Barker v Rand Transport (1986)P/L
[2013] QDC 172
•31 July 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Barker v Rand Transport (1986)P/L [2013] QDC 172
PARTIES:
GARY BARKER
(plaintiff)v
RAND TRANSPORT (1986) PTY LTD
ACN 009 180 983
(defendant)FILE NO/S:
BD37/12
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
31 July 2013
DELIVERED AT:
Brisbane
HEARING DATE:
22, 23 and 24 July 2013
JUDGE:
Andrews SC DCJ
ORDER:
Judgment for the plaintiff against the defendant in the sum of $137,469.37
Costs reservedCATCHWORDS:
TORTS – NEGLIGENCE – VICARIOUS LIABILITY – where negligent worker supplied by labour hire business to defendant – whether defendant vicariously liable
TORTS – where occupier of premises had rule against forklifts entering trucks with drivers inside – where forklift driver completed defendant’s safety course – where defendant observed no breach of rule by forklift driver – where forklift driver entered truck injuring plaintiff – whether occupier breached duty to take reasonable precautions for the safety of the plaintiff
DAMAGES – whether plaintiff’s losses were caused independently of injuries sustained on defendant’s premises
COUNSEL:
de Plater for the plaintiff
de Jersey for the defendant
SOLICITORS:
Schultz Toomey O’Brien Lawyers for the plaintiff
Sparke Helmore for the defendant
Issues
The plaintiff was at the defendant’s cold storage facility attending to cargo in the back of his truck when a forklift entered the back of the truck and knocked a metal bar out of place. The bar struck and injured the plaintiff. It was unsafe practice to drive a forklift inside the rear of a truck if someone was inside and unskilful driving to strike the metal bar. The forklift driver’s conduct was not defended. He was negligent. The plaintiff has not proceeded against the forklift driver or against the labour hire business which supplied the forklift driver to the defendant. The plaintiff proceeds against the defendant at whose premises the forklift driver was driving. Is the defendant vicariously liable for the forklift driver’s negligence where the labour hire entity supplied him? If the defendant is not vicariously liable for the negligent forklift driver, did the defendant independently breach its duty to take reasonable precautions for the safety of the plaintiff. The defendant had strategies in place to prevent forklifts and truck drivers being inside trucks together, a rule against forklifts entering the back of trucks when truck drivers were inside and strategies to bring the rule to the attention of forklift drivers, whether employees or not. Quantum of damage is also in issue in circumstances where the Civil Liability Act 2003 has no application. There is an issue about which of the plaintiff’s symptoms have been caused by the incident.
Facts
The plaintiff was born on 21 October 1951. He was 58 years and nine months of age when he was injured on 23 July 2010 by the metal bar. He was 62 years and nine months of age at the date of trial.
The plaintiff attended school in England to the age of 15, then became a truck driver’s mate and subsequently drove trucks. He has been a truck driver for most of his working life. He has no other qualification. He drove fuel tankers for Shell Australia from 1985 until 2010 when he was made redundant. He drove semi‑trailers for Shell and sometimes 1,000 kilometres a day.
He was not idle after his redundancy. He was offered work as a truck driver for Toll. He rejected that because he preferred to start his own business. He finished his employment with Shell on a Friday and was working in his new business on the following Monday. The plaintiff’s daughter and her husband were then health food shopkeepers and owned a 4.5 tonne refrigerated truck. The plaintiff’s new business involved using his daughter’s truck for delivering freight to his daughter’s shop and any other work he could find using that truck. In that truck the plaintiff worked about 30 hours per week delivering items on journeys ranging from Brisbane to the Sunshine Coast.
The plaintiff had a friend who was then operating another refrigerated truck. The plaintiff’s friend was ill, undergoing chemotherapy and welcomed the plaintiff’s assistance as his temporary replacement. The plaintiff received a week’s instruction from his friend and then drove for his friend for the next eight weeks. During that eight week period the plaintiff would drive one truck in the mornings and the other in the afternoons. For his friend, the plaintiff worked about 40 hours per week driving a heavy, rigid, refrigerated truck. For his daughter and son-in-law he would drive for about thirty hours per week.
The plaintiff was accompanied by his friend only once to the defendant’s premises at 1248 Lytton Road, Hemmant. The defendant carried on a cold storage and transport business there and was lessee of the premises. The plaintiff drove the truck, unaccompanied by his friend, to the defendant’s premises about another four times before the incident in which he was injured.
The plaintiff’s evidence was that he received no instruction or induction from the defendant’s representatives at the premises as to how he was to behave, with the exception that the usual procedure was that the dock supervisor at the premises would identify into which of the seven docks at the premises he should park his truck. I accept that evidence of the plaintiff and find that he was given no useful instruction to wait in a safety zone or about when to wait in a safety zone. There was inconsistent evidence given by the defendant’s dock co-ordinator Justin Dickson (“Mr Dickson”). Mr Dickson gave evidence that it became his habit to give safety direction to any new drivers he identified; that he recalled the plaintiff to have visited prior to the day of the incident and that he recalled instructing the plaintiff on that earlier occasion to wait in the safety zone. It was a busy place. There were seven docks but there could be twenty trucks there at one time; seven trucks in the docks and others waiting. It is plausible but would be impressive if Mr Dickson could remember telling the plaintiff, on some otherwise unremarkable prior occasion, that the plaintiff should wait in the safety zone. Mr Dickson did not explain what he told the plaintiff or new drivers generally about precisely when they were to wait in a safety zone. That is relevant to my finding for the plaintiff on this issue. There was a place between each pair of docks where drivers could stand. The place was called the “driver exclusion zone” and was presumably the safety zone of which Mr Dickson gave evidence. There were several reasonable possibilities for the type of direction a new driver could be given about waiting in a safety zone. Not all possibilities would be as protective as others.
The plaintiff had practices which were common for truck drivers at the premises. It was uncommon for a driver to go directly to the safety zone upon parking as there were jobs for a driver to do. The rear of the truck was to be opened. In the case of trucks like the one driven by the plaintiff, two doors were to be opened and folded back against the sides of the truck. Then, it was common for a driver to do a job in the back of a truck. A driver with his or her own manual pallet jack would often have fixed it under and against the rearmost laden pallet in a truck. Before such a pallet was unloaded, such a driver would remove the pallet jack from under the laden pallet and exit the rear of the truck with the pallet jack and place the truck’s pallet jack in the dock area. I infer that this allowed the defendant’s mobile pallet jack or forklift to have clear access to the laden pallets which were to be removed from a truck. Once the appropriate laden pallets were removed from the truck by the defendant’s worker, a truck driver could be expected to return the truck driver’s pallet jack to the back of the truck and to attach it under and to the rearmost laden pallet in the truck. Empty pallets would be brought by the defendant’s worker to replace the laden ones which had been removed.
Mr Dickson did not say whether his instruction to new drivers to wait in the safety zone came with any more detail. I am not satisfied that he discussed with truck drivers whether they were permitted to return their pallet jacks to the back of their trucks before or after the defendant reloaded the trucks with empty pallets. An instruction to a driver to stay in the safety zone when the truck is being unloaded and reloaded does not prohibit drivers from returning to the back of a truck between the unloading and the reloading. A driver who received the instruction and sought to comply with it might still enter a truck between the unloading and the reloading and ought to expect that a forklift driver who approaches the truck for replacing pallets will not enter the truck before the driver exits and returns to the safety zone.
