Bishop v Interwest Investments Pty Ltd - [2000] WADC 299

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BISHOP -v- INTERWEST INVESTMENTS PTY LTD [2000] WADC 299

CORAM: CHARTERS DCJ

HEARD: 25-28 SEPTEMBER 2000

DELIVERED : 21 NOVEMBER 2000

FILE NO/S: CIV 3969 of 1998

BETWEEN: CAMERON LUKE BISHOP
Plaintiff
AND
INTERWEST INVESTMENTS PTY LTD
Defendant

Catchwords:

Negligence - Assessment of damages - Turns on its own facts

Legislation:

Workers' Compensation & Rehabilitation Act

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr M H Zilko

Solicitors:

Plaintiff: Bradford and Co
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Cardiff Corp v Hall [1911] 1 KB 1009
Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619
Crombie v Uniting Church in Australia Property Trust (WA) (1996) 17 WAR 291
Electric Power Transmission Pty Ltd v Orgaz (1989), unreported; FCt SCt of WA; Library No 7914; 3 November 1989
Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (1987) 8 NSWLR 707
Klarich v Altec Engineering Services Pty Ltd, unreported; FCt SCt of WA; Library No 5547; 9 October 1984
McLean v Tedman (1984) 155 CLR 306
Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Raimondo v State of South Australia 23 ALR 513
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Schellenberg v Tunnel Holdings Pty Ltd 170 ALR 594
Smith v Broken Hill Co Pty Ltd (1957) 97 CLR 337
Turner v The State of South Australia (1982) 56 ALJR 839
Wade v Allsop (1976) 10 ALR 353

CHARTERS DCJ: The plaintiff is a 24 year old former apprentice plant mechanic who claims damages following an injury suffered in the course of his employment with the defendant on 4 March 1997.
His case is that at the Fremantle Wharf where some imported 639D scrapers were being unloaded preparatory to them being sent to the quarantine yard for inspection, to ensure that no dirt or other material had been brought into the country from the United States, the plaintiff's task was to extract steel hydraulic pipes from the cavity in the scraper bowl to enable foreign sand in the cavity to be removed.
He had to remove about four airlines and two steel pipes. The latter were about 1in in diameter and were difficult to remove because of sand and dirt. There was a forklift on site which was used, but lack of space prevented its full use. A workmate, Mr David Hitchcock, hosed water around the piping while the plaintiff tried to pull the pipe free, pulling horizontally at about shoulder level twisting to his right.
Considerable effort was required and in the course of that activity he suffered a sharp pain in his lower back. He complained to Mr Hitchcock of this incident but kept working until they succeeded in removing the whole block.
The accident is said to have happened about 3.00pm and work stopped at 5.30pm when the plaintiff drove back to the defendant's yard in Bayswater.
The plaintiff's back was very sore overnight to the extent that he slept on the floor and the following day he reported the injury to the foreman, Mr Brian Thompson.
The particulars of the defendant's negligence are said to include failing to supervise the plaintiff adequately whilst performing the task, failing to ensure that the pipes were free of dirt and debris which would have made the task easier to perform, failing to provide the plaintiff with a safer working environment such as a platform, failing to provide adequate mechanical lifting aids such as a hoist and failing to provide the plaintiff with adequate assistance. In particular it seems the allegation is that the plaintiff was required manually to pull heavy pipes when it was unsafe to do so - the expression used in his statement of claim is "lift", but it is plain from the evidence that this was not a lifting activity.
The injury is pleaded as a ligamentous strain involving the left L3/4 and L4/5 facet joints, annular bulge at L3/4 level impinging upon the anterior aspect of the thecal sac, annular bulge at the L4/5 level impinging upon the anterior aspect of the thecal sac and abutting the traversing left L5 nerve root and central disc prolapse at the L5/S1 level impinging upon the thecal sac.
He claims general damages, past and future medical and other expenses, past and future loss of earnings, past gratuitous services and loss of superannuation benefits.
No evidence was led upon the claim for gratuitous services and there is clearly no sustainable claim for that head of damage.

