Plaintiff had to traverse a narrow and, to some extent, winding road down a hill. The road was badly formed and had an uneven surface made of different materials. 3 The Plaintiff said it was necessary to reverse his truck down the access road. In the course of so doing he lost control of the vehicle because his brakes would not hold or slow the vehicle. The vehicle toppled over onto its left side and fell at least partly into a gully. As a result, the Plaintiff suffered physical and psychiatric injuries. 4 The original Statement of Claim was filed in the District Court on 2 March 2004 and named CSR as the First Defendant and Watpow, the builder, as the Second Defendant. Eventually, a number of cross-claims were filed adding new parties that included Edensor Transport, as well as the Motor Vehicle and Workers Compensation insurers of Edensor. 5 The first hearing in the matter commenced in the District Court on 26 September 2006. The matter proceeded on that day but on the second day the Plaintiff terminated the instructions of his solicitors and his counsel. The Plaintiff sought to vacate the hearing of the proceedings, and that order was made. 6 After the Plaintiff's present solicitors were retained, the matter was transferred to this Court. The Statement of Claim was amended with the addition of a number of particulars, including particulars of negligence against Watpow arising out of alleged breaches of the Occupational Health and Safety Regulation 2001. 7 The present hearing commenced on 24 May 2010. On the sixth day of the hearing both CSR and Watpow agreed to have their Cross-Claims against Edensor dismissed. That resulted in an agreement with the 2 insurers for those Cross-Claims to be dismissed also. 8 On the seventh day of the hearing, and after the principal of Watpow, Mr David Watson, had completed his evidence, the Plaintiff and CSR reached an agreement that there should be judgment for CSR in the claim made by the Plaintiff. Initially, Watpow objected to the entry of judgment because of the Cross-Claim it had against CSR. A little later that day agreement was reached between CSR and Watpow with the result that judgment was entered in favour of CSR and the proceedings continued against Watpow only. 9 The matter proceeded on the basis of the pleading in the Fourth Amended Statement of Claim for which leave had been given earlier that day. No subsequent amendment to the Statement of Claim was filed to take account of the fact that CSR had ceased to be a party. 10 There were ultimately 16 particulars of negligence alleged against Watpow but, in substance, they complained about the need to deliver the concrete to the site down the road in its poor condition. Particular 20 made reference to a breach of reg 73(2) Construction Safety Regulations 1950 in failing to provide and maintain safe means of access. That particular was added after an unsuccessful application by the Plaintiff to amend his Statement of Claim to plead a breach of statutory duty. I rejected that application – see Miljus v CSR Ltd [2010] NSWSC 569. That judgment also dealt with the terms of the leave to add particular 20. In short, what was alleged was negligence exemplified by a failure to act in accordance with that regulation rather than a cause of action for breach of statutory duty – see at [56]-[61]. The Plaintiff 11 At the time of the accident the Plaintiff was almost 33 years of age. After leaving school he initially did an apprenticeship as a refrigeration mechanic and worked as such until 1990. He then started work as a truck driver, first working under a franchise arrangement driving a 6-tonne truck delivering parcels and freight. 12 In 1995 he purchased an 8-tonne truck and was mainly working delivering palettes. In 1996 he commenced working in an arrangement with CSR Readymix delivering concrete. He purchased a 10-year franchise contract from a person who had been a driver for CSR. At the time he purchased a 1978 Leader truck that had a concrete agitator fitted to it. CSR painted the truck with its colours and logos and provided a uniform for the driver to wear. At all times, however, the Plaintiff was employed by his own company, Edensor Transport, which had the contract with CSR. 13 The usual arrangement was that he would drive to the CSR depot to which he had been allocated and would there be given his first load of concrete together with the address to which it was to be delivered. Subsequently, by means of a 2-way radio system, he would be informed of the next load and from where it was to be collected. On any one day he would deliver between 3 and 10 loads. 14 The money he received from CSR was dependent on how much concrete he had delivered and the price for each delivery. CSR would issue him with documents showing the amount of concrete and the money to which he was entitled. The money was then paid directly into the bank account of Edensor. Edensor had the responsibility for looking after the costs of running the truck. 15 In 1998 or 1999 he purchased a different truck being a 1986 Ford Louisville from a company in Melbourne. It was a second-hand vehicle and it was necessary to have the chassis shortened to fit the concrete agitator. The truck had 3 axles. The 2 back axles were underneath the agitator and each axle had 2 wheels on either side. It had an automatic transmission. Once again CSR painted the truck and attached its logos to it. After the truck was out of warranty he had it serviced by a man called Mario who had a company called Truck Service and Repair Pty Ltd at Smithfield. The Plaintiff said he had no problems with the work that Mario and his company carried out on the truck. He had the vehicle serviced either every 10,000 kilometres or every 3 months. 16 The Plaintiff said at the time of the accident that there were no problems with the truck and the state of the tyres on the truck were very good. However, a policeman pointed out to him after the accident that one of the inside tyres on the back axle was "a bit bald". 17 At the time of the accident Rignold Street ran in a westerly direction at right angles from Boronia Lane. It is and was a continuous downhill slope as it travels westward at least until it reaches a fork in the road about 80-100 metres west of Boronia Lane. At a point perhaps about 50 metres from Boronia Lane, it veered to the left and then turned more sharply to the right at what appears to be its steepest downhill section. The land generally falls away to the right hand or northern side of the roadway. At least by the right hand bend there is a fairly steep embankment into a gully on the right hand side of the road. 18 On the left hand side (the southern side) of the road there was an embankment of varying height above the road level. 19 Where the road came to the fork a lower road proceeded on the northern side further down into the valley where one or more of the then 3 existing properties were situated. The left hand fork went in a slightly south-westerly direction up a small incline to the front of the property 8 Rignold Street. It was in that position that the concrete pump was located on the road outside the property. 20 On either side of the roadway, there was reasonably dense foliage although that appeared to have thinned out at a position near the right hand bend. Photographs tendered in evidence showed that the width of the road was not very much wider than the width of the Plaintiff's truck, particularly taking into account the rear vision mirrors that extended beyond the body of the truck. Mr Simpson, the automotive engineer for the Plaintiff, said that the width of the actual road was certainly no wider than 2600 millimetres. 21 Since the accident the road has been completely rebuilt including being kerbed and guttered and a strong metal fence erected on the lower side. Whilst it appears to follow roughly the line of the road at the time of the accident, it is not certain that is so. None of the experts saw the roadway before it was rebuilt (indeed, the Defendant's expert, Dr Gilmore has not even been out to the site), and I place considerable reliance on a series of photographs and a video made within a few weeks of the accident to judge the state of the roadway, the foliage and surrounding matters. As best as can be judged from the photographs and the video, the slope of the road is now more even, and the left and right hand bends have been straightened out somewhat. 22 Dr Gilmore arranged for a survey of the rebuilt road to be made, and identified that it was estimated the gradient at about the place the accident happened was 22.05% (12.43 degrees). The precise gradient was not relevant other than for Dr Gilmore's calculation in relation to whether the brakes on the vehicle were likely to have held it in a stationary position. The accident 23 On the day of the accident the Plaintiff went to Brookvale depot at about 6am. His father travelled with him. He took one load of concrete to North Curl Curl, and then he went back to Brookvale to get his next load. That was the concrete for delivery to 8 Rignold Street. The load was 5 cubic metres. The Plaintiff said that 1 cubic metre weighed 2.3 tonnes and he thought that the weight of the truck with the load of concrete would have been somewhat over 20 tonnes. 24 The Plaintiff initially had difficulty locating Rignold Street. He radioed the allocator at Brookvale depot to ask where Rignold Street was. The allocator suggested he contact another truck driver who was already on the site. The Plaintiff contacted that truck driver and had a brief conversation with him. As he was doing so he saw that truck come out of the access road onto Boronia Lane. The other driver said to the Plaintiff: When you come down here, you got to back down and you stick well to your right-hand side. 25 The Plaintiff drove down Boronia Lane to the intersection with Rignold Street. He stopped the truck and got out to have a look. He walked down the roadway, maybe 80-100 metres. He noticed that it did not look too good – the road was broken up and there was what he described as "a lot of jungle" around. The surface looked like "half bitumen, half a bit of sand, a bit of gravel, a bit of everything", to use the Plaintiff's words. 26 He noted that on the left or southern side of the roadway as he walked down there was a sort of a hill and on the other side there was a drop-off over an embankment. He noted that the edges of the road were all broken up and it had no defined edge. At the bottom of the road there was a little ramp that went up towards the property where the concrete pump was located. This ramp represented the left part of the fork in the roadway. The right fork continued to go down to another property. 27 When he saw where the pump was, he then turned round and walked back up the road to his truck parked on Boronia Lane. The Plaintiff saw a number of people down in the area near the pump but he did not speak to anybody, and he says he did not ask anybody how he should get the concrete truck down to the pump. 28 The Plaintiff then started to back the truck down the roadway. He asked his father to get out of the cabin and go behind the truck to give him some help and guidance as he reversed. He said he found it difficult to see behind him and the external mirrors were getting blocked by the trees and the foliage on either side. He said there was not much room to manoeuvre in terms of the width of the truck and the width of the road. He understood that when the other driver had told him to stick to the right going down, what was meant was to stick to the hill or southern side of the road and not to the embankment or northern side. 29 Initially he got some help from his mirrors but then they started to get trapped in the foliage and it was necessary to go forward to free them. 30 He had the truck in reverse gear but he was using the brakes so that he moved at a crawling pace. The truck had air brakes and the Plaintiff said it was necessary to build the brakes up to 120 psi, which is full air pressure, but as he continued to use the brakes the pressure dropped. During the course of backing down the road, he had to stop to build the pressure back up to 120 psi on 3 occasions. That was done by putting the handbrake on, putting the gear lever into neutral and using the accelerator. The increase in the engine speed helps the air pressure build back up. 31 The roadway is straight for some distance from Boronia Lane and then veers to the south slightly and then curves back to the north. Where it curves to the north the slope becomes steeper and the road is angled towards the north, that is, towards the downhill embankment. The Plaintiff had reversed the truck down to where the point where the road curves to the north. He then described the accident in this way: Q. What happened, just describe how the accident happened? A. As I said I built up me pressure, I built up me air pressure on the third time. I was supposed to keep coming down. I did sort of smell some sort of smell. I didn't know what it was, like a rubbery smell I presume but I didn't know what it was. Kept on reversing. As I started to reverse and straight after that, it could have been seconds after that, I had me foot down on the brake and she just kept on going. That's when I screamed out for everyone to scatter, to get out of the way. There was other people walking around, builders. And then everything happened real quick and someone said stick to the right or get to the wall, try to stop the truck on the wall, and I presumed my tyre had got stuck in the embankment and flipped it. Q. So that when you said you had your foot down on the brake what was the brake pressure like, sorry what was the pressure of the brake pedal, what did that feel like? A. I had my foot right down, I put the full on foot but it just kept on going. The truck just kept on rolling. Q. Did the brake pedal feel different in any other way from what-- A. It felt like it felt before when I was braking. It just wouldn't stop. She kept on going. There was no stoppages. Q. So the brake pedal felt the same but the vehicle wouldn't stop? A. Because I had my foot right down. I was pressing hard as I could, right down to full on metal. I was pressing right down as hard as I can. Q. When you found that occurring what was your mental state like? A. I was a bit in panic mode. I was in a bit of panic mode. I remember trying to get the handbrake, I was trying to pull it in drive. I was trying to do things but it happened real quick and then I ended up on me head. Q. You said someone called out about move to the right or something like that or turn to the right? A. I could hear someone saying "try to get it onto the right, on the right". Someone screaming. I don't know who it was. One of the workers. I don't know who it was. I sort of heard that and I was trying things real quick. Q. But at the state when someone screamed that out what was your truck doing? A. It was going back. It was going back. Skateboarding down there. Q. And you're indicating with the right hand a sweep of your hand indicating still going away down the hill? A. It was going, yeah. Q. Was there anything you could do to stop it? A. Well I tried everything I could in that split second that were left for me there but as I said I got into panic mode and I didn't know what was going on. It happened so quickly, the whole thing after that. Q. Before this day during your entire driving career driving trucks had you ever had to deal with a situation like this? A. In a situation where I was like in a dangerous situation or what? Q. Yes? A. No, not in that way. Q. What did this access way, this lane, appear to you like as compared to other situations where you've had the back your truck down to deliver a load? A. It was the worst one that I've been to. I've been to bad ones but that was the worst one that I've been to. Q. What was worse about it, what was bad about it? A. There was just no vision on either side and just the condition of the road was pretty bad and the drop off was pretty steep too. HIS HONOUR Q. Mr Miljus, when the air pressure drops in the brakes does that mean that the pedal goes further towards the floor? A. No it doesn't mean that. It just means that your braking isn't as strong as with full leg pressure which means you've got a weaker braking. It was still brake but it will brake better with the 120 with full pressure. Q. When the vehicle was going backwards and you couldn't stop it was the brake pedal right down on the floor or was it still at the normal position that is-- A. As far as I can remember I remember putting my foot right down and really pressing hard to try and brake. I presume it was the same as before but I'm not sure. I know I had my foot right down and I was putting pressure, like on me foot. It happened real quick. GROSS Q. So the pressure you were applying was heavy and it still wasn't working? A. No, it was still going. The truck was still going. Q. I think you mentioned you tried to do a couple of other things before you-- A. I tried to do a couple of things before I went over, yeah. Q. What did you try and do? A. As I said I was trying to hit that little handbrake, I've got a little handbrake. I remember hitting it or pushing it in or trying to put it in drive. Maybe I could stop the truck by blowing the gearbox, I don't know, putting it in drive, whatever. But it happened so quick and then bang. Q. Did you have time to do anything that could stop the vehicle going over? A. No. Q. Had you ever been faced with an emergency like that before? A. Not in that type of situation where it's a life or death one. Q. Were you in any fear? A. Yes, I was. Q. What were your afraid of? A. What's going to happen now. Q. Now when you called out to the people why did you call out to the people? A. So I don't run anyone over. Maybe someone's not looked and maybe I could run someone over if I don't give them a warning. Q. To you your brakes didn't appear to be working? A. Well I had to shout out "I've got no brakes. Get out". You know, that's what I said to them. Q. What happened to your truck, how did it go off the road, just explain a bit more about what happened? A. I didn't see. I mean I was in the thing. Others told me. Like I said-- OBJECTION Q. Stop there. Don't tell us about what other people told you but what did you feel or see happening with your vehicle? A. It's going off the road. Q. What happened to you and it that you can recall? A. I just remember trying to control it the best I can and I remember the next thing being on my head. Bang. That's it. I don't know how it flipped or what had happened. It was quick. Q. What is your next recollection, that is you've been on your head you've told us. First of all what do you mean by being on your head? A. I ended up, where the passenger side door is I ended up like that, facing the driver's side thing. Like I'm laying back and my head is on the window there, on the passenger side door. Q. What happened about you becoming aware of your situation, was there-- A. Everything went black and I could hear my name being called out. That's all. I couldn't even respond. I couldn't answer to it. Q. Then what? A. Then I remember a bloke by the name of Bob McMillan inside the cabin shouting my name out or slapping me or pushing or tapping me or something like that. He said: "Damien, Damien", and I came to. 32 The truck had overturned onto its near side with the cabin and the front of the agitator over the edge of the roadway and the embankment. The majority of the agitator section of the truck was lying at a 45-degree angle on the roadway with the cabin facing in a northeasterly direction. 33 The Plaintiff's father also gave evidence about the accident. He said shortly after the Plaintiff commenced to reverse the truck down Rignold Street the Plaintiff asked him to get out and walk behind the vehicle to help direct the truck. The subsequent evidence of the Plaintiff's father is entirely consistent with the Plaintiff's evidence concerning the accident. 34 The Plaintiff's father said that after the Plaintiff appeared to "lose the brakes" he tried to swerve but the left front wheel of the truck caught the soft part of the road on the slope and it was after that that the truck fell over partly into the gully. 35 Some criticism was made about the honestly and reliability of both the Plaintiff and his father. One particular matter that gave rise to those submissions was an incident that occurred in relation to who the Directors, Secretary and shareholders of Edensor Transport were. The documentary material disclosed that the Plaintiff's father was a Director and shareholder of the company. However, both he and the Plaintiff denied that that was so. 36 On the second day of the hearing, the Plaintiff was cross-examined about his father's involvement in Edensor. During the luncheon adjournment on the second day, and despite having been warned by his own counsel not to discuss his evidence with anybody, he raised with his father the issue of whether or not his father was involved in Edensor. 37 When the Plaintiff's father was being cross-examined about the issue, he answered a question that had been asked of him in such a way as to disclose that he had discussed the matter with the Plaintiff. Of course, the fault in this regard was that of the Plaintiff who had been warned not to discuss his evidence. The Plaintiff's father was unaware of that matter. 38 Despite that behaviour on the part of the Plaintiff which tended to taint the evidence of his father in that regard, I do not think anything flows from it. Precisely who is a Director or Secretary or shareholder of Edensor makes no difference to the outcome of the case. Although the Plaintiff's evidence about his knowledge of these matters was most unsatisfactory, I think it largely arose from a lack of understanding about the formalities associated with the formation of the company. I do not consider that it affected the evidence that the Plaintiff or his father gave about the accident itself. 39 There is no doubt that the Plaintiff's father was extremely suspicious of the legal process, almost to the point of paranoia, because he accused those cross-examining him of deliberately trying to trick him all the time. No amount of reassurance from me seemed to change his mind that the barristers were trying to trick him. 40 Despite all of these matters, I consider that both the Plaintiff and his father gave truthful evidence about the circumstances of the accident. I did not get any impression that they had jointly contrived to give any particular evidence about its happening, or that what they said was not an accurate account as best they could remember things. 41 The other person who was present at the scene of the accident was the concreter from Pump Force (the sub-contractor to the Defendant), Mr Michael. When he heard the Plaintiff's truck arrive at the top of Rignold Street, he went up Rignold Street because they were waiting for the concrete. His description of what happened was brief but consistent with the accounts given by the Plaintiff and his father. He did not see the truck turn over because when he heard the Plaintiff yell out for people to get out of the way, he turned and ran. He then heard a very loud crash and when he turned around the vehicle had tipped over. How did the accident happen? 42 I have set out above the description the Plaintiff gave of what he experienced at the time of the accident. A fair summary of his evidence would be that the truck kept going despite his best efforts to press the brake pedal as hard as he could. Although he said he pressed the brake as hard as he could "right to full on metal" it was very clear from the way he described matters that he was not suggesting that the brake pedal went to the floor. He said, for example, that he was getting resistance from the brake as he pressed on the pedal. His best description of the accident was "skateboarding". 43 Although that gives some indication that the wheels of the truck had ceased to grip the road surface it does not explain how or why that occurred or if that was the reason he lost control. 44 The Plaintiff's father was only able to say that when the Plaintiff "lost the brakes he wanted to sort of swerve or wanted to turn, but his left wheel caught the soft road that was on the slope". The Plaintiff's father said the truck was going very fast when the Plaintiff called out "no brakes". 45 Two traffic engineers gave evidence. The first of those was Mr Colin Simpson who had been retained by the Plaintiff. Subsequently, Watpow obtained an engineering report from Dr Duncan Gilmore in the circumstances set out in a judgment I delivered where application had been made to exclude portions of Mr Simpson's report: Miljus v CSR Ltd (No 2) [2010] NSWSC 598. All of those circumstances meant that the 2 experts never conferred in conclave and their evidence was given separately. This was unfortunate and unsatisfactory. 46 Mr Simpson appeared to express 2 opinions in the report. The first concerned whether the brakes failed as the Plaintiff believed at the time of the accident. The second opinion was Mr Simpson's explanation of how the accident happened. 47 In relation to the first opinion Mr Simpson said this: APPARENT LOSS OF BRAKES It is noted that the Plaintiff, and others, are of the belief that the brakes "failed" and thus caused the accident. The writer is very familiar with the braking system of this particular vehicle and it is noted that the vehicle has a published gross maximum vehicle mass (GVM) of at least 20,870 kilograms (depending upon rear axle specification). It is also noted that the Plaintiff, be well aware (sic) that he required air pressure to "operate" the brakes, stopped on at least two occasions to allow the air pressure within the braking system to replenish and thus prevent a loss of air "causing the brakes to fail". It should be noted that the Ford LNT 8000 truck is fitted with spring brakes (sometimes referred to as "maxi-brakes") on both rear axles. This form of braking system provides an emergency braking system whereby in the case of a loss of air pressure below approximately 70 psi, the rear axle brakes both automatically apply. Positive air pressure is required to release, or to prevent these brakes operating. The writer is, therefore, of the opinion that it is most unlikely that a lack of air pressure had anything to do with this accident event. Indeed, had there been some fault in the vehicle that caused a complete, or partial, loss of air the brakes would automatically apply without any intervention on the part of the driver, i.e. the Plaintiff. It is also noted from the statement of the Plaintiff dated May, 2001, Paragraph 12, that he noticed "a slight burning smell which I presumed, was the brake drums". This implies to the writer that the Plaintiff was of the opinion that the brakes were becoming overheated. From the writer's training and experience in trucks of this particular type, the writer is of the opinion that this also is highly unlikely as the braking system, even at full legal loading, has more than sufficient heat dissipation capacity to allow the brake linings and brake drums to dissipate sufficient heat to prevent overheating and "brake fade". 48 He then went on to explain that the chassis of the vehicle in question was designed to flex to enable the vehicle to be driven over undulating and otherwise unmade road surfaces without damage. He noted that in the case of this particular truck with a concrete agitator on the back that allowed the chassis to flex or twist to one side whilst keeping all 4 wheels on the ground under centrifugal loading. He then went on to say: It is also noted that it would appear that the brakes of the truck, after the accident, were in proper working order as it is clear that some inspection would have been made based on the belief of the Plaintiff that they had "failed" and thus led to the accident event. (italics added) 49 It should be noted that this paragraph reproduced in italics was rejected as I discussed in Miljus v CSR Ltd (No 2) at [11]. 