The defendant has not satisfied me that Mr Dickson gave the plaintiff instruction about remaining outside his truck until replacement pallets had been loaded. Because Mr Dickson was giving his evidence years after the event and because his memory of instructing the plaintiff about remaining in the safety zone is susceptible of honest reconstruction, I prefer the plaintiff’s evidence that he received no instruction to wait in the safety zone. I was urged to make a credit finding against the plaintiff because of the discrepancy. I do not.
On Friday 23 July 2010 between 10:30 a.m. and 11:00 a.m. the plaintiff drove his friend’s Pantechnicon-style truck in the course of his business to the defendant’s premises at 1248 Lytton Road. The defendant accepts that it owed the plaintiff a common law duty to take reasonable precautions for his safety at the premises. During the plaintiff’s opening, the defendant’s counsel advised that the defendant abandoned its allegation of contributory negligence by the plaintiff.
On the day of the incident, the dock supervisor, Mr Dickson, was not in his usual position. The plaintiff left his truck and walked to find the dock supervisor. When he found Mr Dickson the plaintiff was told to enter dock 7. The plaintiff waited for a truck to exit dock 7. The plaintiff reversed the truck into loading dock 7 at the premises and parked the truck there.
The plaintiff followed what had been his usual procedure. He backed the truck into the dock. He opened the truck’s two back doors and folded them to the sides of the truck. He chocked the truck’s rear drive wheels with the wedges made available to him at the premises. He took the keys from the ignition. He identified for Mr Dickson the four pallets that were to be unloaded. The four pallets closest to the rear opening were identified. The interior of the back of the truck was wide enough for two pallets across. The plaintiff removed the hydraulic manual trolley jack which he routinely locked under and against one of the rearmost pallets in the truck. He took that jack out of the truck and put it on the dock. Mr Dickson stood on a small electric pallet jack which he used to remove the four pallets. The plaintiff described it as a forklift but it may be that it should be distinguished from a forklift for there were other machines at the premises called forklifts which were bigger and there was evidence that all “forklifts” at the premises were the same size. It was not suggested that anything turns on the name. After that, Mr Dickson, still standing on the pallet jack, signed the plaintiff’s paperwork.
Once the paperwork was signed and before 11 a.m., the plaintiff took his hydraulic manual trolley jack from the dock and into his truck to put it under the last pallet in the truck in accordance with his routine. While he was in the back of the truck, a forklift, operated by one Michael Bryers (“Mr Bryers”), entered the back of the truck. The forklift dislodged a 15 kg spring-loaded spacing bar called a pogo stick which, in turn, struck the plaintiff in the back of the head, injuring him. The pogo stick was stored by the plaintiff in its proper place across the rear of the truck, above head height and parallel with the plane of the rear opening. There is an issue pleaded about whether the incident occurred at about 10.58 a.m. or about 35 minutes earlier. Nothing turns on resolution of that issue.
The plaintiff was facing towards the front of the truck when he was struck. He had returned into the rear of the truck for about a minute to perform his tasks. While the plaintiff was in the rear of his truck looking towards the front, he heard Mr Dickson give some instructions. Mr Dickson’s evidence was that he was elsewhere at the time of the incident. The plaintiff was unsure of precisely what task he was doing when he was injured. He was either securing the trolley jack under and to his last laden pallet or attending to the load. Because four pallets had been removed from the rear of the vehicle, it meant he would have been standing about two pallet widths, at least, from the rear entrance.
The defendant was still to load four empty pallets into the truck to replace the four pallets which had been removed.
Forklifts at the premises were each of one size. Mr Dickson did not use the name forklift for the electric pallet jack he operated to take pallets from the truck. The machine operated by Mr Bryers was different in some way and was a forklift. It was bigger than Mr Dickson’s electric pallet jack.
While the electric pallet jack operated by Mr Dickson was capable of entering the back of the truck without dislodging a pogo stick, the forklift operated by Mr Bryers dislodged the pogo stick. It is likely that impact propelled the pogo stick forward to strike the plaintiff on the back of his head.
It was opened for the plaintiff that the evidence would be that the forklift driven by Bryers into the truck and which dislodged the pogo stick was a larger forklift than the one which had been driven by Justin Dickson. The plaintiff gave no evidence that Bryers drove the forklift into the truck or of the size of the forklift. The fact that Bryers entered the back of the truck operating a forklift which dislodged the pogo stick was admitted in the pleadings.[1]
[1]Amended Statement of Claim para 6, Amended Defence para 6.
The plaintiff felt as if he had been struck by a lightning bolt. He touched his head and felt blood. He felt sick, a screaming headache and was shaking. He was taken to the Princess Alexandra Hospital where he received 18 sutures. He was not admitted to hospital. His wife, Mrs Barker, drove him home.
The plaintiff did not return to work in his truck driving business or for his friend or for his daughter and son‑in‑law.
Total Staffing Solutions had provided Mr Bryers to the defendant pursuant to a contract between Total Staffing Solutions and the defendant. The defendant asked for a forklift driver “to work on our cold store”. The defendant’s Queensland manager explained:
If we had a requirement for a particular storeman or forklift operator, whatever it was at the time, we would contact them. Generally they would send us some resumes to have a look at and we’d select one or two people from that and either interview or bring those people on-site and give them a run.
Mr Bryers was licensed to operate a forklift. There was no evidence given about his competence or experience as a forklift driver. The defendant assumed his competence and experience because Mr Bryers held a licence. Like any new worker at the defendant’s premises, Mr Bryers was required to perform a computerised induction process, then answer a 26 question test and, if successful, receive a certificate from the defendant. Mr Bryers had commenced work at the premises on Monday 16 July 2010. He worked there during the week until Friday. It was his fifth day of work for the defendant when he injured the plaintiff. His services were terminated by the defendant. The Queensland manager explained that it was for fundamentally breaching a safety rule at the premises. That rule was that a forklift must not enter a truck while there is a driver inside. I accept that it was the defendant’s rule that a forklift must not enter a truck while there is a driver inside.
There was no evidence as to who was liable to pay Bryers his remuneration. The defendant pleaded that Bryers was the employee of Total Staffing Solutions. It called no evidence of such a relationship.
Mr Bryers had no particular supervisor at the premises. He was given instructions by Mr Dickson. He was given instructions by a cold stores leading hand, Mr Young. He was treated by Mr Young, an experienced forklift driver himself, as an employee of the defendant. Mr Bryers would have been expected to attend any safety meeting, called a “toolbox meeting”, if one had been held. He would be treated like any employee in this respect.
Mr Bryers did not provide his own forklift. The defendant had its own forklifts at the premises. Mr Bryers could not delegate his tasks to anyone. He worked under the control of the defendant. His duties were allocated to him by the defendant’s employees and it was expected that he would always be given directions as to which trucks to unload and where to put goods. The defendant was able to dispense with his services due to breach of a safety rule, though Mr Whitecross qualified this by saying “via the agency, of course.”
