District Court New South Wales Medium Neutral Citation: Evans v Ausgrid [2014] NSWDC 188 Hearing dates: 08/10/2014 - 10/10/14, 20/10/2014 Decision date: 20 October 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 67 Catchwords: Motor accident or work injury Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257 Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCS 396 TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149 Category: Principal judgment Parties: Mark Andrew Evans (Plaintiff) Ausgrid (a State Owned Statutory Corporation) (First Defendant) David Ross Linich (Second Defendant) Zurich Australian Insurance Limited (Third Defendant) Representation: G R Petty SC (Plaintiff) K Rewell SC (First and Second Defendants) S J Harben SC (Third Defendant) Turnbull Hill Lawyers (Plaintiff) Sparke Helmore (First and Second Defendants) Rankin Nathan Lawyers (Third Defendant) File Number(s): 2013/00051960 Publication restriction: No Judgment 1The plaintiff was born in 1973. On 29 October 2010 he was seriously injured in the course of his employment. He says that his injuries were caused by the fault of the first and second defendants. The first defendant was, and still is, his employer. The second defendant was the driver of a truck that was involved in the incident in which the plaintiff came to be injured. 2The third defendant is the CTP insurer of the truck that was being operated by the second defendant and also of a separate truck that was under the command of the plaintiff. 3The plaintiff has alleged that his accident falls within the bounds of the Motor Accidents Compensation Act 1999 (the "MACA"). The first and second defendants agree, although do not concede that there was any fault on their respective parts. These defendants allege contributory negligence if they are found to have been negligent themselves. 4If the matter falls under the MACA it will still be necessary to consider the Civil Liability Act 2002 (the "CLA") in assessing whether there was any fault on the part of the first or second defendants. Section 5B of the CLA will be of particular relevance. 5The third defendant has denied indemnity to the first defendant because it says the circumstances of the plaintiff's injury do not fall under the MACA. The third defendant says the plaintiff was injured as a result of a defective system of work that was imposed upon the plaintiff by the first defendant. 6The case is unusual to this effect: the plaintiff's evidence was almost entirely unchallenged. He was asked some questions about overtime but nothing else about damages. In respect of his version of the accident, it was entirely accepted, other than on one point. I will return to that point below. 7The plaintiff's background, his description of the accident and his progress since the accident are all comprehensively set out in his statement (Exhibit C). Exhibits D and 1D1 provide some further detail. 8I do not think it necessary to set out the contents of the above documents. Because of the acceptance of the plaintiff's version of the accident, subject to the one point, I think the following is an adequate summary of the facts to enable the resolution of the liability issues. 9There were three vehicles present at the scene of the accident. They were referred to by different names. I will refer to them as follows: the plaintiff was in charge of a winch truck. The second defendant was driving a tow truck. The third vehicle was an elevated working platform (an "EWP"). 10The work being performed on 29 October 2010 was the placement of electrical cables along a row of telegraph poles at a place called Bob's Farm. This location is in the country near Nelson Bay. The vehicles operated along an unsealed service road. 11The project had been occurring for some months but this was the plaintiff's first day on this job. The exhibits contain a number of photographs of the winch truck. It can be seen that it has three spools, or drums, on its tray as well as a platform that is extended to the passenger side when the vehicle is stationary. The mechanics of the platform can be seen in Exhibit 3D5. 12There is also a cage on the back of the truck, which houses the controls to operate the winch function of the drums. This function is powered by an auxiliary motor, also located on the tray. These controls included a 'dead man's pedal' so that the winches would only engage if an operator was in the cage and depressing the pedal. The pedal did not however inhibit the spinning of the reels when they were not being used as winches. In other words the pedal did not have to be depressed if the reels were freewheeling. 13At the commencement of a day's work the reels were wound with ropes. The first task was to attach the ropes to the rear of the tow truck. The middle rope was attached to the tow bar of the tow truck. The other two were hitched to the respective sides of the tray. The tow truck would then pull the ropes, with the reels freewheeling, until a telegraph pole was reached. At this point the EWP would be introduced to lift the ropes to the spools located on the top of the pole. The ropes would then be reattached to the tow truck and pulled to the next pole. 14When the ropes had been extended along a certain number of telegraph poles the electric cabling would be attached to the ropes and then, by use of the winches on the winch truck, the cabling would be pulled back to the truck. 