Ali v Davids Ltd
[2002] QDC 324
•29 November 2002
DISTRICT COURT OF QUEENSLAND
CITATION:
Ali v Davids Ltd & Anor [2002] QDC 324
PARTIES:
RAYMOND AKHTAR ALI
Plaintiffv
DAVIDS LIMITED
ACN 000 031 569
First Defendantand
DAVIDS DISTRIBUTION PTY LTD
ACN 004 391 422
Second DefendantFILE NO/S:
826/96
DIVISION:
Civil Jurisdiction
PROCEEDING:
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
29 November 2002
DELIVERED AT:
Brisbane
HEARING DATE:
21 and 22 November 2002
JUDGE:
Samios DCJ
ORDER:
Plaintiff’s claim dismissed
CATCHWORDS:
Negligence – Master and Servant – Proof of negligence – Safe system of work
Workplace Health and Safety Act (Qld) 1989
Hamilton v. Nuroof (WA) Pty Ltd (1956) 96 CLR 18,25)
Bankstown Foundry v. Braistina (1986) 160 CLR 301, 307-8
McLean v. Tedman (1984) 155 CLR 306, 313)
Schiliro v Peppercorn Childcare Centres Pty Ltd No. 2 (2001) 1 Qd R 518 at 525)
Romeo v. Conservation Commission of the Northern Territory (1997-8) 192 CLR 43
The Council of the Shire of Wyong v. Shirt & Ors [1979-80] 146 CLR 40 at 48COUNSEL:
Mr J. Lee for the plaintiff
Mr Whiteford with Mr McDougall for the Second DefendantSOLICITORS:
Keith Scott & Associates for the Plaintiff
Mullins & Mullins for the Second Defendant
The plaintiff claims against the second defendant (the defendant) damages for personal injuries, loss and other harm occasioned to him by reason of the negligence and/or breach of duty and/or breach of statutory duty and/or breach of contract of employment on the part of the defendant together with interest.
Proceedings against the first defendant have been discontinued.
The plaintiff was born on 9 March 1953.
The plaintiff was employed by the defendant between 28 January 1992 and 30 April 1993 as an Order Assembler. The defendant carried on the business of wholesale food distributor at Loganlea (the warehouse). The plaintiff’s work duties included filling stock orders by reaching back with his right arm into the shelves in the defendant’s warehouse and sliding cartons of stock toward the front of the shelf for loading onto a device known as a pallet jack.
In the plaintiff’s plaint filed herein on 13 March 1996 he claims that prior to on or about 18 March 1993 he was required to manually load up to approximately 600 cartons of stock per working day from the defendant’s warehouse shelves onto the pallet jack, manually load up to approximately 80 to 100 cartons of stock per hour from the shelves onto the pallet jack, manually load cartons of stock continuously for approximately 45 to 50 minutes out of every hour of each working day and continuously reach back into the shelves using his right arm to obtain the cartons of stock for loading onto the pallet jack over a period of approximately 25 minutes out of every hour of each working day.
Further, that on or about 18 March 1993 he was engaged in performing his ordinary and usual employment by the defendant at the warehouse.
Further, that whilst he was loading the cartons of stock onto a pallet jack he experienced a sharp pain in his right shoulder and down his right arm and suffered harm and injury to his shoulder and arm.
Further, that on or about 18 March 1993 there was a recognized system of stock rotation in place at the defendant’s warehouse, however, this was not enforced and/or not in effect and had not been enforced or in effect in the 14 months after he commenced his employment.
Further, that following the incident on or about 18 March 1993 it remained his task or duty pursuant to his contract of employment to continue to do the work to the extent I have described earlier.
Further, that there was a recognized system of stock rotation in place at the defendant’s warehouse after 18 March 1993 but this system was not enforced or carried into effect by the defendant after that date.
