Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Eptec Pty Ltd v Alaee [2014] NSWCA 390 Hearing dates: 7 November 2014 Decision date: 14 November 2014 Before: McColl JA at [1]; Macfarlan JA at [2]; Sackville AJA at [3] Decision: 1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 20 December 2013. 3. In lieu thereof make the following orders: (1) Judgment for the defendant. (2) The plaintiff pay the defendant's costs. 4. The respondent pay the appellant's costs of the appeal. 5. The respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MOTOR ACCIDENTS - application of s 3A of the Motor Accidents Compensation Act -primary judge erred in finding injuries suffered by respondent were a result of and caused during the driving of the vehicle - finding of liability not supported by evidence Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 3, 3A, 126 Workers Compensation Act 1987 (NSW) ss 151F, 151E, 151H Cases Cited: Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 20 December 2013, unrep) Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 21 August 2013, unrep) Motor Accidents Commission v ANI Corporation Ltd (1997) 26 MVR 57 Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; 228 CLR 529 RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; 63 MVR 375 Category: Principal judgment Parties: Eptec Pty Ltd (Appellant) Majid Alaee (Respondent) Representation: Counsel: GJ Parker SC / IA Todd (Appellant) L King SC / FD Curran / T Pham (Respondent) Solicitors: TurksLegal (Appellant) Carters Law Firm (Respondent) File Number(s): 2014/11649 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-12-20 00:00:00 Before: Garling ADCJ File Number(s): 2010/100343 Judgment 1McCOLL JA: I agree with Sackville AJA. 2MACFARLAN JA: I agree with Sackville AJA. 3SACKVILLE AJA: The respondent (Mr Alaee) sued the appellant (Eptec), his employer, for damages for personal injuries allegedly caused by Eptec's negligence. Mr Alaee succeeded in his claim and judgment was entered in his favour for the sum of $651,348. Eptec has appealed on the ground that his Honour erred in holding that it was liable in negligence for the injuries sustained by Mr Alaee. In the alternative, Eptec says that the primary Judge's award of damages for past and future economic loss was excessive and should be set aside. Background 4Mr Alaee was injured on 9 August 2008, while working as a painter at the Thales Garden Island dock. He and a co-worker (who was not identified by name) were painting a section of the Spirit of Tasmania in dry dock. At the time he was injured, Mr Alaee and the co-worker were in the enclosed platform of a mobile elevated work platform (EWP), otherwise known as a cherry picker. (The enclosed platform was variously described as a bucket or a basket; I shall use "bucket".) The bucket was attached to the end of an extendable hydraulic arm connected to the EWP. 5The co-worker was responsible for operating the motorised EWP, the controls of which were located on a console within the bucket. By manipulating the levers and buttons on the console, the operator could drive the EWP backwards or forwards on its wheels. The controls also allowed the operator to move the bucket up and down. The controls available to the operator included a red button, known as the Dead Man's Button, which if pressed stopped the operation of the machine. 6Mr Alaee sustained his injuries when the bucket began to shake, at times violently, causing him to collide with a pipe located inside the bucket. He suffered injuries to his coccyx and back. 7It was common ground that Mr Alaee had not sustained a degree of permanent impairment of at least 15 per cent, and thus was precluded from obtaining common law damages against his employer, unless he could show that he was entitled to damages in accordance with Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act): see Workers Compensation Act 1987 (NSW) ss 151F, 151H(1), 151E(2). 8It was therefore common ground that Mr Alaee could not succeed against Eptec unless he could establish that his injuries were within s 3A(1) of the MAC Act. Section 3A(1) provides as follows: "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". Section 3 of the MAC Act defines "fault" to mean "negligence or any other tort", but does not define "driving". 9There is no dispute in this case that the EWP was a "vehicle" for the purposes of s 3A(1) of the MAC Act. On this basis, as the primary Judge accepted, Mr Alaee had to prove that: (1)his injuries were caused by the fault of his co-worker (and therefore by the fault of the co-worker's employer, Eptec); (2)the fault was in the use or operation of the EWP; and (3)the injuries were the result of and caused during the driving of the EWP. See RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; 63 MVR 375 at [17] per Tobias AJA (Barrett JA and Preston CJ of LEC agreeing). 