A and P Constructions Pty Ltd (in liq) v Johnson

[1997] QCA 375

IN THE COURT OF APPEAL	[1997] QCA 375
SUPREME COURT OF QUEENSLAND

Appeal No. 439 of 1997

Brisbane

Before McPherson J.A.
Davies J.A.
Derrington J.

[A & P Constructions P/L v. Johnson]

BETWEEN:

A. & P. CONSTRUCTIONS PTY. LTD. (In Liquidation)
ACN 010 764 548

(Defendant) Appellant

AND:

PIETER JOHNSON

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24 October 1997

This is an appeal against a judgment for $105,393.89 awarded to the plaintiff in an action

brought against the appellant defendant for damages for personal injuries sustained in the course of his

employment on 19 October 1993. The appeal is directed against what is alleged to be the excessive

amount of some of the components in the damages award, as well as inadequacy of the allowance of

15% for contributory negligence on the part of the plaintiff.

The plaintiff’s case at trial was that on 19 October 1993 he was working as a carpenter on a building site at Lutwyche at which his employer the defendant was constructing a series of town houses. On the day in question he started work at 6.30 a.m. Prefabricated timber wall framing was being

delivered to the site, and he was instructed to assist in off loading it from the delivery truck and to carry

it into the building under construction. According to the plaintiff’s estimate, the frames, which were of

Oregon pine, weighed about 10 kg to 20 kg; but it was not so much their weight as their dimensions or

shape which made them difficult to carry. They had to be moved over surfaces that were uneven and

intersected by heaps of rubbish, and then manoeuvred through or under the staircase to the places in

the building where they were to be fixed. It was an activity that involved a lot of twisting of the back,

which, as Dr Doherty said, greatly increases the stresses and risk of injury to the back. Although there

were two or more men engaged in doing this work, it was not always possible to rely on someone being

available to help carry the larger frames, and the plaintiff carried some of them by himself.

The work of unpacking and shifting the frames occupied most of the morning of that day. At

that time the plaintiff felt little or no discomfort in his back; but he was then instructed to mix concrete

in a barrow and to carry it in a bucket up to the higher level of the building in order to fill in core holes

in an upper concrete slab. This involved going up the staircase, climbing the scaffolding and then

walking along a narrow wall to deposit the concrete slurry in the holes. The plaintiff said he was using

for this purpose a 20 litre paint can, weighing, when filled with slurry, about 35 kg, which he carried in

one hand while negotiating the staircase and the scaffolding. The defendant in cross-examination at first

challenged the plaintiff’s evidence that he had had to carry slurry in a bucket; but, later in the case, the

site foreman Mr Back was called by the defendant and confirmed that the plaintiff had been directed

to carry concrete slurry in a bucket to the upper level. He claimed, however, that it was a 2 gallon

plastic bucket and not a 20 litre can that was used.

The plaintiff said that it was in the course of doing this work that he began to feel pain in his

back. It started with discomfort and cramp in his leg, but after about 3.30 p.m. he had another sharp

pain in his back. He kept on working until the end of the day; but in driving home he was in great pain.

That night he was barely able to sleep, and had extreme difficulty in getting out of bed to go to the toilet.

He was unfit to go to work on the following day, and has since suffered continual back pain, which is

only temporarily relieved by analgesics. He has been unable to carry out ordinary domestic chores,

such as mowing and looking after the house, and has never worked since that day. In February 1994

he underwent a laminectomy and a discectomy, and then a myelogram. The pain, he said, is with him

day and night for 24 hours.

When regard is had to these and other disabilities from which the plaintiff now suffers, the

amount of $25,000 awarded for pain, suffering and loss of amenities may fairly be considered modest.

The plaintiff was born in East Berlin in March 1945, from which he made his escape and came to

Australia in 1973. He was 45 years old at the date of the accident and 51 at the time of the trial in 1996.