50 In turning then to deal with his explanation of the mechanics of the accident he went on to say immediately thereafter: The writer is, therefore, of the view that the accident, on the balance of probabilities, was the result of the near side rear wheels travelling over the edge of the embankment which formed the edge of the narrow track, down which the vehicle was being reversed, which then caused the rear of the vehicle to roll towards that embankment, thus causing the sensation to the driver that the brakes had failed. The vehicle would roll backwards without apparent braking effort and would also roll towards the near side (to the right as viewed looking down the incline). The writer, therefore, forms the view, based on the available evidence, that the Plaintiff's view that the brakes had failed, whilst understandable, is incorrect and that what actually occurred was that the near side rear axles of the truck were inadvertently driven over the embankment, causing the truck to roll down the embankment and down the track as it did so, giving such an impression of brake failure. In the opinion of the writer, based on the writer's experience in driving and operating such trucks and also as an Engineer, the track down which the Plaintiff was required to drive the vehicle was not suitable, or safe, for such a vehicle in that the track was too narrow, incorporated bends which the truck could not safely negotiate whilst remaining on the centre of the track and which incorporated an unguarded drop to the right hand side (when viewed looking down the track). In the opinion of the writer smaller trucks, for example 3 or 4 cubic metre capacity, ought to have been employed or, alternatively, concrete should have been pumped to the site from a station at street level. As the writer understands, this latter alternative was that which was eventually employed for the transfer of concrete to the actual construction site following the Plaintiff's accident. (emphasis added) 51 Mr Simpson gave oral evidence and, to clarify what appears in bold, he gave this evidence in answer to a question from Mr Gross QC: I have never at any time assumed that the truck ended up much differently to where it is shown in the photographs. I am a little surprised that the words "rolled down the embankment" are taken to assume that it just rolled and rolled and ended up down in a gully somewhere. However, be that as it may, the edge on the corner that the nearside wheels are approaching on the approach to the corner is an angled section of roadway, or the shoulder of the road is very heavily cambered so as to eventually drop off to an angle somewhere of the order of 30 or more degrees leading then down into a gully. 52 Dr Gilmore came to a number of conclusions most of which tended to point to the fact that the brakes on the vehicle were not working properly. He said if they had been working effectively and were able to lock all wheels they could easily have held the vehicle on the slope that he estimated would have been present at the time of the accident. He disagreed with Mr Simpson that the spring applied brakes would have been effective to cut in if the air brakes dropped below 70 psi. 53 He also questioned Mr Simpson's conclusion about the mechanism of the accident concerning which wheels passed over the edge of the embankment. He said if only the near side rear wheels travelled over the edge of the embankment he questioned the ability of the vehicle to roll backwards to end up in the position it did. Further, he noted an observation made by the Plaintiff where he said "I presumed my tyre had got stuck in the embankment and flipped it" as being consistent with the rested position of the vehicle and inconsistent with Mr Simpson's theory. 54 It is apparent the issue of brakes failing was a significant one in relation to the cause of the accident. It was certainly unfortunate that no inspection was carried out of the truck after the accident to ascertain the position of the brakes. On this issue, I prefer the evidence of Mr Simpson and reject the evidence of Dr Gilmore about the brakes failing. I do so for the following reasons. 55 First, I accept the evidence of the Plaintiff that at the end of the week before the accident, and because he knew he was going to the Brookvale area which he described as mountainous terrain, he had a CSR mechanic at the Lidcombe depot check the brakes on his truck. 56 Secondly, I accept the evidence of the Plaintiff that he did not have, and had not had, any problem with his brakes apart from the need to build up the pressure on 3 occasions while slowly reversing down the hill. 57 Thirdly, the Plaintiff's evidence, which I accept, was that when he did stop to build up the pressure in his brakes on those occasions he did so without any indication that there was a problem with the brakes. So far from the pressure dropping to under 70 psi, he built it up to full pressure on each occasion. 58 Fourthly, Mr Simpson established that he was very familiar with the braking system in the particular make of vehicle that the Plaintiff was driving. He explained that the vehicle was fitted with spring brakes (sometimes called "maxi brakes") on both rear axles which provides an emergency braking system, so that where there is a loss of air pressure below approximately 70 psi the rear axle brakes both automatically apply. 59 Dr Gilmore agreed that the vehicle had such a double braking system and agreed that they were independent of each other. Dr Gilmore's explanation, on the other hand, was that there was a simultaneous failure of 2 braking systems that were independent of each other. 60 Dr Gilmore appears to have based that opinion on 2 things. The first is that the Plaintiff had said that the air pressure could go to 90, 70, 40 or even 0. The second matter was that the brakes were not in fact tested after the accident. 61 The second of these matters, self evidently, does not provide any evidence that the 2 braking systems had or could have failed simultaneously. It was merely a statement about the lack of evidence that both systems were working after the accident. 62 The first matter seems a distortion of the Plaintiff's evidence. He was merely giving examples of how the air pressure could drop to various levels if attempts were not made to build up the pressure in the manner he described. That example was no proof at all the emergency braking system had failed. When asked further to explain this answer, Dr Gilmore suggested that the Plaintiff may have known that his emergency brakes were inoperable on the truck. There was simply no basis for that speculative comment. The suggestion was never put to the Plaintiff, and the whole of his evidence concerning the braking was inconsistent with it. 63 Mr Simpson explained how it was possible in a test situation to bleed the brakes of air down to zero with the emergency braking system cutting in whilst it was happening. This was consistent with the Plaintiff's evidence. 64 Fifthly, I would have to say that I found Dr Gilmore's evidence dealing with brake failure in the vehicle not to be evidence that was of very much assistance to the Court. Dr Gilmore seemed to have backed himself into a corner concerning the simultaneous failure of the 2 brake systems. He ultimately said that that was "a possibility" rather than it being the likely cause of the accident. He said that Mr Simpson's assertion that the emergency brakes should have come on at 70 psi was speculative because although that may have happened in a new vehicle with everything working "who is to say it happened in this vehicle which was not inspected after the incident". That evidence in particular suggested to me that Dr Gilmore was acting more as an advocate for the Defendant than as an expert witness endeavouring to assist the Court. 65 Further evidence in this vein is to be found in the following passage of cross-examination of Dr Gilmore by Mr Gross: Q. The argument that the emergency brakes, that is the maxi brakes did not operate would depend on them being removed or not being efficient, what do you say? A. Could be removed, could be a lot of friction in there, could be one component. Again that is speculation on my part but they are the possibilities. Q. Considering those possibilities, did you have any data or information which would suggest that the emergency brake system had been removed? A. No, but I understand no one does, that is the problem, no one has inspected the vehicle after the incident. Q. Can you think of any sensible reason why an emergency brake system would be deliberately removed? A. I don't think that is my, that is not my job to think of the reasons why they might be removed; people do a lot of things for funny reasons. Q. Do you know what is physically involved in removing the emergency brake system of a truck like this? A. Removed compartments, take a spring out. Q. The other alternative was that you proposed that in effect that there could be failure of the emergency brakes to come on due to component wear, excessive friction or breakage, is that right? A. Yes. Q. If in fact any of those occurred that would not occur suddenly, would it? A. No, it wouldn't, but you must remember it is the emergency brakes. The emergency brakes are not used all the time, they really are emergency brakes. They don't come on as you are driving down the road, they only come on in emergency situations such as potentially this situation. Q. In (g) at the top of page 7 you suggest the possibility that perhaps the driver knew that the emergency braking system did not operate, is that right? A. It may have. 66 Of course, as Mr Gross put to him in the passage which immediately followed, the suggestion that the Plaintiff knew that the emergency system was not working was inconsistent with his evidence that he endeavoured to put on the hand brake which was the same as the emergency or maxi brakes. 67 The evidence of the Plaintiff was not that the brake pedal went to the floor when he pressed hard upon it but rather that he pressed as hard as he could, he met resistance while doing so, but the truck continued to move backwards down the road. That is not so much an indication of a brake failure but a skid or loss of traction of some sort. 68 Sixthly, Mr Simpson also explained that if the hand brake was working successfully that would mean that the emergency brakes would also be working. In fact, it is the emergency relay valve on the back axle which senses when the air pressure has dropped to cause the emergency brakes to come on. The parking brake button operates that same valve. The handbrake was operated on 3 occasions during the trip down Rignold Street when the Plaintiff used it as a prelude to building up the air in the ordinary braking system. 69 Finally, if the emergency brakes failed there was an audible buzzer and a red light flashing in the cabin. There was no evidence of these matters occurring, and it was never put to the Plaintiff that they did occur. 70 In circumstances where the brakes did not fail, it is certainly not easy to explain precisely how the accident happened. The hypotheses put forward by Mr Simpson and Dr Gilmore both contain appealing aspects from the point of view of trying to understand the mechanics of the rollover of the vehicle. Each of the experts criticises the other's hypothesis and says that the accident would not have happened in the way the other describes. 71 Having found that the brakes did not fail, and that therefore responsibility of the accident was not principally with the Plaintiff, whatever other duty and breach may be found, it is not necessary to find exactly how the accident happened. What can clearly be found is that the roadway was a narrow one, with a poor surface and unsatisfactory camber, particularly on the sharper curve towards the north at about the place the truck came to roll over, and in circumstances where the narrowness of the road was aggravated by foliage which had grown up on both sides of the road. 72 It may be that the truck lost traction either because it was very heavily laden or because some of the wheels left the surface temporarily or for some other reason. The road was undoubtedly a difficult one down which to manoeuvre a vehicle as large as the Plaintiff's truck. 73 I have no doubt that the state of the road was a materially contributing factor to the accident and injuries sustained by the Plaintiff. The question is whether, given that the road was a public road in respect of which the Local Council was the Roads Authority (s 7(4) Roads Act 1993) with the responsibilities upon it as the local authority that that entailed (cf. s 146 Roads Act), the Defendant owed a duty of care to the Plaintiff in respect of that road and, if so, whether it breached that duty. Did the Defendant owe a duty of care? 74 The Plaintiff pointed to the fact that the concrete pump was on the dirt roadway outside the premises where the building work was being carried out. It was said, therefore, that construction work was being carried out on the roadway. Regulation 73(2) required any person carrying out construction work to provide and maintain safe means of access to the pump because that is a place where persons have to work. 75 Regulation 73 is only relevant as a particular of negligence and therefore as a standard or measure of common law care in the present case. I have referred already to the circumstances of its forming part of the case – para [10] above. 76 The Plaintiff's argument was, nevertheless, that the means of access to the concrete pump was the roadway upon which the Plaintiff's accident was occasioned. It was submitted, therefore, that there was a duty on the Defendant to provide and maintain that roadway as a safe means of access. The only specific matter it was said should have been done by the Defendant was to locate the concrete pump, or a second concrete pump as was done after the accident, at a point on the roadway closer to Boronia Lane to obviate the need for trucks to be driven down the roadway. Another matter that Mr Simpson and Mr Grieve (another engineering expert called by the Plaintiff) said should have happened was that smaller trucks should have been employed for the delivery of the concrete. That is a matter which could only be relevant to CSR and not to the Defendant. 77 The Plaintiff drew particular attention to the Code of Practice for pumping concrete. Clause 2 requires planning and preparation as the first step in ensuring that the work is done safely. Clause 2.1, dealing with planning by the builder, requires the builder to consider (inter alia) "safe and unobstructed access for the general public if the pump unit is set up in the street". Similarly, cl 2.2 dealing with planning by the pumping contractor requires the contractor to consider the provision of safe access "including elimination of trip and slip hazards". Both the builder and the contractor are to consider clear access to the pump unit for concrete trucks and where the pump should be located. 78 Mr Gross QC for the Plaintiff said that, although this Code did not advise or dictate the extent or the scope of any duty, it enlightened one as to what is good industrial practice where concrete delivery trucks have to get access to a site, and it concerned the expectations as to what a reasonably competent, careful builder would do. 79 Whilst a failure on the part of the builder (or the contractor) to have regard to those matters might, in an appropriate case, be some evidence of a breach of a common law duty, I do not consider that it provides a basis for imposing a new duty on the builder in relation to safe access beyond any duty that the law already imposes. 