10In a judgment delivered on 21 August 2013, the primary Judge found that Mr Alaee satisfied all three requirements and thus Eptec was liable to him in damages for negligence: Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 21 August 2013, unrep) (Liability Judgment). In a separate judgment, the primary Judge assessed damages at $651,348, including $170,000 for past economic loss and $175,000 for future economic loss: Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 20 December 2013, unrep) (Damages Judgment). 11Eptec has appealed against the primary Judge's decision. Its principal contentions are that: (1)on the factual findings made in the Liability Judgment, his Honour erred in concluding that the injuries to Mr Alaee had been caused by the fault of the driver of the EWP in the use or operation of the vehicle; (2)alternatively, on the findings made by the primary Judge, his Honour erred in concluding that the injuries sustained by Mr Alaee were a result of and were caused during the driving of the vehicle; (3)in any event, the evidence could not support the primary Judge's factual findings, in particular the finding that at the time the accident occurred Mr Alaee's co-worker was intending to drive the EWP to a new area and had engaged the instruments on the console to move the stationary vehicle forward; and (4)if the appeal on liability fails, the damages awarded to Mr Alaee for past and future economic loss were excessive and should be reassessed. Primary Judgment 12The primary Judge found that painting work was done on each side of the Spirit of Tasmania when it was in dry dock. Large concrete platforms ran alongside the vessel, at two levels. Machinery such as EWPs was operated from the concrete platforms. 13The practice was to allocate two men to each EWP. One had to operate the machine and also perform painting work; the other did only painting work on the vessel. The operator of the machine required a licence. 14On the day of the accident the bucket was raised about 40 metres above the concrete platform. In this position, the bucket began to shake badly, causing Mr Alaee to become alarmed. 15The co-worker brought the bucket down so that it could be inspected by a mechanic, who gave the all clear for Mr Alaee and his co-worker to resume operations. They thereupon again ascended in the bucket and resumed painting for a short period. At that point, the primary Judge said: "they wanted to move the machine. The driver could not move the machine, said he did not know what was wrong, it was shaking. [Mr Alaee] asked him to go down several times. The driver just held onto the console. The basket started to go down, it was shaking. When near to the ground [Mr Alaee] pushed the red button. The basket was still shaking violently. The extendable arm was not retracting as it should when they are going down. It is not only shaking but it was making noises. [Mr Alaee] smashed into a pipe on the basket, eventually passing out." 16The primary Judge next resolved a factual dispute as to whether Mr Alaee or his co-worker was operating the EWP at the time of the accident. His Honour accepted Mr Alaee's evidence that he was not the operator, but that his co-worker was. 17The primary Judge then made the following findings as to what happened after Mr Alaee and his co-worker returned to work following the all-clear from the mechanic: "The platform was lifted to the side of the boat at the top. They painted for five minutes, tried to move the machine, it did not move. [Mr Alaee] expected the machine to move, it did not, but started shaking and started shaking violently. The basket starts to go down, it was still shaking. [Mr Alaee] was wearing a harness. [Mr Alaee] told the driver to turn it off but the driver did not seem to understand, so [Mr Alaee] eventually had to hit the red stop button. The basket was close to the ground and the machine still moving from side to side, he was thrown against a part of the basket and injured his lower back. The driver was told a number of times to turn it off but he just grabbed onto the console. ... The machine can move with the basket up and the arm extended. It is usually only moved a relatively short distance to another section which required painting. There is no evidence that the wheels were actually moved at the time of the accident. It was in the process of being moved but had not started to move when it started to shake." 