15On 29 October 2010 the plaintiff parked the winch truck in the position seen in the photographs and deployed the platform. The second defendant positioned his truck so that the three ropes could be attached to it. There was a large tree stump immediately behind the winch truck. It was important to ensure that the ropes did not 'snag' on the stump. 16Once the ropes were attached the second defendant set off along the service road. His vehicle had a four wheel drive capacity, which was engaged. Although the second defendant had driven the tow truck for some years he had only used it for this exercise on some three or four previous occasions. 17About 50 metres from the winch truck the tow truck came to a steep incline which it needed to traverse in order to reach the telegraph pole. As it began the ascent the plaintiff was standing on the platform talking to a Mr Pralica who had driven the EWP to the site. Mr Pralica was on the ground next to the passenger side of the winch truck. 18The plaintiff was standing on the platform, near one of the reels. He said this was the normal position for the operators to stand. Mr Pralica confirmed this practice although said that sometimes the operator might be on the ground or in the cage. There was no instruction ever given by the first defendant prohibiting an operator standing on the platform when the reels were freewheeling, at least to the extent allowed by an inbuilt disc brake (See T 52.10). 19The second defendant, about a third of the way up the incline, brought the tow truck, then in second gear, to a stop because it lacked power to continue the ascent. As a result of coming to a halt the freewheeling reels also stopped. They only did so for a very short time because the second defendant engaged first gear and set off again. 20The result of the tow truck continuing its journey was to tighten the ropes to such an extent that when the renewed tension reached the winch truck the latter was "jerked" in either a forwards or sideways motion. The result of the jerk was to throw the plaintiff off-balance and backwards. His left leg "flew out" and his left boot was "dragged down into what might be called the pinch-point between the lower part of the drum and the A-frame support." 21Because the reel continued to rotate the plaintiff's left foot was effectively stuck in the mechanism. When the plaintiff was able to extricate his left foot he saw that it had been terribly injured. He said to Mr Pralica "I think I've lost part of me leg." He was correct because he soon underwent an amputation of his left leg below the knee. 22It would be an understatement to describe the plaintiff's progress since his accident as other than remarkable. Not only has he returned to his employment but he has specifically requested that he be treated no differently to any other employee. He is once again a full-time worker, now operating a crane with the only advantage being given to him in the form of a modification to the foot controls of the crane. He is also not required to work on winch trucks because of the disturbing memories he has of his accident. 23The one point referred to above upon which the plaintiff was, in cross-examination, taken to task was the extent of the jerk that was transmitted through the ropes to the winch truck once the tow truck continued its journey up the incline. 24The plaintiff described the jerk as "aggressive" or "big". It was suggested to him that the jerk was not out of the ordinary but rather a normal reaction to the tow truck once again setting off on its journey. 25I entirely accept the plaintiff's evidence. I reject the notion that he has introduced a large jerk in order to suit his case. This plaintiff is a most impressive man. I could not contemplate that he would engage in an alteration of his memory to suit his case. The absolute lack of challenge to his evidence on effectively every other aspect, both as to liability and quantum, is a compelling indication of his honesty. 26In addition the second defendant gave oral evidence in which he said there was a "big jerk". 27There were other aspects of the second defendant's evidence that were also important. These included the following: (a)As mentioned above, the day of the accident was only the third or fourth occasion upon which he had used the tow truck to carry out the same operation. (b)He had never previously encountered a precisely similar circumstance including pulling the ropes up a steep slope. (c)The surface was sandy, uneven and made up of a number of different materials even including old tyres. (d)He initially set off from alongside the winch truck with four wheel drive engaged but in second gear. (e)He remained in second gear until he reached the hill and then continued up the hill in the same gear. (f)About one third of the way up the hill he realised that his truck lacked the power to continue. He could not engage