A sheepish accident worth $1.4 million

12 March 2021

In issue

  • The central issues were whether the accident occurred as the plaintiff alleged; whether the employer was negligent; and the whether the extent of the plaintiff’s injuries and the resultant impact on his earning capacity were exaggerated.

The background

The plaintiff, Ross Monteleone, was employed by the Kellys (the employers), who operated a business known as Lugano Pastoral Company. He undertook work such as fencing, cattle and sheep work, mustering, lamb and cattle marking, mechanical repairs and tractor operation. The plaintiff suffered serious injuries whilst working on a property near Narrawa on 15 March 2013.

The plaintiff was asked by Mr Andrew Thorn (the defendant) to assist him in unloading sheep from the defendant’s trailer at the employers’ property. Whilst he had his arm inside the trailer pushing the sheeps’ heads so that they would move out of the trailer, the defendant moved a deck within the trailer such that it dropped onto the plaintiff’s arm. Mr Kelly observed the accident and signed documents verifying the plaintiff’s version of events.

The defendant alleged that the plaintiff did not injure himself whilst assisting with unloading the sheep, and that Mr Kelly was not there at all. The defendant also submitted that the plaintiff’s disabilities and claims of loss were largely exaggerated. The defendant arranged extensive covert surveillance of the plaintiff between 2016 and 2020.

Mr Kelly was cross-examined on suggested inconsistencies between statements made in the witness box, his evidentiary statement and the evidence of the plaintiff. The defendant also highlighted some errors in the workers’ compensation claim form in support of his argument that the plaintiff and Mr Kelly were being untruthful.

The plaintiff was aged 31 at the time of the accident, and 39 at the date of judgment. The financial evidence was that the plaintiff had limited earnings whilst in his twenties. At the time of the accident he was living on a property for a rental sum of $1 per week. In return for that nominal rent, he undertook tasks for the owner of the property such as gardening and maintenance, earthworks and fencing.

As a result of the accident the plaintiff alleged that he continues to suffer pain symptoms in his right arm, as well as a major depressive disorder and generalised anxiety disorder.

The decision at trial

The court preferred the evidence of the plaintiff and concluded that it was unlikely that the plaintiff and Mr Kelly made up a version of events.

The court found that the defendant was negligent having regard to section 5B of the Civil Liability Act 2002 (NSW) because he failed to take the reasonable precautions of checking that the plaintiff did not have his arm inside the trailer or asking him to move away from the trailer. There was no finding of contributory negligence or that the plaintiff failed to take care for his own safety.

The court was satisfied that the plaintiff was unable to perform his pre-incident work duties. The court also found that the plaintiff’s income would have increased over time if not for the accident and awarded damages for future loss of earning capacity accordingly.

Negligence on the part of the employers was not established. Justice Cavanagh found that the plaintiff was performing a basic task, which carried with it no real risk of injury until the defendant decided to move the heavy sheep deck without warning the plaintiff. He considered that the defendant failed to identify any precautions that should have been taken by the employers that would have prevented the accident. It followed that the defendant was not entitled to contribution as sought in his cross-claim and further that the liability of the defendant was not reduced, having regard to the notional liability of the employers.

The court accepted that the plaintiff sustained the injuries of which he complained, and also observed that surveillance footage is sometimes overused and overrated, and that injured persons often do their best to go about their daily lives while waiting for their cases to be heard, despite suffering pain.

With regard to future economic loss, the court held that past earnings are only a guide and are not determinative of the amount which should be awarded on account of diminution of earning capacity. The court did not accept that for the purposes of assessing this claim, that the plaintiff should be treated as a person only ever likely to perform part-time work in a menial farm position for the rest of his life. It was concluded that the plaintiff’s earning capacity was significantly diminished as a result of the accident, and it was noted that no evidence was adduced which would support the proposition that he could have obtained and performed regular full-time work since the accident.

Implications for you

In terms of any post-accident earning capacity, the onus is on the defendant to identify what work the plaintiff could have undertaken and might have obtained. Defendants should not rely entirely upon the plaintiff’s past earnings and should consider whether the plaintiff’s income would have increased over time.

The expense of conducting surveillance of a plaintiff is not necessarily worthwhile.

Kelly v Thorn; Monteleone v Thorn (No 8) [2021] NSWSC 118

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