18His Honour referred to s 3A of the MAC Act and identified the principal question as whether Mr Alaee's injury was caused by the fault of the driver whilst the EWP was being driven. His Honour continued as follows: "The vehicle can clearly be driven, it can be driven along this concrete apron, it can be driven back and forwards, its arms can be lifted, lowered, it can then be stopped and it can be used as a platform, as in this case, for painting the side of a ship. In other words, the EWP has two distinct ways it can be used; it is used by [Eptec] both ways. It is capable of being moved quite a long distance, it is capable of being moved with the workers on the platform; it is driven from the platform. Both the vehicle and the arms can be controlled from the platform, so the question then is what actually happened on this day." 19The evidence given by Mr Alaee indicated that he and the co-worker had completed painting the portion of the ship that they had been working on. His Honour accepted that evidence, finding: "[i]t took about five minutes and then they were to move to the next section and I am satisfied that the driver was intending to drive to a new area but the machine, when he attempted to drive, did not move, and what happened then is the bucket starts to shake violently." (Emphasis added.) 20The primary Judge referred to the judgment of Cox J in Motor Accidents Commission v ANI Corporation Ltd (1997) 26 MVR 57 (Full Court, Supreme Court of South Australia), which had been quoted with approval by Tobias AJA in Whitehead v Lowe. The authorities: "recognised a need to distinguish between a vehicle of different functions so that it may be driven on one occasion and used in a different mode immediately afterwards although possibly all within a single overall activity. His Honour [Cox J] did comment that there may be cases where a particular fragmentation of a vehicle's operation will be unrealistic. That to a degree is what you ask to do here. In other words, his Honour recognised that it was possible for a vehicle to be driven on one occasion and used in a different mode immediately afterwards even as part of a single overall activity ... [A]s Heydon J observed in [Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24, 218 CLR 89 at [153]], a vehicle may be said to be driven from the moment its engine is started to the moment when the engine is turned off, but whenever the two concepts coincide wholly or partially depends on the characteristics of the vehicle being considered. In that case the loader was being operated when its tines were being manipulated, but in his view not driven in any relevant sense as it was otherwise stationary. What I have found is the vehicle, whilst stationary was to be moved, it was to be driven. In other words what has happened is it is stationary, the bucket is raised up, the side of the ship is painted, the work stops. The vehicle is then to be moved to the next section, in other words the instruments are engaged to move the stationary vehicle forward and that is when the shaking occurred. The driver should have had control of the vehicle for the purpose of proceeding and the use in relation to painting had ceased. What was happening was that the vehicle was in the process of being driven when it began to rock violently, which can happen when it is being driven, and the driver of the vehicle probably panicked, but did not take the appropriate action to stop the violent rocking, however lowered the platform towards the ground. [Mr Alaee] was thrown about violently and struck his back and sustained injury and in my view, and I find, that the accident happened during the driving of the vehicle and therefore there should be a verdict for [Mr Alaee]." (Emphasis added.) Reasoning The First Question 21Answering the first question posed by s 3A(1) of the MAC Act required the District Court to determine whether Mr Alaee's injuries were caused by the negligence of his co-worker. In order to make that determination, the primary Judge had to identify the manner in which Mr Alaee's co-worker had been negligent. Identification of the precise nature of the co-worker's negligence was also necessary to answer the second question, namely whether the fault of the co-worker was "in the use or operation of the vehicle": Whitehead v Lowe at [42]. 