Liability - Facts found

I accept the plaintiff's evidence of the circumstances under which the injury was suffered. He did suffer an injury to his lower back when he was strenuously pulling a pipe at about shoulder level using his hands horizontally and twisting to his right.
The plaintiff's task was to remove about four airlines and two steel pipes in what he called a "block". This task was commenced by placing a bracket and bolt to the end of the pipes and attaching it by chain to the forklift. The forklift then pulled them out as far as possible. When they could be pulled no further because of confined space between this scraper and a fence, the plaintiff and Mr Hitchcock tried to pull the rest of the block free manually. Because of the soil around the pipes which impeded their extraction Mr Hitchcock hosed some of the dirt from the pipes while the plaintiff pulled as hard as he could on the block twisting during that movement.
I find that a safe manner in which this work should have been done was by the use of mechanical equipment such as a forklift. It was foreseeable while trying to pull the pipes manually, having regard to the strain required, that an injury to the back would occur.
Mr Hitchcock, a plant mechanic, was, I find, in control of the work. I do not accept his evidence that there was enough room to operate the forklift fully to extract the pipes: the evidence of the plaintiff is more credible and, because he was physically engaged in pulling the pipes, more reliable. He would not have embarked upon that strenuous activity if the forklift had been useable.
It must have been apparent to Mr Hitchcock that the plaintiff was trying to pull the pipes manually. The pipes weighed about 20-25kg and were about 4.8m long.
Mr Hitchcock said that manually pulling the pipes would probably result in injury - "It's commonsense".
It is part of the defendant's case that the use of a forklift for the completion of this work was impractical, if not impossible, because of the close proximity of these very large machines.
Nevertheless the machines before the hydraulic pipes were disconnected and the bowl was lowered were capable of being driven. Mr Thompson, the field service supervisor of the defendant, acknowledged that if those on site wanted to move the scraper's position, that could be done by arrangement with Brambles.
The plaintiff was under the direction of Mr Hitchcock and worked in the manner he plainly thought he should work and in a manner at least impliedly directed by Mr Hitchcock. The latter knew, or should have seen, that the plaintiff was pulling the pipes and this was unsafe.
It was open to Mr Hitchcock to have explained to Mr Thompson or a representative of Brambles that the work could not safely be completed unless the machine in question, or the adjacent machine, were moved to enable a forklift to have sufficient space to operate. Mr Hitchcock did not take that course and the defendant, in failing to have suitable equipment available for the task, is responsible for the injury to the plaintiff. The full use of the forklift would have prevented this injury.
It was also open to the defendant to have a ramp in position, either free standing or on the forklift, to give the plaintiff more height to pull the pipes and this may have resulted in less strain to the back than the high twisting posture adopted.
Lastly, the plaintiff should not have been left to pull the pipes on his own. Had Mr Hitchcock assisted, this too may have avoided the injury.
It is not suggested, and could not under the circumstances be suggested, that the plaintiff was guilty of contributory negligence where he was simply doing the task set for him by the defendant.
The defendant failed to exercise due care and its negligence resulted in injury to the plaintiff.

