Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Toll Pty Ltd v Harradine [2016] NSWCA 374 Hearing dates: 15 November 2016 Decision date: 21 December 2016 Before: Meagher JA at [1]; Sackville AJA at [2]; Schmidt J at [113] Decision: (1) Appeal allowed. (2) Set aside the judgment for the respondent in the sum of $1,070,499.00 given on 3 March 2016. (3) Set aside the costs order made against the appellant by the primary Judge on 4 March 2016. (4) Direct the parties to bring in agreed short minutes of order on or before 25 January 2017 giving effect to these reasons for judgment. (5) If the parties are unable to agree, each should file short minutes of order proposed together with brief written submissions not exceeding four pages on or before 25 January 2017. Catchwords: MOTOR VEHICLE ACCIDENT – personal injuries – operator of forklift at depot negligently fails to secure a stillage (partially enclosed cage) to the raised tines of the forklift – stillage slips from the tines near the end of unloading operation from the stillage to a container – worker unloading sacks injured when struck by the slipping tillage – worker placed foot on mezzanine floor of trailer – whether worker's injuries occurred "during… the driving of a vehicle" within the meaning of s 3A(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) – whether the worker's injuries were sustained as a consequence of driving the forklift – whether displacement of the stillage causally related to the driving of the forklift DAMAGES – whether primary judge erred in assessing damages for past and future loss of earning capacity – whether net income of the comparator properly assessed for the purpose of assessing damages Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A Suitors Fund Act 1951 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1996 (NSW) Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; 25 MVR 373 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Fabre v Arenales (1992) 27 NSWLR 437; 15 MVR 303 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; [2004] HCA 24 Jay Anthony Harradine v Toll Pty Ltd (unrep, District Court, 3 March 2016) Jones v Dunkel (1959) 101 CLR 298; [1954] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (2014) 67 MVR 494; [2014] NSWCA 257 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Motor Accident Commission v ANI Corporation Ltd (1997) 26 MVR 57 Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 QBE Insurance (Australia) Ltd v Smith (2005) 43 MVR 407; [2005] NSWCA 130 RG & KM Whitehead Pty Ltd v Lowe (2013) 63 MVR 375; [2013] NSWCA 117; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Suncorp Metway Insurance Ltd v Sichter [2011] 2 Qd R 89; 55 MVR 524; [2010] QSC 164 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Zotti v Australian Motor Insurers Ltd (2009) 54 MVR 111; [2009] NSWCA 323 Texts Cited: D Byrne and J D Heydon, Lexis Nexis, Cross on Evidence (Australian Ed), vol 1 Second Reading Speech, NSW Parl Deb, Leg Ass, 9 November 2011 (the Hon Michael Veitch, Parliamentary Secretary) Category: Principal judgment Parties: Toll Pty Ltd (Appellant) Jay Anthony Harradine (Respondent) Representation: Counsel: P Morris SC and D P O'Dowd (Appellant) B J Gross QC and T J Boyd (Respondent) Solicitors: BBW Lawyers (Appellant) Herbert Weller (Respondent) File Number(s): 2016/87874 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 3 March 2016 Before: McLoughlin DCJ File Number(s): 2013/8504 [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.] Judgment 1. MEAGHER JA: I agree with Sackville AJA. 2. SACKVILLE AJA: The appellant (Toll) appeals against a decision of the District Court (McLoughlin DCJ) in which judgment was entered for the respondent (Worker) against Toll in the sum of $1,380,166. [1] The Worker claimed damages by reason of injuries he sustained on 16 February 2010 in the course of his employment with Toll. The Worker was injured while unloading packages containing cushions from a stillage onto the upper level of a trailer. The Worker was born in 1961 and was aged 48 at the time of the accident. 3. A stillage is a rectangular metal stand which, at least in this case, is open on two sides and has wire barriers on the other two sides. It has a solid base. The injury occurred when a stillage, which should have been securely affixed to the raised tines of the forklift, slid sideways off the tines and struck the Worker's left arm. It was not in dispute in the District Court that the operator of the forklift had been negligent in using the stillage to load the trailer when he knew that it had not been secured to the forklift's tines. Accordingly, it was not in dispute that Toll had breached its duty of care to the Worker. 4. The dispute at trial principally related to whether the Worker was able to establish that his injuries satisfied the terms of s 3A of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). Section 3A provides as follows: "(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, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents." Section 3 of the MAC Act defines "fault" to mean "negligence or any other tort" but does not define "driving". It was not in dispute that the forklift was a "motor vehicle" for the purposes of s 3A of the MAC Act. 1. The primary Judge held that the Worker's injuries were within s 3A(1) of the MAC Act because the Worker's injuries were a result of and were caused "during…the driving of the vehicle" or, alternatively, "during a dangerous situation caused by the driving of the vehicle". Accordingly, damages were to be assessed in accordance with the MAC Act rather than under the more restrictive regime established by the Workers Compensation Act 1987 (NSW) (WC Act) and the Workplace Injury Management and Workers Compensation Act 1996 (NSW) (WIM Act) for work-related injuries caused by the negligence of an employer. 2. Toll has appealed on the ground that the primary Judge erred in finding that the Worker's injuries satisfied s 3A(1) of the MAC Act. If the appeal succeeds, the damages awarded to the Worker will be reduced very substantially. 3. There is also an issue on the appeal as to whether the primary Judge erred in his assessment of past and future economic loss. This issue must be addressed regardless of whether damages are to be assessed under the MAC Act or under the Workers Compensation regime. Background 1. The primary Judge recited at some length the pleadings and the evidence given by the Worker and by Mr Bournes, the operator of the forklift truck. However, his Honour did not make detailed findings as to the system of work involving the forklift and the stillage. The following account is largely based on evidence given by the Worker and Mr Bournes, recognising that their evidence diverged in important respects. 2. Mr Bournes operated a forklift at Toll's depot located in Smithfield. His duties included using the forklift to collect goods from a warehouse on site and convey them to a trailer. At the warehouse, the goods would be loaded onto a stillage attached to the forklift. The forklift, with the loaded stillage attached, would be driven to the waiting trailer. The goods would then be unloaded from the stillage and loaded onto the trailer in readiness for its departure from the depot. 3. The forklift used in the present case had two tines, each about 10 cms wide. The stillage had two slips or sleeves at the base that enabled the stillage to be attached securely to the tines protruding from the forklift. The operator of the forklift should have attached the stillage by sliding the two tines into the sleeves of the stillage. 4. On 16 February 2010, Mr Bournes was required to drive the forklift to the warehouse, collect a load of packaged cushions (each package weighing about 15 kgs) and convey the load to a trailer. The Worker's task was to transfer the packages from the stillage to the trailer. The particular trailer being loaded at the time of the accident had both a lower level and an upper level. The latter was referred to in the evidence as the "mezzanine" floor of the trailer. 5. On the day in question, Mr Bournes conveyed several loads of packaged cushions from the warehouse to the trailer where the Worker unloaded them. On each occasion Mr Bournes used the same stillage. He observed that one of the sleeves at the base of the stillage was either missing or broken. Nonetheless, he decided to proceed using the defective stillage. He did so simply by placing the two tines underneath the stillage, so that it rested by its own weight on the tines. Mr Bournes (and Toll) accepted that it was dangerous to attempt to move the stillage or use it to unload goods if it was not attached to the forklift in the correct manner. 6. Despite the serious safety lapse, several loading and unloading operations using the defective stillage proceeded without incident. However, on about the fourth or fifth operation the stillage slipped and the Worker was injured. 