He had a good employment record in this country and said he had planned to work until the retiring age

of 65. He was earning $573 net a week as a carpenter at the time of the injury. The trial judge

calculated his pre-trial loss of earnings at $94,500, but, applying what he described as “severe

discounting” of that figure, he arrived at an award of $43,000 for past economic loss, allowing interest

at $4,640. In assessing the plaintiff’s loss of earning capacity, his Honour accepted that it was most

likely that, for one reason or another, he would have given up full time work long before his 65th

birthday. In the end, but without pretending to mathematical accuracy, he allowed $80,000 for loss of

future earnings. He also awarded $5,000 under Griffith v. Kirkemeyer, which, when the plaintiff’s

current disabilities are considered, is by no means over-generous.

All matters considered, none of the amounts awarded in respect of these particular components

or heads of damages is itself capable of being regarded as excessive. The trial judge accepted as

truthful the plaintiff’s account of what happened at work on 19 October 1993 and preferred his

evidence to that of the foreman Mr Back. On appeal, the defendant did not, at any rate directly or at

first, attempt to challenge that finding, and a reading of the transcript of the plaintiff’s evidence at the trial

confirms that it was a conclusion that the trial judge was entitled to reach. The impact of the stresses

thrown upon the plaintiff’s back by the work he was required to do on that day, and the methods used

to do it, were on the evidence considerable. It could have been avoided by using mechanical means,

such as a crane, to lift the timber frames or by ensuring that at all times there were two men available

to carry and place them. A simple hoist should have been available to enable concrete to be carried

to the upper level of the work rather than requiring the plaintiff to climb the scaffolding carrying a bucket

of concrete slurry in one hand.

The real question debated on appeal was the condition of the plaintiff’s back before the injury

sustained on 19 October 1993. There is no doubt that he had had previous trouble with it. The plaintiff

said he had had a back strain in November 1988, with four or five days off work at that time. The

strain recurred, but in a different part of the lower back, in September 1989. On that occasion he

needed physiotherapy but had no time off work. In November 1991 he had a problem with sciatica

in the right side of the back. At that time he was not working, and he did not work for a period of two

years until he was employed by the defendant commencing on 5 October 1993. The reasons for his

not working for so long were that he had a serious ear infection, which impaired his sense of balance

and prevented him working on high rise buildings; and also that his wife was suffering from leukemia and

needed caring for.

In the meantime the plaintiff moved to Queensland, where in 1991 he consulted Dr Egerton, a

general medical practitioner practising at Morningside. His complaints at the time were of a stress-

related illness, headaches, back pain, insomnia and a rash on both hands. There was an exacerbation

of the back pain in November 1991, after which x-rays and a CT scan showed a left sided bulge of the

L 4/5 disc. After treatment the pain settled over the ensuing 12 months, but with another episode of

pain in January 1993. On that occasion the discomfort settled again, but recurrent back pain remained

a problem. Dr Egerton next saw him again on 21 October 1993, which was when the plaintiff

presented with severe back pain after the incident at work on 19 October. His symptoms did not

resolve on that occasion and the laminectomy and discectomy were performed in February 1994 by

Dr McCombe.

In evidence at the trial, Dr Egerton said that before 19 October 1993, the plaintiff’s pain was

aggravated by physical activity, but with rest tended to settle down in time. Thereafter the pain was

associated with the right leg, and his back problems “certainly got worse ... and became more

continuous”. The plaintiff had been examined by Dr Purnell, a Commonwealth medical officer, in

August 1993; and it was his opinion that the plaintiff was fit for light work, with no lifting, bending,

prolonged sitting, standing or walking. He did not believe the plaintiff to be fit to return to work as a

carpenter, and Dr Purnell said he did not recommend it. Dr Egerton agreed with the opinion that before

the October 1993 incident the plaintiff was fit for light work, with no lifting, bending or prolonged sitting,

standing or walking. Under cross-examination he also agreed that, at least until June 1993, the plaintiff

would not have been capable of doing “all the duties of a carpenter” on a long-term basis.