first gear while driving for fear of the wheels becoming "bogged". His description gives force to the uncertain nature of the surface beneath his wheels. (g)In order to get going again, and to avoid being bogged, the second defendant needed to apply extra power and extra acceleration in order to continue up the hill. (h)Having applied the extra power and the ropes having become taut, the second defendant felt a "big jerk". (i)The second defendant described the effect in this way: "As I knew I had to use a bit more power to get up the hill and as I did I could feel the ropes get taught and I was taking off it - what I know now it's obviously moved the truck because of the power the jerk obviously moved the winch truck." (T 109.49). The consequence was to cause the plaintiff to slip and fall so that his leg became caught up in the spinning spool. (j)The second defendant agreed the jerk was "quite out of the ordinary." (T 132.39). (k)The second defendant agreed that he could have stopped before the hill in order to change into first gear. He could not say if starting off again would have caused a smaller jerk; however it seems obvious that would have been the case because the power necessary to continue would have been significantly less. (l)The second defendant was aware the plaintiff was standing on the platform of the winch truck. He agreed that had the plaintiff been in the cage then he would not have been able to see any hand directions given by the plaintiff. It would have been apparent to the second defendant that the plaintiff was in the vicinity of the freewheeling spools even if he could not say precisely how close he was to them. 28The evidence given by Mr Pralica was generally uncontroversial. He did however suggest that the tow truck was transferred from two wheel drive to four wheel drive after it stopped on the hill. This evidence was impressionistic. I prefer the evidence of the second defendant who was driving the vehicle and said it was always in four wheel drive mode, but that he started off in second gear. The legal issue 29The argument stems from the following provisions of the MACA: "3 Definitions "motor accident" means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control. "use" or "operation" of a motor vehicle includes: (a) the maintenance or parking of the vehicle, or (b) in the case of a motor vehicle that is not a trailer-the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or (c) in the case of a motor vehicle that is a tow truck-the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck." "3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control." 30At this stage I think it appropriate to refer to the following passages from two decisions of the NSW Court of Appeal. 31In Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257 McColl JA said: "39 Section 3A of the MAC Act is the "governing provision for the application of the [MAC] Act (apart from Part 1.2) to a claim for damages by a person injured in a motor accident": Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36 ("Axiak") (at [60]) per Tobias AJA (Beazley JA and Sackville AJA agreeing) (application for special leave to appeal refused: Ingram v Axiak [2013] HCATrans 64). 40 Both parties accepted that Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ("Allianz") was the seminal authority for determining the question whether the appellant's injuries were caused in a manner which fell within s 3A of the MAC Act. This was even though Allianz concerned the question whether an employee's back injury fell within the definition of "injury" in s 3(1)(a)(iv) ("such use or operation by a defect in the vehicle") of the Motor Accidents Act 1988 (NSW) (the "MAA Act"). Allianz was discussed in Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 ("GLG") which also concerned s 3(1) of the MAA Act and to which I refer in more detail below. Tobias AJA held in Whitehead (at [41]), that the definition of "injury" in the MAA Act considered in GLG was relevantly identical with s 3A of the MAC Act. That is also the case for present purposes. While there are some differences between the language of the provisions considered in Allianz and GLG, they are not presently material." 32In TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149 Basten JA said: "26 As explained in the joint judgment of Gummow, Hayne and Heydon JJ in Allianz, in relation to the second part of the definition, "the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances": at [102]. Nevertheless, there is no bright line to be drawn between a cause which is predominant and immediate, rather than one which is "more removed". Similarly, it does not follow that, because one can characterize a fault in terms which appear to be detached from and antecedent to the actual use or operation of the vehicle, the definition is not engaged. For example, where an employer allows a heavy vehicle to be used in the course of the business and injury is caused by the driver losing control of the vehicle, it is appropriate to characterise the fault of the owner as permitting the use of the vehicle by a driver without proper training and thus a fault "in the use or operation of the vehicle". This conclusion is not undermined because the fault can also be characterized as the failure to provide training, which appears to be removed from the use or operation of the vehicle. 