Further, he experienced worsening pain in his right shoulder and arm after 18 March 1993. He then had approximately one week off work subsequent to the incident of 18 March 1993 and then returned to work on light duties and was subsequently placed on normal duties. Thereafter, the pain experienced by the plaintiff in his right shoulder and arm increased to the point where he was unable to continue with the tasks and duties assigned to him. He then ceased at the defendant’s warehouse and has been unable to return to work since in or about 27 March 1993.
Despite these allegations, at the trial of these proceedings, the plaintiff adduced no evidence of a recognized system of stock rotation.
When the plaintiff gave evidence he explained his work duties. He said he had to assemble orders for small shops, like 7 Eleven stores. He was given a pallet jack in the morning and an order form and he had to pick the orders off the shelves and put them on pallets. The height at which he had to do this work was at times six foot high. Each working day he was required to load about 500 to 600 cartons. He said the work was repetitious and it started to sort of wear him down a bit because he had tried to talk to the supervisor to get the forklift to pull the stock down which they absolutely refused to do that. He said when the stock came off the truck they were supposed to break it up and put it in shelves because they had a wrap around the pallets, but they were glued together. The cartons were sort of glued one on top of the other and the fork lift driver might pull two layers off and then slide the pallet in the container so there were three layers of cartons sitting there stuck to one another and he had to actually reef it out of the shelves. He said he had lodged a lot of complaints. It got to the stage when he rang the Health and Safety Inspector “they” were not prepared to do anything about it. He did not explain what he meant by “they”.
In the course of the proceedings I ruled that as the plaintiff had not expressly alleged in his claim that the cartons might be glued together one on top of the other and that the plaintiff had made complaints how the forklift driver placed cartons on the shelves and that cartons were glued together causing the plaintiff to “reef” a carton out of the shelves, the plaintiff could not rely upon that evidence in support of his claim in these proceedings. I allowed the plaintiff to rely upon an allegation to the effect that a forklift was not provided to remove stock from the shelves for loading onto the pallet jack.
The plaintiff said in his evidence he was given no training as to how he should go about performing his duties nor any warning as to what might happen if he performed his duties other than in a particular way and he was not given any warnings about the risk of suffering injury as a consequence of doing repetitive actions day after day.
In the plaintiff’s evidence in chief he gave no evidence of the weight of the cartons. However, when he was cross examined he agreed the boxes weighed from 1 kg upwards. When he was re-examined he said the cartons weighed between about 1 kg and up to 25 kg. Regarding that range he said that the cartons that would weigh from 12.5 to 25 kg would represent about 50% of the cartons overall.
The plaintiff said his working hours were between 6 am to 2.30pm. He said he worked continuously until he ended the day. He would go from aisle to aisle picking cartons to fill the orders until he finished the order. He agreed that he would go up and down the aisle and would be climbing up to get cartons. Sometimes the cartons would be on the floor and sometimes they would be up three or four racks. He said an average hour would involve about 40 minutes of picking and lifting and about 20 minutes of going from one spot to the other in the warehouse. He said by example a shop order would be different from a home delivery order. A shop order would involve a fair few cartons to pick. When re-examined he said that not only did he pick cartons but there would be bags of sugar, bags of salt, and kilo packs of those bags. Some days he might be lucky and not have the heaviest “stuff” to pick and some days he would be unlucky and have the heaviest “stuff” to pick.
On the issue of liability the plaintiff was the only witness called in the proceedings.
A number of medical reports regarding the plaintiff were tendered in evidence by consent. Dr Johnstone, an orthopaedic surgeon, is the medical practitioner who has had the most dealings with the plaintiff. Initially, opinions varied amongst the medical practitioners regarding the plaintiff’s symptoms and the cause of those symptoms. However, over time particularly as a consequence of a M.R.I. scan performed upon the plaintiff, the medical practitioners generally agreed that there was a cause for the plaintiff’s symptoms. That is, the plaintiff was suffering supraspinatus tendonitis and had a partial tear of the rotator cuff.