The principal expert for the plaintiff at the trial was Dr Tomlinson, a neurosurgeon, who prepared a report dated 23 October 1996 concerning the plaintiff. His opinion was that the plaintiff had suffered an acute derangement of the disc at L4/S1, which was directly related to his work on 19

October 1993. It will be recalled that the x-rays and scan in November 1991 had revealed a left-sided

bulge of the L4/5 disc. The right-sided leg pain was related to compression of the right S1 nerve root

by an L5/S1 posteriolateral disc protrusion. The symptoms of numbness and right lower discomfort of

which the plaintiff continued to complain, were consistent with his injury, and resulted in a 20% total

permanent partial disability. From what Dr Tomlinson had seen of the plaintiff and his earlier medical

history, he considered that before October 1993, the plaintiff would have been able to go back and do

light work, and that he would not in fact have returned to work or been capable of doing so if he had

been unable to engage in lifting and bending, which he had been doing for two weeks before the injury.

Statistically, according to Dr Tomlinson, 70% of people get back pain after the age of 16, and 40%

of people get sciatica. The natural history of acute lumbar disc injury, he reported:

“... suggests that 50% of people recover within 2 years, 30% remain symptomatic but

improve, and another 20% improve”.

The plaintiff, he considered, fell within the intermediate 30% category.

The trial judge accepted the opinion of Dr Tomlinson as regards the cause and the condition of

the plaintiff’s back both now and before the incident on 19 October 1993. At a late stage in the appeal

before us, the defendant elected to challenge the judge’s finding that the events of that day were the

cause. But it was plainly open to his Honour to arrive at the finding which he made. The expert medical

opinion was not unanimous. Dr McCombe, who was called by the defendant at the trial, conceded

in cross-examination that “the more the evidence truly is that [the plaintiff] had less and less pain before

the accident, and the more he truly had more pain afterwards, the greater I would tend to place the

blame on the accident”. The plaintiff’s own evidence to that effect, which the judge accepted, was

supported by his wife and by Dr Egerton.

A curious feature of the defendant’s conduct of the case is that it seems to have started off on

the footing that the defendant was malingering, and then swung round to the rather different assertion

that the defendant knew the parlous condition of his back, and so was contributorily negligent. Traces

of the earlier approach continued at times to make an appearance at the trial and also on appeal, as for

example in the application to amend the notice of appeal to challenge the finding that the plaintiff

sustained an injury at work on 19 October 1993. For the defendant, Dr Tuffley, who seems at trial to

have maintained his initial hypothesis that the plaintiff was exaggerating his post-accident condition,

considered that whatever occurred in October 1993 “represented no more than a mild aggravation of

low back pain and right leg pain”. In his report dated 14 December 1995, he said the plaintiff’s

disability was in excess of what would have been expected considering his impairment and “that a

considerable component of his disability relates to subjective factors”. He regarded him as fit for light

to medium work, and even fit to play sports involving light to medium activity. In his view the

impairment in the function of the plaintiff’s lumbar spine was equivalent to only a 5% impairment of

bodily function. That opinion was, however, opposed to all the evidence on the subject, including that

of Dr Purnell, who was called by the defendant. Dr Tuffley’s opinion may have been influenced by the

view he expressed in evidence that carrying 35 kg buckets of slurry one-handed up scaffolding would

not injure a normal back, and that “many people do that every day of the week as an occupation”.

Dr Doughty, whose speciality is occupational medicine, thought that it would be unwise for lifting of that

sort to be done because of the asymmetrical stresses which would be applied to the spine by lifting with

only one hand. Mr Back, the foreman, offered the opinion that “no man in this world” could carry 20

litres of slurry, and that it would be “very difficult” to carry 30 to 35 kg. The learned judge, rightly it

may be thought, did not accept Dr Tuffley’s opinion.

No reason has been shown for upsetting the trial judge’s preference for the opinion on these

matters of Dr Tomlinson, and, with respect, the decision appears to be well founded.