7. The Worker described in his evidence the events leading up to the accident: "Q. Would you just tell the Court what happened during the process of loading… A.. I had – was standing on the mezzanine floor and Ben [Mr Bournes] was bringing the stillages up loaded with cushions so I could hand unload them. We'd– I'd unloaded approximately three, maybe four stillages and– because of the way the stillages are loaded with the bags of cushions – they're stacked up quite high on the stillage. So the forklift would have to come up and come down to a level, and then slowly raise the stillage up as you were unloading each-- Q. So you'd unload them from the top shelf, as it were, down – of the bags? A. Yeah. We'd take them from the top-- Q. Of the cushions, yes. A. --because if you went up too high you wouldn't reach them because of the roof of the trailer. Q. And as you unload one level-- A. And he'd just raise the tines, raise the stillage up. Q. And how would the stacking of the cushions in the stillage take place? A. There was – one of the workers where all the cushions were stacked at the end of the shed, he would hand-load them onto the empty stillage himself. Q. Was there just the one stillage used, or were there a number of stillages? A. There was several. We had all up about five stillages. [2] … Q. What happened? A. I felt a– I got hit in the head and I felt pain in my arm and then I realised that the stillage was down on the ground – wasn't on the forklift any more. … Q. Whereabouts were you? A. I was on the mezzanine floor of the trailer. Q. Your left hand was crushed – is that right? – between the-- A. No. When it tipped off the tines, it come like guillotine and him [sic] my arm straight across." 1. There was a conflict in the evidence as to whether Mr Bournes had raised and lowered the tines while the packages were being transferred from the stillage to the trailer. The Worker's account of the usual practice was as follows: "Q. Tell us about your usual procedure first. A. The usual procedure is, you bring the forklift back 6 to 8 inches so the stillage isn't rubbing up against the mezzanine floor as you're raising it and then you'd come back in while you – in the same procedure, I'm pulling the bags off. So we try not to keep too big a gap between the mezzanine floor and the stillage. Q. Yes. A. And you can constantly pull the bags off and stack them. Q. And what's happened to the forklift as you're proceeding with this-- A. The forklift moves – just comes back and forward each time. So there's – so you can bring it up without it interfering with the trailer, the mezzanine floor. HIS HONOUR Q. So in the unloading operation there are two movements with the forklift. A. Yes. Q. One, the tines go up-- A. And the reverse. Q. --and the forklift itself goes backwards and forwards. A. Yes." Primary Judgment 1. One of the criticisms Toll makes of the Primary Judgment is that although his Honour recorded the parties' evidence and submissions at considerable length, he failed to give adequate reasons for his findings on liability. His Honour referred to a number of the authorities construing s 3A of the MAC Act or similar legislation, but it is not easy to discern how he applied the principles to be derived from the authorities. 2. The substance of the primary Judge's reasoning is contained in a passage which I reproduce in full below. [3] However, earlier in the judgment his Honour referred to evidence that may be important in understanding the findings made in the later passage. His Honour said this: "[The Worker] said that at no stage was the handbrake on the forklift and he said he never observed it on and could see it when he was performing his work. He said the last thing he noticed about the forklift was that it had been raised up to the level where he was about to take off the last one or two bags and started to back out as he did it. He did not have to go any higher than it was at that time and he went to pull the last bag off. When he started to move to grab the last bag, then Mr Bournes started to reverse back to bring the stillage down to the ground so he could go. 'Q You saw him move back? A Yes' The normal practice would be that at that time he would drop the stillage to the ground." [Emphasis added.] 1. The primary Judge's findings on liability are contained in the following passages: "In this instance I am satisfied that Mr Bournes, in driving the vehicle in the manner he did, that is, driving it to where the stillages were kept, picking up a stillage which he knew to be dangerous, in that it was lacking in security and was likely to be unstable, and to be used in circumstances where a person would probably put their foot upon it, contributing to its lack of stability, was negligent driving and, in addition, created a situation of danger. To drive any vehicle with such an unstable and insecure load is negligent driving of that vehicle. The question is whether that negligent driving is a contributing factor to the accident that occurred here. I am of the view that these circumstances are a little akin to wherea person drives a vehicle with an unsafe load, parks the vehicle, turns it off, gets out of it and then the load collapses and strikes passer-bys on the footpath. It has arisen out of the negligent driving of the motor vehicle, although the vehicle was not in operation at the time of the accident. ln this instance to drive the vehicle in a manner whereby a dangerous and defective stillage was picked up in the manner which was described by Mr Bournes is both, as I have said, negligent driving of the vehicle and creating a dangerous situation caused by the vehicle as set forth in s 3A(1)([d]). I am also of the view that the driving of the vehicle then and parking it in the manner which it was adjacent to the truck, where the stillage was to be unloaded in the manner that it was, was also negligent driving in that the defendant knew of the risks to persons in an [sic] around the vicinity of the stillage and drove it in that way. The third area of driving is whether or not the vehicle moved backwards and forwards at the time of this accident, as described by the plaintiff. Of some moment, as I have said earlier, is that Mr Bournes' statement was taken by an insurance investigator on 18 February, two days post accident, [4] the plaintiff's was was taken six days post accident. Mr Bournes' statement was taken at the place of employment, where no doubt Mr Taylor [the branch manager at the time] was, and there is no suggestion either way as to whether the insurance investigator spoke to Mr Taylor. One could only but assume, in circumstances where the accident is being investigated, a CCTV would have been made available to the investigator. His reports have not been tendered that deal with what he knew and what he did not know at that time. The CCTV is alleged to have gone missing. Mr Taylor is not called and that CCTV footage could well have accurately set out what it was that occurred on this day. With that background, I have to determine between the evidence of theplaintiff and the evidence of Mr Bournes as to whether the vehicle was moving. I have observed them both. It was a matter that was not addressed by either witness in the statements given to the investigator in the days post accident and, of course, it is to be understood that at the time the plaintiff gave his statement he had had major surgery, was in significant pain and was on very strong medication, which comes down to the observation of witnesses, the reliability of them and, when one looks at the failure to produce the CCTV and the failure to call Mr Taylor, I am of the view that that would not have assisted the defendant in the defendant's case at all and, on probability, makes the plaintiff's evidence more likely than that of Mr Bournes when one closely analyses everything that has occurred and I accept the plaintiff's evidence that the vehicle was moving backwards at the time that the accident occurred, making a third area of negligent driving by Mr Bournes as to the cause of this Accident. Accordingly, in my view, the plaintiff has made out a case in negligence under the Motor Accidents Compensation Act and the damages will be assessed accordingly." 1. Since the primary Judge assessed damages under the MAC Act, he found that the Worker was entitled to heads of damage, such as non-economic loss, that would not be available if his claim was governed by the Workers Compensation legislation. However, it is not necessary to consider his Honour's assessment of damages other than in relation to past and future loss of earning capacity. 2. The primary Judge considered that Mr Bournes' earnings provided an appropriate comparator for assessing damages for the Worker's lost earning capacity. His Honour found that since Mr Bournes had been promoted to leading hand and since the Worker was senior to Mr Bournes, it was appropriate to proceed on the basis that the Worker also would have been promoted to that position. The primary Judge accepted that Mr Bournes was earning $1,661.00 per week net as a leading hand at the time of the hearing. 3. The Worker continued in employment with Toll after he was injured, but was restricted to light duties. His Honour found that if the Worker lost his position with Toll he would be "effectively unemployable". His Honour therefore considered it appropriate to find that the loss sustained by the Worker was $1,661.00 net per week. 4. The primary Judge considered that the Worker should receive as damages for past loss of earning capacity the difference between $1,661.00 per week and the Worker's actual net weekly earnings from his continuing employment with Toll, in respect of the period from February 2010 until the date of judgment. His Honour found that the Worker should receive damages for future loss of earning capacity calculated on the basis of a loss of $1,661.00 net per week for the rest of his working life. However, his Honour, in assessing damages for loss of future earning capacity, increased the reduction for the vicissitudes of life from the customary 15 per cent to 37.5 per cent. This was to: "reflect the potential that the [Worker] may well stay in the employment of [Toll] for some year or years or for the rest of his working life." In addition, his Honour found that the Worker was entitled to damages for lost superannuation entitlements, calculated at 11 per cent. 1. The parties were left to undertake the calculations flowing from the primary Judge's findings. It appears that the primary Judge ultimately adopted the calculations for past lost earning capacity set out in the Worker's Schedule of Damages. On that basis, after allowing for the Worker's actual earnings, the award for past loss of earning capacity was approximately $183,018.00. 