Mr Dickson’s evidence is that shortly before the incident he instructed Mr Bryers to put four empty pallets on the dock; that the four were to replace the laden pallets removed from the plaintiff’s truck; that Mr Dickson intended to move the empty pallets into the plaintiff’s van from where Mr Bryers would place them on the dock. According to Mr Dickson, Mr Bryers should have left the pallets on the dock.
Mr Bryers breached the defendant’s rule at the premises by driving a forklift into the rear of a truck when the plaintiff was inside. Mr Bryers should have seen the plaintiff and probably did. Mr Bryers drove into the pogo stick in the plaintiff’s truck causing the pogo stick to dislodge from brackets holding it in place and to strike the plaintiff. Mr Bryers should have seen the pogo stick. I find that Mr Bryers was negligent for driving the forklift inside the back of the truck and into the pogo stick and his negligence caused the plaintiff to be injured.
The aspect of Mr Dickson’s evidence that Dickson instructed Bryers to place the pallets on the dock at the rear of the truck was not pleaded by the defendant.[2] Despite the fact that the defendant denied negligence on express bases that “Neither the Defendant or any of its servants or agents instructed or permitted Mr Bryers to drive the forklift into the back of the truck while the Plaintiff was in the back of the truck” and “The Defendant did not know and ought not reasonably to have known that Mr Bryers would drive the forklift into the back of the truck when the Plaintiff was in the back of the truck” this relevant evidence given by Mr Dickson was not pleaded as a basis for denying negligence or included in the evidence opened by defence counsel. I infer from these things that Mr Dickson had not provided the defendant or its lawyers with a written statement or other instructions to the effect that he instructed Mr Bryers to place the four replacement pallets on the dock. I do not accept the aspect of his evidence that he instructed Mr Bryers to put the replacement pallets on the dock.
[2]In the amended defence at paragraph 7.
There was no rule or convention at the premises preventing a forklift from entering the rear of a truck if the driver was out of the rear. There was no rule or convention to prevent a truck’s driver from entering the rear of a truck if a forklift was not inside.
At the premises it was treated by the defendant as a safety precaution to keep forklifts, pedestrians and truck drivers separate. A risk of personal injury arises if a forklift enters a truck’s cargo area while a driver is inside. The fact that this particular issue was stressed at toolbox meetings suggests either that it was not obvious to forklift drivers or to truck drivers or that it could be overlooked without reminders. There is no evidence about whether the holding of a licence to drive a forklift prepares the holder to appreciate the risk of drivers and forklifts coming into risky proximity in the backs of trucks. There is no evidence that persons qualified to operate a forklift are likely to have had the work experience of loading trucks when drivers may be at risk of being inside. The risk may have been peculiar to premises where forklifts unload and reload trucks. The risk of such personal injury was obvious to the defendant. The defendant did foresee a risk of injury to truck drivers in the rear of their trucks and to the plaintiff in the rear of his truck from a forklift being driven inside while the truck driver was inside.
Some steps were taken by the defendant to bring to the attention of any forklift drivers and any truck drivers the need for separation. It was a topic often raised at “toolbox meetings” attended by persons working at the defendant’s premises including forklift drivers. Such meetings occurred about fortnightly. There is no evidence that Mr Bryers attended such a meeting or that one was held in the 5 days when he worked at the premises or that this topic was necessarily discussed at every toolbox meeting. It was not submitted that Mr Bryers attended such a meeting and I do not find that he did.
Mr Bryers commenced work at the defendant’s premises on Monday 16 July 2010. On Tuesday 17 July, he performed the computerised induction program. He moved through 46 pages on computer. Only pages 11 and 12 were relevant to the risk of injury to a truck driver from a forklift entering a truck occupied by the driver. Pages 11 and 12 of 46 provided, so far as seems relevant:
“Key Hazards that are identified at Rand sites including:
1. Forklifts …
Be aware of falling or flying objects, this may include:
…•Spring loaded pogos hold energy, jammed pogos need to be handled in accordance with our risk assessment, e.g. only person/s handling pogo in back of truck, use of pogo hooks. Driver must stay in Driver Safe Zones.
•A person is not allowed in the back of a truck or dock ramp, whilst forklift is in there.
Rand has a goal of plant and pedestrian separation. That is we do not want people to be exposed to e.g. moving forklifts or reach trucks …. The best way to be safe from forklifts is not to enter operational areas if possible, but if required follow the pedestrian walkway and/or safe zones…”
After finishing the 46 page induction, Mr Bryers was obliged to answer a computerised set of questions dealing generally with safety issues.
Mr Bryers answered the questions. His answers are exhibit 27. He answered all 26 questions correctly. No question related to the issue of driving a forklift into the rear space of a truck if a driver was inside. As for rule for forklift drivers that they must not enter a truck while the driver was inside: the induction’s 46 pages left it to be inferred and the questionnaire did not deal with it.
Exhibit 28 is a certificate which was signed by Mr Bryers on 17 July 2010, after he completed the course. Before the signature, this declaration appears:
“ACKNOWLEDGEMENT – I acknowledge that I have personally read and understood the Induction, successfully answered the questionnaire and agree to abide by all the requirements outlined in the induction.”
Exhibit 28 shows that after successfully completing the course, Mr Bryers was issued with an “Induction Licence” which was “valid” until 19 July 2013.
A number of witnesses gave evidence of their recollections of events practices at the premises before the incident. The Queensland state manager of the defendant recalled that occasionally he saw truck drivers break a requirement to remain in the exclusion zone. It is difficult to know how drivers breached that requirement when Mr Whitecross witnessed it. I bear in mind that any driver could be expected to walk from a truck’s driving cabin to the back of the truck and to perform activities in the rear. A driver exclusion zone is provided adjacent to each pair of docks and drivers may pass the time within the zone if a forklift is loading or unloading in the back of a truck. However, a driver may have jobs to do in the back of a truck such as to remove a pallet jack from the truck before pallets are removed and return it to the back of the truck after pallets are removed. It means that the plaintiff’s activities on the day of the accident and immediately prior to his injury, were predictable and would have been a reason to be within his truck and not within the driver exclusion zone.
Matthew Young, a leading hand at the defendant’s cold stores on the day of the incident, had never once seen a driver in the back of a truck while a forklift entered. Mr Young’s responsibilities on the day of the incident were mainly the supervision of staff and co-ordinating the loads in and out of the depot. He had been performing these tasks for about 12 months at that time. He did not see the incident as he was inside a freezer. So far as he was aware, Mr Bryers had no supervisor working directly with him. However, Mr Young would assign tasks to him and “sort of supervise him” while Mr Young was attending to his own tasks. Mr Young knew of a rule that a forklift driver was to wait before entering the back of a truck until the truck driver came out from the back of the truck and stood in the exclusion zone. He had not seen Mr Bryers breach that rule. Mr Young initially explained that there was no buddy system for new workers at the premises but that if he was buddied up with a new employee he would show that employee the procedures. He did not say what procedures. In this respect, Mr Young’s evidence differed from his state manager’s evidence.