Damages - Facts found

Relevant history

The plaintiff was not interested in academic subjects at school and left school at the age of 16 - year 10. Whilst the plaintiff showed poor results in academic subjects he did have a good understanding and was interested in matters mechanical.
He completed Year 11 at Ursula Frayne Catholic College and during that year he was involved in the work experience scheme.
He showed initiative and interest at Mercedes Benz Diesel Motors and in the area of plant mechanic work at CJD Equipment. Indeed in April 1993 Boral commented that "for any future employer Cameron will make a first class mechanic given the correct training". He was a student with the defendant from 28 July to 29 September 1993 and the employer's assessment of him was commendable.
The plaintiff was anxious to take up work as a plant mechanic and applied for several apprenticeships without success until he obtained an apprenticeship with the defendant in 1994.
In the course of his apprenticeship the plaintiff was required to complete 26 units to qualify as a plant operator. Of these he has passed 10 and the balance of 16 units has been put on hold. The plaintiff acknowledges that he has difficulty reading and writing and this I accept as a reality.
The plaintiff attended TAFE for the three years 1994, 1995 and 1996 and is said by Mr Separovic, an advanced skill lecturer, to have had a large number of modules not completed. Each module has between 1 and 8 learning outcomes. The plaintiff's evidence is of a total of 77 learning outcomes he had completed 39. A rehabilitation counsellor, Ms Laura Nussbaum, made reference in her reports to matters related by Mr Thompson and the plaintiff. In particular, she said that the plaintiff told her in October 1997 that he had completed approximately two-thirds of his outstanding assignments; in December 1997 he estimated he had only four or five assignments left to complete. Although she was not cross‑examined, Ms Nussbaum's evidence (which is hearsay) cannot be preferred to that of the plaintiff. If a learning outcome has not been achieved, that is, failed, it is put "on hold". The student may, however, "remediate" the learning outcome to obtain a pass mark. The plaintiff was enrolled in 26 modules, 4 of which were half modules; he had attempted 24 as required but of these 16 modules were put "on hold".
No remediation work has been undertaken by the plaintiff since August 1995; he has 2 modules to remediate from 1994, 6 from 1995 and 8 from 1996.
There are many students who take substantially longer than the allotted three years to complete their studies. The plaintiff had the whole of 1997 to complete the outstanding leaning outcomes.
An employer may inform TAFE that an apprentice has orally met the requirements of a learning outcome satisfactorily and in that event a pass for that particular learning outcome will be recorded.
Of the 38 learning outcomes not completed by the plaintiff, 36 were theory without a practical component. One was a combination of theory and practice pertaining to electrical fundamentals and the other was a drawing project - engineering drawing interpretation.
The plaintiff had passed all but one of the practical subjects of the course.
One is not required to be licensed as a plant mechanic to work as such. It is a matter for any prospective employer to employ and pay a person skilled in that field.
Mr Thompson is not a licensed plant mechanic but as the plaintiff's employer, and a motor mechanic, was responsible for ensuring that the apprentice could understand what he was doing. The course becomes progressively more difficult. Once Mr Thompson was satisfied the apprentice, the plaintiff, understood what he was doing, Mr Thompson, as I understand his evidence, informed TAFE accordingly. Without that process of information the plaintiff could not complete his apprenticeship.
Mr Thompson found the plaintiff to be a good worker but he did not think the plaintiff would qualify as a tradesman - a plant mechanic. The plaintiff could not read information from a manual or text and understand it. He had reasonable practical skills but he could not handle the written aspects of the training. He had tremendous difficulty with electrics and hydraulics.
In the course of a plant mechanic's duties he must refer to a manual - a bulky, technical and detailed text.
Mr Thompson, on 14 November 1996, wrote to the plaintiff's parents and expressed his concern at the lack of progress being made by the plaintiff in his apprenticeship, notably by reference to his results from Technical School Training. He recorded that the plaintiff did not appear to be prepared to put in the study time required. The plaintiff was reported to Mr Thompson as one who showed a lack of confidence in himself, leading him to believe he could not pass the examinations and had "given up". Mr Thompson said he believed this was not true and that the plaintiff could pass the tests if he were prepared to make a commitment to his future, but unless he did so, he could see no future for the plaintiff in this industry. Mr Thompson took considerable trouble asking questions, using a white board for explanations and reading to him.
I found Mr Thompson to be a reliable and fair witness and accept what he has said.
Mr Thompson could not say whether the plaintiff may have passed the outstanding subjects in five or six years but "he really was having a lot of difficulties of understanding some of the material". He did not dare put the plaintiff anywhere near a transmission - he just did not understand it. Yet, "given enough time, he may have been able to do it". The thrust of Mr Thompson's evidence is that the plaintiff would not satisfy the requirements of his apprenticeship.
I conclude from all of the evidence that with the plaintiff's shortcomings in comprehension of written material he would not have qualified as a plant mechanic.
Accepting, as I do, Mr Thompson's evidence, it is unlikely that a person who has failed to achieve a plant mechanic's qualification would be employed and paid as a plant mechanic. He may, however, be employed as a trades assistant. I note the evidence of Mr Separovic that if the plaintiff never achieved the remaining theoretical requirements he could work in the trade for whatever an employer wished to pay him. I do not accept that Mr Separovic, as an academic, is well qualified to speak of employment prospects in the labour market.
The work of a plant mechanic, especially on site, may be heavy.
Before his accident the plaintiff was a good worker and though he would not have qualified as a tradesman he would have sought work in a mechanical capacity. He would ultimately have worked as a trades assistant to a plant or motor mechanic.