2. Although it is not entirely clear, it also appears that the primary Judge adopted the Worker's calculations for loss of future earning capacity, save for the allowance for the vicissitudes of life. On this assumption, his Honour awarded $553,875.00 calculated as follows: $1661 net per week x (multiplier) 529.3 x 0.63 = $553,875.00. Submissions Toll's submissions 1. There was no significant dispute between the parties as to the legal principles to be applied, although there was disagreement as to their application to the facts of the present case. Toll challenged the findings of the primary Judge that the Worker's injury: * was a result of and was caused during the driving of the vehicle (MAC Act s 3A(1)(a)); and in any event, * was a result of and was caused by a dangerous situation caused by the driving of the vehicle (MAC Act s 3A(1)(d)). 1. As I have noted, Mr Morris SC, who appeared with Mr O'Dowd for Toll, did not dispute that the forklift was a "motor vehicle" for the purposes of s 3A of the MAC Act. Nor did he dispute that the operator of the forklift would be "driving" it if the forklift was travelling from one place to another. 2. Mr Morris submitted that one difficulty with the Primary Judgment was that the findings were unclear. In particular it was unclear whether his Honour intended to find that Mr Bournes moved the forklift backwards slightly in preparation for lowering the tines and driving the forklift away from the trailer. Mr Morris contended that if the finding was merely that Mr Bournes moved the forklift slightly backwards during the unloading operation, on the authorities, the Worker's injury could not have been as a result of and caused during the driving of the vehicle. 3. Mr Morris appeared to accept that one possible interpretation of the Primary Judgment is that his Honour found that Mr Bournes moved the forklift backwards in preparation for driving it away from the trailer. If this is the correct interpretation of the Primary Judgment, Mr Morris submitted that the minor movement of the forklift did not amount to "driving" of the motor vehicle for the purposes of s 3A of the MAC Act. The forklift's locomotion function, so he argued, would commence only when the tines (supporting the suspended stillage) were lowered and the forklift began its forward movement (Grounds 5 and 7). 4. Mr Morris' principal submission however, was that the primary Judge erred in finding that the forklift was moving at or immediately before the time the stillage slipped and struck the Worker (Grounds 1 and 2). He contended that the primary Judge should have preferred Mr Bournes' evidence that there was no movement of the forklift over the Worker's evidence that Mr Bournes reversed the forklift slightly with a view to leaving the site. Accordingly, he invited this Court to find that the forklift was stationary when the stillage slipped from the tines. On this basis, it was clear that the Worker's injury was not a result of and caused during the driving of the forklift. 5. Mr Morris' alternative submission was that the primary Judge failed to give adequate reason for preferring one witness over another and failed to take into account evidence directly relevant to the findings (Ground 11). Accordingly, even if the Court could not make the finding sought by Mr Morris, the primary Judge's findings should be set aside. 6. Mr Morris next submitted (Grounds 3-8) that s 3A(1) of the MAC Act directs attention to notions of "predominance and immediacy" when determining whether "the injury is a result of and is caused during the driving of the vehicle". Although his Honour made no finding on the point, the evidence established that the likely predominant and immediate cause of the injury was the Worker's action in stepping onto the base of the stillage and causing it to tilt. This did not detract from Toll's breach of duty, but it demonstrated that the Worker's injury was not caused by the driving of the forklift. 7. According to Mr Morris, the finding that the injury was a result of a dangerous situation caused by the driving of the forklift was erroneous because the dangerous situation was caused by the failure of Mr Bournes to secure the stillage to the tines (Grounds 5 and 7). There was simply no evidence that the driving of the forklift from the storage area (where Mr Bournes had placed the stillage onto the tines) to the trailer contributed to the instability of the stillage. The dangerous situation was caused by the decision to allow the Worker to unload goods from an unsafe platform. 8. Mr Morris challenged the primary Judge's award of damages for the Worker's past and future loss of earning capacity. Mr Morris did not dispute that his Honour was entitled to find that if the Worker lost his reduced duties position with Toll he would be effectively unemployable in view of his age, limited training and physical disabilities. However, Mr Morris submitted that the primary Judge had given no reasons for soliciting Mr Bournes as the appropriate comparator for the purposes of determining the Worker's likely earnings had he not been injured. The appropriate course, according to Mr Morris, was to have taken the average net weekly earnings of three employees (one of whom was Mr Bournes) whose earnings at the time of the accident had been similar to the Worker's. 9. In any event, so Mr Morris argued, even if Mr Bournes was the appropriate comparator, the primary Judge's calculations failed to recognise that Mr Bournes' earnings had been temporarily inflated by reason of overtime payments that were likely to diminish in time. Thus, the figure of $1,661.00 net per week adopted by the primary Judge was too high. The Worker's submissions 1. Mr Gross QC, who appeared with Mr Boyd for the Worker, submitted that the primary Judge's finding that Mr Bournes moved the forklift backwards immediately before the accident was a credit based finding that should not be disturbed by the Court. He also submitted that the primary Judge gave adequate reasons for the finding having regard to his detailed recitation of the evidence given by Mr Bournes and the Worker. 2. Mr Gross contended that it was sufficient for the primary Judge to have found that the forklift moved at or immediately before the accident. Any movement meant, so he argued, that the forklift was engaged in its locomotion function and was therefore being driven at the relevant time. In any event, the primary Judge should be understood to have found that the movement of the forklift was preparatory to Mr Bournes moving it away from the trailer. On this interpretation of the judgment, the Worker's injuries were as a result of and were caused during the driving of the forklift. 3. Mr Gross also supported the primary Judge's finding that the Worker's injuries were a result of and caused by a dangerous situation created by the driving of the forklift. He submitted that the primary Judge was entitled to find that placing the tines under the stillage involved the driving of the forklift. This was because the extension of the tines for this purpose would necessarily have required a forward movement of the forklift. Since the tines were not properly connected to the sleeves of the stillage, the driving of the vehicle created the dangerous situation. 4. On the question of causation, Mr Gross recognised that the Worker had given evidence that he placed his foot on the base of the stillage. Despite this evidence, Mr Gross submitted that the Court should in essence ignore the Worker's evidence because it had been based on what he had been told by Mr Taylor. 5. When it was pointed out that this was a somewhat optimistic submission, Mr Gross put forward an alternative contention. He submitted that the Court should take account of the photographic evidence which suggested that the stillage was made of metal and therefore was very heavy. It was "ludicrous" to think that by placing his foot on the base of the stillage the Worker caused it to tilt and slip off the tines. Accordingly, Mr Gross invited the Court to conclude that it was improbable that the Worker's actions could have caused the stillage to tilt and slip off the tines. The most probable cause was movement in conjunction with the resistance of the tines against the base of the stillage as the forklift moved backwards. 6. In the alternative, Mr Gross sought to uphold the primary Judge's finding that the Worker's injuries were a result of and caused during "a dangerous situation caused by the driving of the vehicle" and thus came within s 3A(1)(d) of the MAC Act. The basis of the submission was not that Mr Bournes' actions in placing the stillage on the forklift's tines, but without securing the stillage correctly, took place during the driving of the vehicle. Nor did Mr Gross submit that the dangerous situation created by these actions was caused by the driving of the forklift. Rather, he contended that it should be inferred that the driving of the forklift back and forth caused the load to shift to some degree, thereby making the stillage more unstable. He also contended that an inference should be drawn that there was a progressive, cumulated effect from each movement of the forklift adding to the "increasing dynamic instability of the loading". 