Mr Whitecross gave evidence of the defendant’s process for each new worker, including those workers from Total Staffing Solutions:
when they first come to us, they sit down at the gates for our online induction systems to go through the basic safety functions of the facility and the basic requirements of the facility from refrigerated transport operation as well as a number of other areas. Once they’ve successfully completed that, that’s printed out, signed off. We then take them out onto the dock and we put them with an experienced operator, like a buddy system, and that person will take them through the basic operation…
Elsewhere Mr Whitecross elaborated on what was explained and for how long:
Once they had been through that, they were taken onto the floor, into the work area, and they were put with an experienced employee to take them further through the physical operation of what goes where, I suppose, on the dock. They’re given a walk around, obviously shown where the facilities are. But again, they’re stepped through the process of how we go about our day to day tasks.
And was there a set period of time that the experienced employee would be assigned to the new worker or not?‑‑‑Not a set period of time as such, because each person will pick up different tasks in, you know, a different time frame. Generally, a person is given the more basic task of potentially unloading a truck. So checking off paperwork, you know, where to put freight when it was unloaded from the truck, and those sorts of things, and that might take a day or two for a person to become, you know, proficient in that part of the operation.
I accept that Mr Whitecross believed that, generally, an experienced operator acted as a mentor for an indefinite period of up to a day or two. Mr Young did not give evidence that he buddied up with Mr Bryers. In cross-examination Mr Young, contradicting his earlier evidence, agreed with the proposition that there was some sort of buddy system where a new employee would be buddied up with an experienced employee. When asked how long someone would be in the buddy system, Mr Young’s answer was:
It’s just – I dunno. It’s assigning a – I would just assign him a very simple task and keep an eye on him while I went and did my own duties.
When it was suggested to Mr Young that the system might last for a week he accepted that it was possible. No witness claimed to have been a buddy for Mr Bryers. It was not submitted for the defendant that Mr Bryers was given a particular buddy or mentor. I do not find that he was.
Mr Young’s evidence was to the effect that a forklift driver approaching the back of a truck could see inside and see whether a driver was present but that unless a person was at the rear of a truck looking through its open doorway there was no way to determine whether a driver was inside. Mr Young gave evidence that if he saw that there was no driver in an exclusion zone he that he would stop and check. That was not informative or persuasive. I accept that drivers were permitted into the back of their trucks and that Mr Young had not witnessed a forklift enter a truck with a driver inside. I infer that a truck seen parked a dock in circumstances when a driver was obviously absent from the driver’s cabin and from the safety zone would not be a cause for immediate concern because the driver would be expected to be in the back. Mr Young had not personally told a driver to go to the driver exclusion zone.
It is difficult to know when Mr Young would regard it as necessary to check a driver’s whereabouts and how often this would occur.
There was no particular rule against forklift drivers entering trucks if the truck drivers were absent from the driver exclusion zone.
It was submitted by counsel for the defendant that Mr Bryers had been instructed during the induction and subsequently by his supervisor, Mr Young, that he must not drive a forklift into the back of a truck if a driver was inside. I do not accept either component of that submission.
As to the induction, there was no evidence of any instruction to Mr Bryers other than what he should have read in the 46 pages. The relevant parts from pages 11 and 12 extracted above do not expressly set out that a forklift driver must not enter the back of a truck whilst a driver is inside or that a forklift driver must not enter the back of a truck until the driver is in a “Driver Safe Zone”. A reasonable inference from the extract from pages 11 and 12 is that a forklift driver should avoid operating a forklift in the back of a truck if a driver is inside. A forklift driver must infer this rule because the document does not expressly contain it. Where the document deals with the inside of the back of a truck, it assumes an example when the forklift is inside the truck and on that premise, it observes that a “person is not allowed in the back of a truck or dock ramp”. Written that way, it is more like a rule to stop persons walking in on a forklift rather than a rule to stop forklifts driving in on a person. It did not emphasise the obligation upon a forklift driver.
The evidence of Mr Young’s oral instruction to Mr Bryers does not go so far as the submission for the defendant. Mr Young did not give evidence of instructing Mr Bryers generally or specifically that he must not drive a forklift into the rear of a truck if a driver was inside.
Counsel for the defendant submitted that:
“Mr Young said that his practice was always to remind new workers assigned to him that it was a rule on the dock that forklift drivers were not to enter the back of a truck whilst any person was in the back of the truck.”
The evidence from Mr Young was not so unequivocal. When Mr Young was asked to recall his own induction and what he was told as to what forklift drivers or truck drivers were to do when trucks were being loaded he said that he could not remember what he was told. Mr Young was asked a leading question by the defendant’s counsel as to whether he told anything to a new staff member such as Mr Bryers starting at Rand Transport when he was supervisor and in particular what they were to do when trucks were being loaded when they were driving forklifts. Mr Young could not have failed to appreciate what answer would be helpful to the defendant. He gave the answer “basically the driver is in the back of the vehicle – you’re not to go in there.” Mr Young did not give evidence that he told this to Mr Byers or even that he remembered giving introductory instruction to Mr Byers. Bryers was not called. The defendant’s case that Bryers was orally instructed not to drive into the rear of a truck while a driver was inside, was entirely dependent upon proof that Mr Young instructed him. I am not satisfied that Mr Young told him. It was not suggested that anyone other than Mr Young would have orally told Mr Bryers this general safety instruction.
I am not satisfied that Mr Byers was told by Mr Young not to drive a forklift into the back of a truck while a driver was inside. I am not satisfied that Mr Dickson’s instruction to Mr Bryers to fetch four replacement pallets was accompanied by the instruction to place them on the dock at the rear of the plaintiff’s truck.
Michael Higgins, a storeman employed by the defendant in July 2010 and still so employed, has never seen the rule breached. Steven Osborn, a forklift operator employed by the defendant for about two years prior to the day of the incident, has never seen the rule breached. I accept his evidence that it was regularly spoken about that a forklift should not enter a truck if a driver was inside. If Dickson, Young, Higgins or Osborne had seen Bryers drive a forklift inside the rear of a truck while the driver was inside the rear, each would have spoken to Bryers. They did not see Bryers do so in the period he worked there. Accordingly, this evidence does not establish that Bryers received an oral direction or oral advice to stay out of a truck if the driver was inside.
Whether by the efforts of truck drivers or of forklift drivers or of both, it seems that truck drivers were generally safely absent when the defendant’s forklifts entered the rear of trucks. Only one witness could recall a couple of exceptions in several years and the exceptions occurred after this incident. It is statistically probable that Mr Bryers had no occasion to breach the rule prior to injuring the plaintiff and so had no earlier occasion to be corrected by an experienced worker at the premises. Nobody saw Mr Bryers breach the safety rule even on the occasion when he injured the plaintiff.
Evidence that workers would have corrected Mr Bryers if they had seen him breach the rule is unhelpful in resolving liability because I am not satisfied that Bryers was made aware of the rule before he breached it. There is no acceptable evidence that anyone orally instructed Mr Bryers of the rule prior to the plaintiff’s injury and the written induction course required him to infer it from one page within 46 pages of information generally irrelevant to the rule. The failure to include the rule in the questionnaire for the forklift driver will have served to disguise its significance.
As a result of being struck in the head, the plaintiff sustained a head injury, experienced pain and suffering, suffered some past economic loss and incurred some special damages for medical, travelling and pharmaceutical expenses.A laceration required sutures.