The injury

As a consequence of the accident the plaintiff suffered a soft tissue injury to his lumbar spine. He had pain radiating into the groin and also across the thigh and down the left leg. The lower back pain and the left leg pain improved with conservative management.
He was referred by his general practitioners, Dr Tierney and Dr Brodie, to Dr Rosenthal, a specialist in rehabilitation medicine, to Dr Gee, a specialist anaesthetist and consultant in pain management, and also to Mr Peter Watson, a neurosurgeon, and Mr Wong, a neurosurgeon, for management. The plaintiff was seen by other specialists - once in October 1998 by Mr David Wright, an orthopaedic surgeon, by Mr Brash, an orthopaedic surgeon, on two occasions, twice by Mr Slinger, an orthopaedic surgeon, for reports upon his condition for the purposes of these proceedings. He attended, at Dr Rosenthal's suggestion, on the Mount Medical Centre for rehabilitation - Ms Lisa Kingsley (an occupational therapist) in June 1997 for a work capacity report. He attended upon RTW Services, Ms Laura Jo Nussbaum, who has a post graduate diploma in rehabilitation counselling, from May 1997 to May 1998 for a physical reconditioning programme. CT lumbosacral scans and magnetic resonance scans of the lumbar spine were carried out in 1997 and magnetic resonance scan of the lumbar spine on 7 January 1999.
The radiological examinations showed no evidence of lower lumbar disc degeneration, disc herniation, disc bulging or neural impingement. The results of these tests in general terms showed a normal spine.
All the specialists to whom the plaintiff was referred by his general practitioner agree that the plaintiff suffered a mild soft tissue injury, from which he has made a substantial recovery.
I shall relate aspects of the medical evidence.
Dr Rosenthal saw the plaintiff in May 1997 at the request of Dr Brodie and diagnosed capsular ligamentous strain involving the left L3/4 and L4/5 facet joints - so he referred the plaintiff to Brian Edwardes for a muscle hardening programme. By June there was some improvement and the symptoms were then intermittent. This I now observe is consistent with the plaintiff's evidence that he currently has the odd twinge of pain in his back. Dr Rosenthal predicted that the plaintiff would make a good recovery and return to full pre‑accident duties. On 3 July 2000 the plaintiff presented with subjective complaints but Dr Rosenthal said objectively there had been significant improvement. He agreed with Mr Watson's assessment of 5 per cent permanent loss of function of the lumbo sacral spine. There was a lifting restriction of 15 - 20kg. Having then seen the August 2000 surveillance film Dr Rosenthal considered the plaintiff:
"… fit for his pre‑accident occupation without constraint on time or function. I would further remark that the level of activity seen on the video film is inconsistent with his subjective complaints and his response to clinical examination when I last saw him in July of this year."
Dr Rosenthal said that if soft tissue injury does not heal "there is usually objective clinical evidence of there being some anatomical findings consistent with permanent damage" and "There are patients who have pain with no observable pathology". When presented with Ms Kingsley's June 1997 reports he accepted that some responses were consistent then with soft tissue injury but bilateral carrying was "pretty good". Objectively, he considered the plaintiff was not as disabled as he purported to be - there was no objective evidence of underlying pathology which would render him unfit for work as a plant mechanic; again, 5 per cent was the order of his disability
Dr Tierney (it seems upon Mr Watson's suggestion) referred the plaintiff to Dr Geoffrey Gee who saw the plaintiff first on 17 December 1997 and last saw him on 17 November 1998. He described, initially, tenderness through the cervical muscles which he attributed to "tension issues". There were muscle related symptoms in the lower spine with some restriction of straight leg raising on the left.
By March 1998 the plaintiff had no significant tenderness or restriction to the neck and in the lumbar regions "an excellent range of movement with good functional and motor power and a quality of reflexes".
In November 1998 the plaintiff was found by Dr Gee to be fit and healthy - he moved and dressed easily. Apart from some localised pain in the lumbar region there was no substantial evidence of muscle tenderness.