7. Mr Gross submitted that there was no error in the primary Judge's award of damages for loss of earning capacity. The evidence justified a finding that the Worker would probably have been promoted to the position of leading hand and that Mr Bournes provided an appropriate comparator. The primary Judge's increased allowance of 37.5 per cent for vicissitudes properly accounted for the possibility that Toll might continue the Worker's employment on light duties for a considerable time. It was also open to the primary Judge to select the figure of $1,661.00 net per week as Mr Bournes' earnings, since it was derived from Mr Bournes' average net weekly earning over eleven pay periods between 5 July 2015 and 13 September 2015. Reasoning: "during…the driving of the vehicle" 1. Section 3A(1) of the MAC Act and its predecessors have given rise to difficult questions of construction. In part, the difficulties are a consequence of what the plurality in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [5] (Allianz) described as a "grammatical contortion" in language now found in the last part of the chapeau to s 3A(1). [6] 2. In the present case, Toll did not dispute that the Worker's injuries "were caused by the fault of the…driver of a motor vehicle in the use or operation of the vehicle", within the meaning of s 3A(1) of the MAC Act. However, it was common ground on the appeal that an injury is not within s 3A(1) of the MAC Act unless the injury was sustained during one of the events specified in the sub-section. This so-called "temporal criterion" follows from the interpretation given by this Court in Zotti v Australian Motor Insurers Ltd [7] (Zotti) to the "carefully considered dicta" of the plurality of the High Court in Allianz. [8] Thus, in a case in which the injured person relies on s 3A(1)(a) of the MAC Act, the injuries must have been sustained within the period during which the driving of the vehicle was taking place. [9] It is not enough for the injured person to establish that his or her injuries were caused by the fault of the owner or driver in the use or operation of the vehicle. [10] 3. It is convenient to deal first with Toll's challenge to the primary Judge's (implicit) finding that the Worker's injuries were sustained during the "driving" of the forklift. That challenge requires reference to the authorities distinguishing between the locomotion functions of a dual purpose vehicle such as a forklift and its non-locomotion functions. Construction of the "temporal criterion" 1. A vehicle such as a forklift may be used as a means of locomotion and transportation or as a device for loading and unloading. The use or operation of a forklift exclusively as a loading or unloading device does not normally involve the "driving" of the forklift, even though it is capable of being driven when performing locomotion or transportation functions. [11] The general principle is that a forklift is being driven when it is subject to actual control and management while it is in locomotion. [12] 2. In ANI, an employee was injured when he fell from the back of a stationary semi-trailer while assisting a forklift driver who was loading stillages onto the semi-trailer. The South Australian legislation contained a provision similar to s 3A(1) of the MAC Act. The Supreme Court of South Australia held that once the forklift stopped alongside the trailer it was no longer being driven, but was being used as a loading device. 3. Cox J explained that the distinction between the two functions of a forklift–locomotion and loading– does not simply depend on whether the forklift's wheels are turning at a particular time: [13] "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. In my opinion, the learned judge should have found on the evidence that the plaintiff's injuries were not a consequence of the driving of the forklift." 1. In Whitehead, the tines of a front end loader were being manipulated in order to connect a chute to a chipper. The Worker was injured when he mounted the chipper and attempted to align the chute to the sleeves attached to the loader. Tobias JA held that although the injuries were sustained "in the use or operation" of the loader, "it was not being driven in any relevant sense if it was otherwise stationary". 2. Barrett JA added the following comment in his concurring judgment: [14] "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…Suncorp Metway Insurance Ltd v Sichter [2011] 2 Qd R 89; (2010) 55 MVR 524; [2010] QSC 164 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." 1. There is not necessarily a "bright line" separating the locomotion and loading functions of a vehicle such as a forklift. At some point, the operator of a forklift which is being used to load or unload goods, may terminate that activity and begin to use the forklift for the purpose of locomotion. Each case will of course depend on its own circumstances, but the observations of Heydon J in Container Handlers as to the "core meaning" of the "driving" of a vehicle are helpful. His Honour said: [15] "'The driving' of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls – preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off." 1. In Whitehead, Tobias AJA interpreted Heydon J's remarks to mean that: [16] "a vehicle may be said to be driven from the moment its engine is started to the moment when the engine is turned off." Tobias AJA added that whether the two concepts coincide wholly or purely depends on their characteristics. What does "driving" require in this case? 1. The authorities establish that if the forklift in the present case was being used to unload the contents of the stillage onto the trailer, and the forklift was stationary during this process, Mr Bournes was not "driving" it within the meaning of s 3A(1) of the MAC Act. In addition, it follows from the analysis of Cox J in ANI and the approval of his Honour's reasoning in Whitehead, that a slight movement of the forklift forwards or backwards while the unloading process was continuing would not change the "exclusive non-driving character" of the process. Thus, I do not accept Mr Gross' submission that a slight movement of the forklift backwards or forwards during the unloading and loading operation is sufficient of itself to justify a finding that the forklift was being driven at the time. 2. If, however, the unloading operation had been completed and Mr Bournes reversed the forklift slightly in preparation for moving it away from the trailer, in my opinion, he would be "driving" the vehicle. At this point he would have started to use the forklift for the purpose of locomotion. This would be true even if the backward movement was simply to allow the tines to be lowered so that the operator would have a clear vision of the path to be taken. In essence, the backward movement of the forklift would mark the end of the loading function and, more importantly, the start of the locomotion function. The finding that the forklift moved What was the finding? 1. The primary Judge found that the forklift "moved backwards and forwards at the time of the accident, as described by the [Worker]". His Honour did not expressly find that the movement occurred as Mr Bournes commenced to reverse the forklift in order to move it away from the trailer (as distinct from the movement occurring in the course of the loading and unloading operation). In the absence of an express finding, it is not entirely clear whether his Honour intended to find that the movement occurred as part of the first stage of the locomotive function, or whether his Honour merely intended to find that there was movement while the unloading operation was still under way. 2. I think that the more likely interpretation of the Primary Judgment is that his Honour intended to accept the Worker's evidence that Mr Bournes "started to reverse back to bring the stillage down to the ground so he could go". The primary Judge specifically referred to this evidence earlier in the judgment and presumably had it in mind when he said that he preferred the Worker's evidence over that of Mr Bournes. On this basis, the primary Judge found that the backwards movement of the forklift occurred as Mr Bournes began the process of moving the forklift away from the trailer. Toll's challenge 1. If this finding stands, it supports a conclusion that the injury to the Worker occurred during the driving of the forklift. It is therefore necessary to address Toll's attack on the finding. That attack rested on what was said to be the inadequacies of the primary Judge's reasoning process and his Honour's failure to consider important evidence apparently inconsistent with the finding. 2. The Worker gave a statement to an insurance investigator on 22 February 2009, six days after the accident. In that statement he briefly described the circumstances of the accident as follows: "Ben [Mr Bournes] returned with a stillage containing cushions and following procedure raised the forklift tines so the base of the stillage was level and flush with the floor of the mezzanine. I then unloaded the cushions into the trailer. Following procedure I did not stand on the stillage. Due to the injury I received my recollection of what occurred from that point forward is at the very best quite vague. I think he might have brought another one or two loads of cushions to the trailer but I am not sure. I do not know what happened as I can only remember looking at my left arm and knowing that it was not right and then holding it. I have a vague recollection of people standing around me and then being in an ambulance. My senses started to return once I was given oxygen in the ambulance." Except for referring to the initial raising of the tines to reach the floor of the mezzanine level of the trailer, the Worker made no reference in this statement to the forklift moving backwards or indeed to the tines being raised and lowered. 