80 The Plaintiff pointed to a number of decisions said to support the extension of the duty to provide a safe means of access to land outside the premises over which the Defendant had the care and control. These cases included ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372, Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305, Ballina Shire Council v Daley (1991) NSWCA 18 and Portelli v Tabriska Pty Ltd [2009] NSWCA 17. 81 I do not consider that these cases provide any assistance to the Plaintiff. In saying that, the relationship between the Plaintiff and the Defendant must be borne in mind. The Plaintiff was an employee of Edensor although it can be accepted that it was his company. Edensor was an independent contractor to CSR. CSR engaged Edensor as a company that delivered CSR's concrete. CSR and the Defendant had a contractual arrangement for the delivery of concrete to the building site. It seems difficult in those circumstances to characterise either the Plaintiff or Edensor as an independent contractor to the Defendant. The Defendant at no time engaged the services of Edensor or the Plaintiff. What was spoken of in terms of responsibilities and obligations by the members of the High Court in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, and reaffirmed in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 at [20] is apposite to the relationship between CSR and Edensor/the Plaintiff but not to the relationship of the Defendant and Edensor/the Plaintiff. 82 If one endeavoured to call in aid the criteria identified by Basten JA in Sydney Water Corporation v Abramovic [2007] NSWCA 248 and quoted with approval in Pacific Steel Constructions Pty Limited v Barahona [2009] NSWCA 406 at [90], the criteria, to the extent that they are relevant, tend to suggest a duty on the part of CSR rather than on the part of the Defendant, if in those criteria "the principal" is to be regarded as the Defendant and 'the employer" is to be CSR. 83 In this regard, some of the evidence of Mr David Watson, the director of the Defendant, was significant. Mr Watson was qualified as a cabinet maker, a carpenter and a licensed builder. He had no expertise in the driving of concrete trucks nor any specialised knowledge in the operation of concrete pumps or their placement. He needed about 400-500 cubic metres of concrete for the job. He then gave this evidence: Q. Knowing you were going to require 4 or 500 cubic metres of concrete, did you take any steps with regard to how you were going to provide that concrete to the site? A. Yes, I did. Q. What were those steps? Firstly, if we could talk about the concrete delivery system, how you are going to get the concrete onto the site using a pump? A. Are we going to talk about that first? Q. Yes? A. Eventually I got concrete company CSR to come down and have a look at the site, and we walked over to the site-- Q. When you say you got CSR to come down to the site, was there any particular person who came down to the site? A. Mr Mark Watson came down to the site. Q. Did he identify himself as being somebody from CSR? A. A representative from CSR, that's correct. Q. Was he alone or in company? A. There was another gentleman with him at the time. I can't remember his name. Q. Did he also identify himself as being from CSR? A. Yes, they had CSR jackets on. Q. Prior to them coming to the site, had you made an arrangement with Pump Force with regard to working on the site? A. No, I hadn't. I talked to them over the phone. Q. And had you come to any conclusion with Pump Force as to where the concrete pump to be used was likely to be placed? A. Well, it was logical it was going to be as close as possible to the house, so where - we had to sort of work in together where that position was going to be after we had spoken with CSR. Q. You had the two persons from CSR there. What did you do with those persons? Did you talk to them on site? What did you do? A. We went up to the top of Boronia Lane and we walked down the track that was there at the time, the dirt road. Q. What was the purpose from your point of view of doing that? A. To show them the access to the site. … Q. You have walked up and down the hill with these two persons from CSR? A. Yes. Q. You told his Honour that you were in the negotiating-the-price stage? A. Previous to that, yes. SCOTT Q. Yes. Did you have any discussion with them? A. I walked over, down the road and said: "This is the access to the site. Do you see any problems with getting the trucks down here?" We want to get the pump as close as possible and we walked to where I assume the pump was going to go and they said that they could get the concrete truck down there, no problem. Q. Right. Now, were there any conditions put upon the nature of the concrete trucks that would be going up and down? HIS HONOUR: Mr Scott, I think you will only get another objection. QUESTION WITHDRAWN SCOTT Q. That having been done, when you said you went to where you thought the concrete pump was likely to be? A. Yeah. Q. Is that where the concrete pump ended up being? A. Yes. Q. Now, that having been said and the discussion that you just outlined to his Honour, was anything else said? A. Yes. Q. What was it? A. Because of the nature of the incline, a normal eight wheel truck can take seven or eight cubic metres of concrete. In this case, because of the nature of the incline, we could only put five metres in, so it wasn't slopping out the back. Q. Who said that you could only put in five metres so it wouldn't be slopping out the back, was that you or was it somebody from CSR? A. CSR. Q. Do you recall who it was from CSR? A. No, one of the gentlemen, Mark Watson or the other gentleman. That's why we only ordered five metres in the truck. (emphasis added) 84 Mr Watson also gave evidence of a visit from Mr Mark Watson from CSR somewhere around 15 March. Mr Mark Watson asked Mr David Watson if the branches on the overhanging foliage could be trimmed back because the drivers could not seem them in their driver's side rear view mirrors. That conversation appears to have led to the entry in Mr David Watson's diary which read "Trim trees for concrete trucks". Mr David Watson then gave evidence that Mr Mark Watson came down on 19 March to check that the trimming had been done. 85 All of this evidence points to CSR perceiving itself as responsible for the drivers of the trucks and their safety, and acting accordingly. The evidence tends to show that CSR also saw itself in a position of control in that regard. It does not seem to me to be insignificant that after the accident 2 representatives of CSR, Paul Roseworn and Mark Watson, came to see Mr David Watson and informed him that the concrete trucks could not be taken down Rignold Street past the corner. The result was that the Defendant, and its sub-contractor Pump Force, were required to install a second concrete pump on the straight section of Rignold Street above the corner where the accident happened. 86 It is suggested that the High Court's decision in ACI Metal Stamping provides support for the notion that the responsibility for providing a safe means of access extends beyond the land owned or occupied by the defendant. It is apparent, however, from a reading of that decision that the principle established in that regard arose out of the relationship of employer and employee between the defendant and the plaintiff – see at 375, 378-382, 383. This was put on the basis that it was an implied obligation of a contract of employment (at 380) or on the basis that there was an express or tacit arrangement that the employees would use the particular access way in which the employer was complicit (at 381). The decision does not seem to me to say anything about a duty owed by a person other than an employer to someone who is delivering goods to a building site for the benefit of the occupier of that site as far as the access to the property is concerned. 87 Cases which have followed ACI Metal Stamping have similarly been employment cases: CSR Limited v Elliott (unreported – NSWCA – 23 June 1994); Radovanovic v Brisbane City Council [2001] QSC 264 at [22]; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 at [54]-[57]. 88 Portelli was another case in the line of authority concerning the obligations of a person holding a liquor licence where events took place adjacent to but not on the licensee's land. Particular principles apply in such cases as Allsop P discussed at [61]-[69]. Nothing flows from those principles analogously to the present situation. 89 It is submitted that Ballina Shire Council v Daley is authority for the proposition that obligations under reg 73(2) can arise where work is being done on a public street or in a location where using a public street is one of the ways of getting access to the performance of the work. To a limited extent, the case is such authority but only in a situation where the Defendant was not only the employer of the Plaintiff but was also carrying out work on a road within its local government area. In the very particular facts of that case, it is no surprise that reg 73(2) had an important part to play in the outcome of the case. 90 It does not seem to me, however, that it provides any support for the application of that regulation in the present case. Whilst the pump may have been located on part of the roadway, that was entirely incidental to the building work which was being carried on at the property itself, and it is not suggested that the road at the place the pump was located was not a safe means of access. 91 In Luna the issue was whether the workman was injured at his place of work or whilst using an access way to the place of work so that s 40 of the Factories, Shops and Industries Act 1962 (which also requires that there be a safe means of access to any place of work) was engaged. The majority took the view that the statute depended for its operation on the maintenance of the distinction between the place at which work is to be done and the means of access to that place – see Barwick CJ at 308 and Windeyer J at 322. 92 Nevertheless, the Plaintiff relied upon what Kitto J said at 314: But it seems to me that for the purposes of the section one is not concerned to ask these questions. The section in the plainest terms fastens upon "every place at which any person has at any time to work". I am not prepared to whittle down the generality of "every place", or the generality of "any time", for I find in the Act no warrant for doing so. 93 It does not seem to me that this case provides any support for the Plaintiff. It was relevantly a case that concerned a breach of statutory duty of s 40 concerning the duty to provide and maintain a safe means of access to the place at which the workman was to work. That is not the present case. 94 Secondly, the issue in that case was the distinction between the means of access and the place where the workman was working. That is not the issue in the present case. The issue in the present case is whether the roadway could be said to be a means of access to the place where the concrete had to be delivered, which may be taken as a place where the Plaintiff was required to work. 95 Thirdly, Kitto J was in dissent in Luna, and the passage relied on by the Plaintiff went to the heart of his disagreement with the majority. 96 It can be accepted, as the Plaintiff submits, and relying on Davey v Skinner (1961) 61 SR (NSW) 648 at 651, that reg 73 applies to anyone carrying out building work and is not confined to an employer/employee relationship. That is certainly so where, as in Davey v Skinner and Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89 on which it relied, both were cases concerned with a breach of statutory duty. Even assuming the principle translates into a case where reg 73 is only used as a standard for common law care, it does not provide any answer to the issue in the present case which is whether the Defendant had any duty in relation to the roadway, and whether that roadway can be considered to be a means of access within the meaning of reg 73. 97 None of these cases provides any support for the submission that a builder occupying a building site owes any duty to the independent contractor of a person with whom the builder has a contractual relationship for the delivery of goods in respect of the safety and maintenance of a public road over which that independent contractor must travel to get to the site occupied by the builder. Certainly, the builder had no obligation to repair the road or make it or its environs safe. Indeed, it had no lawful right to do anything in respect of the road. The care of the road was the Council's responsibility. 98 What seems to be being argued by the Plaintiff, however, is not so much that the builder should have made the road safe but should, by devising a different method of carrying out the work, have avoided the need for the Plaintiff to be put at risk by driving down the roadway. It was not made clear but, presumably, that would satisfy the standard imposed by reg 73 because the means of access to, say, a second concrete pump higher up the road, would not be unsafe. 99 In my view, there was no such duty on the part of the builder. None of the cases support such a duty. Even if this case concerned a breach of statutory duty, namely, a breach of reg 73(2), I do not consider that a public roadway over which the builder had no control could be considered to be a means of access for the purposes of reg 73. A fortiori where reg 73 only informs a standard of a common law duty of care, I do not consider that there is a duty of care cast upon the builder with respect to the public roadway to require him to block the public roadway by locating a second pump further away from the property. 