The course of treatment for the plaintiff was at first conservative treatment, cortisone injections and physiotherapy until Dr Johnstone operated upon the plaintiff on 6 May 1994. That operation was a right open acromioplasty. Notwithstanding that operation the plaintiff continued to suffer from symptoms in his right shoulder area. On 10 April 1995 Dr Johnstone performed a further operation upon the plaintiff. In this operation Dr Johnstone excised the outer 1 cm of the clavicle.
Ultimately Dr Johnstone concluded that as a result of the incident on 18 March 1993 the plaintiff had a permanent disability in respect of the injuries to the right shoulder girdle. That included the loss of motion from the injuries and subsequent surgery. He assessed the permanent disability at 5% of the total body.
Dr Tuffley, an orthopaedic surgeon saw the plaintiff on 14 June 2001. At that time the plaintiff considered his two operations had been beneficial and decreased his pain and improved his right shoulder movement and abolished the clicking that had once been present in the right shoulder. However, he stated that his right shoulder tended to ache in winter or if he did moderate amounts of heavy work. He took an occasional Panadol for his pain. Intermittently he experienced numbness in the tips of his right middle, ring and little fingers and occasional tingling along the medial side of the right forearm. Dr Tuffley diagnosed the plaintiff having suffered right sided supraspinatus tendonitis without a macroscopic rotator cuff tear treated surgically by partial acromionectomy on 6 May 1994 and mild acromioclavicular joint degenerative change treated surgically by excision of the outer 1 centimetre of the right clavicle on 10 April 1995. In his opinion the result of the symptoms the plaintiff developed in 1993 and the surgical management of the symptoms have left him with a partial and permanent impairment of the function of the right shoulder girdle equivalent to a 5% impairment of the right upper extremity. That is equivalent to a 3% impairment of the whole person.
Dr Gillett, another orthopaedic surgeon expressed the view that if the plaintiff’s condition when seen by Tuffley was, as Dr Tuffley recorded, then he agreed the plaintiff had a 5% impairment of right arm function.
At the commencement of the trial the plaintiff tendered as evidence a bundle of tax returns and notices of assessment relating to himself and his butcher’s business (Exhibit 2). This was a business he conducted by himself and his wife and another partner. The business commenced on 9 April 1994 at Moorooka. A further outlet for the business commenced at Logan on 7 July 1996. Exhibit 2 included profit and loss statements for the business. However, when the plaintiff was cross examined he was shown a number of documents that came from a file from the Metway Bank (the file). This was a file containing an application signed by the plaintiff and his wife and dated 10 July 1997. This was an application to the Metway Bank for a loan to buy a property at Fryar Road, Logan Village. The file also contained what purported to be profit and loss statements for the business and tax returns relating to the plaintiff and his wife.
In my opinion, what is represented in the documents in Exhibit 2 compared to the documents produced from the file is not consistent. Further, what is represented in the documents from the file is not consistent with the plaintiff’s claim in his updated statement of loss and damage filed by leave at the commencement of the trial that “had the plaintiff been fit to work the plaintiff would have been able to earn approximately $25,000 gross per year from the business”.
By way of example the profit and loss statement from Exhibit 2 for Moorooka Halal Meat for year ended 30 June 1995 shows a gross profit for the business of $20,319.27 and a loss of $9,749.90. Further, the business incurred no wages expense. The plaintiff’s evidence was that the business did engage employees whom he paid in cash. For the same financial year the profit and loss statement from the file shows the gross profit of the business to be $86,935.30 and includes as an expense of the business proprietor’s wages of $25,000. The sales figures and cost of sales figures in those documents are not consistent with the sales figures and cost of sales figures in the profit and loss statement from Exhibit 2.