1. In a passage in the Worker's evidence I have quoted, [17] he described the usual procedure as requiring the forklift to be moved backwards six to eight inches to allow room for the vertical movement of the stillage by manipulation of the tines. Later in his evidence, the Worker said that as he was about to remove the last one or two bags left on the stillage, Mr Bournes moved the forklift back. The passage is as follows: "Q. What was the last thing you noticed of the forklift before the incident that you've told the Court about? A. That he'd raised it up to the level where I was about to take off the last one or two bags and he started to back out as I done it. HIS HONOUR Q. Had you commenced to unload at that level? A. Yes. Q. Did the forklift have to go up any higher? A. Yes, it come up-- Q. But after that level was unloaded did it have to come up any higher? A. Not at that – not once I was down to the last two bags, no. Q. Were you down to the last two bags? A. I was at the last two bags. I went to pull the last bag off when he started to move back to go – to drop the – as I grabbed the last bag, then had started to reverse back to bring the stillage down to the ground so he could go and take-- Q. No, well, you saw him move back. A. Yes. Q. The normal practice would be that at that time he would drop the stillage to the ground. A. That was normal practice…" (Emphasis added.) 1. The Worker was challenged in cross-examination on his claim that the forklift moved. He maintained his position: "Q. The forklift wasn't moving at the time, was it, in terms of its position on the floor adjacent to the truck? A. Yes, it was. He was bringing it up, yes. Q. I'm not talking about the tines coming up. A. No. Q. I'm talking about-- A. And he was moving it back away from the– as I grabbed the last bag, yes. Q. Sir, there was no cause for the driver of that forklift to move that forklift until the unloading process was complete, was there. A. Yes. Q. There wasn't any cause to, was there? A. Yes, there was. Q. You said you were pulling the last bag out, were you? A. Yes. Q. Why would he have moved the forklift, sir? There's just no need. A. So he could take it away." (Emphasis added.) 1. In his examination in chief Mr Bournes did not accept that he had moved the stillage up and down (once it was aligned to the mezzanine floor) or that he had reversed the forklift away from the trailer. His evidence was as follows: "Q. What do you say to the suggestion that the stillages moved up and down to make it easier for the unloader to pull the cushions off? A. I don't believe so, no. Q. When you're sitting in the forklift, when the stillage is raised– what is the actual floor surface of the stillage made of? A. It's a flat, solid surface. Q. And what effect does that have on your ability, when sitting in the forklift, to see the person who's doing the unloading? A. You can't see them at all. Q. When the person is unloading the cushions, the person who's on the truck, what are you doing? A. Just sitting there waiting for them to be emptied. Q. And on this occasion is that what you were doing? A. That's correct. Q. How do you know when the unloading of the cushions has been completed? A. You get a call from the person unloading, saying, 'Yeah, I'm done'. Q. And on this occasion, on the two or three previous times when Mr Harradine had unloaded the cushions, did you receive a call? A. Yeah. Q. What do you say to a suggestion that while Mr Harradine was still unloading the cushions, you reversed the forklift away from the truck? A. No, I don't believe I did. Q. You don't believe you did? A. No, I didn't. The handbrake was applied. I was just sitting there twiddling my thumbs, waiting for him to finish." 1. The cross-examination of Mr Bournes was brief. The challenge to his evidence in chief, set out above, took the following form: Q. You said that as you're taking the tines in the way that you did– created the danger to others in the area. Right? And when you take the forklift over to the trailer and you're moving the tines up and down, the movement of the tines up and down, I suggest to you, would have nothing to do with the stillage falling off the trailer. Do you agree with that? … A. I only raised the stillage up to the floor, and that was the only raising or lowering that I did on that particular time, and I completely stopped while the unloader was unloading. Q. I just want to put this to you. In terms of when you come to the trailer and you bring the forklift up close to the trailer and you move the tines up level, I think you said, to the mezzanine floor– is that right? A. That's correct. Q. Then you made another step, didn't you? You then moved the tines up again to raise the level of the stillage so that further cushions could be taken off and put into the trailer. Do you agree with that? A. No, I don't. … Q. Just one other matter I want to put to you. I think you suggested that you didn't move the stillage back. What I want to put to you is that you had moved the stillage to the mezzanine floor and then you moved the forklift back to position the correct spot again and then moved the tines up to a different spot just above the mezzanine floor. Do you agree with that? A. No, I don't. Q. At that time Mr Harradine had taken the last cushions from the stillage and at that time I suggest to you that you then moved the forklift back. What do you say to that? A. I don't agree. Q. It was important to get this job done pretty quickly, wasn't it? Do you remember that now? A. I wouldn't say quickly." 1. The primary Judge had to resolve the conflict between the evidence of the Worker and that of Mr Bournes. Apart from relying on Jones v Dunkel, [18] his Honour in essence said that he had "observed" both the Worker and Mr Bournes giving evidence and that the former's evidence was "more likely than that of Mr Bournes when one closely analyses everything that has occurred". 2. It is not clear why his Honour reached that conclusion. He discounted the Worker's failure to mention the movement of the forklift in his statement of 22 February 2010 on the ground that the Worker would have been in pain and on strong medication. But his Honour did not address the significance of the Worker's apparent admission in the statement that his memory was "quite vague". Nor did his Honour consider whether it was likely that the Worker's memory as to the movement of the forklift had improved in the intervening six years. 3. The primary judge gave no reason for rejecting Mr Bournes' evidence that he had not moved the forklift backwards at the time the stillage slipped from the tines and that at the time the handbrake of the forklift was applied. Mr Bournes frankly admitted that he had been seriously at fault in failing to secure the stillage to the tines. It was not suggested to Mr Bournes in cross-examination that he had some reason to be less than truthful in his evidence concerning the movement of the forklift or that his memory was faulty. Perhaps there was some reason that his Honour formed the impression that Mr Bournes' recollection was unreliable, but the Primary Judgment does not identify the reason. 4. The primary Judge appears to have considered that the circumstances at the time of the accident made the Worker's account more plausible than that of Mr Bournes. Again it is not clear why his Honour formed that view. 5. Mr Bournes' evidence was that the system, such as it was, involved the person unloading the stillage to call out when the process was complete. That was the signal for the forklift operator to commence the movement of the vehicle away from the trailer. In his evidence in chief, Mr Bournes said that the Worker called out on the two or three previous occasions on that day when the unloading operations were complete. It is not entirely clear (because the question was ambiguous) whether Mr Bournes intended also to convey that the Worker did not call out immediately before the accident occurred. In any event, Mr Bournes did not say that the Worker signalled to him that unloading was complete and it was not put to Mr Bournes in cross-examination that any such signal had been given. Nor was it suggested to Mr Bournes that he had reason to believe, at the time the accident occurred, that he was free to begin moving the forklift away from the trailer. 6. The Worker did not give evidence that he called out or signalled to Mr Bournes that the unloading operation had been completed. This is not surprising since his evidence was that the last thing he noticed before the accident was that the forklift had been raised "up to the level when I was about to take off the last one or two bags". The Worker's evidence clearly implies that he had not completed transferring the bags of cushions from the stillage to the mezzanine level of the trailer. It follows that if Mr Bournes moved the forklift backwards as the Worker claimed, he must have done so prematurely. 7. This claim, which in effect alleged yet further negligence by Mr Bournes, was not put clearly to him by the cross-examiner. The question that Mr Bournes was asked in cross-examination (reproduced at [61]) above, expressly incorporated an assumption that the Worker "had taken the last cushions from the stillage". This, however, was not the Worker's evidence. He said in both his examination in chief and cross-examination that the accident occurred as he was unloading the last one or two bags. His evidence implied that Mr Bournes commenced moving away from the trailer before the unloading process was complete. Yet Mr Bournes was not given the opportunity to address this allegation. In any event, the primary Judge gave no reasons for concluding that Mr Bournes began moving the forklift away from the trailer before the unloading operation had been completed. 