The extent of the plaintiff’s losses is in issue.The defendant’s case is that the plaintiff sustained a minor head injury; that its effects ceased to prevent the plaintiff from working before 1 April 2011, and that its other effects ceased before 1 August 2011. In other words, the defendant’s case is that the plaintiff was able to work 8 months after the incident and fully recovered from its effects 12 months after the incident; that if the plaintiff has suffered impairment or disability after 1 August 2011, the causes were pre-existing or other medical conditions and not injuries sustained in the incident.
It is the defendant’s case that Bryers was instructed not to drive a forklift into the back of a truck when a person was in the back of the truck; that neither the defendant nor any of its servants or agents permitted or instructed Mr Bryers to drive the forklift into the back of the truck while the plaintiff was there; that the defendant did not know and ought not reasonably to have known that Mr Bryers would drive the forklift into the back of the truck when the plaintiff was there and that Bryers had received training at the premises on 19 July 2010 when he was instructed not to drive a forklift into the back of a truck when a person was in the back.
Is the defendant vicariously liable for the negligence of Mr Bryers?
The plaintiff submitted:
In Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [12] per Gleeson CJ, Sweeney, Gummow, Hayne, Heydon and Crennan JJ the High Court confirmed that vicarious liability is confined to the acts or omissions of employees. It is common ground that Mr Bryers was not an employee.
Under cross examination, it was put to Mr Whitecross that the defendant exercised control in all respects over Mr Bryers. The case has, however, been conducted on the basis, which is common ground in the pleadings, that Mr Bryers was not an employee of the defendant.
The submission proceeds on a false premise that it was common ground in the pleadings that Bryers was not an employee of the defendant. That does not appear to be so from my reading of the pleadings. The plaintiff pleaded that the defendant was vicariously liable for Bryers and also that the defendant engaged Bryers as a worker. The plaintiff did not plead expressly that Bryers was employee of the defendant but did expressly deny that Bryers was an employee of Total Staffing Solutions. The plaintiff’s amended reply denies an allegation that the defendant contracted with Total Staffing Solutions to provide an employee of theirs and pleaded the basis of the denial as being that the defendant through that labour hire company engaged Bryers as a worker.
The fact that his services were obtained by approaching Total Staffing Solutions does not assist to determine whose employee Mr Bryers was. Mr Whitecross said of Bryers that “he works for an agency”. It raises the possibility that he was paid by the agency. Mr Whitecross called him the agency’s employee. Mr Young called Bryers an employee by which he meant an employee of the defendant. These terms as used by the witnesses do not persuade me of the characterisation of Mr Bryers' relationship with Total Staffing Solutions or with the defendant. I do not accept that Total Staffing Solutions was in the business of moving goods by forklift. I find it was in the business of providing casual employees. I do not accept that Total Staffing Solutions employed Bryers to drive a forklift.
The plaintiff submits that Bryers was an employee of the defendant or its agent and that either was a relationship creating vicarious liability.
The only feature which may have distinguished Mr Bryers from any employee of the defendant was the possibility that his contract for remuneration was with Total Staff Solutions. I call it a possibility because it is also possible that the defendant was to pay him directly. Mr Bryers was offered by Total Staffing Solutions but his appointment as a casual forklift driver was subject to the defendant’s interview or test run on site. Like the defendant’s employees, he was subject to the command of the defendant as to what forklift he drove, when and where he worked, what load he collected, where he placed the loads, when he could take a break, what workplace rules he was to follow, what safety meetings he was to attend and what hours he worked. He was treated by supervisory staff at the premises as if he was an employee subject to their direction and in the manner of his work and the way he was directed, he was indistinguishable from a casual employee of the defendant. The defendant was better able to calculate the safety risks from operating a forklift at its premises than Mr Bryers or Total Staffing Solutions.
It was submitted for the defendant that “the intricacies of his specialised job were a matter for him to exercise his discretion”. I reject that. The driving of the forklift was not so specialised that he was there to produce a result with special skill or machinery. Mr Young had risen from forklift driver to leading hand. I am satisfied that Mr Young and Mr Dickson had the skill to direct Mr Bryers as to how he should operate the forklift. The defendant intended to educate Bryers and to compel him to operate according to the system devised by the defendant for safety at the premises.
I regard the nature of the relationship between Bryers and Total Staffing Solutions as one whereby Total Staffing exercised no control over the way Bryers would perform his work for the defendant. Bryers exercised no independence as to the way he could perform his work.
The plaintiff relies upon Hollis v Vabu Pty Ltd (2001) 207 CLR 21, where the majority, at 41 to 44, accepted that the classification of a person as an employee involves a consideration of the nature of engagement and the work practices.
I regard Bryers as having been the defendant’s employee in substance, irrespective of the possibility that the defendant may have paid Total Staffing Solutions instead of Bryers and that Total Staffing Solutions may have in turn paid Bryers. A relationship of master and servant existed between the defendant and Bryers and not between Bryers and Total Staffing Solutions.
I find that the defendant was vicariously liable for the negligent conduct of Bryers which injured the plaintiff. It is unnecessary to consider the plaintiff’s alternative argument that Mr Bryers was an agent for whom the defendant was vicariously liable.
Did the defendant breach its duty to take reasonable precautions for the safety of the plaintiff?
The next liability issue is whether, irrespective of the finding of vicarious liability, the defendant breached its duty to take reasonable precautions for the safety of the plaintiff.
The defendant was aware of the risk of injury. It regarded the risk as requiring it to have a rule that forklift drivers not enter a truck while a truck driver was inside. It regarded it as prudent to remind workers of the rule regularly at toolbox meetings. It was reasonable for it to instruct Mr Bryers of the rule and the risk. I am not satisfied that Mr Young, or any other person told Mr Bryers of the rule or the risk. I am not satisfied that the induction course document indicated such a rule to Mr Bryers or that it adequately brought the risk to his attention. Mr Bryers supervision was such that even when he breached the rule, nobody observed it. I infer that the defendant should have expected that there were to be occasions when Bryers would be returning pallets to trucks without supervision. That knowledge made it all the more important that the defendant draw the rule and risk to Bryers’ attention.
The fact that Bryers breached the rule is circumstantial evidence that he was not told of the rule orally. I am satisfied that he was not told of the rule.
I find that the defendant failed to adequately draw to Bryers’ attention the risk arising from entering into the rear of a truck when the driver was present and failed to advise him that it was a rule at the premises that a forklift driver must not do so. Those failures were a breach of the defendant’s duty to take reasonable precautions for the safety of the plaintiff.
That breach was a cause of Bryers’ driving into the truck, dislodging the pogo stick and injuring the plaintiff.
The plaintiff’s relevant prior medical history
The plaintiff’s medical history with his general practitioner relevantly reveals:
12 July 2004 complaint of a headache 3 days before. Diagnosed as having a “pinched nerve” and referral for a CT scan of his cervical spine;
8 January 2005 complaint of interscapular pain;
12 January 2005 complaint of neck pain and muscle spasm in his left arm;
13 January 2005 complaint of pain down his left shoulder with an associated spasm in his neck which radiated to his occiput and he was referred to physiotherapy;
15 February 2007 complaint of left sided neck, shoulder and upper arm pain and was diagnosed as having a degenerative disease in his cervical spine;
19 February 2007 complaint of a flare up of pain in his left shoulder and upper arm (page 8);
16 July 2007 complaint of left shoulder symptoms (page 9).
Physiotherapy records relevantly reveal that:
he visited for physiotherapy for his neck, shoulder and upper arm pain in February 2007;
he told the treating physiotherapist on 26 February 2007 that it was “irritated over the weekend”;
he returned on 24 July 2009 complaining of the same problem.