100 It is necessary to consider evidence given by Mr David Watson concerning the way he perceived the Defendant's responsibilities. Although these passages are lengthy, it is important to set them out in full so that the full flavour of the evidence can be understood. Q. You accept, don't you, that you were the person who was responsible for arranging for things like foliage to be cut back on the access way to the construction site, correct? A. If requested, correct. … Q. Now, in relation to issues such as overhanging foliage on that access way, you agree, don't you, that if anyone making a delivery to the site during the course of the construction work had any difficulties with overhanging foliage, you were the person they should speak to, to have it cut back, correct? A. Correct. Q. And if someone did raise that topic with you, you would have either yourself or through a labourer or someone else under your control, organised for that to be cut back, correct. A. Correct. Q. And I take it that from time to time you drove vehicles up and down the access way? A. Correct. Q. And if you had have noticed any overhanging foliage, you would have yourself either personally cut it back or arranged for someone else under your control to do that, correct? A. Correct. Q. And I take it that if, for example, there was anything on the access way when you were traversing it, that caused you to have any difficulty traversing it yourself, you would either (a) deal with that issue; or (b) instruct someone to deal with it, correct? A. Correct. Q. And similarly if, as you were going up and down the access way, you saw something that you thought would prevent anyone making a delivery to the site, you would have either (a) fixed it yourself; or (b) organised for someone to fix it, correct? A. Correct. (T444-447) 101 The following day he gave this evidence while being cross-examined by Senior Counsel for CSR: Q. You recall yesterday I asked you a series of questions in relation to work that you would either carry out yourself or instruct others to carry out in relation to the access way and foliage overhanging the access way? A. Yes. Q. You indicated that certainly from time to time you did so instruct people to carry out work on the access way or to the foliage hanging over the access way, correct? A. Correct. Q. In relation to that work that you either did or instructed someone to do, did you obtain permission from anyone before carrying out that work? A. No. Q. I take it that you would agree that if you were unhappy with any aspect of the work being performed by Pump Force on this site you, as the builder, were in a position to give directions to Pump Force, correct? A. Correct. Q. For example, if the flow of concrete was insufficient and that was being controlled by Pump Force, you were the person who could tell them to vary the flow, correct? A. Correct. Q. If you were unhappy with the way in which any employees or subcontractors of Pump Force were going about their work, you were in a position as the contractor to give directions or give instructions to those employees or subcontractors, correct? A. Correct. Q. If you formed the opinion that any aspect of the work being performed by Pump Force was in any way unsafe, you were in a position to give them directions in relation to how that work should be performed, correct? A. Correct. Q. And you knew that that was one of the responsibilities that you had as the builder, that is, to ensure that the area in which any aspect of work that was being carried out that related to the construction site was done safely, correct? A. Correct. Q. I take it that as a contractor undertaking work in the area in which you were performing work, you wanted to ensure that you had a good reputation, correct? A. Yep, correct. Q. Because you knew that future jobs often depended on word of mouth recommendations by previous customers, correct? A. Correct, performance, yeah. Q. And not only were the clients, that is the owners of the property, people who were in a position to give recommendations in favour of your company, so too were architects, correct? A. Correct. Q. And, indeed, from time to time subcontractors who worked with you on site might subsequently recommend you to people who wanted construction work performed, correct? A. Sometimes, correct. Q. And so it was important for you to have a good reputation in relation to the way in which Watpow and yourself carried out work on site, correct? A. Correct. Q. That involved performing the work in accordance with the contractual term? A. Correct. Q. Ensuring that the work site was a clean work site, correct? A. Correct. Q. Ensuring that the work site and all areas associated with the work site were safe, correct? A. Correct. Q. And ensuring that accidents didn't happen on sites that you had control over as a result of your position as builder, correct? A. Correct. Q. I take it that in discharging your role as builder, having regard to the matters that I have just put to you, you were concerned about, among other things, safety; correct? A. Always concerned about safety. Q. And if you saw any part of the construction site or any access way to the construction site that was being used by people involved in the construction site that was unsafe, you would do something about it, correct? A. Correct. Q. But if you thought that the access way was unsafe, you would have done things to rectify that aspect of lack of safety, correct? A. Correct. … Q. Now, if you had formed the view that the access way was unsafe so as to endanger any truck driver driving a truck up or down the access way, you would have taken steps to correct that unsafe aspect of the delivery process, correct? A. Correct. (461-464) (emphasis added) 102 He was subsequently cross-examined by Mr Gross QC and gave this evidence: Q. Between July 2000 when the concrete trucks starting coming down and the time of the accident, no repairs were done to the road, were they, to the access way? A. There was repairs done by us. Q. Repairs done by you? A. That's right. Q. When was that done? A. When the ranger would come around, the other residents in the laneway would ask us to-- KERR: I object. … GROSS Q. Did the residents say anything to you? HIS HONOUR: The answer is "yes" or "no". WITNESS: Yes. GROSS Q. In any event, after the residents had spoken to you or some residents had spoken to you, you regarded it as your task as the builder to fix the access way, is that right? A. No. Q. Sorry? A. No. Q. You certainly did, didn't you? A. To keep the peace. Q. But you didn't get anyone else to do it, did you? You didn't ask, for example, any other party to do it, for example, the pumping contractor or even CSR to do it, did you? A. Sometimes the pumping contractor did it, if they had some left over concrete. Q. He would have the concrete, wouldn't he, but I am putting to you you saw it as your responsibility to fix the access way in order to repair the road, didn't you? A. Yeah. Q. Can I ask you about something different. You told us about the amount of traffic on the access way between July 2000 and March 2001? A. Yeah. Q. And I will not go back through the number of trucks, but before any of that work started where the access way was being used, you assessed what quantities of material would be required? A. Yes. Q. And you made allowance for, in effect, the amount of traffic that would be coming down that access way, is that right? A. Yes. Q. The amount of traffic that did come down the access way was in accordance with what you estimated before work started? A. Yes. Q. And the type of vehicles which were used were the sort of vehicles you anticipated would be used, except I think you said that the concrete trucks were delivering 5 cubic metres rather than 7 cubic metres and you have given a reason for that? A. Yes. Q. There were truck movements by heavy vehicles over that period between July 2000 and March 2001, correct? A. Correct. Q. Many of those vehicles had heavy loads, is that right? A. That's right. Q. And those vehicles did damage to the road, didn't they? A. Yes, they did damage. Q. I think you said you fixed some potholes, but was any other repair work done to the road apart from fixing the potholes? A. Yes. Q. What you have is a progressive deterioration of the road surface between July 2000 and March 2001, didn't you? A. Yes. Q. And next thing, you said something about the trimming of trees, right? A. Yep. Q. And when we talk about trees, we are talking about bushes, foliage, that kind of thing, in other words, the vegetation that is growing either side of the road, is that right? A. Yes. Q. And the fact was that between July 2000 and March 2001 there was a fair bit of growth of the foliage, wasn't there? A. There was. GROSS Q. And the period between July 2000 and March 2001 would incorporate, I suppose, one and a bit months of winter, three months of spring and three months of summer and then about half of autumn in March before the accident happened, is that right? A. That's right. Q. And over that period the only trimming that you've described occurring is the trimming you say took place on 15 March 2001, is that right? A. That's correct. Q. And you didn't do anything about the foliage, that is if you did it, until complaints were made to you, is that right? A. That's correct. Q. And the road surface was basically a dirt road, is that right? A. Just a dirt road. Q. And it was a road which had a degree of water damage or ruts caused by the flow of water across the surface, is that right? A. Correct. Q. And there was no grading of the road that took place between July 2000 and March 2001? A. None whatsoever. Q. And when you say it was a dirt road, do you mean just dirt or were there some patches of bitumen, or what? A. Going all the way down the hill it was all dirt and then when you came to the division of the high road and the low road, there was some bitumen there. Q. The division between the high road and the low road, are you referring to what you may have heard us call the fork leading up to where the pump was near 8 Rignold Street? A. Correct, yeah. Q. Being a dirt road, it would be prone to progressive weather damage over the period July 2000 to March 2001, wouldn't it? A. Correct, yeah. Q. And do you agree that obviously the road has a slope itself, that is, the access way to the slope itself? A. Yes. Q. As does some of the ground on the southern side? A. Correct. Q. So when it rained, there would be quite a flow of water across the road and down the road? A. Yes. Q. And that itself caused progressive further deterioration of this road surface, is that right? A. Yes. Q. With the road being in a wet state, that affected the quality of the road itself, is that right? A. Yes. Q. And you had on top of that all these heavy vehicles coming down between July 2000 and March 2001, causing further damage? A. Correct. Q. So therefore what you had was a progressively worsening state of the road surface between July 2000 and March 2001, that's right isn't it? A. Yeah. Q. Incidentally, the northern side of the road in the vicinity where the accident happened, it had soft edges, didn't it? A. Yes. Q. And you are aware of the fact that on the day of the accident the investigating police officer obviously attended the scene, but also made specific note of the fact that the northern side of the road at the point where the accident happened had soft edges, is that right? A. That's right. Q. And you agree it is fairly obvious that where heavy vehicles do damage to a road, that they will do it at the point where the vehicle is in contact with the road, that is, through its tyres, is that right? A. That's right, yeah. Q. And apart from the weight of the vehicles, quite a number of these vehicles had in effect four tyres on the back, that is, they had a row of four tyres, is that right? A. Correct. Q. And the vehicles themselves were capable of doing significant damage at the borders of the road, weren't they - sorry, the borders of the access way? A. Correct. Q. Was there any markings on the road at all, like paint marks or any line like that to assist the drivers at all? A. No. Q. I will just ask you about something else, please. You say that you sent an Irishman up to do the - Declan Murphy, to trim the trees, is that right? A. That's correct. Q. Do you agree that you did so because the drivers, to your knowledge, had made complaint concerning their inability to use their mirrors while backing down the road or access way? A. That's right. Q. And so that you say that Declan Murphy went off and did some trimming - let's put aside what date it was done, but you say he did some trimming before the accident, is that right? A. That's right. Q. You yourself didn't back any truck down the road to see whether he'd done it properly, did you? A. No. … GROSS Q. Did you give any instructions as to where he was to trim foliage? A. Yes. Q. Where did you tell him to trim? A. All along the high side of the bank. Q. That is all-- A. The cliff side of the drive, where the foliage was hanging down. Q. Right up to where? Boronia Lane? A. Not all the way up, no. Q. And you thought that was necessary in the interests of safety, did you? A. I was requested to trim the trees by the drivers. Q. But nevertheless you thought it was a proper step to take in order to protect the safety of the drivers? A. Yes. (T469-476) (emphasis added) 103 Finally, he gave this evidence: Q. The steps that you say you took in relation to having the trees trimmed or foliage trimmed, that only happened after you received a complaint, is that right? A. Correct. … Q. Isn't it the fact that as a reasonable builder where vehicles have to get access to the site, you have to, in effect, get on the front foot and plan for safety rather than just depend on complaints, is that right? A. Yes. … Q. Isn't it the situation that any protective measures you took for the safety of concrete drivers coming down this access way weren't taken until after, in effect, you had a complaint made or someone had asked you to change the system? A. Yes. Q. What I am really putting to you is that as a competent builder carrying out construction work on this site, you should have been more proactive about anticipating problems and addressing them and not having to wait for a complaint or a request; do you agree with that? A. No. (T486-487) 104 It is clear from some of that evidence that Mr Watson saw the Defendant as having some responsibility for the safety of the roadway. Other aspects of it suggested that he was doing it for the sake of his company's reputation or to keep the peace or because he thought he had a moral responsibility to do so. His agreement that he had a duty to ensure accidents did not happen on sites under his control could not be an agreement with regard to the road because it clearly was not under his control. The evidence as a whole provides only limited support for the notion that the Defendant perceived it had a responsibility for the roadway. The question is, however, whether because it saw that it had that responsibility that gave rise to a duty. 105 What little authority there is on self-imposed duties suggests that there needs to be some form of reliance by the Plaintiff on the Defendant before the Plaintiff can recover. So, in Mercer v South Eastern and Chatham Railway Companies' Managing Committee [1922] 2 KB 549 a railway company that had no legal obligation to enclose its lines used to ensure that a gate across the line was locked when the trains were passing and was unlocked when it was safe to cross the line. The Plaintiff was aware of the practice and relied upon the gates being unlocked to suggest that it was safe to cross. Lush J said (at 554): It may seem a hardship on a railway company to hold them responsible for the omission to do something which they were under no legal obligation to do, and which they only did for the protection of the public. They ought, however, to have contemplated that if a self-imposed duty is ordinarily performed, those who know of it will draw an inference if on a given occasion it is not performed. If they wish to protect themselves against the inference being drawn they should do so by giving notice, and they did not do so in this case. 106 To similar effect are Smith v South Eastern Railway [1896] 1 QB 178, (with the principle derived from that case being seemingly approved by the High Court in Fraser v Victorian Railways Commissioners (1909) 8 CLR 54 at 61-62) and Knight v Sheffield Corporation [1942] 2 All ER 411. 