27 Where a negligently loaded vehicle loses part of its load on a highway, causing injury to the occupants of a following vehicle, the injury will fall within the scope of the Motor Accidents Compensation Act, not because the manner of driving was negligent, but because the negligent loading operation fell within the phrase "fault ... in the use or operation of the vehicle". 28 In Zurich Australian, the plaintiff was injured when lifting a ramp which was part of a trailer attached to a truck, without mechanical aids. Spigelman CJ addressed the submission as to why the injury fell outside the Motor Accidents Compensation Act, at [29]: "The first submission was, essentially, one of characterisation. The Appellant submitted that the injury was not caused "in the use and operation of" the trailer. The injury was caused by an unsafe system of work or in the design of the trailer. Nothing in the language used, or the scope, purpose or operation of the Act, suggests that a dual characterisation of 'fault' is impermissible. The definition applies so long as the fault may be characterised in the way set out within it. It matters not that some other characterisation may also be appropriate."" 33The first issue to be decided is whether the accident was a motor accident. I think it plain that the accident occurred during the driving of the tow truck. The next question is whether the injury to the plaintiff was caused by the fault of the second defendant in driving the vehicle. This is the major area of contention. 34The third defendant says the accident was caused by a defective system of work. I agree that the system of work was defective. That does not, of itself, entitle the third defendant to success. I think that this is a clear case in which the fault (assuming fault) is subject to a dual characterisation. 35There was an obvious lack of training in dealing with circumstances involving the pulling of ropes on uneven and undulating tracks. Equally the system should have required the operator of the winch truck to remain in the cage and for the freewheeling motion of the spools to be controlled by the dead man's pedal. 36The third defendant pointed to a number of examples of the failure of the work system. It described them, alternatively, as systems or training or hazard identification or safe work method failures. I agree with many of the assertions. However, the above descriptions do not necessarily exclude a separate, and more dominant, description. For example, it was said that the failure of the driver to warn the plaintiff that he was about to start off again was indicative of a defective system of work. It is also, and in my view overwhelmingly so, a failure to drive reasonably by not informing the plaintiff of a potentially dangerous driving manoeuvre that was about to occur. 37However, when one looks for the proximate cause of the accident, it is to be found in the driving of the tow truck in such a manner that caused the jerk to the winch truck and in turn the losing of balance by the plaintiff. When the second defendant came to the hill he knew he was in second gear, he knew the plaintiff was on the platform and he knew the surface on the hill was sandy and might lead to his vehicle being bogged. In addition, when he started to move after stopping his truck he knew of the plaintiff's location and he knew that extra power was required to continue up the hill. He must, assessed reasonably, have known that the extra power would be transmitted through the ropes and in turn have a possibly destabilising effect on the winch truck. It was his driving of the vehicle that caused the plaintiff to lose balance and then be injured. 38Turning now to whether he was at fault. As I have said above this requires consideration of Section 5B of the CLA. The risk of harm was injury to (in effect) a pedestrian situated on another vehicle attached to the second defendant's vehicle and which would be affected by movement of the tow truck. I think this risk was foreseeable in the same way as the driver of a breakdown vehicle would obviously foresee that the manner of his driving would affect any vehicle being towed. 39The first and second defendants submitted that the second defendant was "not required to know or predict every event that may happen to or near his vehicle so as to be able to immediately react to such events". He relied upon Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCS 396 at paragraph 36. I disagree with this submission noting two matters: (a)Mr Linich was not reacting immediately. He was deliberately moving his vehicle forward having brought it to a stop. (b)This passage in Marien is equally important: "Viewed prospectively, the probability of the appellant coming across a pedestrian using the roadway at that time in the early morning, and particularly one who was walking out from the kerb in the same direction as the oncoming traffic and with his back to it, would have been regarded as unlikely. Nevertheless it was one which could not be dismissed as never likely to happen, even at that early hour; and the driver must take account of the possibility of inadvertent and negligent conduct of a pedestrian." (Meagher JA at paragraph 41). 