I find that the medical records document significant symptoms of degenerative disease of the cervical spine and include confirmation of degenerative changes on CT scan. However, the reports of symptoms were generally different in quality from the symptoms suffered after the incident. The symptoms prior to the incident included interscapular pain, spasm in the neck with tenderness, pain down the left shoulder and into the upper arm with some radiation to the occiput, limited rotation.
Facts from the time of the incident and relevant to damages
On 23 July 2010, after the blow to his head, the plaintiff did not lose consciousness. He left the truck at the defendant’s premises and was physically unable to drive it away. He believes that he has had no loss of memory. There is no evidence that he has lost consciousness or suffered amnesia. Despite feeling sick, he did not vomit. He was taken by the Queensland Ambulance Service to the Princess Alexandra Hospital. He received 18 sutures there. He was not admitted to the hospital. Mrs Barker drove him home. The plaintiff’s treating doctor at the hospital reported that the plaintiff:
… had no loss of consciousness, no amnesia or vomiting, no neck pain, no visual disturbance and no focal neurological signs.
The plaintiff accepted that as an accurate account of his condition at the hospital.
After 23 July 2010 the plaintiff did not return to work driving either truck. He was physically unable to. He explained that he could not work because of crippling headaches, vertigo, dizziness and nausea. He said that he felt nauseous all the time. He had never suffered migraine headaches. There were considerable medical records relating to various complaints made by the plaintiff prior to this incident. Headaches, vertigo, dizziness and nausea were not included among the complaints in this past medical history. They were caused by this incident.
The accident put an end to the infant truck driving business he had commenced shortly before the end of the financial year. He made a loss in the business to 30 June 2010 and made a loss in the subsequent financial year in the few weeks when the business was running. This was in spite of the long hours the plaintiff was working driving the two trucks. The loss in the 2010 financial year was $268. The loss in the 2011 financial year was $2,389. Despite the plaintiff’s honest intention to build up the business I am unable to determine whether it would have been financially viable. However, because of the plaintiff’s long and continuous work history as a truck driver, I find that if the business had remained unprofitable the plaintiff would have reacted reasonably. His truck driving skills, his capacity for long hours, his history of continuous employment and of an unsolicited employment offer from Toll persuade me that he was capable of returning to employed truck driving.
On 26 July 2010 the plaintiff consulted a general practitioner at the Kawana Seven Day Medical Centre. He also applied for workers compensation. The general practitioner prescribed strong Panadol.
As time passed the prescription medications became stronger. The vertigo continued. If the plaintiff put his head on a bed he would spin and felt that he had to hold the bed. For some weeks he was unable to drive his own car but then did return to doing so.
He noticed dizziness and vertigo from the first day. He would feel them intermittently on looking up, lying down and on rolling left and they left him feeling imbalance and nausea. He did not vomit. He also noticed that the headache was constant and that there had been some sharp stabbing pains at the site of the injury. Initially he had also experienced tinnitus.
Mrs Barker observed that the plaintiff, after the incident, was regularly dizzy and tired, complaining of headaches and stumbling. She remembers that he reduced his outdoor work, his social activities and his boating. She observed him to be constantly ingesting medication, which was unlike him for he had always been reluctant to take tablets.
On 6 October 2010 the plaintiff told Dr Jones that his stabbing headaches had settled.
On 12 October 2010 the plaintiff saw a vestibular physiotherapist, Meg Richards. By this stage the tinnitus had ceased. He still suffered vertigo and had symptoms of dizziness and imbalance. Vertigo, dizziness and imbalance are each separate matters. Ms Richards gave him a vestibular rehabilitation program to address those problems.
On 12 November 2010 the plaintiff told Dr Chris Jones that his vertigo had nearly gone.
On 30 November 2010 Mr Barker returned to Ms Richards and reported that his dizziness had gone but that he was still off balance and that his headaches and neck pain were unchanged. Ms Richards was not a musculo-skeletal physiotherapist and did not seek to treat the headache and neck problems.
On 1 December 2010 the vestibular physiotherapist, Meg Richards expressed an opinion to Dr Jones, the plaintiff’s general practitioner, that the plaintiff would benefit from a review by a musculo-skeletal physiotherapist with a view to treating his ongoing headaches and neck pain. Mr Barker did not know of this recommendation and did not seek a review. However, he was referred to a physiotherapist, Ms Maren Mallet.
By 16 February 2011 the plaintiff saw the musculo-skeletal physiotherapist, Maren Mallet five times. The treatment included trigger point release, muscle energy techniques, a home exercise program for “CX range and stability” which I interpret to mean for range of movement and stability for the cervical spine, and she treated him also for balance and prescribed heat packs. Ms Mallet was reluctant to use a traction machine without any prior investigation on the cervical spine by either x-ray or MRI because of her feeling that the symptoms could be related to upper cervical instability. She suggested to Dr Jones in a report of 16 February 2011 that an orthopaedic specialist referral would be useful to get to the root of the headache problem. The treatments did not make a difference to the reports of headaches. Ms Mallet noted reduced range of movement but no neck pain. Mr Barker was unaware of the suggestion by Ms Mallet that he be investigated by an orthopaedic specialist. He was not referred to one by his general practitioner.
The defendant’s counsel submitted that Ms Mallet’s opinion was that the plaintiff’s pre-existing condition is probably responsible for his ongoing headaches. The submission infers too much from the opinion “that his symptoms could be related to an upper cervical instability”.
On 20 April 2011 the plaintiff visited his general practitioner, Dr Jones. He had recently spoken with a person at WorkCover who suggested that he should consider seeing a psychiatrist. I infer that this suggestion arose because headaches of the persistent kind of which the plaintiff complained are not an orthodox consequence of his minor head injury. The plaintiff was upset by the suggestion. He told Dr Jones on 20 April 2011 that he would not have a psychiatric assessment because he had received “too much badgering” from WorkCover to undergo such an assessment. There is no evidence that the plaintiff suffered a psychiatric problem although I accept the opinion expressed later by Dr Stuart that he had suffered anxiety and depression. This was obviously an opinion about the period since the injury.
In May 2011 the plaintiff’s WorkCover benefits ceased. He went to Centrelink. He was constantly feeling down from his constant headache.
On 14 July 2011 the plaintiff was interviewed and examined by a neurosurgeon, Dr Scott F Campbell, who prepared a report that day for the plaintiff’s solicitor. The plaintiff reported to Dr Campbell that he was still suffering symptoms of headache, nausea, vertigo, unsteadiness with a tendency to fall, poor concentration and irritability. Dr Campbell expressed his opinions on the premise that there was no past history of headaches. I accept that that was an appropriate premise. Notwithstanding that in the past history of medical complaints to his general practitioners the plaintiff had mentioned headaches occurring on a day in July 2004, his comprehensive medical records were notable for the absence of complaints about headache. Dr Campbell noted that the complaints to him were of chronic headaches occurring daily, rating from five to eight out of 10 on the visual analogue scale, that they were associated with nausea, vertigo and unsteadiness and with a tendency to fall. The plaintiff advised that he had fallen to the ground on at least six occasions. The headaches decreased his concentration and irritability. When severe they would cause him to cease activity and to lie down in a quiet dark room and to take painkillers. I accept that the complaints made to Dr Campbell at that stage and recorded by him were honestly provided to Dr Campbell and generally accurate.