8. If the Jones v Dunkel point is put to one side, in my view, the primary Judge failed to give adequate reasons for finding that the forklift moved at or immediately before the moment the stillage slipped from the tines on which it rested. The basic principle is that stated by Meagher JA in Beale v Government Insurance Office of NSW, [19] when referring to "three fundamental elements of a statement of reasons": "First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached…. [W]here findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other… Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found." 1. It is not appropriate, where there is a conflict in the evidence, for the judge merely to set out the competing versions and then express a preference for one version over the other. [20] 2. The significance of a failure to give adequate reasons in a case such as the present was explained by Hayne J in Waterways Authority v Fitzgibbon: [21] "…because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue. The primary judge's reasons stated his conclusion that the evidence of Dr Trevithick was to be accepted and preferred to that of other evidence but disclosed no reasoning supporting that conclusion. No analysis was made of the competing evidence and no explanation proffered for rejecting it. … The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge's reasons reveals that the process of fact finding miscarried. It miscarried because, so far as the reasons reveal, no examination was made of why Dr Trevithick's evidence was to be preferred to that of other witnesses." 1. I accept, as this Court recently pointed out in Murray v Sheldon Commercial Interiors Pty Ltd, [22] that specific findings of fact are inherently an incomplete statement of the impression made on a trial judge by the evidence. I also accept that due deference must be paid to findings of fact that are based on a trial judge's assessment of the credibility of witnesses whose evidence is in conflict. [23] But in the present case the primary Judge's reasons for preferring the Worker's account as to crucial issue of fact do not adequately explain why his Honour reached the conclusion he did. The absence of adequate reasons suggests that the process of fact finding miscarried. In particular, there is nothing in the Primary Judgment to show that his Honour directed attention to important matters that cast doubt on the accuracy of the Worker's recollection of events. In short, his Honour does not seem to have examined all the evidence material to what was seen as a critical fact of issue in the case. Jones v Dunkel 1. The primary Judge's reliance on Jones v Dunkel to support his preference for the Worker's account of events was founded on Toll's failure to produce the CCTV footage of the incident or to call Mr Taylor, the branch manager at the time. The primary Judge made no finding that Toll had failed to give a satisfactory reason for not producing the CCTV footage, merely observing in the Primary Judgment that the "CCTV footage is alleged to have gone missing". Although there was evidence that Mr Taylor had seen the CCTV footage, his Honour did not explain why he thought (if he did) that Mr Taylor would give evidence adverse to Toll's case. 2. At the trial, Toll tendered a chain of internal emails indicating that Mr Taylor had sent the CCTV footage "long ago" from the Smithfield depot to a Toll depot in Queensland. The emails indicated that Toll could "no longer" locate the CCTV footage. The tender also included a letter from Toll's solicitors advising the Worker's solicitors that Toll had given instructions that the CCTV footage could not be located and, for that reason, Toll was unable to produce the material in response to a subpoena issued on behalf of the Worker. 3. The Worker's counsel objected to the tender of these documents but the primary Judge admitted them as business records. No complaint has been made by the Worker about the evidentiary ruling. The primary Judge remarked during argument on the tender of the documents that he was disposed to give them little weight because Toll had not proved that it had conducted a diligent search in response to the subpoena. Nonetheless, his Honour made no finding that Toll had failed to conduct such a search or that it could have produced the CCTV footage had it wished to do so. 4. The evidence that Mr Taylor had seen the CCTV footage consisted of a passage at the end of the Worker's cross-examination, in response to questions from his Honour: "Q Your memory now of the accident, do you remember putting your foot on the stillage? A No, I don't, sir. Q Why is it then that you've given evidence that you did? A Danny Taylor, the branch manager at the time, had viewed the video footage and said that I did. He told me that my foot had been placed on the stillage. That why I went with that, yes." 1. There was no evidence that Mr Taylor was still employed by Toll at the date of the trial. Assuming, however, that he remained in Toll's "camp", the evidence does not support an inference that his recollection of the contents of the CCTV footage, given years after the event, would assist the Worker on the question of whether the forklift moved slightly at the time, or immediately before, the stillage slipped and struck him. 2. In this respect, it is significant that two employees of Toll were called to give evidence in the Worker's case. One was the Worker's immediate supervisor and the other the operations manager at the time of the accident. Both might have been expected to have some knowledge of the incident and its aftermath. Yet the Worker's counsel did not ask either of these witnesses whether they had seen the CCTV footage or whether they had ever discussed it with Mr Taylor. The absence of such evidence from the Worker's supervisors at the relevant time makes it difficult to draw any inference that he would have given evidence adverse to Toll's case. [24] 3. In any event, even if it was open to the primary Judge to draw an inference from Toll's failure to produce the CCTV footage or to call Mr Taylor, it would not overcome the difficulties with the approach taken by the primary Judge to the evaluation of the evidence. The principle in Jones v Dunkel permits (but does not compel) the court to infer that the untendered evidence would not have assisted the party failing to tender it. In appropriate circumstances, the principle may allow the court to draw an inference unfavourable to the party failing to tender the evidence. [25] But the absence of evidence does not overcome any deficiency in the evidence adduced by the opposing party, [26] and does not enable the trier of fact to infer that the absent evidence would have been positively adverse to the party failing to tender it. [27] 4. Toll's failure to produce the CCTV footage, or to call Mr Taylor, does not constitute affirmative proof that Mr Bournes' evidence was incorrect. Nor does it overcome the inferences to be drawn from the Worker's own evidence that he had not completed the loading process when the stillage slipped, and the absence of any suggestion by the Worker that he had signalled the end of the loading operation to Mr Bournes. The principle in Jones v Dunkel cannot obviate the need for the primary Judge to have addressed these matters before finding that the forklift moved at or immediately before the moment the stillage slipped and struck the Worker. Conclusion on the "temporal requirement" 1. For these reasons, I conclude that the primary Judge's process of fact finding miscarried. However, the result is not that this Court should find that the forklift was stationary at the relevant time or that any slight movement occurred in the course of the unloading operation. Any such findings would involve an assessment of the reliability of the evidence given, respectively, by the Worker and Mr Bournes, an exercise this Court cannot undertake without the opportunity of seeing the witnesses and evaluating their evidence. 2. Accordingly, in the absence of any further issues in the case, there would be no alternative but to order a new trial. [28] It is necessary, however, to consider Toll's argument that even if the accident occurred during the driving of the forklift, it was not as a result of the driving of the forklift and thus the Worker's injuries did not come within s 3A(1) of the MAC Act. Reasoning: causation 1. I approach this question on the assumption that the Worker was injured after Mr Bournes had begun to reverse the forklift in order to move it away from the trailer. On this assumption, which accords with the primary Judge's findings as I have interpreted them, the Worker was injured during the driving of the forklift. However, for the Worker to satisfy s 3A(1) of the MAC Act he also had to establish that his injuries were "a result of" (relevantly) the driving of the forklift. Principles 1. As I have noted, this Court in Zotti followed the "carefully considered dicta" of the plurality in Allianz. In that case, the High Court construed the definition of "injury" in s 3(1) of the MAC Act as it then stood. [29] That definition used language that is now mirrored in s 3A(1) of the MAC Act. 2. The plurality in Allianz rejected a submission that the term "caused" in par (a) of the definition narrowed the meaning of "result". Their Honours said that: [30] "93 The drafting in this second part of para (a) of the definition seeks to accommodate two cumulative criteria and does so by telescoping them into a grammatical contortion. 