Dr Gee was, a few days later, shown surveillance film of the plaintiff taken in July and October 1998 and at the trial a piece of film of the plaintiff taken on 23 August 1999. From all of this evidence Dr Gee said the plaintiff was fit to return to normal duties -
"… whatever duties he was doing before his accident".
He was directed to a piece of film which showed the plaintiff place a hand to his back but described that as "an incredibly brief segment of pain behaviour and if I was to rely on that, I'd like to see a lot more of that through his video surveillance which I didn't".
Mr Peter Watson saw the plaintiff in March 1997. He found no evidence of neural compression. In March 1998 he did not consider the plaintiff to be fit to return to work as a mechanic because of the heavy lifting involved but predicted he would continue to improve slowly. There was then "some minor permanent disability of the lumbar spine of approximately 5% (FIVE PER CENT). This is related to injuries of a diffuse soft tissue and ligamentous nature".
Having been shown June and July 1998 surveillance film, Mr Watson commented that those activities "were quite inconsistent to Mr Bishop's capabilities during my examination on 15 July".
He reassessed the plaintiff as being capable of driving a prime mover truck and working as a courier and forklift driver. The overall permanent disability of the lumbar spine was put at 2 - 3 per cent "maximum" and indeed he later agreed with Dr Gee that the plaintiff had the capacity to return to work in his pre‑accident duties on a full‑time basis.
Mr Watson saw the plaintiff again on 30 March 2000 and reverted to the view that the plaintiff should be employed in areas involving lighter duties - despite seeing footage of film taken on 23 March 2000. He did observe then that he believed the plaintiff had made a better recovery than was evident at presentation in his rooms. Whilst the plaintiff had made a significant recovery -
"… as a medical practitioner I have difficulty in recommending a man for heavy physical and manual work with a history of back injury and ongoing back pain without being cognisant that it is highly likely that he may suffer further back injuries and back pain".
Mr Wong saw the plaintiff in September 1997. He also diagnosed a soft tissue injury - a non‑specific diagnosis. The vast majority (90 per cent) of such patients improve in six months but a small percentage become chronic. He considered, after examination, that the plaintiff was fit for light duties on a part‑time basis. After seeing some surveillance film he said all along he believed the plaintiff could perform full‑time light duties - but if pain is demonstrated he would not recommend full‑time physical work. The plaintiff was shown, however, to have good mobility with full movement of the lumbar spine. Mr Wong could not detect any limitation of movement on examination - or I understand on the film.
Mr Slinger saw the plaintiff in 1999 and considered him fit for work not involving heavy lifting or bending. He found slight tenderness with movements performed slowly. The film he agreed showed vigorous movement.
Mr Wright thought the plaintiff's problems were very minor, and he was capable of light to medium work as a mechanic - it is very doubtful that he would go back to work with heavy machinery.
Mr Brash found inconsistencies on examination. In February 1998 he considered the plaintiff fit for work. In August 2000 the plaintiff was fit for full‑time work without restrictions. The surveillance film showed no evidence of disability whatever. These confirmed his view of two and a half years ago that there is no evidence of spinal disability, clinically or radiologically.
I prefer the evidence of the specialists to that of Dr Tierney. They were able to be and were more objective in their assessments.
From all of this evidence I conclude that the plaintiff suffered a mild soft tissue injury to the lumbar spine. From this he made a substantial recovery. There is now virtually no residual disability - perhaps 5 per cent loss of function as a whole.
It would not be desirable that he return to the heavy type of work of plant mechanic trades assistant because he may have exacerbations of his condition.
The plaintiff is, however, fit for many other forms of work such as truck driver, driver of a prime mover, courier driver, forklift driver or storeman. The plaintiff does not deny he is fit for these types of work.