This leaves for consideration the remaining question of the apportionment attributed to the

plaintiff of 15% for contributory negligence. The plaintiff was conscious that he had problems with his

back before he did the work or accepted employment with the defendant. It was Dr Purnell’s opinion

in August 1993 that the plaintiff was not fit to return to work as a carpenter, and he “didn’t recommend

it”. It is not clear, however, that he conveyed that particular recommendation to the plaintiff, and, from

the way in which Dr Purnell’s evidence was phrased, the inference is that he did not. The plaintiff

agreed that in August 1993 Dr Purnell had told him he was fit for light work, but not for any job that

involved standing or walking. He said he was not told he was not fit for lifting or climbing. The judge’s

finding, however, was that he had been told that he was fit for light work, not involving lifting, bending

or prolonged sitting.

The result is that the plaintiff was, as the trial judge found, “acutely aware” at the time he took

the job that he had had back problems for a long time; but was fit for light work if it did not involve

lifting, bending or prolonged sitting. He should, his Honour found, have been “astute” to protect his

back from further damage; for example, by seeking more assistance when moving the timber frames,

or by putting less slurry in the can he was using to carry it in. It may be noted in passing that there were

six carpenters but only three labourers employed on the site. In that regard, the work the plaintiff was

directed to do on 19 October 1993 was work of a labourer not a carpenter. He said he had not

expected to be doing labourer’s work; but:

“... I seen it happen. You see, if you don’t do what you have been told, you would be out of a job. They just sacked a fellow the day before that. They were talking about he didn’t want to go up on the roof. He said ‘Oh it’s too high, it’s too heavy for me’. ‘You are out, another fellow is waiting outside the door’. So I better shut up and do what I have been told”.

The plaintiff would perhaps have been well advised not to take the job at all. On the face of

it, however, there was no compelling reason why he should have expected that, when he did so as an

employed carpenter on 5 October 1993, he would be required to do heavy labouring work without the

assistance of others, and without the benefit of a simple lifting device like a hoist for taking concrete up

to higher levels of the building. When confronted on 19 October 1993 with the option (which, not

unreasonably, seemed to him to be that of doing what he was told or possibly losing his job) he chose

to follow orders. He would not have been the first worker to have acted to his detriment in that way.

There is, it may be supposed, always a risk that in any job an employee may be instructed to do

something that falls outside the scope of his normal duties; but the question of whether he should not

have taken the job in the first place was not pursued with the plaintiff at the trial; and the particulars of

contributory negligence put forward in the amended defence relate specifically to the work undertaken

by him on 19 October 1993.

It may be that a higher percentage of the blame for what ensued might in all the circumstances

justifiably have been attributed to the plaintiff; but his conduct falls to be judged “in the context of a

finding that the employer had failed to use reasonable care to provide a safe system of work, thereby

exposing him to unnecessary risks”. See Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160

C.L.R. 301, 310. The consistent tendency of appellate courts is to discourage attempts to achieve

comparatively minor adjustments in apportionment of relative responsibility for injury and loss, which

depend very much on factors governed by impression and discretion, and to refrain from intervening

particularly in cases where, in money terms, the consequence is not likely to be substantial. This appeal

presents no special feature calling for a departure from that approach.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 439 of 1997

Brisbane

[A & P Constructions P/L v. Johnson]

BETWEEN:

A. & P. CONSTRUCTIONS PTY. LTD. (In Liquidation)
ACN 010 764 548

(Defendant) Appellant

AND:

PIETER JOHNSON

(Plaintiff) Respondent

McPherson J.A.
Davies J.A.

Derrington J.

Judgment delivered 17 October 1997

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL - PERSONAL INJURY - QUANTUM - Contributory negligence - Whether plaintiff/respondent ignored doctor’s advice in returning to work - Whether employer exposed employee to unnecessary risks. Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 C.L.R. 301
Counsel:	Mr P. Keane Q.C., with him Mr M O’Sullivan for the appellant Mr K.S. Howe for the respondent
Solicitors:	W.H. Tutt & Quinlan for the appellant Baker Johnson Lawyers for the respondent
Hearing Date:	12 September 1997