94 One criterion is that the injury be sustained during certain events, including the driving of the vehicle or a collision with the vehicle or its running out of control. The other criterion is that the injury be sustained as a consequence of those events. The phrase 'a result of' is linked to the first or temporal criterion; the phrase 'is caused' is linked to the second criterion." (In Zotti, [31] Hodgson JA observed that the phrases "a result of" and "is caused" in the third sentence of par [94] of Zotti appear to have been transposed. I agree.) 1. Later in the judgment, their Honours observed that the text of the definition of "injury" manifested a legislative policy of "restricting previous overbroad interpretations of the [compulsory third party insurance legislation]". [32] Thus: [33] "The use in the definition of the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of 'injury' looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act." (Citations omitted.) 1. In Zotti, [34] Spigelman CJ (with whom Allsop P and McColl JA agreed) held that the reasoning in Allianz applied to all sub-paragraphs of the definition of "injury" then in s 3(1) of the MAC Act. The reasoning also applies to the current definition of "injury" in s 3A(1) of the MAC Act. [35] 2. In Leach, I drew a number of propositions from the plurality judgment (Gummow, Hayne and Heydon JJ) in Allianz. I venture to repeat them here: [36] "(i) The second branch of s 3A ('and only if the…injury is a result of and is caused…during (a) the driving of the vehicle…') was introduced to curtail the scope of the first branch of s 3A ('This Act…applies only in respect of…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') (at [88]). (ii) The second branch of s 3A seeks to accommodate two cumulative criteria (at [93]). One is (relevantly) that the injury be sustained during the driving of the vehicle… The second is that the injury be sustained as a consequence of the driving of the vehicle…(at [94]). The second criterion requires that the injury be caused by the driving of the vehicle…(at [94]). (iii) The question of causality is not to be determined by the 'common sense' test alone (at [96]). The determination of causality has to take into account the legislative policy underlying the statutory compensation scheme, including the objects stated in ss 5(1) and (2) of the MAC Act of keeping premiums affordable by containing 'the overall costs of the scheme within reasonable bounds' (at [101]). (iv) The use in the definition of the emphatic and intensive phrase 'and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances (at [102])." 1. The primary Judge did not expressly address the question of whether the injuries sustained by the Worker were "a result of…the driving of the vehicle". His Honour appears to have assumed that the finding that Mr Bournes was negligent in driving the forklift to the trailer while knowing that it was likely to be unstable was sufficient to satisfy s 3A(1) of the MAC Act. Accordingly, his Honour did not consider the significance of the evidence (apparently accepted by his Honour) that the stillage slipped when the Worker placed his foot on it as he prepared to unload the last one or two bags. 2. Mr Gross submitted that his Honour should not have found that the stillage slipped when the Worker placed his foot on the base of the stillage. He pointed out that in the Worker's statement made six days after the accident he said that ["f]ollowing procedure I did not stand on the stillage". 3. However, the Worker's oral evidence was inconsistent with the claim made in his statement. Over three pages of the transcript of cross-examination the Worker accepted on several occasions that the stillage slipped when he stepped onto the base of the stillage. The Worker's unequivocal evidence appears from the following extracts: "Q And, just like a cage, even though you weren't supposed to, from time to time what you'd do is you'd step onto the stillage and you'd pull out the bags of stuff and put them behind you on the truck, wouldn't you? A You wouldn't step onto the stillage, not fully onto the stillage, no. Q You'd have one foot on the truck and one foot on the stillage. Correct? A I ran out of room. Q Yes. A Yes. Q But that's how you'd often do it, isn't it? A Yes. Q And that's what you were doing on this day, wasn't it? A I believe so, yes. … Q The fact is, how this happened was, the stillage overbalanced because the sleeves on the stillage were either broken or missing and it overbalanced whilst you had some weight on it, causing it to slip off the tines and strike your arm. Correct? A Correct. Q That's how it happened, isn't it? A That's-- Q Yes. HIS HONOUR Q That's what? A That's what happened, yes. … Q The forklift wasn't moving at the time, was it, in terms of its position on the floor adjacent to the truck? A Yes, it was. He was bringing it up, yes. Q I'm not talking about the tines coming up. A No. Q I'm talking about-- A And he was moving it back away from the– as I grabbed the last bag, yes. Q Sir, there was no cause for the driver of the forklift to move the forklift until the unloading process was complete, was there? A Yes. Q There wasn't any cause to, was there?" 1. The Worker also acknowledged that he had told a doctor that he had stepped onto the stillage because the space on the deck where the packages were being placed had become crowded. The Worker explained to the doctor that it was at that point that the stillage became unbalanced and slipped sideways off the tines. 2. It is true that in re-examination the Worker attributed his evidence on this issue to what he had been told by Mr Taylor on the basis of the latter's viewing of the CCTV footage. But not only did the Worker expressly accept that the stillage overbalanced as he stepped on the base, but he acknowledged that he often did exactly that. There is no basis for making a finding at odds with the Worker's own evidence. 3. The Worker was required to show that it was more probable than not that his injuries were sustained as "a result of" the driving of the forklift, in the sense explained in Allianz. The Worker could discharge that onus by a consideration of the probabilities in the circumstances established by the evidence, even in the absence of direct evidence as to the relationship between the movement of the forklift and the displacement of the stillage from the tines of the forklift. [37] If circumstances are proved which make it reasonable to find on the balance of probabilities that the Worker's injuries resulted from the driving of the forklift, an inference to that effect can be drawn even if other hypotheses cannot be excluded. [38] 4. The difficulty confronting the Worker in the present case is that the evidence affirmatively suggests that the predominant and proximate cause of the Worker's injuries was his action in placing his weight on the base of the stillage in the course of unloading the last of the bags. At that point, the stillage was attached merely by its own weight to the tines of the forklift. Since the Worker had almost completed the unloading process, presumably the weight distribution of the stillage's load had been altered. 5. It may be that there can be more than one proximate cause for the purposes of s 3A(1) of the MAC Act. [39] However, there was nothing in the Worker's evidence to indicate that the slight backwards movement of the forklift, which (on the assumptions I have made) marked the commencement of its locomotion function contributed in any material way to the displacement of the stillage from the tines. 6. The other evidence adduced on behalf of the Worker simply did not address the relationship, if any, between the movement of the forklift at the time of the accident and the displacement of the stillage. Mr Gross invited the Court to infer from what he said was the substantial weight of the stillage (as to which there was no evidence other than a photograph depicting a metal cage-like structure) that it must have been the movement of the forklift that was the predominant cause of the displacement of the stillage, rather than the actions of the Worker in stepping onto the base of the stillage. There might have been a basis for reaching such a conclusion if some evidence had been adduced to counter the obvious inference to be drawn from the Worker's own evidence. Perhaps evidence might have been adduced, for example, as to the weight of the stillage and the likelihood that it could have been displaced by the Worker simply placing his weight on it. But no such evidence was presented on the Worker's behalf. This Court cannot fill the evidentiary gap by speculating as to the relationship between any reverse movement of the forklift and the displacement of the stillage from the tines. 7. For these reasons, the evidence did not establish on the balance of probabilities that the Worker's injuries were as a result of the driving of the forklift. Reasoning: a dangerous situation 1. Section 3A(1)(d) was inserted into the MAC Act in 2010 [40] in order to overcome what was regarded as an anomaly exemplified by the decision of this Court in Zotti. [41] In that case, a cyclist lost control when his bicycle slid on an oil slick remaining on the road after a motor vehicle accident occurred sometime earlier. Since the cyclist was not injured "during" the driving of the vehicle or "during" the collision, his injuries were not within the definition of "injury" then in s 3 of the MAC Act. 2. In the Second Reading Speech, the Parliamentary Secretary representing the Minister stated that the Government had heeded the call of the Court in Zotti to amend the legislation. The Parliamentary Secretary observed that: "Common sense would dictate that any situation caused by a road accident that then results in an injury to another road user must be a dangerous situation and should be included in the definition of a motor accident for the purpose of the motor accidents scheme" 1. The circumstances of the present case are far removed from the anomalous situation Parliament sought to address in the 2010 amendment. Of course this does not necessarily demonstrate that s 3A(1)(d) is incapable of applying to the injuries sustained by the Worker. But as Mr Gross acknowledged in his oral submissions, it is very difficult to conclude that the dangerous situation was caused by the driving of the forklift in the absence of evidence as to the weight and dimensions of the stillage and the extent of lateral shifting, if any, that occurred while the forklift was travelling between the warehouse and the trailer. 