Ball v Transport Commission
[1991] TASSC 166
•18 September 1991
Serial No B52/1991
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Ball v Transport Commission [1991] TASSC 166; B52/1991
PARTIES: BALL, Colin
v
TRANSPORT COMMISSION
FILE NO: 2863/1982
DELIVERED ON: 18 September 1991
JUDGMENT OF: Zeeman J
Judgment Number: B52/1991
Number of paragraphs: 57
Serial No B52/1991
File No 2863/1991
COLIN BALL v TRANSPORT COMMISSION
REASONS FOR JUDGMENT ZEEMAN J
18 September 1991
Introduction
The plaintiff claims damages for personal injury allegedly suffered by him in the course of his employment with the defendant, which personal injury he claims was suffered by him as a result of the negligence of, and/or breach of an implied term of his contract of employment with, the defendant. Liability is in issue. The plaintiff complains of having suffered injury to each of his shoulders.
By occupation the plaintiff is a seaman. From 1975 until earlier this year, first the defendant and then Brambles Seacargo operated a roll–on roll–off cargo vessel, the MV Straitsman, between the ports of Stanley and Grassy in Tasmania and the port of Melbourne in Victoria. The plaintiff was employed by the defendant on that vessel as an able seaman from 1975 until about August 1981, and then as a bosun until 1985. During the whole of that period the vessel operated with two crews upon the basis of crew members having two weeks on and two weeks off. In 1985 the defendant disposed of the vessel to Brambles Seacargo. That company required one crew only. The plaintiff was amongst those who accepted a redundancy payment and he thereupon ceased to be in the employ of the defendant.
A major portion of the duties which the plaintiff was required to perform on board the vessel, whether as an able seaman or as a bosun, related to the lashing and unlashing of cargo. The cargo carried by the vessel included containers and vehicles of various descriptions. At least some portion of the cargo carried on each voyage was required to be lashed down so that it would not move while the vessel was at sea, or at least so as to minimise the extent of such movement. The bosun and two able seamen were required to lash down cargo before departure and to unlash cargo upon arrival in port.
The Straitsman had been operated by the defendant for some time prior to the plaintiff joining that vessel. It had sunk due to an unfortunate mishap as it approached its mooring in the Port of Melbourne. At that time it was fitted with a lashing system different from that fitted when the plaintiff joined the vessel. It appears that very substantial work was required to refit the Straitsman for service after it had been raised. Whilst that work was proceeding, the defendant acquired another vessel, the Rah, to operate the service. The plaintiff was employed in making the Rah ready for operations and then became a member of its crew. That vessel was fitted with a system called Norwegian twitch lashing. After the Straitsman was recommissioned, that system was transferred from the Rah to the Straitsman before the Rah was disposed of by the defendant. It was that lashing system which was in use on the Straitsman for the whole of the period during which the plaintiff served on that vessel. It appears that that lashing system has not been in use on any other vessel on the Australian coastal trade. Prior to joining the Rah, the plaintiff had been a member of the crew of the Princess of Tasmania, a roll–on roll–off ferry operating between Melbourne and Devonport, for some five years. On that vessel a bottle screw system of lashing was in use. The plaintiff described it as a very secure system allowing for quick and easy application requiring no physical strain.
An example of the Norwegian twitch was tendered in evidence, as was a video recording demonstrating the use of the same. The Norwegian twitch is used in conjunction with chains. The first step in the lashing procedure is that the operator attaches one end of a chain to the container or other item being lashed, and the other end of that chain to a hook fixed in the deck. He then physically pulls the slack out of the chain, creating a loop in the middle. The twitch consists of a lever with a double hook at one end. Each of the hooks is inserted into a chain link. The chain links into which hooks are inserted are those at each end of the loop created by pulling the slack. By pulling the twitch handle in the appropriate direction, leverage is applied between the two links of the chain into which the hooks have been inserted. The twitch effectively short circuits the loop and creates a single tight chain. By pulling the twitch across to the maximum degree possible, extreme tension is set up within the chain. An extension bar attached to the twitch is used to obtain greater leverage. The twitch is left in position after a small chain and hook attached to the end of the twitch bar are hooked into the chain further along it so as to hold the twitch in the extended position. The pulling of the twitch with the assistance of the extension bar requires a combination of right shoulder adduction, right shoulder extension and elbow flexion as well as body momentum. Pulling in the slack on the chain initially involves pulling with the left hand and then the right hand using shoulder movements of repetitive abduction and adduction and horizontal flexion/extension. In unlashing cargo prior to discharge, the amount of pressure required to be applied to the lashing through the tension bar was similar to that required to be applied during the course of lashing.
With this system may be contrasted the bottle screw type system with which the plaintiff was familiar, he having used it on the Princess of Tasmania. In the plaintiff's experience, it was the system commonly used on vessels engaged in the Australian coastal trade. It had been in use on the Straitsman prior to it sinking. The bottle screw is a device with two bolts and one large doubly threaded tube. Each bolt is attached to a piece of chain. The other end of one piece of chain is attached to the deck and the other end of the other piece of chain is attached to the container or other item being lashed. The lashing, constituted by the tube and the two pieces of chain, is tightened by turning the central tube in one direction thereby drawing the bolts towards one another. The operation of the bottle screw involves repetitive rotations of the central shaft. The screw threads are normally well greased so that the degree of force required to be applied is considerably less than that required in applying a Norwegian twitch.
Initially the system on board the Straitsman was that the Norwegian twitches were fixed and released by the bosun and two able seamen. Each of those persons, working alone, attached or removed a proportion of the total of the lashings. In general, each sailing required each of those three persons to fix between 30 and 40 lashings, and to remove a similar number prior to the discharge of cargo.
Until 1980 the plaintiff made use of both arms and shoulders in applying the lashings. During the latter part of 1980 he began to suffer from pain in the right shoulder. He was diagnosed as suffering from a rotator cuff syndrome of the right shoulder. On 3 December 1980 the plaintiff underwent surgery on his right shoulder when the outer end of the right acromion was excised. That surgery was performed so as to allow free passage of the supraspinatus tendon. As a result, the plaintiff was unfit for work for some time. He returned to work on 18 February 1981. He continued to do the work which he had previously been doing, except that he favoured his left arm and shoulder in applying the lashings. On 22 April 1981 the plaintiff developed pain in the left shoulder. He was diagnosed as suffering from a rotator cuff injury of the left shoulder. On 3 June 1981, he underwent further surgery, this time to the left shoulder, when the outer end of the left acromion was excised. Again, as a result, he was absent from duty for some time. He returned to work on 5 August 1981, when he re–arranged the way in which lashings were to be applied. The plaintiff was in a position to do this. He was the bosun and the two able seamen worked under his direction. Henceforth all lashings were applied by the two able seamen. The plaintiff's participation in the process was limited to obtaining the chains required for the lashing which were hanging up in the interior of the cargo hold. He laid out the chains in the positions where they were to be applied, and they were then applied by one or other of the able seamen. In that way the plaintiff was able to continue his employment on the Straitsman.
CAUSATION
The defendant has submitted that the plaintiff had not established that there was a sufficient causal relationship between the work done by the plaintiff in the course of his employment with the defendant (in particular, the operation of the Norwegian twitch lashing system which the plaintiff claimed was the source of his injury) and the right and left rotator cuff syndromes undoubtedly suffered by the plaintiff. It was admitted upon the pleadings that at all material times it was an implied term of the plaintiff's contract of employment with the defendant that the defendant would provide a safe system of work, plant and equipment and take reasonable care for the plaintiff's health and safety. The plaintiff alleged that the defendant did not provide such a safe system of work, plant and equipment and was negligent. The breaches of the implied term and the negligence were particularised in terms which essentially alleged that the Norwegian twitch lashing system was a system which resulted in the imposition of excessive strain on the shoulder of the operator, and that the defendant knew, or ought to have known, that by requiring the plaintiff to operate the system it would cause pain or injury. Assuming, for present purposes, that the plaintiff can establish such a breach of contract and/or negligence, it is necessary to consider whether the plaintiff's right and left rotator cuff syndromes were the legal and factual consequences of such breach of contract and/or negligence. If the plaintiff has not established that, then his action must fail at the threshold. Sufficient causal connection is an essential element.