Damages

General damages

The plaintiff suffered an injury which at first was painful. Having made a substantial recovery, being left with no more than 5 per cent residual disability of his lumbar spine, his pre‑accident activities have not been affected.
It is no longer desirable that he work in a trade involving heavy mechanical work and I accept that is a loss to him.
Under this head I would have awarded the plaintiff $20,000.

Past loss of income

The plaintiff has been capable of working full‑time, with overtime if this is available, as a truck driver, forklift driver, driver of a prime mover, courier driver or storeman since March 1998 by reference to the evidence of Dr Gee and Mr Watson.
The award rate of a trades assistant to a plant mechanic is, I understand, covered by the Metal Trades (General) Award. The base award rate for a motor or plant mechanic is $492.20 per week. Although the base rate increases depending on the level of experience or expertise, I would not expect the base rate for a trades assistant to increase. The plaintiff as a trades assistant working 50 - 60 hours per week earned $530 net per week.
The award rate for a truck driver is governed by the Transport Workers (General) Award and the base rate for a Grade I position is $434.20 rising to $539.30 per week.
The award rate for a forklift driver and storeman is governed by the Shop and Warehouse (Wholesale and Retail Establishments) Award. The base rate for a 5 day week is $460 and for a 6 day week to 1.00pm is $472.30 or after 1.00pm $485.30, rising to $529.31, $542.99 and $557.56 respectively.
It cannot be said how much overtime the plaintiff would have worked with the defendant if the accident had not happened, but on his past history he probably would have worked some overtime.
From the time the plaintiff was fit for the work from March 1998 there has been no measurable loss of capacity to earn an income.
I would have awarded the plaintiff to 31 March 1998, that is, 91.5 weeks, damages of $48,495 based on a net weekly income of $530.
The plaintiff has received weekly payments of $34,444.26 and would be entitled to the balance - $14,051 - to 31 March 1998.
Overtime is not always available. Mr Thompson said there is no set rule - some people get overtime and some do not. It depends on the job being done. While I have allowed for overtime to 31 March 1998 it would be unrealistic to allow it as a matter of course.
There is no economic loss when one compares the base rate under the Metal Trades Award and the other awards to which I have referred.
Allowing for some overtime I would have awarded a further global sum, without trying to reach any arithmetical judgment, of $3,000.
The overall award under this head, after deduction of weekly payments, would have been $17,051.

Future economic loss

Since there is no economic loss in the future based upon the difference between the relevant awards, the question arises whether some allowance should be made for lost overtime.
This is entirely conjectural: questions arise whether the plaintiff would have worked overtime with the defendant and, if so, for how long; and whether in other employment he would or will work overtime.
Again, I cannot reach a judgment on any arithmetical calculation and would award the plaintiff under this head $50,000.

Special damages

These are agreed at $13.168.45.

Future medical and pharmaceutical expenses

I find no loss is shown under this head.

Conclusion

Since the plaintiff's future pecuniary loss does not exceed $122,139 - the threshold prescribed under s 93D(1) of the Workers' Compensation & Rehabilitation Act, the claim is dismissed.