107 In all these cases the Plaintiff was held to have relied expressly or impliedly on what had been the practice of the Defendant implemented as a self-imposed duty, often to warn of a perceived danger. Ordinarily, reliance is only a relevant matter in this sort of case where public authorities are involved, but see the limitations on reliance discussed in Pyrenees Shire Council v Day (1998) 192 CLR 330 at [18]-[22], [157]-[165], [225-232]. Assuming that the concept is applicable to individuals (see Pyrenees at [18]), in the present case there is no evidence of any reliance by the Plaintiff on any practice of the Defendant or on the Defendant at all. Indeed, the Plaintiff's own evidence was that when he walked down the road before driving it he did not speak to anybody at the building site. Rather, he formed the view that although there were difficulties he was capable of driving down the road. The only person on whom he relied was the preceding concrete truck driver who told the Plaintiff to reverse down the road and stick to the upper side of the road. 108 In the absence of any reliance by the Plaintiff on anything done or said by the Defendant in relation to the roadway, the fact that the Defendant perceived that it had a responsibility for the roadway does not create a duty of care that the law does not impose. 109 It is to be noted, in any event, that the Defendant saw its responsibilities as being associated with what it ought to do to improve certain aspects of the physical features and surrounds of the road. The Defendant did not acknowledge that it had any responsibility to devise a different system of work which might have involved the placement of a second pump higher up the road. It has not been shown that the accident was caused by either of the matters for which the Defendant perceived it had a responsibility, namely, trimming the foliage and filling some potholes. 110 I do not consider that the evidence of Mr David Watson concerning the Defendant's perceived responsibilities with regard to the road created any duty of care on his part to the Plaintiff. 111 In case I am wrong concerning the existence of a duty of care I should consider the other elements of any tort including damages. Breach of duty 112 Regard must be had to s 5B Civil Liability Act 2002 which provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 113 In my opinion, the risk of an accident involving a truck moving down the roadway was foreseeable. The road was narrow, winding, in poor condition and had foliage growing on the boundaries on either side. All of these were matters known to the Defendant because (a) the Defendant had sought advice from CSR about the roadway and the ability of trucks to negotiate it, (b) the Defendant had trimmed the foliage because it was interfering the ability of drivers to negotiate the roadway, and (c) the Defendant had filled some potholes or arranged for that to be done prior to the accident. 114 Further, the Defendant was aware that the Plaintiff's truck was of a similar size to others which had negotiated the road and would have known that the roadway only just exceeded the width of that vehicle. When, in addition, the Defendant knew that the trucks had to reverse down the roadway, all of these matters meant that a relatively small error in judgment by a driver could result in an accident by the vehicle either hitting the upper embankment or slipping over the lower embankment. This risk was not an insignificant one because if the vehicle slipped over the lower embankment, as happened in the present case, serious injury could be caused to any occupant of the vehicle. 115 In all those circumstances a reasonable person in the Defendant's position who had control over the roadway would have taken precautions. Perhaps the most obvious precaution was what the Plaintiff has suggested in the present case, namely, to establish a second pump on the straight section of the road to obviate the need for the vehicles to reverse around the difficult cornered section of the roadway. When the evidence established that there were only 2 or 3 other properties further down Rignold Street, and the pumps did not have to be in place on any permanent basis or for any prolonged period, there was no reason that arrangements could not have been made at minimal inconvenience to those residents as appears to have taken place after the accident. 116 In that regard I do not ignore s 5C(c) of the Act which provides: 5C Other principles In proceedings relating to liability for negligence: … (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. Whilst what happened after the accident does not of itself give rise to the liability of the Defendant or constitute an admission, it does indicate that there was available a different system of work that could have been implemented without undue burden or inconvenience whether to the Defendant or others. 117 One of the matters the Court is required to consider under s 5B(2) is the probability that the harm would occur if care were not taken. In the light of the fact that many other trucks, both carrying concrete and other things, had safely negotiated the road to the knowledge of the Defendant, I could not say that it was more probable than not that harm would occur in the present if care were not taken. However, that is but one of the matters to be taken into account. A risk of a motor vehicle accident on the road is certainly not fanciful or far-fetched. It was a real risk – see in that regard Overseas Tankship (UK) Limited v The Miller Steamship Co Pty Ltd (Wagon Mound) (No 2) [1967] 1 AC 617 at 643-4 and Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. On the other hand, there is no doubt that if harm occurred it would be likely to be serious because of the topography of the area, particularly the presence of the gully on the lower side of the road. 118 Bearing in mind what the Defendant knew about the roadway and its surrounds, what it knew about the size of the trucks delivering the concrete, and the attempts made by the Defendant from time to time to improve the safety of the roadway, I consider that if the Defendant owed a duty to the Plaintiff it breached that duty, specifically by failing to ensure that the trucks did not need to proceed beyond the corners of the road to deliver the concrete. Causation 119 Causation must be resolved by reference to s 5D of the Act which relevantly provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). 120 In the present case, the negligence (i.e. the breach) was a necessary condition of the occurrence of the harm. It is the "but for" test that determines whether the negligence was a necessary condition of the accounts of the harm in sub-s (1a): Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [45]. Had the Plaintiff not been required to negotiate the bends in the road to deliver the concrete, the accident would not have happened. 121 There is nothing to suggest that it is not appropriate in the present case for the scope of the Defendant's liability not to extend to the harm suffered by the Plaintiff. If the Defendant had a duty in respect of the roadway it would be appropriate for the Defendant's liability to cover injury to a delivery driver using the roadway. 122 The provisions of s 5D are satisfied. Contributory negligence 123 The Defendant set out what was said to be 10 particulars of contributory negligence. They can be grouped as follows: (a) failures to inspect or maintain the vehicle including the braking system; (b) allowing the vehicle to be overloaded; and (c) the manner of driving the vehicle down the road. 124 I have already held that the accident did not happen as a result of any brake failure. Nothing was shown to suggest that the vehicle was not properly maintained. The only evidence concerning the maintenance of the vehicle was the evidence of the Plaintiff and that evidence was to the effect that the truck was regularly serviced and had had its brakes checked the week before accident. That evidence was not seriously challenged. I accept that the Plaintiff maintained the vehicle. In any event, it was not identified how any alleged failure to maintain the vehicle contributed to the accident, apart from the assertion that the brakes failed. 125 There was no evidence that the vehicle was overloaded. Since, in any event, it was CSR's responsibility to load the vehicle, it is difficult to see how the Plaintiff could have any responsibility if in fact it was overloaded. As far as the evidence dealt with the matter, the amount of concrete in the Plaintiff's truck was the same amount loaded onto all vehicles of that size. It was the amount CSR told Mr David Watson would be the limit because of the roadway. 126 I have already accepted the Plaintiff's version of the circumstances of the accident. There was nothing in that account that suggested any lack of care on the part of the Plaintiff. In fact, the evidence is to the contrary. The Plaintiff walked down the roadway first to see the route he had to follow. He took the advice of the previous driver to reverse down and endeavour to keep his vehicle to the southern or upper side of the road. He had the assistance of his father to try to guide him down the road. He drove at a very slow speed and was careful to ensure his brake pressure did not drop below that which was safe. In all the circumstances, it is difficult to see what else he could or should have done. In my view the Plaintiff was not guilty of any contributory negligence. Damages 127 The principal physical injury to the Plaintiff was an injury to his lumbo- sacral spine. The Plaintiff also developed a significant psychiatric injury since the accident. Those are the injuries which the Plaintiff submits impede his return to work. Although the Plaintiff suffered some relatively minor injuries to his head and neck those problems went away reasonably quickly. 128 On the Plaintiff's own evidence, his inability to work is a combination of his physical and psychiatric problems. He says he is in a good deal of pain although the pain levels vary up and down. He says that there are times when he feels lethargic and a sense of hopelessness. At other times he has difficulty concentrating because, he says, of the number of painkillers that he takes. All of this restricts him to driving an ordinary motor vehicle to about 20-30 minutes at a time. He says he is not able to return to driving heavy vehicles because of his psychiatric problems. 129 The Plaintiff said that he was initially treated by a general practitioner, Dr Nikolic at Fairfield. It was Dr Nikolic who sent him off for a CT scan and also referred him to Mr Zepinic. He later transferred his care to a Dr E. Ghaly. No medical reports from Dr Nikolic were put into evidence. 130 The Plaintiff was chiefly under the care of 2 persons before Dr Geoffrey Rosenberg, Orthopaedic Surgeon, became his specialist on 22 March 2004. The first of these was Dr Ghaly (who has since died) and another person who called himself Dr Vito Zepinic. By reason of the judgment I gave on 21 June 2010 concerning the admissibility of medical reports tendered by the Plaintiff, only one report of Dr Ghaly, a report of 7 January 2002 was ultimately received into evidence. The report noted that the Plaintiff at that time was still complaining of insomnia, confusion and anxiety, and it said he was being seen by psychologists. It noted that he was taking Panadeine Forte, Stilnox (a hypnotic for sleeping) and Zoloft (an anti-depressant). 131 The person who described himself as Dr Vito Zepinic was supposedly a psychologist. Mr Zepinic's qualifications and experience were never proved. However, I was provided with evidence suggesting that Mr Zepinic had unlawfully held himself out as a registered medical practitioner and was being proceeded against by the NSW Medical Board. There was some other information to suggest that he was not registered or entitled to be registered as a psychologist. 132 In my judgment of 21 June 2010 dealing with medical reports I said that I would not be prepared to accept any part of his reports that contained an opinion because his expertise was not proved. His reports were admitted into evidence, however, as providing contemporaneous evidence of complaints made by the Plaintiff to him in various consultations from May 2001 to January 2007. 133 In his report of 5 December 2001 Mr Zepinic sets out some of the Plaintiff's complaints at that time as follows: Mr Miljus described his pain as 'constant, shooting, stabbing, intense, and agonising'. He experienced it as radiating from his low back down the back of his both legs. He stated that even considering his employment on light duties part-time it is very difficult to do his work particularly as a truck driver, as a result of his pain, stiffness, weakness, and associated psychological symptoms. The pain medication made him tired, but nevertheless, he is unable to obtain restful or restorative sleep because of the constant pain. At the time of his psychological pain evaluation, Mr Miljus stated that he could not sit more than a few minutes at a time because sitting intensified his back and leg pain. He has also complained of feeling 'stiff and cramped up' all the time. Bending is difficult as lifting anything weighing more than 5 kg, because of the stress and strain these activities placed on his back and leg. Mr Miljus tried to walk as much as he could on a daily basis but could not walk for more than a few minutes without experiencing worsening pain. The pain had forced him to give up several leisure activities he used to enjoy. 