Whether or not the evidence establishes the necessary causal link is to be determined in accordance with the principles enunciated by Mason CJ in March v E & M H Stramare Pty Ltd (1991) 99 ALR 423. It is appropriate that I refer to some of the evidence relevant to the issue of causation. I have already referred to the method of applying the Norwegian twitch. The point at which the chain was applied to an item of cargo depended upon the nature of that item. The taller the item, the higher the point at which the chain was attached. A substantial proportion of cargo to be lashed down consisted of containers of a standard size. Chains were attached to such containers at above shoulder level. The plaintiff and his fellow workers were under some pressure to lash down cargo as quickly as possible so that scheduled departure times could be adhered to. Both lashing and unlashing required a considerable degree of physical exertion on the part of the operator. Prior to the plaintiff undergoing surgery to the right shoulder, he had had pain in that area. For some time the pain was little more than what he described as twitches. It steadily grew worse. Eventually the pain suffered by the plaintiff increased in intensity to the extent that it felt to the plaintiff as if he was being stabbed in the shoulder with a knife. The onset of pain coincided with the plaintiff lashing or unlashing cargo. The plaintiff consulted his general practitioner who injected cortisone and prescribed physiotherapy. That treatment did not appear to have any sufficient beneficial effect. The plaintiff then was referred to an orthopaedic surgeon, Mr Vernon Batt. Ultimately, Mr Batt, having diagnosed a supraspinatus syndrome causing a block to the plaintiff's right shoulder abduction, excised the outer end of the acromion in the right shoulder so as to allow free passage of the supraspinatus tendon. Prior to undergoing surgery, the plaintiff had been ambidextrous and had variously used his left and right arm and shoulder in the lashing and unlashing procedures. Upon his return to work, the plaintiff was not minded to use his right arm and shoulder to the same extent, and there appear to have been good medical reasons for that. He continued lashing and unlashing, but made use of his left arm and shoulder only. It was not long before the plaintiff experienced pain in the left shoulder, similar to that previously experienced in the right shoulder. He again consulted Mr Batt. Similar surgery was performed on the left shoulder. In the absence of any medical evidence, a tribunal of fact might well readily have concluded that the necessary causal relationship between the relevant tasks performed by the plaintiff in the course of his employment and the shoulder conditions had been established upon the basis of these facts. However, there was a great deal of expert evidence on the subject, to some extent conflicting, and I turn to consider that.
The plaintiff called Dr David Kennedy. Dr Kennedy is a Victorian medical practitioner holding specialist qualifications in anatomy and arthroscopic surgery. His special interest is sports medicine. He is a foundation fellow of each of the Australian Sports Medicine Federation and the Australian College of Sports Physicians. He has had significant involvement with Australian weightlifting teams, and at the time of trial was the chief medical officer for the Australian Commonwealth Games weightlifting team. He saw the plaintiff on a number of occasions, the first of which was on 19 September 1984. Dr Kennedy gave important evidence on the issue of causation, but before I deal with that, it is necessary to understand the pathology of the plaintiff's condition. As to that, I accept Dr Kennedy's evidence. Movements of the arm, and in particular movements involving abduction and rotation, cause the rotator cuff tendon to pass underneath the acromion, principally as a result of the use of four muscles, the subscapularus, the supraspinatus, the infraspinatus and the teres minor. The tendon passes within a very narrow space and is impinged if it is damaged or thickened. The surgical procedures carried out by Mr Batt involved the excision of the outer end of the acromion. The purpose of that excision was to increase the available space through which the tendon could pass. Whilst that procedure was an accepted procedure when performed upon the plaintiff, it is now regarded as being obsolete. Medical opinion is to the effect that that procedure is undesirable as it has the effect of disrupting the acromo clavicular joint by reason of which the anterior aspect of the shoulder girdle is destabilised. The presently preferred option is an athroscopic subtotal lateral acromionectomy.
Dr Kennedy viewed the video recording of the lashing procedure which is in evidence. Dr Kennedy said that the work shown therein as being performed showed pressure being applied to a large part of the body, but particularly to the upper extremities and the lower part of the neck and upper back. He described it as a fairly stressful activity. Assuming that the plaintiff performed about 40 lashings on average per day, Dr Kennedy expressed the view that there was a correlation with that work and the plaintiff's injuries. In a report dated 8 August 1990, which is in evidence, Dr Kennedy expressed the following opinion:
"Mr Ball has stabilized with respect to injury sustained to his cervical spine and both shoulder regions as a direct consequence of repetitive overuse activities in relation to his occupational duties between 1970 and 1980. Bilaterally Mr Ball has rotator cuff tendinitis with thickening of the rotator cuff tendons resulting in significant impingement in the sub–acromial space which required surgery to reduce the impingement of the thickened rotator cuffs in the sub–acromial space. This impingment (sic) due to chronic inflammation involving the rotator cuff tendon has led to calcification within the rotator cuff tendon bilaterally. Despite the surgery Mr Ball continues to have symptoms, referable to the rotator cuff thickening with moderate impingment (sic), associated with inflammation of the myofascial stuctures (sic) supporting both shoulder girdles. Mr Ball also has problems in his lower cervical spine, with inflammation of the capsular and ligamentous structures, supporting the lower cervical intervertebral disc and posterior facet joints.
Mr Ball will be unable to return to any occupational duties, that involve strenuous repetitive upper limb activities, particularly overhead as these activities will only worsen the inflammation involving the rotator cuff mechanism as well as the myofascial structures supporting both shoulder girdles and also the lower cervical spine. This aggravation, involving the capsular, ligamentous and tendinous structures would only exacerbate his current symptoms and worsen the physical disabilities.
Mr Ball as a result to the injury sustained as a consequence of his occupational duties has a permanent disability in the functioning of the neck of fifteen percent, and a permanent disability in the functioning of the upper limbs of twenty percent, for each upper limb, particularly in a domestic and industrial setting."
Dr Kennedy gave some evidence as to the plaintiff's injury to the lower cervical spine referred to in that report. His view was that the symptoms in the lower cervical spine might have related to a separate episode of trauma unrelated to this action, or that they might be explained by the plaintiff having put more pressure on his cervical spine and upper thoracic spine by reason of the altered mechanics of the functioning of his shoulders. I am not persuaded that any injury to the lower cervical spine is causally related to anything that occurred in the course of the plaintiff's employment with the defendant. Having been told that the plaintiff commenced using the Norwegian twitch lashing system in 1975, Dr Kennedy expressed the view that that history and the plaintiff's condition indicated that the plaintiff had developed a chronic inflammation of the tendon caused by the cumulative effect of the repeated actions required to be performed during the lashing process. He described the process of inflammation as being one of gradual onset. The symptoms become evident when the tendon commences to capture because it has become thickened or inflamed to the degree that the space through which it is required to move is insufficient. Dr Kennedy agreed that the condition can develop for a variety of reasons, referring to examples such as tennis players developing the condition in the dominant arm and roadworkers engaged in work requiring shovelling overhead into trucks. Whilst the condition is capable of arising as the result of a single act of trauma, such as a tearing of the tendon or a rupture in the front of the joint, he considered it more likely that the plaintiff had suffered his condition as a result of the cumulative effect of carrying out the lashing procedures. I observe that senior counsel for the defendant in his closing address adopted that view. Dr Kennedy did not discount the proposition that other operations carried out by the plaintiff, and in particular the lifting of chains, had contributed to the condition. However he expressed the view that the lifting of the chains could not be considered as an equally likely cause of the conditions as the lashing process. At the same time, he said that the regular lifting of heavy chains would not assist the shoulders to recover from the activities involved in the lashing.