22The primary Judge found that the co-worker's negligence consisted of his failure to take appropriate action when the EWP began to rock violently after the instruments had been engaged to move the vehicle forward. The co-worker apparently panicked and failed to press the red stop button which presumably would have stopped the engine and terminated the violent rocking. It was open to the primary Judge to find that the co-worker had been negligent and thus the injuries to Mr Alaee were caused by the fault of the driver of the EWP. The Second Question 23The test of whether Mr Alaee's injuries were caused by the fault of the driver "in the use or operation of the vehicle" is whether the injuries were "with respect to, as a consequence of, or by reason of" the use of the EWP in the circumstances: Whitehead v Lowe at [40]. That test: "points to the need to examine fault in the actual use or operation of the [vehicle] at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning of which led to its deployment and which may have taken place at points of time and place remote from those of the injury." Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; 228 CLR 529 at [29] per Gleeson CJ, Gummow, Hayne and Heydon JJ. 24Whether the test is satisfied in a particular case is a matter of "characterisation": Nominal Defendant v GLG at [31]. 25In Whitehead v Lowe, the Court held (at [43]), with "some hesitation" that negligence by the operator of a stationary front end loader was "in the use or operation" of the loader. The loader was an articulated vehicle which had moveable tines or forks attached to a hydraulic arm. The negligence consisted of the operator manipulating the tines so as to separate a 500 kg chute from a sleeve to which it had been partially connected. This allowed the chute to swing free on a chain and strike the plaintiff, who was standing nearby. 26The holding in Whitehead v Lowe, although strictly not part of the ratio decidendi, suggests that the negligence of Mr Alaee's co-worker in this case was "in the use or operation of the vehicle". Mr Alaee's injuries were the result of the co-worker's failure to engage the Dead Man's Button so as to stop the engine and end the violent shaking of the bucket. Even if the co-worker had merely engaged the controls to raise or lower the bucket and not to drive the vehicle forward (contrary to his Honour's findings), Mr Alaee's injuries can probably be characterised as having been a consequence of or by reason of the use of the EWP. It is not necessary, however, to decide this point. The Third Question 27The difficulty for Mr Alaee lies in the third requirement. In Whitehead v Lowe, it was held that the manipulation of the tines of the loader in order to move the chute into position while the loader itself stationary, did not involve the driving of the loader (at [57]). This was so notwithstanding evidence (at [55]) that manipulation of the tines required the front wheels of the loader to turn on their axis. 28As the primary Judge observed, Tobias AJA followed the reasoning of the Full Court of the Supreme Court of South Australia in Motor Accident Commission v ANI. In that case, the plaintiff fell from the back of a stationary semi-trailer while assisting a forklift driver who was loading steel frames onto the tray of the semi-trailer. The forklift operator had brought the forklift alongside the semi-trailer and had come to a stop, before lifting the load onto the tray. Despite a finding that there may have been some "minute forward or backward movements" of the forklift as the operator was unloading the steel frames, the Court held that the plaintiff's injuries were not a consequence of the "driving" of the forklift. 29Cox J (Lander J agreeing) said (at 62) that: "No-one suggested that [the forklift operator] was not 'driving' the forklift ... before he stopped it alongside the semi-trailer. However, once he was there and had started to raise the tines in order to place the stillages onto the tray, he was no longer driving the forklift, in my opinion, but was simply using the vehicle as a loading device. His use of it did not cease to have an exclusive non-driving character simply because (if it was the case) there were interspersed between the raising and lowering of the tines, in the dominant activity of loading and at the same place, small shuffling movements of the forklift, backwards and forwards, as the driver deposited the stillages in their different positions on the tray. The top stillage fell only because of the way the forklift was operated in the course of loading the semi-trailer." 30In Whitehead v Lowe, Tobias AJA accepted (at [56]) that: "in some cases such as the locomotion of a conventional motor vehicle (motor car or truck) the concepts of driving such a vehicle and operating it overlap to the point of complete coincidence. Thus as Heydon J observed in Container Handlers, a vehicle may be said to be driven from the moment its engine is started to the moment when the engine is turned off. But whether the two concepts coincide wholly or partially depends on the characteristics of the vehicle being considered. Thus in the present case, the loader was being operated when its tines were being manipulated but in my view was not being driven in any relevant sense if it was otherwise stationary." 