It was Dr Campbell’s opinion that:
“It is likely the head injury caused ongoing chronic headaches. However it is unlikely the severity of the headaches pertaining to the minor head injury would prevent him from maintaining his position in the workforce. The severe nature of the headaches is unexplained, as are his other symptoms of vertigo and poor balance. The headaches have persisted for 12 months and are likely to be chronic. Ongoing treatment should be with painkillers and modification of activities when practical. There is no further treatment required. Mr Barker’s prognosis with regard to return to work as a truck driver at present is poor due to the severity of the headaches but only a proportion of the headaches can be accounted for as a result of the work accident… He is suffering a 2% whole person impairment for the post-traumatic headaches.”
I do not regard that opinion by Dr Campbell as attributing all of the headaches to the accident. However he seems to have attributed some of the continuing headaches to the accident. He was not cross-examined. There are some issues about how to interpret his report.
I accept his evidence that some of the headaches were then attributable to the accident. I find that the inability of the plaintiff to then return to work was caused, at least partly by the proportion of headaches caused by the accident. It was reasonable to suspect that there may by then have been causes unrelated to the accident for some proportion of his headaches. I accept Dr Campbell’s opinion that he was then suffering a 2% whole body impairment for post-traumatic headaches. I find that the opinion was there describing that proportion of the headaches attributable to the accident. I note that Dr Campbell’s opinion about impairment was expressed in the present tense but he opined that the headaches were likely to be chronic. I find that his opinion that headaches would be chronic was intended by him to include some proportion of headaches caused by the accident.
On 14 September 2011 the plaintiff was seen by an occupational therapist, Mr Fraser, for an assessment at the request of the plaintiff’s solicitors. The plaintiff recited some history to Mr Fraser which I accept as generally correct. It was that he remained independent with all self-care activities; that he was unable to perform outdoor maintenance tasks for about 10 months after the accident; that he was currently out on his boat taking photographs for four or five hours per week; that he then believed himself unable to return to truck driving because of headaches, nausea, unsteadiness and sleep impairment. At that time Mr Fraser held the opinion based on the subjective account of symptoms given by Mr Barker that he was capable of employment of a “sedentary” and “light” nature only, as those words are detailed by the dictionary of occupational titles; that he was then incapable of returning to work as a truck driver having regard to his functional presentation at assessment and Mr Barker’s self-report of subjective symptoms; that it was difficult for Mr Fraser to explain the severity of the symptoms from an organic/pathological perspective and difficult to provide an opinion about his capacity for commercial employment in the future.
Mr Fraser gave evidence at trial and explained that truck driving can be employment of a “light” nature. The type of driving done by the plaintiff for Shell and the driving of a cement truck were each of a light nature in the sense that the plaintiff was not required to lift anything more than about 10 kilograms in weight.
By 29 September 2011 the plaintiff was unprofitably attempting to carry on business in boat photography. On that day he assessed by Dr Gordon Stuart, consultant neurosurgeon, for a medico-legal report prepared for the defendant’s insurer. Dr Stuart noted that the plaintiff complained of ongoing constant headaches, nausea, vertigo and occasional poor balance, that turning his head quickly could produce vertigo with a sensation of the room spinning. The plaintiff reported that the headache was of variable intensity and would disturb sleep, that it had no specific aggravating or relieving factors. He had a full range of active voluntary neck movements. Dr Stewart expressed the opinion that the plaintiff:
has ongoing headaches, nausea, vertigo and poor balance following a minor head injury. These symptoms are not consistent with the stated cause. Other related injuries, illnesses, diseases include cervical spondylosis which could be responsible for headaches of the muscle tension variety. The vertigo, nausea and occasional disturbance of balance could be due to the condition of benign positional vertigo …Regarding fitness for work, he currently appears incapable of resuming work. However, I found no reason as part of my physical examination whereby he could not resume work. A better assessment may be obtained following an assessment by an ear, nose and throat specialist.
Sequelae on recreational and social functioning have been minimal. He still does household duties, gardening and lawn mowing but does experience some vertigo on bending. Active rehabilitation is desirable. In relation to psychogenic potentiation and non-organic factors, there has been some anxiety and depression …
The present state of his injuries is that the injury has healed but he has ongoing symptoms which can no longer be attributable to the minor head injury…I consider that he has not yet reached maximal medical improvement…The claimant does not require domestic assistance as a result of the injury…I do not consider that the claimant’s injuries are solely the result of the incident. I consider the injury has now healed. He has predisposing, pre-existing degenerative disease of the cervical spine and he possibly has benign positional vertigo unrelated to the accident… I do not consider that the head injury will affect his capacity for future employment … I did not assess him as having any whole person impairment … I think he should be assessed by an ear, nose and throat specialist …
As at 29 September I accept the correctness of the opinions of Dr Stuart that “there has been some anxiety and depression” and he “has predisposing, pre-existing degenerative disease of the cervical spine …unrelated to the accident”. I reject Dr Stuart’s opinion that “the injury has now healed” as too simplistic. I regard it as unsound having regard to the temporal connection between all symptoms and the date of the accident, the continuity of symptoms, albeit of lessening severity since that date and the absence of explanation for that continuity. As for the headaches, I prefer the approach of Dr Campbell which was to attribute a proportion of the headaches to the injury. I find that as at 29 September 2011 a proportion of the plaintiff’s headaches were attributable to the injury.
By October 2011 the plaintiff had resumed his hobby of boating and was going out on his boat for four to five hours per week. Prior to the accident the plaintiff had enjoyed boating and went out on every shift when he was not working. Effectively, that meant that he was out boating twice a week. After the incident, he would not go out at all unless someone was with him. I infer that he regarded himself as incapable of doing so. I accept that he lost the enjoyment of this for some months.
On 27 October 2011 a medical assessment tribunal assessed the plaintiff. For that purpose he described his situation to them. At that time he complained of a constant dull headache which he described as a pressure in the frontal region which he rated as 3 out of 10 in severity. It was not responsive to medication or physiotherapy. He complained of chronic nausea which had been present since the incident. He was not experiencing vertigo at that time. He was then running a boat photography website service.
On 9 March 2012 the plaintiff commenced work with Tellam Civil Products as a truck driver. By this date the plaintiff’s dizziness, nausea and vertigo had resolved. He continued with that work for a month when his employment was terminated by his employer. He drove a crane truck for Tellam. He paid $900 for the purpose of a crane ticket to qualify him for the job. He did not receive the crane ticket, but because he started the course he was able to retain the job. He was still headachy in the job but regarded his performance as reasonably efficient. He had been on Centrelink benefits since his WorkCover benefits ceased. The Centrelink benefits discontinued shortly after he began at Tellam. For Tellam he drove to the Gold Coast once. He drove to Gladstone about three times. Mr Boyce, the person at Tellam who had engaged his services, approached him on his last day before lunch to say that the services were not required. He did not explain why. The plaintiff regarded it as work that made him suffer but that he was capable of doing. He did not mind driving the long distances. He did not explain what he meant by the fact that he was “suffering”.