The plaintiff also called Professor John Bisby, Associate Professor of Occupational Medicine and Environmental Health at the University of Melbourne, practising as a consultant in the field of occupational health and safety. In his report of 3 April 1991, Professor Bisby described the nature of the plaintiff's condition in the following terms:
"The function of the rotator cuff is to stabilise the gleno–humeral (shoulder) joint and the main muscle attached, the supraspinatus initiates the arc of abduction at the joint. Rotator Cuff injury is acute and chronic inflammation and thickening of the capsule of the shoulder joint. It may arise from repeated minor trauma or irritation of the shoulder joint capsule by repeated movement of the joint particularly when the arm is elevated and put under load and using rotating or twisting movements. It can equally arise following an acute and heavy straining of the shoulder joint by excessive force. Once the capsule becomes inflamed or swollen, any further movement can maintain or exacerbate the inflammation and chronic thickening results. All of this produces considerable pain on even slight movement. It produces severe disability for arm movements."
Professor Bisby carried out an inspection of the main deck of the Straitsman, and viewed a lashing operation using the Norwegian twitch being carried out by a seaman. In addition, he attempted to carry out the procedure for himself under the instructions of that seaman. Having described the procedure, he expressed the following conclusions in his report:
"The most important factor is the force which is needed to be applied to the lever to close the linkage. This is very great, being beyond my own capability and beyond the capability of most seamen unless they use a dynamic or kinetic thrust to achieve the closing pressure.
In other words, to close the linkage, one has to 'throw' the weight of the body away from the lever, hanging on to the lever with one hand and thereby using the arm as a rod connecting the moving weight (the body) to the end of the lever. The kinetic force thus applied to the lever is very high and achieves closure of the link. However at the point of maximum effort, all the moving weight of the body is stopped by the shoulder capsule and surrounding soft tissues. The shoulder capsule and ligaments at that point is the only thing preventing a dislocation of the head of the humerus from its socket. Such enormous force, particularly if repeatedly exerted will create damage of a tearing and stretching nature to the soft tissues and capsule of the shoulder joint.
I have no doubt having seen and carried out this manoeuvre that this is what has happened in this case. I would be surprised if others have not suffered similar injury. The injury is as a result of sudden and traumatic over stretching and over exertion on this joint. The force exerted for 1–3 seconds is estimated at equivalent to 60kg or greater.
The actual pathology caused would be multiple and would include stretching and tearing of tendons (such as supraspinatus when the arm is straight extended in full abduction see photographs 9–10), trauma to the capsule and ligaments and probably tearing of muscle fibres in the deltoid, supraspinatus and other muscles connecting the head of the humerus to the trunk structures.
Up to 50 chain linkages might be set up in this way. Because of the extreme force required, several attempts are likely to be made before a particular chain link is secured, each attempt requiring the effort and force described above.
Comment on the system of work
The force required to secure the twitch linkage and the postures in which this had to be done is certain to cause injury to a substantial percentage of seamen employed at this work.
Such over–exertion or strain on joints such as the shoulder has ben (sic) known to cause injury and chronic inflammatory responses for more than 50 years and avoidance of such strain has been the primary preventive measure. Such preventive measures have been recognised in law for over 40 years by placing weight limits on lifting. The twitch lever action is analogous to lifting and weight or force restriction would be the obvious way to prevent injury."
During the course of cross–examination, Professor Bisby opined that it would not be surprising if, amongst persons performing the lashing process with the frequency with which it was performed by the plaintiff, perhaps one in twenty would have significant changes in their shoulder joints productive of pain or stiffness after performing the same for five years. He described that opinion as a "sort of guesstimate", although he considered that if inaccurate, it was probably inaccurate on the low side.
The final witness called by the plaintiff of particular relevance to the issue of causation was Dr David Kilpatrick, an occupational hygienist and ergonomist. His academic qualifications included a Doctorate of Philosophy in Chemistry and a Postgraduate Diploma in Ergonomics. He has acted as a consultant in this field for over twenty years. On 11 August 1989 Dr Kilpatrick inspected the vehicle deck of the Straitsman in the company of a fellow ergonomist. A simulated lashing using the Norwegian twitch was conducted in the presence of the plaintiff. Using a spring–type device, Dr Kilpatrick measured the actual forces at work in the course of applying the Norwegian twitch. The results of his computations were as follows:
"Task Result
Halfway through right– Just excessive
handed pull on twitch for shoulder.
20kg force.
Halfway through right– Not excessive
handed pull on twitch for shoulder
20kg force.
(Different posture)
Nearing end of right– Considerably
handed pull on twitch excessive for
50 kg force. shoulder.
Nearing end of right– Considerably
handed pull on twitch excessive for
50 kg force. shoulder."
It is appropriate to observe that Professor Bisby expressed the view that at the end of the pull on the twitch a force considerably in excess of 50kg was required. Dr Kilpatrick referred to research work done in the Netherlands suggesting that the amount of dynamic force required to be applied by a worker should be less than 30% of that worker's strength. He expressed the view that the requirement to exert force of 50kg is well in excess of 30% of a person's strength. Senior counsel for the defendant said that he did not contest that. Professor Bisby found that he was incapable of performing the lashing procedure (and he did not appear to be suffering from any infirmity). He said that he would be surprised if the force required to be applied was not close to the maximum strength of most seamen. During many years of involvement in ergonomics, Dr Kilpatrick had never come across a one handed operation in industry requiring an application of force as high as that required to operate the Norwegian twitch.
If I were to accept the body of expert and other evidence relating to causation to which I have referred, it would overwhelmingly point to the conclusion that the operation by the plaintiff of the Norwegian twitch lashing system on board the Straitsman was a sufficient legal cause of the shoulder injuries suffered by the plaintiff. However, the defendant called Dr John Silver, a Melbourne occupational physician with particular interests in clinical aspects of occupational medicine and a Fellow of the Australasian College of Occupational Medicine. Dr Silver did not inspect the Straitsman or its lashing system. He saw the plaintiff on one occasion, on 4 December 1990. He obtained a history from the plaintiff, which he recorded in his report prepared on the day on which he saw the plaintiff in the following terms:
"He first noticed a pain in the anterior aspect of the right shoulder in September 1980 and he was adamant about the time of onset of this symptom, being a stabbing pain which appeared on elevation and rotation of the right shoulder, and which came on particularly when he was turning the steering wheel when driving his car and with similar movements at work.
He consulted his doctor, Dr Marchesani in September of 1980 and was told that there was 'something about the bone'. Treatment was with a steroid injection, but this was unsuccessful and he was referred to a surgeon, Mr Batt, who diagnosed calcific supraspinatous tendonitis (according to the reference material).
Mr Ball was rather vague about the clinical details, but advised that his initial treatment was with injections, but as these provided little relief he underwent surgery on his right shoulder in December 1980, as described in the reference material.
He advised that he was tentative with regard to using his right shoulder after his operation and indeed used his left arm more than his right during the early post operative months, and, as a result, he favoured the use of his left arm to protect his recently operated shoulder, developing similar symptoms in the left shoulder. He eventually underwent a similar operation – to remove the outer end of the acromion to allow the supraspinatous tendon to run freely – in June of 1981.
He recovered from the surgery and returned to his duties as bosun on the Straitsman where he continued to work until 1985, but, in his capacity as bosun, he refrained from working on the lashings.