For the year ended 30 June 1996 the profit and loss statement from Exhibit 2 for the Moorooka business showed a loss of $420 and for the overall business called Halal Meat Queensland, a profit of $1,519. The overall profit from both businesses was $1,099. Again, there is no wages expense recorded. From the file the plaintiff is shown to have an individual income of $25,000 from Halal Meats Queensland. Further, the plaintiff is shown as having received income from a business of $8,279 making a total income of $33,279. However, the profit and loss statement for the business shows sales of $426,755.15. This figure is far in excess of sales shown in the profit and loss statement from Exhibit 2. Further, the gross profit is shown as $91,416.47 with a profit after expenses of $16,558.40. These figures are far in excess of the figures shown in the documents from Exhibit 2.
For the year ended 30 June 1997 from Exhibit 2 the profit and loss statement for Halal Meat shows a profit of $607. For the same financial year from the documents from the file the profit for the business is a profit of $22,488.01. In this document proprietor’s wages are recorded as $32,000. The sales figures and gross profit are significantly different compared to the profit and loss statement for the year ended 30 June 1997 from Exhibit 2. The application to the Metway Bank claims the plaintiff’s net monthly income was $2269. For the application the plaintiff’s employment details are recorded as “Butcher”, “Self Employed”.
Finally, for the year ended 30 June 1998 Exhibit 2 contains a tax return for the plaintiff. This shows a distribution from the partnership of a loss of $2,631. to the plaintiff. However, the plaintiff said when he gave evidence that he was driving a taxi for the first eight months of 1998 earning on average $300 per week. To 30 June 1998 that would be approximately $7,800. That income is not disclosed by the plaintiff in his tax return for the year ended 30 June 1998.
When the plaintiff was cross examined he was asked why the profit and loss statements for his business for the years ended 30 June 1995 and 30 June 1996 did not show salary and wages as an expense if as he said he employed others in the business. The plaintiff’s initial response was that those people were casual labour. He accepted he signed the tax returns but said he did not do “the tax books”. He claimed witnesses could come to court to refute the suggestion put to him the reason there was no wage expense shown as a deduction in the expenses for the business is because he did not employ anyone and the condition of his arm was not such as would prevent him from doing the work. Further, to those suggestions the plaintiff replied his accountant would be the best person to talk to and the employees could be subpoenaed to come to court and the suggestions were lies. He later said his wife did the books and these were given to the accountant and he would finish the work.
Later in his evidence the plaintiff said he found out in jail a week before the trial started that the trial was to commence and he was not prepared and could not answer the questions. The plaintiff was arrested upon a charge of murder on 19 August 1999 and was later convicted of that offence and is serving a life sentence. He said what he signed he believed was correct.
When questioned about the documents from the file he said he did not submit any forms to the bank. The application was submitted by a finance broker. He said regarding the $2,269 a month net income figure his business account was with the Metway Bank and if he lied to them, they would have known about it. When asked if he told the person filling in the application he earned $2,269 a month he said “there are a lot of shonky brokers”.
When the plaintiff was shown what purported to be copies of profit and loss statements for his business extracted from the file, he could not explain the differences between the contents of those documents and the profit and loss statements in Exhibit 2. He said reference would have to be made to the accountant. When asked to whom the $25,000 for proprietor’s wages in the profit and loss statement for the year ended 30 June 1995 was paid to, the plaintiff replied he had no idea.
The plaintiff said he found it very difficult to answer the questions he was being asked because of his trial for murder, he was doing a life sentence, he had an appeal coming up, he lost a child he never got to know, he was confused, not prepared and was represented by “litigation lawyers” whom he has read about in the papers. He said he could address some simple questions.
The only other witness called by the plaintiff was his wife. The plaintiff did not close his case at the end of his wife’s evidence as his counsel wished to consider his position overnight in case he needed to lead any further evidence. The proceedings were then adjourned to the next day. When the proceedings resumed no further witnesses were called by the plaintiff nor did the plaintiff seek to adjourn the proceedings to enable him to call further witnesses or to adduce further evidence.