2. The dangerous situation here was created by Mr Bournes' negligence in placing the stillage on the tines without properly securing it. His conduct did not occur during the driving of the forklift and was not caused by the driving of the forklift. The dangerous situation– that is, the risks associated with the stillage not being properly secured– was not created by the driving of the vehicle. There was no evidence that could justify a finding that the driving of the forklift materially contributed to the risk that ultimately materialised. A fortiori, there was no evidence that could justify a finding that the Worker's injuries were a result of a dangerous situation caused by the driving of the vehicle. Reasoning: damages for loss of earning capacity 1. There was ample evidence to support the primary Judge's finding that it was likely that the Worker, but for his injuries, would have been promoted within a relatively short time to the position of leading hand. He had been recommended by his supervisor for such a promotion before the accident, although the recommendation was not accepted at that time. The operations manager at the time (Mr Richards) gave evidence that in his opinion the Worker had the qualities that justified his promotion, including a good work ethic and good knowledge of load restraint and loading. 2. On this basis, there was no error in the primary Judge regarding Mr Bournes' net earnings as the appropriate comparison for the purposes of assessing damages for the Worker's loss of earning capacity. As Mr Gross pointed out, Mr Bournes was considerably younger than the Worker and did not have an entirely unblemished safety record. 3. Nor do I think there is any difficulty about the way in which his Honour allowed for the possibility that the Worker's employment with Toll would continue indefinitely, notwithstanding that he was only able to perform light duties. The primary Judge's approach of increasing substantially the allowance for vicissitudes was a little unusual, but it was, with respect, a sensible way of dealing with a range of imponderables. The evidence indicated that Toll had been supportive of the Worker, and that for the time being, his position appeared to be secure. Nonetheless, his limited physical abilities and the dynamic nature of the industry clearly created a substantial risk that his employment would be terminated at some stage. 4. There is, however, substance in Toll's criticism that the primary Judge's calculations overlook or pay insufficient regard to the extent to which Mr Bournes' net pay during the eleven pay periods between 5 July 2015 and 13 September 2015 were increased by overtime payments. During that period Mr Bournes' net weekly pay averaged about $1,661.00 (the figure selected by the primary Judge). 5. For the previous twenty pay periods (from 25 February 2015 until 5 July 2015), Mr Bournes' average net weekly pay was approximately $1,290.00. The difference of about $371 per week is accounted for by a sudden rise in overtime payments commencing in the week of 12 July 2015. 6. Uncontradicted evidence was given by Ms Reid, the National Human Resources and Risk Manager for Toll, that overtime increased at Toll's Eastern Creek facility in July and August 2015 because of the merger of two major sites. Ms Reid stated that the "phenomena" that had led to the increased overtime were "now tapering off". An attempt to elicit further information from Ms Reid in her examination in chief was objected to and thus she provided no more precise information. 7. In my view, the primary Judge erred in failing to take into account the evidence clearly indicating that Mr Bournes' net pay during the eleven pay periods prior to the trial was increased because of a temporary surge in overtime. Accordingly, his Honour erred in taking $1,661.00 as the net weekly earning that the Worker would have been earning at the date of the trial but for his injuries. 8. Accepting his Honour's methodology, his calculations should be modified by substituting $1,350.00 as the net weekly earnings that the Worker would have been earning at the date of the trial but for his injuries. The figure takes account of Mr Bournes' earnings during the period preceding the surge in overtime, but makes an allowance for the prospect of overtime being available to leading hands from time to time. Orders 1. The following orders should be made: 1. Appeal allowed. 2. Set aside the judgment for the respondent in the sum of $1,070,499.00 given on 3 March 2016. 3. Set aside the costs order made against the appellant by the primary Judge on 4 March 2016. 4. Direct the parties to bring in agreed short minutes of order on or before 25 January 2017 giving effect to these reasons for judgment. 5. If the parties are unable to agree, each should file short minutes of order proposed together with brief written submissions not exceeding four pages on or before 25 January 2017. 1. As at present advised, there appears to be no reason why the Worker should not pay Toll's costs of the appeal. If such an order is made, the Worker should have a certificate under the Suitors Fund Act 1951 (NSW). 2. SCHMIDT J: I agree with Sackville AJA. ************ Endnotes 1. Jay Anthony Harradine v Toll Pty Ltd (unrep, District Court, 3 March 2016) (Primary Judgment). 2. Mr Bournes' evidence, which was not seriously challenged, was that the one stillage was used to load the trailer. 3. See at [18] below. 4. Mr Bournes' statement was not in the Appeal Books and was not referred to by either party on the appeal. 5. (2005) 221 CLR 568; [2005] HCA 26 at [93] (Gummow, Hayne and Heydon JJ). 6. Allianz was concerned with the definition of "injury" then contained in s 3(1) of the MAC Act. 7. (2009) 54 MVR 111; [2009] NSWCA 323 at [12]-[13], [21] (Spigelman CJ and McColl JA agreeing), [44], [47] (Allsop P), [60] (Hodgson J). 8. Allianz at [94] (Gummow, Hayne and Heydon JJ), see also at [18] (McHugh J). 9. Zotti at [12], [32] (Spigelman CJ). 10. Allianz at [79]-[81], [87]-[94] (Gummow, Hayne and Heydon JJ). 11. Motor Accident Commission v ANI Corporation Ltd (1997) 26 MVR 57 (ANI) at 62 (Cox J, Lander J agreeing), cited with approval in RG & KM Whitehead Pty Ltd v Lowe (2013) 63 MVR 375; [2013] NSWCA 117 (Whitehead) at [50] (Tobias AJA, Barrett JA and Preston CJ of LEC agreeing). 12. Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; [2004] HCA 24 (Container Handlers) at [153] (Heydon J); Whitehead at [47]. 13. ANI at 62. 14. Whitehead at [1]. 15. Container Handlers at [153]. The injured party was a passenger in a truck who was hurt when a jack slipped as he was assisting with repairs to the stationary truck. It was held that the injury was not a "consequence of the driving of the vehicle" for the purposes of the applicable Western Australian legislation. 16. Whitehead at [56]. 17. See at [15 ] above. 18. (1959) 101 CLR 298; [1954] HCA 8. 19. (1997) 48 NSWLR 430; 25 MVR 373 at 443. 20. Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28] (Ipp JA, Mason P and Tobias JA agreeing). See also Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[67] (McColl JA, Ipp JA and Bryson AJA agreeing). 21. [2005] HCA 57; 79 ALJR 1816 at [130]–[131] (McHugh and Gummow JJ agreeing). 22. [2016] NSWCA 77 at [65] per curiam. 23. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. 24. See Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [168] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 25. D Byrne and J D Heydon, Lexis Nexis, Cross on Evidence (Australian Ed), vol 1(at Update 185) [1215]. 26. Jones v Dunkel at 312 (Menzies J); Fabre v Arenales (1992) 27 NSWLR 437; 15 MVR 303 at 444-445 (Mahoney JA, Priestley and Sheller JJA agreeing). 27. Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [64] (Heydon, Crennan and Bell JJ); ASIC v Hellicar at [232] (Heydon J). 28. As was ordered in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1819. 29. Section 3(1) defines "injury" to mean: "(a)…personal or bodily injury caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle…". 30. Allianz at [93]-[94] (Gummow, Hayne and Heydon JJ). See also at [18], [23]-[24] per McHugh J. 31. Zotti at [60]. His Honour actually referred to the first sentence of par [94] but this is clearly an error. 32. Allianz at [101]. 33. Allianz at [102]. 34. Zotti at [12]. 35. Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (Leach) (2014) 67 MVR 494; [2014] NSWCA 257 at [40] (McColl JA, Gleeson JA agreeing), [81] (Sackville AJA, Gleeson JA agreeing). 36. Leach at [82]. 37. Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [34] (French CJ, Gummow, Crennan and Bell JJ). 38. Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 at 358 (Dixon, Fullagar and Kitto JJ), citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824 at [47] per curiam. 39. Leach at [55]. 40. By the Motor Accidents Compensation Amendment Act 2010 (NSW) Sch 1 cl 2. 41. See the Second Reading Speech, NSW Parl Deb, Leg Ass, 9 November 2011 (the Hon Michael Veitch, Parliamentary Secretary). 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: 21 December 2016