Since 1985 he has worked as a seaman on oil rig tenders doing routine seaman duties.
His shoulders were asymptomatic for some years following his surgery in 1981, but he advised that he developed aching in the left shoulder and the lateral aspect of the left arm in the deltoid region, and, to a lesser extent on the right side, associated with a 'clicking' on circumduction of that shoulder, when pulling wires on the oil rig tender some time late in 1986.
He was reviewed by Dr Marchesani in 1986 and was told that his problem was 'from the operations' and that nothing could be done. Codral Fortea, a moderate analgesic medication was prescribed and he has taken this on a symptomatic basis ever since.
He has not been referred for any specialist opinion since 1986, relying only upon his analgesic medication, but he was particularly evasive about the amount of this that was taken, eventually asserting that his pain comes on 3 or 4 times per month and that he takes 4 – 6 tablets during a bout of pain at any one time, eventually agreeing that he takes 15 – 20 tablets per month. He advised that he always carries these tablets with him, and when asked to present them, presented an unopened strip of 10 tablets in silver foil but not the box in which they were dispensed. It is of interest to note that the tablets presented had an expiry date of September 1990, and although I did not check with the manufacturer of this drug, I would be surprised if several years, up to 5 years, was not the normal shelf life of this drug. The significance of the age of these tablets is enhanced by the fact that they are normally dispensed in packets of 20 although they are available in packets of 50.
He advises that his current symptoms, although intermittent, come on for no apparent reason and have continued without change, although perhaps slightly worsening, over the past 4 years.
He is still working on oil rig tenders and has had no loss of time from work as a result of his shoulders since his return to work following his surgery in 1981."
I make some comment about the contents of that history. I did not really understand the explanations given by Dr Silver as to why he considered the plaintiff to have been rather vague about clinical details when he was questioned about this during cross–examination. I am not satisfied that he had any sufficient reason for making that statement. I do not attach any significance to Dr Silver's comments relating to the production by the plaintiff of medication bearing an expiry date of September 1990. A variety of explanations might be open, at least some of which would be perfectly consistent with the plaintiff's evidence as to the frequency with which he took that medication. The plaintiff was not cross–examined upon this matter, in a way which provided him an opportunity to provide an explanation. I do not understand the basis upon which Dr Silver concluded that the plaintiff was "particularly evasive" about the extent to which he took medication. Dr Silver said that the plaintiff had "been fit enough to have completed the building of his house during the past twelve months". That conveyed the impression that the plaintiff had been physically engaged in constructing the house. That is contrary to the plaintiff's evidence, and when Dr Silver was cross–examined on the matter, it is plain that he was never told by the plaintiff in express terms that he had been physically engaged in house building. No doubt the plaintiff referred to having built a house, but such a statement, without further questioning, did not warrant a conclusion that the plaintiff had personally engaged in the construction. I mention these matters because they have some relevance to the weight I ought to attach to Dr Silver's evidence generally in that they are indicative of some degree of partisan advocacy on his part, which was confirmed by his demeanour. The critical opinions expressed by Dr Silver in his report were in the following terms:
"His bilateral supraspinatous tendonitis is, I believe, a work related condition in that it has been aggravated if not caused by his repeated elevation of his upper limbs, but, as the power in applying the Twitch lashing is in adduction, internal rotation and flexion of the shoulder, (the supraspinatous muscle being passive in these movements) the Twitch lashing cannot be deemed to be the cause of his calcific supraspinatous tendonitis. This man is of a muscular mesomorphic build and any repeated elevation of the upper limbs over his head, especially in abduction, would tend to cause an inflammatory tendonitis, as has occurred in this case.
The calcification, first identified at the time of his initial consultation in September of 1980, is an indication of chronic inflammation and, in spite of his symptoms having begun only shortly prior to his seeking advice from Dr Marchesani, and the fact that he was working on the Twitch lashing at that time, it is clear that his condition has existed for some time prior to the onset of his symptoms and his seeking medical advice. It is my view, therefore, that any upper limb elevation, such as turning the steering wheel of his car and indeed elevating his right upper limb to reach the Twitch bar, may have precipitated his symptoms. The force in pulling the Twitch bar, being associated with use of muscles other than the supraspinatous, is not implicated in the precipitation of these symptoms.
It is my view that this man's bilateral supraspinatous tendonitis came on as a result of his being predisposed to it by his build and by a wide variety of activities requiring upper limb elevation. The Twitch lashing itself has played a minor role in this man's problem, and has not been the major cause of it, although I accept that the elevation of the upper limbs required in the use of that particular lashing may well have aggravated the condition."
Those views, which essentially were to the effect that the plaintiff's condition could have resulted from a variety of causes with the lashing process being of minor significance, were vigorously challenged in cross–examination. The critical conclusion reached by Dr Silver was that the carrying out of the lashing procedures could not be deemed to be the cause of the plaintiff's calcific supraspinatus tendonitis. His basis for that conclusion was that the power in applying the twitch lashing was in adduction, internal rotation and flexion of the shoulder, during which the supraspinatus muscle was passive. Dr Kennedy agreed that such power was required to be applied in the course of the lashing procedure but he did not agree that that was the only type of power to be applied. He agreed that the muscles that would be producing adduction, extension and internal rotation applied the forces to bring the lever down, but that at the same time other muscles, including the supraspinatus, acted as levers against that movement, and therefore had to extend in order to allow the muscles directly involved in the operation to operate. In that sense, Dr Kennedy did not agree that the supraspinatus muscle was passive. I prefer Dr Kennedy's view to that expressed by Dr Silver on the question of the role of the supraspinatus muscle in the processes of adduction internal rotation and flexion. I do not accept as being valid the assumption made by Dr Silver that the power used in applying the lashing is in adduction internal rotation and flexion only. Dr Silver did not, of course, witness any demonstration of the lashing processes. In fact, certain aspects of the procedure require the arm to be extended in full abduction. According to Professor Bisby, the procedure required a stretching of the supraspinatus and could cause injury to it by way of tearing. Dr Silver agreed that repeated elevation of the upper limbs over the head, especially in abduction, would tend to aggravate if not cause the plaintiff's condition. In that sense, there appears to be no issue between the experts called on both sides as to the nature of the movements which may have resulted in the plaintiff's condition. Where the experts differ is on the question as to whether abduction was an integral part of the process. Dr Silver, who did not attend any demonstration, assumed that it was not. I am satisfied that it was. I consider Dr Silver's views that the plaintiff's symptoms were the likely result of ordinary, every day activities including the performance of tasks such as brushing his teeth, as far fetched. It is conceivable that such activities could give rise to the condition, but I am not involved in the task in considering whether there are other possible causes which do no more than give rise to a slight doubt that the condition in fact is causally related to the carrying out of the lashing procedure. In general terms, I found the opinions expressed by the plaintiff's experts as persuasive. I found Dr Silver's evidence much less persuasive. He tended to adopt the role of an advocate seeking to justify an ultimate conclusion which favoured the defendant. I have found his conclusion that the plaintiff's condition had been brought on for a variety of reasons, with the carrying out of the lashing procedures being insignificant, as particularly unpersuasive. Dr Silver's reference in his report to a wide variety of activities requiring upper limb elevation on the part of the plaintiff was explained by him, in cross–examination, as being a reference to the ordinary tasks which any person might perform in the course of ordinary living. In other words, he did not act upon the basis of any particular history indicating significant upper limb elevation for purposes other than the application of the lashing system or for unlashing. I have some difficulty in understanding how the relative contributions of such activities on the one hand and the lashing procedure on the other hand could have been fairly judged by Dr Silver. He knew little of the normal activities of the plaintiff in his private life at the relevant times, so could only have made some assumptions. His understanding of the extent of upper limb elevation required during lashing was imperfect. I do not accept Dr Silver's ultimate conclusions. In broad terms, I accept the conclusions reached by the plaintiff's experts on the question of the relationship between the plaintiff lashing and unlashing cargo using the Norwegian twitch system and his shoulder conditions. I am satisfied that those procedures constitute a sufficient legal cause of those conditions to enable to plaintiff to maintain this action.