134 Similarly, in his report of 6 September 2004 Mr Zepinic reported on the Plaintiff's complaints as follows: He indicated that he has difficulties in prolonged sitting or standing, walking is comfortable only on short distance and he is able to manage two kilometres or around ½ hour of walk but slow walking. Any running, using stairs, lifting or carrying , climbing or pushing makes difficulties to him. In general, he reported lack of motion due to his physical condition but also psychological disturbances (depressed mood, anxiety, tiredness). Slowing of motor activity is accompanied by slowed mentation, slowed speech and action, and decreased response to stimuli. … He also stated that since the accident, he is suffering from sleeping problems as he has difficulties in getting to sleep (initial insomnia), early morning awakening with occasional middle insomnia. Further, he explained that his sleep is often fragmented by nightmares, particularly following stressful days. Mr Miljus' mood was depressive and dominated by pessimistic attitudes, and his affect was profoundly dysphoric. He was attentive but quite restless throughout the therapy sessions. When he had difficulties in explaining a specific point, he would become agitated. Further, it was problematic to elicit a clear history of his symptoms as talking about the accident is very distressing to him. It is obvious that he lost his optimistic attitude and motivation, and had developed problems in interpersonal relationships. … Mr Miljus reported feeling desperate regarding his physical and psychological dysfunctions and prognosis. He feels hopeless about his future, feeling like a 'total failure' and unable to get pleasure in almost anything. He stated feeling very angry, fragile and sensitive, and quite often loosing (sic) his temper without reason. He has difficulties in making decision, feeling utterly worthless, and not having energy to do almost anything. He many times pointed out that his family is 'loving and supportive' but despite help received his pessimism is evident. Considering his cognitive functioning, it was obvious that Mr Miljus suffered deterioration being forgetful, distractible, and indecisive. He reported diminished ability to think or concentrate and his high level of anxiety was a contributing factor of further deterioration of it. On further questioning regarding his cognitive functioning he stated that he does not have the same ability to learn as before. When reading something he often feels that 'everything had disappeared from his mind' and he needs to re-read passages to be able to understand them. He also stated that he became forgetful at times and while walking, he had to check many times where he was going. 135 The Plaintiff consulted Dr Grant Walker, a neurologist, in February 2004. The Plaintiff complained to Dr Walker about pain in the lumbo-sacral region on the right which sometimes radiated down the back of his right leg. Dr Walker referred him for an MRI which showed significant disc degeneration particularly at the L5/S1 level and some narrowing of the intervertebral foramina bilaterally at the L5/S1 level but more marked on the left side which was not the side of his symptoms. There was nothing at the L4/5 disc of any interest. 136 Dr Walker thought that the prognosis was for a continuation of the pain into the foreseeable future, but with a more graduated exercise programme such as swimming and judicious use of medications he might be able to re-enter the workforce but not in a labour intensive job. He did not think heavy lifting or prolonged sitting such as truck driving would be suitable. 137 The Plaintiff was then looked after by Dr Geoffrey Rosenberg, an orthopaedic surgeon, whom he saw from March to August 2004. He saw Dr Rosenberg again in January 2010 for an up-to-date assessment. His complaints up to August 2004 were much as they had been to Dr Walker and Mr Zepinic. He was still suffering pain to a greater or lesser extent in the lower back. 138 When he saw Dr Rosenberg in January 2010 he was complaining of lower back pain, pain in both legs, pain in the gluteal region, down the side of his thigh and occasionally to the top of his calf. Any prolonged position caused increasing symptoms. 139 Dr Rosenberg said his initial view (in 2004) was that the Plaintiff had suffered an injury to lumbo-sacral disc causing ongoing problems. He was still of that view after the consultation in January 2010. Dr Rosenberg thought that it was unlikely he would improve as he had had the problems for almost 9 years. Dr Rosenberg said the Plaintiff would do well to lose weight and tone up, and embark on a structured exercise programme aimed at core strengthening. He thought it would be difficult to get the Plaintiff motivated due to his obvious mental state and he could not see therefore that he would be fit for any sort of work given the severity of pain. Dr Rosenberg thought appropriate surgery would be for a lumbo-sacral fusion. 140 The Plaintiff also saw Dr Sheikh Habib, an orthopaedic surgeon, in September 2004. Dr Habib noted his complaints of pain in the back and leg but thought that the back injury had stabilised. He thought the Plaintiff was moderately restricted in carrying out physical activities involving back straining such as bending, lifting, pulling or pushing heavy objects, and sitting or standing for long periods. He said that the pain and weakness of the left lower limb affected his capacity for lifting, climbing or hurrying. 141 Dr Habib concluded that, if he was cleared by a psychiatrist or psychologist for return to work, the Plaintiff could return to suitable light duties on a part-time basis, 3-4 hours a day, 3-4 days a week in a semi-sedentary capacity such as supervisory jobs or office duties, answering phones or arranging deliveries in his own field of concreting. 142 I note in passing that the complaints of the Plaintiff to Dr Walker and to Dr Rosenberg involved pain radiating down the right leg whereas the complaint to Dr Habib involved pain and weakness down the left leg. It will be recalled that Dr Walker noted that the radiology tended to show more marked changes on the left side but he noted that that was not the side of the Plaintiff's complaints. None of the orthopaedic specialists nor Dr Walker gave evidence before me, and no attempt was made by evidence from the Plaintiff to resolve this apparent conflict in his complaints. 143 The Plaintiff gave evidence that he had had the back and leg pain since the accident. Some days it is worse and some days it is better. He said he numbs it out with painkillers. On the second day of the hearing when he was in the witness box, he said his back felt really seized up sitting for such a long period of time. Lifting heavy objects or walking for periods of time also cause him pain and discomfort as does a change in the weather. 144 The Plaintiff gave evidence that he was involved in another motor vehicle accident on 28 June 2004 when he was a passenger in a vehicle that was hit from behind. He was taken by ambulance to Fairfield Hospital. He said he sustained severe whiplash where he hit his head on the seat in front of him. The impact caused pain in all of his back, as well as his neck and head. He said that the injuries from that accident gradually went away but no time frame was put on that. 145 Given that he already had low back pain prior to this accident and it has continued to the present time, I do not think I can take his statement that the effects of that accident gradually went away as other than a reference to his neck and head pain. I note in passing that there is no reference in the reports of Dr Rosenberg of 6 August 2004 (in respect of a consultation on 2 August 2004) and Dr Habib on 24 September 2004 (in respect of an appointment on 23 September 2004) to this motor vehicle accident that apparently caused him the problems with his head, neck and back. The Plaintiff was not challenged about those omissions but it would be surprising, if the Plaintiff had told the Doctors of that later accident, that they made no mention of it. 146 The Plaintiff lived with his parents before the accident. Apart from a couple of short periods when he lived away from his parents' home with a girlfriend he has lived with his parents since the accident. There was a suggestion in the report from an occupational therapist, Linda Cook, dated 24 January 2007 that the Plaintiff had plans to relocate from the family home due to conflict with his father. However, except for the times when he lived away with a girlfriend, he has, despite what was said in that report, continued to live with his parents. 147 The Plaintiff did little work around the house. He mowed the lawn and may have washed the driveway, "small things" as he described them. Since the accident he says he has not been able to mow the lawn like he used to and he does not wash the driveway. Otherwise, he does nothing around the house. His mother does all the domestic work. 148 The Plaintiff has been treated for psychological and psychiatric problems since the time of the accident. He was seeing Mr Christopher Basten, a psychologist, from August 2001 to January 2002. Prior to that time and subsequently he was seeing Mr Zepenic. 149 Objection was taken on a number of bases to reports of Mr Basten. In my judgment of 21 June 2010 I said that I considered that some of Mr Basten's reports should be admitted as evidence of history and contemporaneous complaints of the Plaintiff. The chief problem with admitting Mr Basten's reports into evidence as expert opinion was that there was a conclave of psychiatrists who also gave concurrent evidence. Mr Basten did not participate in that conclave nor in the giving of concurrent evidence. Since his reports purported to give expert psychological and psychiatric evidence, and he diagnosed the Plaintiff as suffering from a condition inconsistent with the diagnosis of those psychiatrists who ultimately agreed on a diagnosis, I considered it was inappropriate to admit his reports into evidence for that purpose. 150 Mr Basten's reports disclose that the Plaintiff had an anxiety problem in relation to trucks whose cabins were elevated high above the ground. He also reported sleep disturbance, nightmares and a fear of the accident recurring. Mr Basten also reported that he was very tense and agitated, and reported marked anger and urges to violence. 151 Mr Basten's treatment was aimed at reducing his fear and avoidance of driving large trucks. However, that focus changed after a number of sessions when the Plaintiff told Mr Basten he no longer wanted to drive large trucks ever again. Mr Basten then attempted to help him deal with his anxiety, depression and sleep problems. 152 The joint report of the psychiatrists, Dr Robert Lewin and Dr Samir Benjamin, noted that after the accident the Plaintiff developed a range of reactive symptoms of anxiety and depression. They thought he had a degree of personality vulnerability that was hardened by the Plaintiff's interaction with the legal system. The psychiatrists considered the appropriate diagnosis was a Chronic Adjustment Disorder. They also said there appeared to have been a degree of Personality Decompensation. Dr Benjamin explained what Personality Decompensation was as follows: WITNESS BENJAMIN: Yes. People who are subjected to traumatic events, including physical injuries and psychological injury, they are under continuous stressful situations. They are people who are vulnerable, to things like weakness, and their coping mechanisms can actually give way, and people can become sometimes extremely dysfunctional, as far as their ability to cope with regular life events. Some people would go to becoming psychotic and start to become paranoid and hear voices, and are not able to cope with complex life situations, like dealing with insurance, courts, even interacting with their family and friends in every day living. So, personality decompensation is about occurrences of significant psychiatric symptoms in people who are vulnerable, to some extent, to have these symptoms. HIS HONOUR: Is it a diagnosis itself in DSM-IV or is it a description of symptoms? WITNESS BENJAMIN: Personality decompensation is not a diagnosis in DSM-IV. It is a psychiatric description that has been noticed through the years, like in the last hundred years. People noticed that sometimes people go on to become decompensating in certain situations, then when the event is over, people will recover. So, it is not like a permanent psychiatric thing or a permanent dysfunctional situation. So, it is a response to stressful situations. HIS HONOUR: You mention that it could be demonstrated by a number of different symptoms; which of those do you believe that the plaintiff suffers from? WITNESS BENJAMIN: As I mentioned the paranoid and the persecutory thoughts that the person would feel - that everybody is against them, that they cannot trust anybody, that they have been followed in the street, that the phone might be bugged - these symptoms are clear psychotic symptoms but they are fluctuating symptoms when these symptoms are pretty much steady and they do not change. So these things fluctuate. Actually, they are not fixed, and that is why I agreed with Mr Lewin that these symptoms are not psychotic as in primary diagnostically psychotic disorder, they are a reflection of personality decompensation that goes on and off, and it might recover by itself once the stress is removed. 153 The psychiatrists were of the opinion that the motor vehicle accident of 2001 precipitated the Plaintiff's psychiatric condition. They thought that the Plaintiff was fit to work on a half-time basis at the time of their report of 30 April 2010. 154 The psychiatrists elaborated on this when giving their evidence. They thought that when the litigation had concluded the Plaintiff should be able to work 3 days a week, 5 hours per day. Perhaps a month after that time, the Plaintiff could extend to 25 hours a week and then to 30 hours after another 2 months. He may remain at that level for perhaps the remainder of the 12-month period when he would be able to move to full-time work. 155 The Plaintiff gave evidence that when he was seeing Dr Nikolic he started to feel really down and depressed, and that got worse as the days went past. He also felt angry and shocked that the whole accident occurred. He said he did not feel comfortable sitting in a high vehicle and he had a phobia in that regard. He tried to go back to high vehicles by going with a friend in his 8-tonne palette truck. He was not even able to travel with his friend to carry the first load because he felt as if he was having flashbacks. 