A man whose leg was shattered when he was hit with a log at a Shoalhaven property, leaving him with permanent physical and psychological injuries, has been awarded more than $2.7 million in damages.
Kari Sivonen, now 54, had to undergo emergency surgery and skin grafts after Peter Samuel Smith moved an excavator holding a 14-metre log forward, causing the log to hit a tree, ricochet and strike Mr Sivonen, throwing him several metres.
Mr Sivonen sought damages in the Supreme Court from Mr Smith and his company over the March 2019 incident to cover economic and non-economic loss, care and assistance, and expenses resulting from his injuries.
Mr Sivonen and his son attended the Wandandian property on March 2, 2019 to collect timber logs under an agreement with Mr Smith, who was clearing the land.
There was some dispute between Mr Sivonen and Mr Smith as to what occurred that day, but Associate Justice Joanne Harrison ruled in favour of Mr Sivonen's evidence.
She found Mr Smith picked up the log in the excavator, prompting Mr Sivonen to cross his arms above his head and yell at Mr Smith to stop.
Mr Sivonen then told Mr Smith that his son needed to cut the log in half first and walked back in front of the excavator.
But Mr Smith drove the excavator forward, causing the log to hit a tree then hit Mr Sivonen's left leg, which flung him into the air.
As a result of the incident Mr Sivonen suffered fractures, compartment syndrome, deformity and scarring, chronic pain, and adjustment disorder with mixed anxiety and depressed mood.
He was in hospital for more than a month undergoing treatment and rehabilitation, and a doctor said Mr Sivonen was unlikely to work again.
Associate Justice Harrison found Mr Smith had breached his duty of care and failed to check Mr Sivonen's location before moving the excavator, establish a safe exclusion zone, and be aware of his movements.
"Had the defendant exercised his duty of care properly, the excavator would not have been in operation while the plaintiff was within the exclusion zone," she said.
The judge also found Mr Sivonen took appropriate care for his own safety and had not contributed to the incident.
Associate Justice Harrison ordered Mr Smith and his company pay damages of $2,769,215.20, plus Mr Sivonen's costs.
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