NEGLIGENCE
I turn to the issue of the defendant's negligence. The correct test which falls to be applied was authoritatively determined by the High Court in Wyong Shire Council v Shirt (1979–1980) 146 CLR 40. Mason J (as he then was) (with whom a majority of the members of the court agreed) laid down the test, at p47, in the following terms:
"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."
The plaintiff's action is one in which he seeks damages in respect of two quite distinct injuries, one to the right shoulder and the other to the left shoulder. If I conclude that the defendant was under a relevant duty of care and that there was a breach of that duty productive of the injury to the right shoulder, I can readily reach similar conclusions in so far as the injury to the left shoulder is concerned.
I turn to the question as to whether a reasonable person in the defendant's position would have foreseen that his conduct involved a relevant risk of injury either to the plaintiff or to those engaged in the lashing procedure as a class.
In the course of his evidence, Dr Kilpatrick referred to available literature going to the question of the state of scientific knowledge as to the ergonomic safety of using a device such as the Norwegian twitch. An extensive bibliography was tendered. Although much of the literature predated it, Dr Kilpatrick made particular reference to an article by R Welch in the September–October 1965 issue of an Australian journal, "Industrial Engineer", entitled "Muscular Strain on the Assembly Line". That article referred to tenosynovitis and muscular strain as having become the greatest cause of accidental loss of time in industry, most of which could be attributed to one or more of a number of causes, namely bad tools, bad working posture and bad work methods. Amongst other things, that article recommended that where the carrying out of a procedure requires the application of considerable force or jerks, mechanical aids ought to be employed. According to the witness, the views expressed by Welch reflected the general thrust of most of the literature. I accept Dr Kilpatrick's evidence to the effect that the article reflects the state of scientific knowledge in 1965. Taking that evidence in conjunction with the nature of the procedures required to be performed by the plaintiff, as to which I have already made findings, I conclude that a reasonable person in the defendant's position, would have foreseen that requiring the plaintiff and other members of the crew to repetitively lash and unlash cargo using the Norwegian twitch involved a risk of injury, in the nature of a repetitive strain injury, to such persons. The plaintiff's right shoulder condition is the result of such injury. The risk was not far–fetched or fanciful, but rather one well recognised and a frequent subject of discussion in engineering, medical and other scientific journals. There is further evidence which confirms that conclusion. Capt Peter Ryan was called by the plaintiff. Capt Ryan was the Master of the Straitsman from 1 January 1976 until 13 February 1991. Prior to that, he had been the first officer of the vessel for some months, commencing at the time when the Straitsman was recommissioned after having sunk in the circumstances to which I have referred. He said that the lashing system gave rise to some concern on his part. He said that his concern was that the system could cause injuries and accidents. He described it as "a very physical system requiring quite a lot of energy from the human body to tension the system". I accept that Capt Ryan held such concerns and that they were the subject of some discussion on his part with the defendant's commercial manager in Melbourne. The Master of the vessel was ultimately responsible for it and its crew, and the Master's knowledge of the risks associated with the use of the lashing system ought to be attributed to the defendant.
Having determined that a reasonable person would have foreseen a relevant risk of injury, then a number of other matters need to be considered. The risk of injury was significant and the degree of the probability of its occurrence increased with the length of time over which any individual carried out the lashing procedure. Some cross–examination was directed to the proposition that the risk of injury was not high because one would expect that a large number of lashings would need to be performed before disabling injury occurred. That misconceives the nature of the risk. It is beside the point to say that the risk of disabling injury is one that might occur after one lashing in say ten thousand. That does not directly identify the risk of injury which, in the circumstances of this case, is one arising out of the repetition of the relevant procedure frequently over a long period of time. In the context of discussing probability in the relevant sense, a likelihood that one in twenty persons would develop a disabling condition as a result of carrying out the lashing procedure after having done so for a period of five years (and that is the evidence, which I accept) is a high degree of probability. There was some evidence directed to the question as to the expense difficulty and inconvenience of taking alleviating action. The alleviating action which would have been taken in the present case is obvious. The Norwegian twitch should never have been used. An alternative method, namely the bottle screw system, was available and had in fact been in use on the Straitsman prior to its sinking. I do not know whether upon the raising of the Straitsman that system, as installed on the Straitsman, was recovered, or, if recovered, it remained in a condition where it was suitable for further use or could conveniently have been restored to such a condition. All I know is that the Norwegian twitch system was readily available by way of being transferred from the Rah. It was considered appropriate to remove it from that vessel prior to it being disposed of and to transfer it to the Straitsman. I heard no evidence as to the savings (if any) achieved by transferring the system from the Rah as compared with installing a bottle screw system. It was submitted that the bottle screw system was not suitable because it was simply too slow. I do not accept that submission. I have no evidence as to the respective times which might have been occupied by lashing a cargo using the Norwegian twitch on the one hand and the bottle screw system on the other hand. The fact is that the latter system had previously been employed on that vessel. I heard no evidence of any particular problems arising in the operation of the vessel by reason of the use of that system. Mr Frankin expressed the view that the bottle screw system did not lend itself to fast turn–around vessels. Nevertheless, assuming that the Straitsman could be described as a fast turn–around vessel, the bottle screw system had previously been used on that vessel. There may or may not have been an increased capital cost in installing the bottle screw system in the Straitsman rather than the Norwegian twitch system. I have no evidence of that. I have no evidence as to any difference in operating costs between the two systems, except a suggestion that the bottle screw system was slower in operation, indicative of the possibility that further manpower would have been required so that cargo could be lashed in sufficient time to meet schedules. Having referred to the lack of evidence as to these matters, I should record that during the course of his closing address senior counsel for the defendant did say that the bottle screw system "probably wasn't terribly expensive".
I need to balance all these matters. Those matters which might be said to favour the defendant are vague in the extreme. I have concluded that on balance the issue ought to be determined in favour of the plaintiff. The defendant was in breach of its duty of care towards the plaintiff. The disabling condition in the plaintiff's right shoulder is the product of that breach. For reasons which ought to be apparent from what I have said I find pars(b), (c) and (d) of the particulars of negligence and/or breach of contract set forth in par8 of the statement of claim to be made out. Although the matter might be thought to be open to argument, the defendant has conceded that the Straitsman was a "work place" for the purposes of reg201 of the Industrial Safety Health and Welfare (Administrative and General) Regulations 1979. That matter having been conceded, I conclude that pars(j) and (k) of the particulars of negligence and/or breach of contract have been made out. I do not find the balance of the particulars made out. In so far as they relate to the actual manner of operation of the lashing procedure, the evidence does not satisfy me that it was possible to apply the lashing procedure in any of the ways suggested, at least on a regular basis. In so far as those particulars rely upon allegations that the plaintiff advised the defendant of pain and disability to the right shoulder or that the defendant knew of the same, I am not satisfied that at any relevant time such advice was given or that the defendant had such knowledge.