31Barrett JA, in his concurring judgment, explained (at [1]) the relevant distinction as follows: "The 'driving' of a motor vehicle does not end or become suspended when the vehicle stops at a traffic light or pauses at a toll gate: QBE Insurance (Australia) Ltd v Smith (2005) 43 MVR 407; [2005] NSWCA 130 at [36] per Hodgson JA. In those circumstances, the driver maintains control of the vehicle for the purpose of proceeding when the temporary interruption ends. The characterisation is different when, as in Motor Accident Commission v ANI ... and the present case, the stopping is so that some aspect of the vehicle's structure unrelated to its locomotive and transporting functions may be deployed by the driver." 32The critical finding by the primary Judge was that the shaking of the bucket occurred as the co-worker engaged instruments on the console in order to move the stationary EWP forward. This reflected his Honour's earlier finding that the co-worker was intending to drive the EWP to a new area and that the bucket began to shake when he attempted to drive the vehicle to that new area. On these findings, Mr Alaee's injuries may well have been the result of and caused by the driving of the vehicle, even though the EWP had not actually commenced to move forward. The problem for Mr Alaee is that neither of these two critical findings of fact is supported by the evidence. 33The documentary evidence includes an undated witness statement signed by Mr Alaee that says nothing about the accident occurring as the EWP was about to move forward to another position. His statement merely says that the accident happened when the bucket "started to swing with great force all of a sudden". Mr Alaee's worker's compensation claim form dated 19 September 2008, is to the same effect as is his personal injury claim form, dated 1 February 2009. 34The only direct evidence called at the trial as to the circumstances in which the accident occurred was from Mr Alaee himself. Mr Alaee gave evidence with the assistance of an interpreter, although most of his evidence seems to have been given without the interpreter being required to translate. It is by no means easy to follow his evidence, partly because of language difficulties. In addition, as the primary Judge noted in the Damages Judgment, Mr Alaee was understandably uncomfortable in the witness box. Making due allowance for these difficulties, Mr Alaee's evidence was simply not capable of establishing that the accident occurred while the driver of the EWP was attempting to move the EWP forward or had begun to do so. 35The following extracts include the passages in Mr Alaee's examination in chief relied on by Mr King SC, who appeared with Mr Curran for Mr Alaee on the appeal, to support the primary Judge's findings. "Q. Did you then take up - was the machine then elevated up again? A. Witness: Yes sir. Q. And did you then resume your painting work -- A. Witness: Yes sir. Q. --with the same appliances? A. Witness: Yes sir. Q. And as you then worked on, did something then start to happen? A. Witness: Yes. It start shaking. Q. What then happened? A. Witness: Yeah up the top when we start working again it started shaking very bad not on normal. I was scared and I said 'Ahh, what you doing? Go down, down, down'. I thought maybe it's going to collapse or something, you know, throw us from the basket. He just, it start to going down. Q. And what then happened at that point? A. Witness: At the, soon as we go down because is near, nearly near the ..(not transcribable).. time we start moving towards the wall of the, for the, move from the ship to hide all our paint because we don't want to paint and what it was inside the paint. I just pick up the paint to give to him, to put it and covered it. That's happened. Q. Right, so at this point how high is the basket above the concrete apron? A. Witness: About two metres I think. Q. How many? A. Witness: Two, three metres. Q. Right? A. Witness: Two metres, it was one and half metres, yes. Q. Did you see the driver do anything at any point? A. Witness: Yeah, well I did see he was the rubbing the - so that he doesn't lean the thing and I just, myself, I pushed the red button. Q. You pushed the red button did you? A. Witness: Yes sir. Q. What was going on when you pushed the red button? What was happening to the machine, to the basket? A. Witness: It was shaking very badly two, three times. Very bad. Threw me out on the basket. ... Q. All right. Now you've told us about the shaking of