40The facts in Marien were obviously very different. The point of referring to the above passage is to illustrate the breadth of the test to be applied in judging foreseeability. 41The risk of harm was not insignificant having regard to the susceptibility of a person standing on a platform when that platform is forcefully jerked beneath his feet. 42A reasonable person in the position of the second defendant would have taken precautions to avert the risk. The possibility of harm occurring in the absence of precautions is I think obvious and the likely seriousness of harm is equally plain. If a person is caused to lose balance when standing above ground and in the vicinity of moving machinery there must be a likely seriousness of harm. 43I do not think there was any significant burden in taking precautions. The change down to first gear could have been performed before the hill. Even more simply, the second defendant could have signalled to the plaintiff that he was about to restart in circumstances when he would need extra power and therefore possibly cause a jerk on the winch truck. He need have done no more than call out to the plaintiff to get off the truck or at least take hold of the railing. 44I do not think Section 5B(2)(d) is applicable. 45This is an appropriate point at which to comment on the expert evidence that was tendered. The plaintiff relied on reports from Mr Jamieson (part of Exhibit E). The third defendant relied on a report of Mr Griffiths (Exhibit 3D3). Mr Jamieson was cross-examined. He made the point that the issues at stake were more decisions of common knowledge than expert analysis. I agree with him. I also agree with his observation that as an experienced driver the second defendant should have been able to pull away from his stopped position on the hill with a minimum effect (or jerk) on the winch truck. 46Mr Jamieson agreed that it would be difficult not to cause any jerk. The point however is not the fact of a jerk but rather the size of it. He also agreed that in travelling over uneven ground there would necessarily be some periods of slackening of the ropes. However, this does not excuse the second defendant's manner of starting off from the stop position causing the big jerk. As Mr Jamieson emphasised, this effect should have been avoided by a professional driver albeit with difficulty. If it was impossible the driver should have alerted the plaintiff to the possibility of the winch truck being destabilised. 47I think I have already dealt with causation but if it is necessary to specifically deal with Section 5D then I find that but for the actions of the second defendant in causing the "big jerk" to the winch truck the plaintiff would not have been put off balance and then injured. 48It follows that I find that the accident was a motor accident under the MACA and that fault has been established under the CLA. Contributory negligence 49The fundamental allegation of contributory negligence is that the plaintiff stood on the platform, unsecured, while the ropes were being pulled out from his truck. To this must be added his knowledge that the tow truck was proceeding up a hill on uneven ground raising a reasonable possibility that it would encounter problems which might in turn lead to extra tightening of the ropes and consequent jerking of the winch truck. Taking into account his position near the spools he should have reasonably anticipated the possibility of the winch truck being jerked and his loss of balance. He could have stood on the ground or held onto the railing. 50The plaintiff submitted that there should be no contributory negligence because he was performing his employment in the manner he had been instructed and it was not for him to have taken steps outside of his instructions. While I agree with this proposition in general terms it does not take into account that, at the very least, the platform had a handrail which was part of the equipment provided to the plaintiff to perform his job. 51I think there was contributory negligence on the plaintiff's part because of the matters set out above. In the same way that the second defendant should have anticipated the effect of his driving on the winch truck the plaintiff should have recognised the possibility that the driving of the tow truck might have affected the stability of the platform upon which he was standing. 52The fact that he may not have been visible to the second defendant, for purposes of signals, if he was in the cage, is not significant because he would have been visible if he was on the ground. In any event, he could have remained on the platform but taken hold of the railing as the tow truck travelled over the uneven surface and up the hill. 53The plaintiff's negligence lies in his lack of consideration of the possibility of a destabilising jerk. It is not to the point that there was only a very short period of time between the reels stopping and the tow truck starting off again. The plaintiff was aware that the track was uneven and as a basic matter of caring for his own safety should have at least held on to the rail. To the extent that it was submitted that this failure was not particularised I think it falls within the overall submitted failure to stand on the platform. I note the plaintiff was specifically cross-examined about the railing (T 34.30). 