After the plaintiff finished work at Tellam he explored buying his own truck driving business. He found one on the internet. He purchased a six-wheeled, concrete agitator truck and the right to deliver concrete until 14 April 2014. He had purchased what amounted to the last 22 months of a 10 year contract to deliver concrete. He paid $95,000 for the business. He has no right to renew the contract when it expires in April 2014. If he wishes to continue in the business, he is obliged to purchase a new eight-wheeler truck for about $220,000-250,000 and to purchase a $50,000 agitator bowl to go onto the back of the truck. If he is offered the contract, he would have the income sufficient to purchase because the company offering the contract offers drivers some income as security. The income is sufficient to cover the repayments on the loan borrowed to buy the truck. He currently works five days a week and would be required to continue to do so.
The plaintiff suffers headaches still. They come on normally between 11 p.m. and continue until 4 a.m.. The plaintiff rises generally at 4 a.m.. He takes Nurofen when he rises in the morning and headaches get better. He tries to then get some more sleep. He gets up during the day and then might take another two or four Panadol Osteo tablets during the day. His broken sleep means that he is constantly tired.
General damages
I assess $30,000 as an appropriate award for general damages for pain, suffering and loss of the amenities of life. In this respect, I accept the plaintiff’s counsel’s submission.
Interest on general damages
I regard the plaintiff’s pain, suffering and lost amenities due to the injury to have substantially abated and to have been replaced by problems not shown to have been related to the injury. For that reason, I propose to allow interest at 2% per annum on $20,000 for three years, being $1,200.
Past economic loss
By his Statement of Claim the plaintiff alleged past economic loss in the form of income which he would have earned as a self-employed truck driver at the rate of $1,043.90 net per week. Due to the short period in which the plaintiff ran his truck driving business and the fact that it did not have time to prove itself the plaintiff relied instead on a calculation done by Mr Thompson and claims $100,000 to 30 June 2012. On 30 June 2012 Mr Barker commenced earning pursuant to the contract which he had purchased. I accept the evidence of Mr Thompson that the plaintiff’s notional commercial earning capacity with his skills as a truck driver for the financial year ended 30 June 2011 would have been $65,307 before tax and $50,752 net after tax and for the financial year ended 30 June 2012 $73,500 before tax and $56,680 after tax. I accept those as reasonable hypotheses as to his earning capacity in those years. In FYE 2011 the plaintiff earned no income. In FYE 2012 he earned $7,098 after tax. It was partly on these bases that Mr Thompson expressed the opinion that past economic loss to 30 June 2012 was $100,345.
I accept that the headaches sustained by the plaintiff as a result of the incident were only a proportion of the headaches which he sustained. Immediately after the incident the headaches would have been wholly attributable to the incident. As time passed, I am satisfied by the plaintiff of no more than that a diminishing proportion was attributable to the accident.
I am satisfied that the plaintiff’s past economic loss to 30 June 2012 was primarily caused by the accident. Because the plaintiff was in his loss making business when injured and because I am unable to determine its financial viability or for how long the plaintiff would have persisted with it if it did not return a profit, I regard it as too generous to award the plaintiff $100,345. That figure would be appropriate if he was not losing money at the time.
I assess past economic loss at $80,000.
Interest on past economic loss
The plaintiff received benefits from WorkCover in the sum of $30,496.20 and from Centrelink in the sum of $11,494. The plaintiff’s entitlement to interest on his past economic loss must take into account the benefits that he has received. The plaintiff submits for interest at 10% per annum for two years to the present. I accept that approach. It follows that he is entitled to interest at 10% per annum on $38,009.80 which is $7,601.96. There was no challenge to the interest rate by the defendant.
Past loss of employer’s contribution to superannuation
The plaintiff alleged in his statement of claim that he has lost those compulsory contributions to superannuation which would otherwise have been made by his employers in compliance with the Superannuation Guarantee (Administration) Act 1992, compensable in damages in an amount calculated at 9% of the award for past economic loss. The plaintiff did not persist with a claim under this heading.
Future economic loss and impairment of earning capacity
The plaintiff alleged in his Statement of Claim that the injuries sustained in the incident have impaired his earning capacity in the future to a retirement age of 65 in an amount of $95,000 after discounting by 15% for the vicissitudes of life. There was no evidence given by the plaintiff of the age at which he had intended to retire before he was injured or of the age at which he intends now to retire.
The issue is the effect of his headaches on his earning capacity and future income. His headaches impair his capacity to some extent. The plaintiff has not satisfied me that the headaches he now experiences are all attributable to the incident. The plaintiff satisfied me that for a time, a proportion of his headaches were attributable to the accident. I am not satisfied that the consequences of the plaintiff’s injuries sustained in July 2010 cause any current impairment of his earning capacity and am not satisfied that they will cause him future economic loss. A calculation was done by Mr Thompson of the extent of future loss which the plaintiff would suffer if he lost the last five years of his working life in circumstances where he otherwise would have remained in the workforce to age 70. There was no challenge to the accuracy of Mr Thompson’s figures. I reject the premise that the plaintiff has lost five years of his working life as a result of the injury. The assessment under this head is nil.
Future loss of employers’ contributions to superannuation and special damages
The plaintiff alleged in his statement of claim a loss of compulsory contributions to his superannuation which would otherwise have been made by employers in compliance with the Superannuation Guarantee (Administration) Act 1992. It is not sought in submissions.
The plaintiff alleges that he will incur expenses in future for pharmaceuticals and other associated travelling and miscellaneous expenses and claims $5,000. I am satisfied the plaintiff has a need for future medication. I am not satisfied that the future expense is caused by injuries sustained in the accident.
Special damages
Special damages paid by WorkCover were $9,954.86. They are recoverable. The plaintiff also suffered special damages of $900 being the cost he paid to seek a crane ticket. Since WorkCover benefits ceased the plaintiff has incurred the expense of $12.50 per week, being $7.50 for medication and $5 for travelling, for 116 weeks. Taking account of the fact that I am not persuaded that all of his symptoms are related to the injury I regard it as appropriate to allow half this amount: $725.
Interest on special damages
The plaintiff seeks interest at 10% per annum for 1.1 years. Applied to a figure of $1,625, that is $178.75. There was no challenge to the interest rate by the defendant.
Medicare refund
The unchallenged refund to Medicare is $495.80.
Fox v Wood
The plaintiff claims $6,413 for income tax instalments made by WorkCover in respect of weekly benefits. It is not challenged.
Summary
Damages are assessed as follows:
General damages $30,000
Interest on general damages $1,200
Past economic loss $80,000
Interest on past economic loss $7,601.96
Future economic loss Nil
Future special damages Nil
Special damages paid by WorkCover $9,954.86
Fox v Wood $6,413
Refund to Medicare $495.80
Special damages $1,625
Interest on special damages $178.75TOTAL $137,469.37
0
1
0