the cabin-- A. Witness: Yes. Q. --or of the basket rather. How long did that shaking go that made you scared for your life? A. Witness: Five, ten seconds. Q. And what then happened? A. Witness: I just told him to 'Turn it off, turn it off'. He doesn't understand me. And I turn it off and watching it stop suddenly. Q. When did you first strike the red button yourself? A. Witness: After three times he shake me because I had the paint in my hand, I told him to 'Stop the machine, stop the machine'. He doesn't understand. He was nervous himself. It's something I can see in her eyes. I turn and I push the button myself. As soon as I put the machine off, boom, boom, boom. Say three times like that and the machine is stopped. Q. All right, and when the machine finally stopped, where was the machine? A. Witness: What do you mean where was the machine? Q. Where was the basket? A. Witness: Basket was near, nearly on the floor. Q. And when the machine was going from side to side, what was happening to your body? A. Witness: I just passed out because he, there was a, there is a pipe this on the corner of the basket when you finish you take off your harness, you put it on that thingy. I just smashed that pipe. Q. Now when the operator was operating the machine in the basket by use of the control panel-- A. Witness: Yeah. Q. --where were his hands? A. Witness: On the panel thing, on the consol. Q. So you're-- A. Witness: Grabbing things, they grabbing things. Q. He was grabbing hold of the consol? A. Witness: Yeah. Q. Was there-- A. Witness: We both are scared Q. Sorry? A. Witness: Both of us are scared, sorry. Q. Yes but he had the consol grabbing hold of the consol? A. Witness: Yes. Consol. Q. You said you were holding a can of paint was it? A. Witness: Yes and my roller hand, yeah. Q. Well you had the can in one hand? A. Witness: Yes. Q. The roller I think you said? A. Witness: Roller in my other. Q. A roller in the other hand? A. Witness: Yeah. Q. Could you hold on to anything? A. Witness: Nothing. Q. You say you asked him to turn it off? A. Witness: Yes sir. Q. How many times did you ask him to turn it off? A. Witness: I can't remember. I told you I shout at him 'Turn it off, turn it off' and he as he grabbing on the thing he doesn't let go. Q. When you say he doesn't let it go, you mean the consol? A. Witness: Yes. Q. He's holding on to the consol? A. Witness: He's holding very tight on the consol. Q. And do you say then at some point you turned the machine off? A. Witness: Yeah, I was scared that it's happen, I just wish it wasn't." 36Mr King also relied on the following passages in Mr Alaee's cross-examination: "Q. Do you begin painting? A. Witness: Yes I start painting. Q. For how long? A. Witness: For five minutes. Q. All right, and then what happens? A. Witness: And then the, we, it start to moving the machine it doesn't move. Q. When you say starting to move the machine, what do you mean? You mean you can't move it down, up or-- A. Witness: Yes. Q. --are you trying to drive it along on its wheels? A. Witness: He said he can not move it, he told me. Q. Yes, okay. So you're saying that the [co-worker] speaks to you? A. Witness: Yeah. Q. In a language obviously that you can understand? A. Witness: We understand each other. Q. And he tells you something. What's the words he uses? A. Witness: What about he said? Q. Yes, what did he say? A. Witness: He doesn't say anything. Q. I thought you just said he said the machine was not moving? A. Witness: Yes. A. Interpreter: Just something wrong with the machine. A. Witness: He said, 'I don't know, I don't know, I don't know, I don't know' that's things like that. That's why I ask him to go down. Q. All right, so do I take it you finished the section or area in front of you? A. Witness: Yes. Q. And you're expecting that the machine will move? A. Witness: Yes sir. Q. And he says words to the effect of 'It's not moving' or something? A. Witness: He just say 'I don't know, I don't know, I don't know, I don't know'. I said 'What's wrong?' He said 'I don't know, I don't know' and as soon as he was doing something at there, basket is start shaking. I said 'Go down, down, down, down'. Q. So you see him do something with the consol? A. Witness: Yeah. Q. And-- A. Witness: Grabbing the consol to-- Q. He grabs the consol? A Witness: Yeah. Q. And then you say the machine starts shaking? A. Witness: Yes. Q. Do you receive the injury then? A. Witness: No. On the top? Q. Yes? A. Witness: No. Q. So you watch the basket, or you're in the basket when it starts to go down. Is that right? A. Witness: Yes sir. Q As it's going down 16 metres-- A. Witness: Yes sir. Q. --is it shaking then? A. Witness: Yes sir. Q. And