As a separate question, I must consider whether, in so far as the condition in the left shoulder is concerned, there was a breach of the defendant's duty of care towards the plaintiff. The reasons which I have given in finding such a breach in so far as the right shoulder condition is concerned apply equally to the left shoulder condition. In addition, there are further matters which reinforce the proposition that a reasonable person in the defendant's position would have foreseen relevant risk of injury. The occurrence of the injury to the right shoulder in itself put the defendant on some notice as to the dangers associated with the operation of the lashing system. The initial notice of accident given by the plaintiff to the defendant was to the effect that he had strained his right arm in the course of taking off chain lashings. That notice was followed by a number of medical reports and certificates submitted by or on behalf of the plaintiff to the defendant. Mr Batt's report of 14 November 1980 to the defendant reported that the plaintiff had had pain in the shoulder since September 1980, and that that pain came on whilst pulling chains and pulling on a bar at work. In that report Mr Batt expressed the view that the plaintiff was then suffering from a rotator cuff syndrome of the right shoulder and that there was found to have been some degree of blocking of abduction of the shoulder due to supraspinatus tendon swelling. At that stage, Mr Batt indicated that conservative treatment was indicated, but by a further report of 5 December 1980, he informed the defendant that he had excised the outer end of the plaintiff's acromion in the right shoulder and that he expected that that would allow free passage of the supraspinatus tendon. That material should have put the defendant on notice of a relevant risk of injury. The condition of the left shoulder became disabling within about two months of the plaintiff returning to work. As the plaintiff was ambidextrous, the foundations for the left shoulder condition probably were laid long before the plaintiff became disabled in the right shoulder condition. Nevertheless the subsequent favouring of the left arm in the course of lashing (which must be taken as having been within the putative knowledge of the defendant) ought to have alerted the defendant immediately to the danger of further disabling injury. The defendant's response was to do nothing. I find that the disabling condition in the left shoulder crystalised as a result of the strenuous exertion on the part of the plaintiff in lashing and unlashing, making use of his left arm and shoulder, and that it is the product of the defendant's breach of its duty of care to the plaintiff.
Turning to the particulars of negligence and/or breach of contract alleged in the context of the left shoulder condition, I come to the same conclusions in relation to the particulars which are set forth in par9 of the statement of claim as I have in relation to the corresponding particulars relating to the right shoulder condition contained in par8. I do not find the additional particulars alleged in relation to this condition to be made out in the terms in which they have been pleaded. In those terms, they are not supported by any evidence which I accept.
VOLUNTARY ASSUMPTION OF RISK
By its defence, the defendant asserts that "the Plaintiff with full knowledge and understanding of the danger (if any) arising from the system of work plant and equipment provided voluntarily accepted the risk of injury resulting from each and every one of the acts and omissions complained of in carrying out the said work." Since the decision of the House of Lords in Smith v Charles Baker & Sons [1891] AC 325, there has been little scope for this defence in actions by employees against their employers. In that case, Lord Herschell said, at p362:
"Where, then, a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer, does the mere continuance in service, with knowledge of the risk, preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty? I cannot assent to the proposition that the maxim, 'Volenti non fit injuria,' applies to such a case, and that the employer can invoke its aid to protect him from liability for his wrong.
It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk. Whatever the dangers of the employment which the employed undertakes, amongst them is certainly not to be numbered the risk of the employer's negligence, and the creation or enhancement of danger thereby engendered. If, then, the employer thus fails in his duty towards the employed, I do not think that because he does not straightway refuse to continue his service, it is true to say that he is willing that his employer should thus act towards him."
It is not sufficient for the defendant to establish that the plaintiff accepted the risk of being injured. The defendant must establish that the plaintiff voluntarily assumed the legal risk of injury, ie consented to the breach of duty complained of. The relevant principle was expressed by Street CJ in Hewertson v Courtaulds Ltd [1957] SR(NSW) 398, at p401, in the following terms:
"It is the assumption of the legal risk which the defendant must prove in order to escape liability, and not the mere assumption of the physical risk involved in carrying out of a dangerous operation in industry, and there must be some material from which the jury could draw the inference that the deceased in the present case consented to the breach of duty now complained of, that is to say, consented to the defendant's negligence and voluntarily incurred the risk which would be entailed as a consequence of such negligence."
In considering what is involved in voluntarily incurring the risk, Scott LJ said in Bowater v Rowley Regis Corporation [1944] KB 476, at p479:
"For the purpose of the rule, if it be a rule, a man cannot be said to be truly 'willing' unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but with the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will. Without purporting to lay down any rule of universal application, I venture to doubt whether the maxim can very often apply in circumstances of an injury to a servant by the negligence of his master."
The risk of injury to the plaintiff arose out of the plant and equipment with which he was required to work and the method of the operation of that plant and equipment. No other form of relevant plant and equipment was available. Some form of equipment for the purpose of lashing down cargo needed to be utilized on board the vessel. The plaintiff utilized the only form of equipment available for that purpose. It is doubtful whether there was any alternative practicable way of applying the lashing system. If there was, then the plaintiff was given no instructions as to that. As a class, the persons involved in lashing either used the plant and equipment available or otherwise did not carry out lashing at all. Presumably their employment would not have lasted very long if they had declined to carry out the lashing, as the completion of the process was a prerequisite to the vessel sailing.
The evidence does not enable me to conclude that the plaintiff voluntarily assumed the legal risk of injury. Even if the evidence enabled me to so conclude, then it appears that the defence is not available because I have found the defendant to be in breach of its statutory duty (Baddeley v Earl Granville (1887) 19 QBD 423; Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669). This defence fails.
CONTRIBUTORY NEGLIGENCE
The defendant has pleaded a defence of contributory negligence. Only one particular is alleged. The defendant asserts that the plaintiff contributed to his injuries by his negligence in operating the lashings alone or at all when he was aware that it caused him pain to do so. For this defence to be made out, the defendant needs to establish four separate matters, as follows:
(a)That the plaintiff's conduct was of a type which involved a foreseeable risk of injury to himself.
(b)That there was then available to the plaintiff a reasonably practicable alternative course of conduct which would have obviated the risk of injury.
(c)That the plaintiff's conduct materially contributed to his injury.
(d)That the plaintiff's conduct showed a want of reasonable care for his own safety.
It is appropriate to consider the second of those matters first. In considering that matter, two questions ought to be asked:
(a)Was it reasonably practicable for the plaintiff to avoid carrying out the lashing procedure at all?
(b)Was it reasonably possible for the plaintiff to carry out the lashing procedure in some different way being a way which did not give rise to the risk of injury?
As to the first of those matters, it is common ground that after the plaintiff underwent surgery to the left shoulder, he no longer physically applied lashings, but rearranged the work required to be done for the purpose of applying lashings between himself, as bosun, and the two able seamen assisting him, so that those seamen applied the lashings and the plaintiff laid out the chains. I am not satisfied that it was reasonably practicable for the plaintiff to have adopted that course of action prior to the left shoulder condition becoming disabling. The rearrangement no doubt involved a certain amount of indulgence on the part of the able seamen whereby the plaintiff was no longer required to do that which normally would have been regarded as his fair share of the work. Whilst the able seamen were prepared to accede to such a redistribution of work when the plaintiff was entirely disabled from lashing down cargo, a quite different attitude might have been taken had the plaintiff suggested such a rearrangement at a time when he was not physically disabled from carrying out the lashing. It ought also to be remembered that, upon the findings which I have made, any of the persons regularly involved in lashing down cargo was at risk of injury. If the plaintiff ceased lashing down cargo, those working with him were in the position of having to lash down a greater quantity of cargo, thereby increasing their risk of injury. It is hardly an answer for the defendant to say that the plaintiff was negligent because he did not have other employees perform the relevant tasks at an earlier time when any employee performing those tasks was thereby exposed to a greater risk of injury. As to the second question, the evidence does not suggest that there was any reasonable practicable alternative way of applying the lashings so as to obviate the risk of injury. The defendant did not suggest that there was such an alternative way. Prima facie the plaintiff's normal duties involved applying a proportion of the lashings and inherently that work involved the risk of injury. I do not need to consider the other matters which the defendant needs to establish to make out this defence because it has not discharged the onus of satisfying me that there was a reasonably practicable alternative course of conduct which would have obviated the risk of injury at any material time. The defence is not made out.