It was submitted by counsel for the plaintiff that I should accept the documents in Exhibit 2 reflected the correct position regarding the plaintiff’s income during the relevant periods covered by those documents. It was submitted it should be presumed those documents were accurate. I do not accept such a presumption can arise as a matter of law merely because the documents were submitted to the Commissioner for Taxation. Even if such a presumption could arise, I consider that presumption has been displaced by the documents tendered in evidence from the file. I consider the inference to be drawn from these latter documents is that the plaintiff provided the information to be found in those documents or he was aware of the information to be found in these documents because he signed the documents and was making the application for the loan. I do not consider it is necessary for the defendant nor for me to come to any conclusion which of the documents, whether Exhibit 2 on the one hand or those from the file on the other hand, are accurate.
Further, I am not persuaded by the plaintiff’s claims to be unprepared and by inference not well represented in these proceedings that those factors justify accepting the documents in Exhibit 2 are accurate. The plaintiff did not seek to adjourn the proceedings to adduce further evidence as he could have sought to do.
On the evidence as it is, I consider the documents in the file were intended by the plaintiff when he made his application for the loan to represent the income he had earned and could earn from the business. I do not accept the plaintiff’s attempt to suggest the finance broker on his own account misrepresented the figures. The figures in either Exhibit 2 or from the file are not accurate. Because I cannot determine which are not accurate that does not mean it follows those in Exhibit 2 are accurate. In these circumstances I have no confidence in the accuracy of the figures in Exhibit 2.
Further, I found the plaintiff an unimpressive witness. He sought to blame others for the inconsistency between the documents and to blame other events for his inability to explain the inconsistencies between the documents. He did not claim he had no involvement in the business and that his partner or his wife had the conduct of the business. On the contrary I conclude on the evidence the plaintiff had the conduct of the business and therefore knew the financial position of the business at all times.
The conflict between the figures in the documents with no satisfactory explanation forthcoming from the plaintiff for that conflict and my impression of the plaintiff leads me to conclude the plaintiff is not a reliable and honest witness.
Nevertheless, the plaintiff’s evidence was not challenged by the defendant in a number of respects. The defendant has made relevant admissions in answers to interrogatories and the medical evidence supports a cause for the plaintiff’s symptoms and the subsequent treatment of those symptoms.
Therefore, it is possible to make the following findings and reach the following conclusions in these proceedings.
On the issue of liability I find the defendant owed the plaintiff pursuant to the contract of employment and at common law a duty to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury. The degree of care and foresight required from the defendant would depend upon the circumstances (Hamilton v. Nuroof (WA) Pty Ltd (1956) 96 CLR 18,25). What is a reasonable standard of care for an employee’s safety is “not a low one”. The employer’s obligation is to “establish, maintain and enforce … a safe system of work” (Bankstown Foundry v. Braistina (1986) 160 CLR 301, 307-8 and McLean v. Tedman (1984) 155 CLR 306, 313).
Although the plaintiff pleaded a statutory duty by virtue of the provisions of the Workplace Health and Safety Act (Qld) 1989 (the Act), no specific section of that Act was identified. I am prepared to proceed on the basis the plaintiff relies upon section 9 of the Act. Section 9 provides :
“9. Employers to ensure health and safety of their employees.
(1) An employer who fails to ensure the health and safety at work of all of his employees, save where it is not practical for him to do so, commits an offence against this Act.
It has been held that section 9 effectively added to the duty imposed at common law; negligence need not be established but merely that injury was caused by an unsafe work practice. Once that is established, the employer is liable unless the employer establishes lack of practicality (see Schiliro v Peppercorn Childcare Centres Pty Ltd No. 2 (2001) 1 Qd R 518 at 525). Therefore, I find the defendant owed the plaintiff a statutory duty by virtue of section 9 of the Act.
Further in his plaint the plaintiff alleges as a particular of the breaches of the duties owed by the defendant to the plaintiff a breach by the defendant by causing, permitting or allowing the plaintiff to lift, carry or move by hand objects so heavy as to be likely to cause a risk of injury in contravention of the provisions of the Act. No specific provisions of the Act was identified by the plaintiff during the proceedings. I proceed on the basis the plaintiff relies upon section 9 of the Act.