156 The Plaintiff's main active recreational activities before the accident were playing snooker and chess. Since the accident he occasionally plays snooker but the pain affects him. He says that he has not played chess since the accident. He said that the reason for that is that one needed to be calm and collected and to be concentrating on the game. Since the accident he does not have the calmness to concentrate so he does not play it anymore. He now fills in his time by going to one or more of the clubs to which he belongs. 157 As far as work is concerned, the Plaintiff says that he looks at job advertisements every now and again. He said that he is only interested in driving jobs and he is looking for something like courier work. He was asked when he last applied for a job and he said he had not really applied for a job at all. Certainly he had not done so in the past 5 years. He agreed that he was physically capable of doing the job of a refrigeration mechanic which was work he had been trained for and had done before he commenced driving trucks. He agreed it was not hard physical work but it was necessary to keep up to date with new systems. 158 He claimed to want to work but it was very clear that he was only interested in getting some sort of driving job. He agreed that the organisation which was endeavouring to rehabilitate him for work had made a suggestion of doing some unpaid driving work for charities. This never eventuated because the Plaintiff expressed some negative views about being able to lift heavy things that might be needed, as he thought, in that sort of a job. (a) Non-economic loss 159 The Plaintiff submits that he should be regarded as 40% of a most extreme case. The Defendant says he should be assessed at no more than 20%. In my view, the Defendant's assessment is quite unrealistic. There can be no doubt that the Plaintiff has sustained a considerable injury to his lumbar spine which has persisted for more than 9½ years and seems likely to be permanent even if he embarked on surgery. Whilst it is always very difficult to assess another person's pain level, and whilst I think the Plaintiff may to some extent have exaggerated those pain levels (he appeared to be able to sit for long periods in the witness box without apparently demonstrating pain or discomfort although I told him he could sit or stand as he pleased, and appeared also to sit for long periods in the back of the court without apparently demonstrating great pain or discomfort), he has radiological support for the pain he claims. At the time of the trial he seemed only to be taking Panadol as painkillers, but when I asked him at the end of one day how many Panadol he had taken that day, he indicated he had taken 6. Panadol is not an addictive drug and to have needed to have taken 6 Panadol by 4pm gives some indication that the Plaintiff is suffering at least a moderate degree of pain on the days when such medication was necessary. 160 I do not have any doubt that the Plaintiff sustained psychiatric injury after the accident. His complaints of anxiety, depression, sleeplessness, anger and lack of motivation to psychologists and psychiatrists both before and after the proceedings were commenced is consistent with such an injury. Neither of the psychiatrists who gave evidence doubted the psychiatric injury. They were, on the other hand, hopeful that at the conclusion of the litigation and after the Plaintiff had returned to part-time work his psychiatric symptoms might improve. 161 It is also clear that the Plaintiff enjoyed his work driving trucks. It does not seem that he will be able to return to that work at any time. That is a significant deprivation for him. 162 The Defendant drew attention to Ring v Rigby [2005] NSWCA 357 where the Court of Appeal reduced the trial judge's assessment of 35% to 25% of the most extreme case where the plaintiff suffered similar injuries both physical and psychiatric. Section 17A Civil Liability Act permits this approach of looking to earlier decisions. In my opinion a number of matters in that case (more particularly identified at [21] and [22]) make it significantly different from the present case. The Plaintiff's physical and psychiatric injuries seem to me to be more severe than Mr Rigby's. Unlike Mr Rigby who successfully returned to work some 9 months after the accident for a period of 9-10 months, the present Plaintiff has not yet returned to work and (as I discuss in the next section of this judgment) was not fit to do so until July 2006. 163 For all these reasons, I would assess the Plaintiff at being 35% of the most extreme case. That would entitle him to damages for non-economic loss of $175,000. (b) Economic loss 164 The evidence was that the amount Edensor received from CSR was dependent upon the number of loads of concrete delivered each week. The moneys from CSR were paid into the bank account of Edensor. The Plaintiff would then pay expenses including loan repayments from that account before taking a wage for himself. He said that he was taking a couple of hundred dollars per week for himself. 165 There was in evidence the tax returns for Edensor Transport for the years ended 30 June 1999 and 30 June 2000, and the personal tax returns of the Plaintiff for the years ended 30 June 2000 and 30 June 2001. 166 The 1999 tax return for Edensor Transport showed gross income of $114,192 and total expenses of $114,271. The principal expenses were motor vehicle expenses of $30,510, rent of $13,000, depreciation of $13,373, and wages shown as being paid to the Directors (which in fact meant the Plaintiff himself) of $20,370. 167 The tax return for the year ended 30 June 2000 for Edensor Transport showed a gross income of $114,541 with total expenses of $114,535. Again, the principal expenses were motor vehicle expenses of $35,585, depreciation of $10,712, rent of $13,000 and salaries (now, so described) of $25,151. Of this amount for salaries the accountant Mr Tomko said $21,000 was paid to the Plaintiff and the remainder to a relief driver. 168 The personal tax return of Mr Miljus for the year 2000 consisted only of pages 1 and 3 out of 4. Mr Miljus's income was said to be described as "other business income" in the sum of $20,931. 169 The personal tax return of the Plaintiff for the 2001 year showed gross wages paid to him by Edensor as $15,698. It is to be remembered that the Plaintiff only worked 9 months of that year, because the accident happened in March 2001, although that amount included worker's compensation payments being made to the Plaintiff at a higher rate than he had been earning, as he agreed. 170 The figures in that tax return and the figures shown in the Edensor tax returns for wages and salaries are consistent with the Plaintiff's own evidence that he took wages of a few hundred dollars per week. In fact, in the nearest complete year before the accident, he appears to have been paid gross wages of $20,931. Assuming, therefore, a gross weekly wage of about $400, the Plaintiff's net wage was $334.24 (according to the Furzer Crestani tables). 171 It appears, however, that in the 2001 year, even with the higher worker's compensation payments, he earned less in gross terms over the 12-month period than in the previous year. 172 Faced with 3 figures of $20,370, $20,931 and $15,698 I think the appropriate figure to take as the Plaintiff's gross weekly wage prior to the accident was $400. That represents a net figure of $334.24 which I would round up to $335. 173 The Plaintiff has claimed a net figure of $350,788 from 27 March 2001 to 3 September 2010 (being the last day of the hearing) but those figures are based on the Plaintiff having a gross weekly wage in 2001 of $764 per week, and indexed thereafter to the CPI for Sydney. The figure of $764 is said to be based on the earnings referred to in the CSR Readymix Agreement that CSR had with Edensor. The figures do not coincide with the figures in the tax returns showing what Edensor paid to the Plaintiff nor in what the Plaintiff disclosed as his wages in his own tax return for the 2001 tax year when those figures are projected for a full year. 174 As the evidence from the 2 tax returns over the 3-year period 1999-2001 shows no increase in wages for the Plaintiff, and no change in income for Edensor for the 1999 and 2000 years, I can see no basis for increasing the Plaintiff's net wage by the CPI for each year from 2001 to 2010. That approach would only be appropriate if the matter was being determined by reference to the CSR Agreement (which dealt with payments to Edensor) rather than the wages that the tax returns disclosed were being paid to the Plaintiff. 175 Although the Plaintiff was obviously totally incapacitated for work for a short period of time, the evidence points strongly to his being physically fit for work other than truck driving or heavy work from a relatively early time. A report from Joanne Springer, a rehabilitation counsellor at Work Directions Australia of 23 May 2001 noted that the Plaintiff's general practitioner, Dr Nikolic, had certified him for suitable duties with restrictions including not driving a truck. The report went on to say that alternative work options were currently being identified for the Plaintiff. 176 The Plaintiff saw Dr David Millons retained by CSR on 28 September 2004. Dr Millons said that, orthopaedically, the Plaintiff ought to be fit for some light, semi-sedentary work avoiding excessive bending and lifting more than 10 kilograms. He should be able to handle some store or office work and could probably handle some light courier work. 177 On 9 July 2004, Dr Walker thought that assuming psychiatric issues could be controlled, and assuming that the Plaintiff was able to adopt a more positive attitude to an exercise programme, it would be possible for the Plaintiff to re-enter the workforce at a reduced rate. 178 By contrast, Dr Rosenberg thought on 19 August 2004 that the Plaintiff was not capable of working, certainly not as a truck driver, nor in any job for which he was suited, although whether that meant any job at all is not clear. 179 He saw Dr Robert Lewin, a psychiatrist retained by CSR, in October 2004, July 2006 and December 2007. In his report of 5 July 2006, Dr Lewin expressed the view that there was no psychiatric condition which would impair the Plaintiff's ability to work except factors related to his phobic avoidance of driving. The reference to driving must be a reference to driving heavy vehicles because the Plaintiff had told a number of other doctors that the problem was only with those vehicles and not with driving generally. In December 2007 Dr Lewin again considered the Plaintiff was fit for work. 180 It can be accepted from this evidence that the Plaintiff was physically capable of returning to work at a relatively early time. However, I must give significant weight to the opinion of the psychiatrists who gave evidence at the hearing about the Plaintiff's impaired psychiatric state. Neither in the joint report nor in their evidence did Doctors Lewin and Benjamin say when, preceding their report, the Plaintiff might have been fit for work. However, nothing in their joint report nor in their evidence suggested that the Plaintiff had not been fit for work prior to the time they prepared their joint report. I have already noted that Dr Lewin was of the opinion in July 2006 and in December 2007 that the Plaintiff was fit for work from a psychiatric point of view provided that he not engage in the driving of heavy vehicles. 181 In my opinion, the Plaintiff was fit for part-time work from a physical and psychiatric point of view from at least 5 July 2006. The psychiatrists thought that it might take the Plaintiff a 12-month period to return to full-time work. That might take place over a number of graded intervals. There was no evidence about what the Plaintiff might have earned in any part-time work or any full-time work to which he could return. The best I can do is to base his partial loss of wages during that 12-month period on what he was earning as a truck driver. On the assumption, therefore, that he would have been paid $200 gross per week, his net wage would be $180 per week for a 12-month period. 182 His past wage loss is made up as follows: From 20 March 2001 to 5 July 2006 at $335 per week $ 92,460 From 6 July 2006 to 5 July 2007 at $180 per week $ 9,360 TOTAL $101,820 In addition, he would be entitled to interest on that figure. (c) Superannuation 183 In 2001 superannuation was payable at 8% and thereafter at 9%. On a gross weekly wage of $400 until 5 July 2006 and $200 to 5 July 2007, the loss of superannuation over the period would be $9,844. (d) Fox v Wood 184 This figure is agreed at $8,452.50. (e) Past out-of-pocket expenses 185 This figure is agreed at $70,242.39. (f) Future treatment and out-of-pocket expenses 186 The joint report of the psychiatrists states that the Plaintiff will require support and psychiatric care directed to his rehabilitation. They say in that report that a monthly cost of $250 per session should be allowed for between 6 and 12 months and that an allowance should also be made for psychoactive medication of $200 per month for a 12-month period. They agreed that he should continue to receive rehabilitation treatment but they were not able to cost that. A cost of $6,500 has been provided by the occupational therapist, Ms Cook. 187 I would allow the following: Psychiatrist (for 9 visits at $250 per visit) $ 2,250 Psycho-active medication $ 2,400 (for 12 months at $200 per month) Rehabilitation $ 6,500 TOTAL $11,150 188 The Plaintiff obviously needs some form of pain relief and is likely to do so for some time to come. The Plaintiff claims $5,629 and that figure seems reasonable. (g) Domestic assistance 189 The only domestic tasks the Plaintiff performed before the accident were mowing the lawn and hosing the driveway. He says that he cannot mow the lawn now. He lives at his parents' house and, except for a very few short periods, has always done so. His mother carries out all the domestic tasks. 190 The Plaintiff does not satisfy the threshold requirements in s 15(3) Civil Liability Act. The Plaintiff has not needed domestic assistance to date. Whilst there is some possibility that if he moved away from home and was living in a house that needed lawns to be mowed then he would have the need for some gardener or some handyman to assist, I consider that based on the Plaintiff's living arrangements to date, the chances of this happening are very small. When invited by his counsel to say what he would do about domestic or other assistance if he recovered a verdict, he said he did not know. The Plaintiff is not entitled to recover under this head. Conclusion 191 I make the following orders: (1) Verdict for the Defendant. (2) Plaintiff to pay the Defendant's costs. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.