$2.7 million to be paid to man whose leg was shattered by log near Jervis Bay

A man who was knocked flying into the air when he was hit with a log while it was held in the claws of an excavator has been awarded more than $2.7 million in damages.

Kari Mikael Sivonen sued Peter Samuel Smith and the company he directed, RJ & PS Smith Pty Ltd, in the NSW Supreme Court over the incident on 2 March 2019.

The owner of a property on Hancocks Creek Road at Wandandian, which is near Jervis Bay, had contracted the company to carry out subdivision works, including the clearing of trees.

Mr Sivonen was there to collect felled logs, which he said were originally about 14 metres long, after they had been cut into shorter lengths.

He said when Mr Smith picked up one log with the claws of the excavator, he signalled at him to stop and approached to tell him not to move it as it still needed to be cut in half. Mr Smith said something like “No worries” before he started walking away.

“As I did so, without any warning Mr Smith moved the excavator forward towards me, causing the right end of the log being held in the claw to hit a tree stump, the force of which swung the log towards me, striking me hard on my left leg,” he said.

He said he was thrown into the air and waited “in agony” for paramedics before being taken to Shoalhaven District Memorial Hospital where he underwent emergency surgery for his shattered leg.

However, Mr Smith claimed he thought everyone at the site had been a “safe distance away” before Mr Sivonen had then walked behind the excavator when he was removing timber.

He claimed he removed a log from between two trees and the end of it hit one tree and bounced behind his machine.

“It all happened so quickly. I tried to stop but, with the momentum of the excavator slewing and the weight of the log, the left of the log struck [Mr Sivonen] on his leg. He screamed and fell to the ground,” Mr Smith claimed.

He fought Mr Sivonen’s claim, arguing he and his company had not been negligent.

But in her judgement from 29 September 2023, Associate Justice Joanne Harrison said Mr Smith had given “numerous and irreconcilable descriptions of how the accident occurred” and she preferred the evidence given by Mr Sivonen and another witness who had gone to the property.

Mr Sivonen was experienced with operating heavy machinery and she agreed the claims that Mr Sivonen would walk behind a working excavator were “baseless”.

“The defendant admitted that if he had taken the time to look around the area and had better observed where he was moving the machinery, the accident could have been avoided,” Associate Justice Harrison said.

“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.”

Mr Sivonen, who is now aged 54, had already been in two motor vehicle accidents, leaving him with back and neck problems, before this incident.

Associate Justice Harrison said as a result of Mr Smith’s negligence, Mr Sivonen was severely injured, including suffering multiple bone fractures in his leg as well as a chronic pain disorder.

One doctor said it was unlikely that he would return to work or that his condition would improve over time. Another said his chronic pain condition was not curable, but could be managed to some degree.

The associate justice ultimately ordered Mr Smith and his company to pay Mr Sivonen $2,769,215 in damages, including for future domestic care and assistance, future economic loss and non-economic loss.