There was no contest with the medical evidence placed before me by consent. Having regard to the chronological sequence of opinions that can be found in that medical evidence, I am satisfied on the balance of probabilities that the work the plaintiff did for the defendant over the period of approximately fourteen months caused the plaintiff’s right shoulder symptoms, and caused the plaintiff to cease work on or about 18 March 1993 and caused the plaintiff to require the treatment described in the medical reports.
However, notwithstanding my findings regarding the plaintiff’s symptoms and the cause for him to cease work on or about 18 March 1993, it does not follow from those facts alone that the defendant breached the duties owed to the plaintiff.
That is, I do not consider that the mere fact that the plaintiff developed symptoms from tendonitis and that there was evidence of a partial tear of the rotator cuff is evidence from which I can be satisfied on the balance of probabilities the defendant breached the duties owed by the defendant to the plaintiff.
Although the plaintiff said the work was repetitious I do not accept the plaintiff was constantly under strain doing this work. I accept he could be required on any day to manually handle as many as 600 cartons. However, I find the weight of these cartons could range from 1 kilogram to 25 kilograms and although 50% of those cartons might weigh between 12.5 kilograms and 25 kilograms, there was no evidence what the majority of that range of cartons would weigh. Further, I find the plaintiff was not continuously, every minute of every hour that he worked, manually handling cartons. I find he had to collect paperwork and travel from one location to another in the warehouse to obtain the stock and then deliver a loaded pallet to be wrapped and then collect a new order and then move on again to fill that order. Therefore, he was not constantly manually handling the cartons nor constantly reaching back into the shelves and using his right arm to obtain the cartons of stock. I accept in an average hour he would spend about 40 minutes of picking and lifting stock and about 20 minutes going from one spot to the other in the warehouse. However, I cannot make a finding, as there was no evidence on the point, as to how much of an hour involved reaching back into the shelves using his right arm, and what part of that time the plaintiff’s right arm was stretching and under strain. I accept he did this work over a fourteen month period approximately. I accept his hours of work were between 6.00 a.m. and 2.30 p.m. The plaintiff is 6 foot 4 inches tall. Although it is many years later, there appeared nothing about the plaintiff to suggest any concern he could not physically do the work.
In Wyong Shire Council v. Shirt (1979-80) 146 CLR 40 at 47-8, Mason J, with whose reasons Aickin J agreed, said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
In Romeo v. Conservation Commission of the Northern Territory (1997-8) 192 CLR 43, Hayne J observed at 488:
“But the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far-fetched or fanciful) does not conclude the inquiry about the scope of the Commission’s duty: The Council of the Shire of Wyong v. Shirt & Ors [1979-80] 146 CLR 40 at 48, per Mason J. The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries.
The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact. That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.”
Nine particulars of breach of the duties owed by of the defendant are pleaded in the plaint. Six of the particulars pleaded by the plaintiff rely upon a recognised system of stock rotation as to which there was no evidence. It is alleged by the plaintiff the enforcement of this recognised system of stock rotation could, by its enforcement, have removed the risk of a strain-type injury being sustained by the plaintiff. I have given consideration to these particulars without regard to the allegation of a recognised system of stock rotation. Without that allegation those particulars amount to an allegation the defendant breached the duties owed to the plaintiff by causing or permitting him to perform his work doing the tasks to the extent and in the manner alleged without more.
Another particular alleges a failure to provide the plaintiff with proper equipment and systems of work. Other than a fork lift, no other piece of equipment was referred to in the evidence. The systems of work alleged were not identified by any evidence. On the evidence I consider the use of a forklift would not have been practical or realistic.