54The second defendant's negligence lies primarily in his manner of driving up the hill and in particular in his application, without warning to the plaintiff, of extra force to get his vehicle going after it had stopped. His negligence must be seen as substantially greater than that of the plaintiff. On this basis I assess contributory negligence on the plaintiff's part at 15%. Damages 55The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss (including lost superannuation benefits and 'Fox v Wood' damages), out of pocket expenses, future medical expenses and past and future domestic assistance. 56Ultimately the parties agreed on all but two heads of damage. These were non-economic loss and future economic loss. 57The plaintiff exceeds the 10% threshold necessary to receive non-economic loss under Section 131 of the MACA. The maximum amount that may be awarded is $492,000. 58The plaintiff submitted non-economic loss should be $425,000. The defendants suggested $325,000. The plaintiff is a relatively young man who has not only suffered the massive trauma of a below the knee amputation but will live with its effects for the rest of his life in practically every sphere of his life. That he has done remarkably well is not a basis for reducing his damages but rather for recognising the courage with which he has approached his disability. He suffers from phantom pains and no doubt the inconvenience and irritability associated with wearing a prosthesis. 59I think the parties' respective figures set the appropriate range of damages and I think it fair to award a sum that represents the midpoint between their assessments. Accordingly I award non-economic loss of $375,000. 60The plaintiff asked for $525,000 for future economic loss. This figure was arrived at by comparing the plaintiff's wages over a period of years since the accident with other similarly qualified employees. The defendants' figure was $243,102 ($372 net per week) which was produced by calculating the difference between the plaintiff's wages and Mr Pralica's wages over the last year. This approach was used in the light of the evidence about the diminishing amount of overtime that is currently available to Ausgrid workers. The plaintiff was also said to benefit from a reduced reduction of his salary sacrifice. All parties calculated the loss to age 67 and reduced it by 15%. 61My first task is to make findings in accordance with Section 126 of the MACA. I find that but for the accident the plaintiff would have continued working with Ausgrid or in similar employment to age 67 and would have been subject to the normal rate of vicissitudes of 15%. 62I think the defendants' approach is valid to the extent that it recognises the currently lower availability of overtime work. I think it is deficient in that it does not appropriately take into account that the plaintiff may well face periods of unemployment in the future when he will be at a significant disadvantage on the open labour market. As true as it is that his employer is large and loyal it must be recognised that Ausgrid may not remain a state run organisation and if sold, or partly sold, private enterprise might take a different approach to the continuing employment of the plaintiff. 63I also recognise, however, that the plaintiff's creditable history so far is likely to see him striving for and gaining employment even with obstacles including having to find a new employer. Balancing all of these considerations I think an allowance of $500 net per week to age 67 less 15% should be allowed. The calculation is: 768.7 x 500 x .85 = $326,697.50. 64The parties agreed that future lost superannuation benefits should be assessed at 13% of the net loss. This produces a figure of $42,470.67. 65A summary of the damages that I have allowed, or have been agreed, is as follows: Non-economic loss $375,000.00 Past economic loss (agreed) $100,000.00 Past lost superannuation benefits (agreed) $11,250.00 Future economic loss $326,697.50 Future lost superannuation benefits $42,470.67 Out of Pocket Expenses (agreed) $178,698.00 Future out of pocket expenses (agreed) $538,500.00 Future commercial care (agreed) $94,725.00 Fox v Wood (agreed) $11,000.00 Total $1,678,341.17 66The above total must be reduced in accordance with my finding of contributory negligence of 15%. The result is $1,426,590. 67I make the following orders: (1)Judgment for the plaintiff against the first and second defendants in the sum of $1,426,590. (2)Judgment for the first and second defendants on the cross-claim against the third defendant in the sum of $1,426,590. 68I will hear the parties on the appropriate costs orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2014