Does the occurrence of a freak accident imply that any resulting injury was unforeseeable?
In March 2019 Kari Sivonen was helping clear a development site at Hancocks Creek Road, Wandandian on the NSW South Coast.
His role was to collect timber logs under an arrangement with Smith’s Plant Hire and its owner Peter Smith who operated the mini-excavator that was central to the accident.
After Sivonen signalled Smith he needed to approach, he walked up to Smith’s machine to caution him to release a 14m log he had picked up in its claw attachment because it hadn’t yet been cut into lengths that the worker could load on to his flatbed truck.
Sivonen then backed away before Smith manoeuvred the excavator in the opposite direction with the log still in the claw.
As the excavator moved forward, one end of the log unexpectedly struck a tree with such force as to cause one end of it to “recoil” at high speed in Sivonen’s direction shattering left leg as it knocked him off his feet and threw him into the air.
He was initially treated at Shoalhaven District Memorial Hospital before being transferred after several weeks to Wollongong Hospital.
In addition to the complex leg fracture, the Finnish born Sivonen developed compartment syndrome in the left leg, a chronic pain syndrome and an adjustment disorder.
Smith defended Sivonen’s injury compensation claim on the basis the worker had failed to exercise reasonable care for his own safety by failing to keep well clear of the excavator.
The excavator driver had however provided three differing accounts of what had occurred and in giving testimony before Associate Justice Joanne Harrison was argumentative and evasive.
“Some of the defendant’s answers were and irreconcilable with answers he had provided moments earlier,” she observed.
Smith conceded under cross examination he had failed to look behind him as he moved the excavator away and that – had he done so – he would have spotted the worker in dangerous proximity of the load.
The judge readily found the risk of injury was both foreseeable and “not insignificant” and that a reasonable person in Smith’s position would have taken precautions to mitigate against the risk of injury by not manoeuvring the excavator until everyone was outside an “exclusion zone”.
Not to be outdone, Smith – or rather his insurer – further contended that the worker should bear at least a 50% share of fault by way of contributory negligence.
Not so, ruled her honour who concluded Smith should bear 100% fault for the accident.
Suspicious of Sivonen’s claim that he could never work again, the insurer put the worker under intense surveillance.
Of the 120 hours of vision the surveillance team had captured, a mere one hour compilation was offered in evidence.
What was portrayed by the insurer as damning was considered by the judge to have been innocuous.
“It is my view that when the plaintiff was sighted and filmed, his behaviour was entirely consistent with the evidence he gave as to his abilities and in accordance with the evidence given by the medical experts,” she explained.
The worker relied on expert opinions from orthopaedic surgeon James Bodel, Rehabilitation Physician Vaidya Bala and Psychiatrist Julian Parmegiani to demonstrate his case that he could never work again.
Armed with those opinions, he recruited forensic accountant Kain Elsmore to formulate his past and future losses based on notional earnings of $70,000 per year before tax.
The defendant arranged examinations by Pain Specialist David Gorman and Psychiatrist Christopher Rickard-Bell but did not serve any opinions from them in a clear indication that they were of no assistance to the insurer’s arguments.
The judge preferred Elsmore’s loss of income formulations to those of his more parsimonious colleague Andrew Clifford of RSM Global.
General damages for the 54 yr old were awarded at 48% of the most extreme case, $338,400.
The sum allowed for past income lost was $210,154.23 and for future loss of earning capacity, $461,082.37.
The biggest part of the claim was for future paid care the need for which – on the expert evidence of occupational therapist Joanne Heathcoate – was established at over 30 hrs per week ($1,784.16/week) at $60 per hour for home and garden maintenance and $57 per hour for domestic assistance.
That came in at $1,466,579.50 making up a total award of $2,769,215.20.
Sivonen v Smith  NSWSC 984 Harrison AsJ, 29 September 2023 Read case