Another particular alleges a failure to provide a suitable mechanical lifting device for the purpose of lifting heavy items or any sufficient number of co-workers to assist the plaintiff. Photographs were tendered in evidence that shows the warehouse and the stock on shelves in aisles. With the evidence how an order was to be filled and that the stock required to fill the order might vary in weight and taking into account the environment in which the work was to be done, I consider the use of a forklift or another worker or workers would not have been practical or realistic.
The final particular alleges the defendant caused, permitted or allowed the plaintiff to lift, carry or move by hand objects so heavy as to be likely to cause a risk of injury in contravention of the provisions of the Act. On the evidence I do not accept the defendant knew or ought to have been aware the plaintiff was reaching for and stretching and moving an object so heavy as to be likely to cause a risk of injury.
There is no evidence the objects the plaintiff was required to lift, carry or move in the circumstances were beyond the capability of a person in the position of the plaintiff. I do not consider I can on the evidence infer in the circumstances of this claim that the weights the plaintiff was required to lift, carry or move were so heavy as to be likely to cause a risk of injury.
Further, the plaintiff gave no evidence of a specific identifiable incident occurring on or about 18 March 1993 and that he had time off work nor that he returned soon after and was required to perform the same work until he left on or about 27 March 1993 as alleged in the plaint.
I accept there was some risk the work being done by someone in the position of the plaintiff over a period of time could cause the medical conditions that caused the plaintiff to cease work with the defendant, or could cause the plaintiff to suffer injury in a specific incident, for example by stretching to reach a carton and moving that carton. However, the duty upon the defendant was to take reasonable care for the safety of the plaintiff and pursuant to the Act to ensure the health and safety at work of the plaintiff, save where it was not practical for the defendant to do so.
The onus of proof rests upon the plaintiff. The evidence does not satisfy me on the balance of probabilities the defendant failed to take reasonable care for the safety of the plaintiff or that the plaintiff was engaged in an unsafe work practice. If it were necessary to do so I would be satisfied the defendant has satisfied the onus upon the defendant that it was not practical to do the work in another way.
Regarding the quantum of the plaintiff’s damages, I accept the plaintiff developed the symptoms he complained of that caused him to cease work on or about 18 March 1993. I accept he initially was treated conservatively and then received cortisone injections and underwent surgery on two occasions. I find he has a residual impairment from his condition which developed during his work for the defendant which I would describe as minor. There is evidence from Dr Gillett that because of the age related right shoulder degeneration, repetitive use by the plaintiff of his right arm in a safe manual handling environment would have produced some right shoulder symptoms within 5 to 10 years of March 1993 in any event. In a proceeding where there was no cross examination of doctors but many medical reports it is difficult to come to firm conclusions about an isolated opinion to that effect. Nevertheless, it is part of the evidence before me. I consider I must give it some weight although I would not give it significant weight in this case. The effect is that I proceed on the basis that the plaintiff may have experienced some right shoulder symptoms as early as 1998 in any event. However, due to his arrest and subsequent conviction for murder he will be deprived in any event of some of the usual amenities of life. That is, he used to enjoy recreational fishing by way of example and no doubt will no longer be able to engage in that because of his sentence.
I would assess the plaintiff’s damages for pain and suffering and loss of amenities in the sum of $20,000.
The plaintiff received a WorkCover partial permanent disability payment of $2,907. That was probably paid to him on 25 November 1994 when the benefits terminated. Also this is a matter that did not come on for trial prior to 19 August 1999. That is, one might understand the slowness with which the plaintiff would proceed with these proceedings after 19 August 1999 but not beforehand. Overall in the exercise of my discretion, I would allow interest on $12,000 of the pain and suffering and loss of amenities of life for a period of six years at 2% per annum. This is a sum of $ 1,440.
The plaintiff would also be allowed WorkCover outlays of $5,851.94. No other outlays have been proved.