DAMAGES
I therefore turn to an assessment of the plaintiff's damages. The general damages to which the plaintiff is entitled fall into the following categories:
(a) Loss of past earning capacity;
(b) Loss of future earning capacity;
(c) Future medical and pharmaceutical expenses; and
(d) Pain, suffering and loss of the amenities of life.
In so far as loss of past earning capacity is concerned, the parties put the following agreed facts before me:
(a)The plaintiff was unable to work for the period 14 November 1980 to 17 February 1981 as a result of his right shoulder condition and thereby lost net earnings of $2,990.20.
(b)The plaintiff was unable to work for the period 29 May 1981 to 4 August 1981 as a result of his left shoulder condition and thereby lost net earnings of $3,826.68.
(c)During the financial year ended 30 June 1988, the plaintiff spent less time working on board ship by reason of his disabilities and thereby lost net earnings of $4,118.39.
(d)Other than as to the periods and amounts referred to above, the plaintiff retained his full earning capacity up until the date of trial.
It follows that had the plaintiff otherwise been able to pursue his normal occupation, he would to date have earned an amount of $10,935.27 in excess of that actually earned by him. It does not necessarily follow that the plaintiff's loss of earning past capacity equals that amount. Some allowance for contingencies, and in particular the contingency that the plaintiff might have otherwise been disabled, ought to be taken into account. However, the allowance ought to be quite small, as the likelihood is that had the plaintiff not been injured, he would have earned the whole of the agreed amounts. Nevertheless the nature of his occupation is such that there is always present a real risk of injury, as has been demonstrated by subsequent events. I tentatively attribute $10,000.00 to the plaintiff's loss of past earning capacity.
I turn to the question of loss of future earning capacity. An assessment of that loss requires a consideration of a number of imponderables. The evidence leads me to the conclusion that on the most pessimistic view, the plaintiff will not be able to work as a seaman beyond April 1992. On the other hand, it is possible that employment as a seaman suitable to his physical condition will remain available to him until his retirement age, which is 65. It is necessary to consider some of the evidence giving rise to such a wide range of possible future scenarios. I accept the evidence of Dr Hilton Francis, a specialist rheumatologist, that the effect of the plaintiff's shoulder conditions is that he is able to continue in the workforce provided that he avoids heavy lifting, and in particular lifting at the level of the shoulder. The plaintiff is incapable of carrying out such heavy lifting work. In any event, if the plaintiff performed such work secondary degenerative changes are likely to ensue. If the plaintiff were to engage in employment requiring such heavy lifting his condition would rapidly deteriorate to the extent that he would soon be unable to work as a seaman at all. That is the effect of Dr Francis' evidence. The loss of earning capacity on the part of the plaintiff falls to be assessed upon the basis that his capacity to perform work is limited in that he is unable to engage in heavy lifting or work requiring him to work at or above shoulder level on a regular basis.
Despite that limitation, the plaintiff has been able to earn income as a seaman or bosun since he suffered the disabling conditions to his shoulders and largely such income has been at least commensurate with that which he would have been able to earn had he not suffered those conditions. Initially he continued to earn that income by working as a bosun on the Straitsman, rearranging the performance of tasks in the manner previously referred to. He continued to do that until 1985 when he accepted the redundancy payment to which I have referred. The plaintiff then obtained employment as a seaman on a rig tender servicing a semi–submersible oil drilling rig, initially off Port Lincoln and then off Portland. The work which he was required to perform was relatively light and the plaintiff had no difficulty in performing his duties, except in so far as he was required to do wire splicing. The plaintiff obtained that employment from the roster to which I will refer shortly. After some months, that employment was terminated, and the plaintiff went back on to the roster. After some time, he obtained employment with Tidewater Port Jackson Marine Pty Ltd (which company it appears was also his employer when he was working on the drilling rig) and the plaintiff has remained in that company's employ since then, except for one short period when he was on the roster from which he joined another vessel, the Lady Lorraine, which went to the Antarctic to rescue the Nella Dan. I found the plaintiff's reference to joining this vessel from the roster a little confusing, because shortly thereafter he appeared to suggest that he had joined the Lady Lorraine, which was a large rig tender by way of relief whilst still in the employ of Tidewater, and that that vessel received the emergency call to go to the Antarctic. His evidence suggested that being a relief worker he would not normally have gone to the Antarctic he did so because many of the regular crew members did not wish to go and because particularly high wages were offered for the voyage.
The plaintiff's present employment is as a seaman on a rig tender off the Northern Australian coast. His employment is secure until April 1992 when his employer's contract expires. If that contract is not renewed the vessel upon which the plaintiff is employed is to be re–delivered to its Norwegian owners. The contract may be renewed. The evidence is that the company is hopeful of renewing it for a period of three years. If it is renewed on or before its expiration, then the plaintiff could expect to remain engaged. If it is not renewed at all, then the plaintiff would need to go back on to the roster with a view to obtaining other employment as a seaman. If the contract is not renewed at its expiration, even though a fresh contract is entered into at some future time, the plaintiff would expect to have to go back on to the roster and have no particularly favourable position in so far as re–engagement on the rig tender is concerned. I infer that the likelihood is that if the contract is renewed at all, then such renewal will have been effected by the time that the present contract expires. Presumably the owners of the vessel will wish to make other arrangements for its utilisation some time before the expiration of the current contract should Tidewater no longer require it. At the same time, Tidewater, if a renewal of the contract is available to it, would wish to have some assurance that the vessel is available for that purpose. The plaintiff has worked for Tidewater for about six years. I have no evidence as to the length of time that Tidewater has in fact operated the rig tender upon which the plaintiff is engaged, nor do I have any evidence as to the number of contract periods during which it has been so engaged. I have no evidence as to the nature of the tasks being performed by the drilling rig in conjunction with which the rig tender is used. Those are matters which might be said to go to the likelihood or otherwise of the contract in fact being renewed in 1992 and again thereafter. The tasks performed by the plaintiff on the rig tender are appropriate to be performed by him and are tasks which he is quite capable of performing, and will continue to be capable of performing, notwithstanding his disabling conditions. The evidence before me does not go beyond establishing the expiry date of the contract and the desire of Tidewater to renew it. The plaintiff has adduced no evidence enabling me to make a realistic assessment of the likelihood of a renewal or further renewals occurring.
It is appropriate to make some reference to the roster system used to engage seamen. Evidence of the system was given by Mr John Higgins, an official of the Seamen's Union in Victoria. I accept Mr Higgins' evidence. The official name of the roster system is the Seamen's Stabilisation System. It was set up in 1964 by way of a tripartite agreement between shipowners, the Seamen's Union and the Commonwealth Department of Shipping and Transport. When a seaman finishes work on a vessel, his name is placed on the roster. Seamen are allocated to vessels or accept work on vessels from the roster. They have priority according to the length of time their names have appeared on the roster. If a person having priority declines a particular position, it is offered to the next person on the roster. If a seaman having priority declines a position but a seaman lower on the roster accepts that position, then the seaman declining the position remains on the roster. If no seaman other than the seaman having priority accepts the position then the latter may be required to take the position.
The plaintiff would have difficulty in obtaining employment as a seaman suitable to his condition on the Australian coastal trade in the future. The shipping industry is currently undergoing a re–structuring process whereby able seamen and greasers are retraining at the Australian Maritime College with a view to becoming integrated ratings. The purpose of the training is that able seamen undergoing it will acquire the skills required of a greaser, and greasers the skills required of an able seamen. The desired result of the retraining process is that integrated ratings will be able to perform the tasks of both able seamen and greasers. Greasers are largely employed in the engine rooms of vessels. Mr Higgins' evidence satisfies me that many of the tasks required to be performed by greasers are such as to be unsuitable for the plaintiff, having regard to his shoulder conditions.