is it shaking more than it had before? A. Witness: Yes sir. Q. So when it gets to the ground, is it shaking then? A. Witness: Yes sir. ... Q. So you're saying does it start to increase-- A. Witness: Yes sir. Q. --in its shake as it's going down? A. Witness: Yes. Q. Until it gets to the bottom? A. Witness: Yes sir. Q. And that's when you hit the red button? A. Witness: We pushed the, the button. I start giving the, the stop. I, suddenly I knew what's happening watching it start shaking. I said 'Turn it off, turn it off'. He doesn't understand. He's just grab the consol high, you know, and look at my eyes and I turn around and shut that machine off. Q. So I'm trying to work this out. So when the machine's coming down, the basket is coming down, it's shaking? A. Witness: Yes sir. Q. But not as violently as it did when it was closer to the ground? A. Witness: Yes sir. Yes sir. Q. Is that right? A. Witness: It shake out of normal. Yes sir. A. Interpreter: It's very violent." 37This evidence does not address whether the operator of the EWP intended to or had begun to move the EWP forward on its wheels, as distinct from commencing to raise or lower the bucket while the EWP remained stationary. The evidence is therefore not capable of establishing that the operator was attempting to engage the "locomotive functions" (Whitehead v Lowe at [56]) of the EWP rather than to raise or lower the bucket. 38I did not understand Mr King to submit that if the primary Judge's factual findings could not be sustained, Mr Alaee nonetheless satisfied the requirements of s 3A(1) of the MAC Act. In any event, any such submission could not succeed. As was held in Whitehead v Lowe, if the operator of a dual function vehicle such as a loader or forklift uses the controls to change the position of an attachment to the vehicle while the vehicle itself remains stationary, any injury occurring during this process is not likely to be a result of or caused during the driving of the vehicle. 39It follows that the appeal must be allowed. The orders made by the primary Judge must be set aside and in lieu thereof judgment should be entered for Eptec, with costs. Mr Alaee must pay the costs of the appeal. Damages 40In view of this conclusion, it is not necessary to deal with Eptec's challenge to the primary Judge's assessment of damages for past and future economic loss. I shall, however, briefly express my views on this issue. 41Mr Alaee was aged 54 at the date of trial and his Honour found that Mr Alaee was unlikely to return to work in the future. His Honour recognised in the Damages Judgment that the assessment of damages for loss of earning capacity was difficult. 42The primary Judge assessed damages on the basis that Mr Alaee's earning capacity was $650 per week. Since Mr Alaee had not worked for most of the five years since sustaining his injuries, his Honour allowed $650 per week for that period as the damages for past economic loss, a total of $170,000. For the future, his Honour assessed Mr Alaee's earning capacity at $500 per week and allowed that figure for a period of eleven years. After deducting 15 per cent for vicissitudes, the amount awarded for future economic loss was $175,500. 43Section 126 of the MAC Act provides as follows: "(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 44The primary Judge did not identify the assumptions upon which the award for future economic loss was based. In the absence of evidence that Mr Alaee's earnings from his work were likely to increase significantly over and above his earnings during the four years preceding his accident, the assessment of damages made by the primary Judge for past or future loss of earning capacity cannot be sustained. 45It is difficult to see how, on the evidence, Mr Alaee could have been awarded damages calculated on the basis of an earning capacity of more than about $12,000 per annum at the date of the accident, even allowing for the possibility that he might have been a little more successful in securing work in the future than his most successful endeavours in the past. On this basis, had it been necessary to reassess damages, the award of damages in respect of past and future loss of earning capacity would have had to be substantially reduced. Orders 46I propose the following orders: 1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 20 December 2013. 3. In lieu thereof make the following orders: (1)Judgment for the defendant. (2)The plaintiff pay the defendant's costs. 4. The respondent pay the appellant's costs of the appeal. 5. The respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW). ********** 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: 14 November 2014