Regarding past lost income, the plaintiff makes no claim after 18 August 1999 as the plaintiff has been in prison since then and makes no claim for future earnings loss as he is serving a life sentence. The evidence shows that the plaintiff’s average net weekly income at the date of the accident was $275.90. However, the issues that arise from the comparison of Exhibit 2 to the documents produced from the file is such that I do not accept the plaintiff as a credible witness on these issues. I am prepared to accept that he suffered a small loss between 26 March 1993 when his employment with the defendant ended and 9 July 1994 when he commenced his butcher’s business. I conclude that the plaintiff’s evidence concerning his inability to work because of his shoulder injury is not credible. I accept that the plaintiff would not have been able to work while he was recuperating from his shoulder operation performed on 6 April 1994. However, the plaintiff called no other evidence that may have satisfied my concern regarding the differences between Exhibit 2 and the documents produced from the file and the allegation made in the Statement of Loss and Damage that the plaintiff was prevented from earning $25,000 per year from his business.
Therefore, I consider to assess the plaintiff’s past economic loss there is a period of about 67 weeks from 26 March 1993 to 9 July 1994 at a loss of $275 per week, that is $18,425. However, one discounting factor that ought to be applied to that calculation is the plaintiff’s saved travelling expenses. For that a 10% discount should be made.
It was submitted by the defendant that there should be a further discount from the calculation of the past economic loss. That was for unexploited earning capacity during the period. Reference was made to remarks by Dr Maguire to the effect the plaintiff was a very manipulative person who intended to stay away from work because of his symptoms. Also in Dr Nutting’s report he stated the M.R.I. showed a lesion that was not serious although it was troublesome. It was submitted the court could not be satisfied the plaintiff was not able to carry out some work at least on a part time basis prior to July 1994. While I would not accept the plaintiff’s evidence regarding his capacity to earn income after 9 July 1994, I cannot come to the same conclusion prior to 9 July 1994.
Therefore, for past economic loss I would assess the plaintiff’s loss at $16,500 in round figures.
The plaintiff would not be entitled to interest on past lost income because what he received by way of benefits from WorkCover exceeds this loss.
The plaintiff would be allowed the Fox v Wood component of $5,642.95.
Regarding the Griffiths v Kerkemeyer damages claim by the plaintiff the evidence led I consider is vague and imprecise. The plaintiff’s wife gave evidence of spending time massaging his shoulder and doing other things for him such as showering and dressing him and driving him to doctor’s appointments. Importantly though, no evidence of the market rate per hour for these services was led. For that reason alone the plaintiff is not entitled to an award for Griffith v Kerkemeyer damages.
However, even if the plaintiff were despite that omission entitled to damages for Griffiths v Kerkemeyer damages at best the evidence might permit an award to be made for short periods following 18 March 1993 and the two operations in May 1994 and April 1995. Those periods are probably the periods during which the plaintiff may have required some assistance from his wife. Although massaging might have continued throughout the period between on or about 18 March 1993 through to the plaintiff’s incarceration, I do not accept the plaintiff received massaging to that extent, nor that it was required every day as the plaintiff’s wife claimed. I consider the plaintiff was by 9 July 1994 heavily engaged in running his butcher’s business and capable of doing that with minimal symptoms after he recuperated after the second operation. I consider the best that can be said is that the plaintiff may have required about three months of services following each of those three occasions I have identified. That is a total of about nine months or say 270 days at about one hour per day making a total of 270 hours. If a rate of $13 per hour were applied to that, that would lead to a figure of $3,500 in round terms. However, for the reason I have given earlier this sum cannot form part of the assessment of the plaintiff’s damages.
Therefore damages would be assessed as follows:
Pain and suffering and loss of amenities of live $20,000.00
Interest $1,440.00
Outlays $5,851.94
Lost Income $16,500.00
Fox v Wood $5,642.95
Less WorkCover refund $42,282.00
Balance $7,152.89
However, because of the conclusions I have reached on the issue of liability I dismiss the plaintiff’s claim against the defendant.
I will hear the parties on the question of costs.
0
3
0