It is expected that after 1993 there will remain on the Australian coastal trade a number of conventional vessels, ie those still having as part of the ship's complement, able seamen and greasers rather than integrated ratings. Mr Higgins considered that perhaps the only conventional vessels which would be left in 1993 would be one or two tankers. Even if there then remain any container vessels conventionally manned, seamen employed thereon would be required to lash down containers stacked, perhaps, 4 or 5 high. Whilst it might be expected that such containers would be lashed using the bottle screw device (which in itself the plaintiff is capable of using) the height to which the containers are stacked requires the constant raising of the arms at above shoulder level. The plaintiff ought not to perform tasks which constantly require this to be done.
The evidence satisfied me that after 1993, the plaintiff will have great difficulty in finding suitable employment on the Australian coastal trade. He would be inclined to seek such work only if work of the type presently being performed by him is no longer available. I am satisfied that the likelihood is that positions on vessels engaged in the Australian coastal trade which would be available would be such that the plaintiff's condition would prevent him from carrying out the necessary tasks, or in any event, would expose him to an unacceptably high risk of further disabling injury. The plaintiff has some residual earning capacity in occupations other than that as a seaman. In fact, counsel for the plaintiff conceded during argument that the plaintiff might well have experience making him fairly attractive on the labour market. The plaintiff described his prospects for work other than as a seaman as being "dismal" but I consider that to be an unduly pessimistic view.
It is agreed that the current gross income from the plaintiff's employment is $48,000.00 per annum, which in net terms after tax amounts to some $34,560.00. It is not suggested that the plaintiff's present income, which is earned by him working in an isolated area, reflects the income which he might have earned had he continued to work as an able seaman on the Australian coastal trade. It is also agreed that the gross income which could have been earned by the plaintiff as a bosun on the Straitsman had he not been disabled for the year ended 30 June 1988 was $36,845.00, or a net figure of $25,479.00. The plaintiff's employment on the Straitsman would, in any event, have terminated, as that vessel is no longer in service. The fact that one is employed as a bosun on one vessel does not mean that future employment on other vessels will be as a bosun. It may well be as an able seaman. I infer that an able seamen's income is less than that of a bosun, although no figures were provided. I infer that there have been some increases in the applicable rates but I have no evidence as to the actual current earnings of seamen working on vessels on the coastal trade. I assume, for the purposes of assessing damages, that if the plaintiff were currently to be employed as a seaman on the Australian coastal trade, his net annual income would be in the region of $25,000.00. Except for the fact that it is greater than that which he would have been earning if engaged on a vessel on the coastal trade, the level of income being earned by the plaintiff in his current position is entirely irrelevant. His present level of income cannot form the basis of any calculations of loss of earning capacity, as the plaintiff has not lost any capacity to earn income as a seaman on a rig tender. If that type of work continues to be available to him, he will continue to be able to perform it. If it does not continue to be available to him, then his capacity to earn income as a seaman will be substantially affected. The plaintiff is in the unusual position that he is not disabled from continuing in his present employment remunerated at a relatively high rate but is disabled from engaging in other work which is remunerated at a lower rate.
In assessing a tentative sum attributable to future loss of earning capacity, I take into account the following principal factors:
(a)There is a not insignificant degree of likelihood that the plaintiff would not find suitable work as a seaman on a vessel engaged in the Australian coastal trade if he were to seek such a position.
(b)The plaintiff will be able to continue in his present employment without financial loss for so long as that work continues to be available to him, and it is largely a matter of conjecture as to how long that might be. The plaintiff has failed to adduce evidence enabling me to make an informed assessment as to how long that might be although it is likely that he could have done so.
(c)The plaintiff has a residual earning capacity to earn income in occupations other than those involving going to sea, providing that they do not require heavy physical exertion, but the extent to which such employment might be available to him is a matter of considerable uncertainty.
(d)The plaintiff is aged 53 and would be required to retire at 65, although I infer that the plaintiff might well be minded to retire prior to that age, even if continuing suitable employment was available, having regard to the strenuous nature of work at sea and the availability to him of a pleasant residence in a remote part of Victoria where he lives with his wife in a house which he has built. Whilst the plaintiff spoke of the need to continue working until he attains the age of 65 years, in order to pay off a mortgage, that carried with it the suggestion that he might not be averse to early retirement if financially he was able to do so. An award of damages may enable him to retire somewhat earlier.
(e)The normal contingencies of life with particular reference to the inherent dangers in working at sea.
Taking all those factors into account, I consider it appropriate to attribute a lump sum to the plaintiff's future loss of earning capacity without reference to any particular mathematical approach. This is not an appropriate case to adopt such an approach. I tentatively attribute the sum of $60,000.00 to the plaintiff's loss of future earning capacity.
I turn to the question of future medical and pharmaceutical expenses. I consider it reasonable that the plaintiff continue taking Codral Forte from time to time to relieve the pain brought on by his shoulder conditions. The medication is only obtainable upon prescription, so that he needs to consult his general practitioner for the purpose. I tend to the view that the plaintiff somewhat overstated the extent to which he had need of Codral Forte. The evidence of his general practitioner, Dr Jones, suggests that the last two occasions prior to the doctor giving evidence upon which the plaintiff had obtained prescriptions for Codral Forte were 23 July 1990 and 24 December 1990. The evidence was that multiple prescriptions were provided and that the cost of the medication so prescribed is between $12.00 and $16.00. There was no express evidence as to the cost of a consultation. It is possible that from time to time the plaintiff will require some other minor medical attention. I consider it appropriate to proceed upon the basis that the plaintiff's condition will require him to expend an annual sum of $75.00 in respect of consultations with his doctor and the provision of pharmaceuticals for the rest of his life. Upon that basis, I tentatively attribute $850.00 to this item.
The final component of the plaintiff's claim for general damages is for pain, suffering and the general loss of amenity of life. I accept that from time to time the plaintiff does suffer from some pain. The extent to which he does so is perhaps indicated by the extent to which he finds it necessary to take medication. However, generally speaking, the plaintiff is only moderately affected by his conditions. The plaintiff underwent two operations on his shoulders. Considerable pain and discomfort was occasioned by those operations and their sequelae. The plaintiff is limited in some of the normal domestic activities in which he might otherwise engage. I consider a sum in the region of $15,000.00 as being appropriate damages under this heading.
The total of the sums which I have tentatively attributed to the various components of the plaintiff's claim for general damages is $85,850.00. Rounding that off, I consider that an appropriate award for general damages is $86,000.00.
In so far as special damages are concerned, I allow $1,041.70 in respect of past medical expenses, and $210.00 in respect of the cost of pharmaceuticals incurred to date, a total of $1,251.70. I observe that no claim for hospital fees was made. They were paid by the defendant pursuant to the provisions of the Seamen's Compensation Act 1911 (C'th). Had I had evidence of the amount, I would have included the amount of that expenditure as special damages, but would then have been required to reduce the damages award by an equivalent amount. As those fees cannot affect the final award I will ignore them.
Against the total damages of $87,251.70 must be set off compensation paid to and on behalf of the defendant pursuant to the provisions of the Seamen's Compensation Act. No argument was addressed to the issue as to whether s10A(3) of that Act requires me to deduct from the amount of damages recoverable from the defendant the net amount or the gross amount of the payments of weekly compensation made by the defendant (see Harvey v Electrolytic Zinc Co. of Australasia Ltd [1980] Tas R 167 at pp168–9). I will hear counsel further on this matter before finally determining the amount for which judgment is to be entered.
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