Blair Robert Kennedy v CCB (ACT) Pty Limited t/as Construction Control
[2014] ACTSC 36
•12 March 2014
BLAIR ROBERT KENNEDY v CCB (ACT) PTY LIMITED t/as CONSTRUCTION CONTROL
[2014] ACTSC 36 (12 March 2014)
NEGLIGENCE – personal injury – claim by employee against employer – unsafe system of work – employer vicariously liable for negligence of driver of telehandler – driver negligent – employer negligent – no contributory negligence
DAMAGES – personal injury – crush injury to left foot causing fractures – causing misshapement of foot – development of arthritis – likely need for fusion surgery – pain and interference with enjoyment of life – impairment of earning capacity – plaintiff foreman carpenter on multistorey office buildings – limited to housing construction and renovation work
Civil Law (Wrongs) Act2002
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
No. SC 489 of 2011
Master Harper
Supreme Court of the ACT
Date: 12 March 2014
IN THE SUPREME COURT OF THE )
) No. SC 489 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: BLAIR ROBERT KENNEDY
Plaintiff
AND: CCB (ACT) PTY LIMITED t/as CONSTRUCTION CONTROL
ACN 089 635 218
Defendant
ORDER
Judge: Master Harper
Date: 12 March 2014
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff in the sum of $701,500.00.
the plaintiff’s costs be paid by the defendant.
the order as to costs be stayed for 21 days.
This is an action for damages for personal injury by an employee against an employer. The employer denies negligence and pleads contributory negligence on the part of the employee.
The plaintiff was born in September 1975 in New Zealand, moving to Australia at the age of about twelve. He grew up in the Geelong area in Victoria. He completed an apprenticeship as a carpenter, and worked as a subcontractor in residential construction. He worked for about two years at his trade in England and in France, returning to Victoria in October 2003. He met his partner Lisa soon after that and they have been together since.
The plaintiff was generally fit and healthy before his injury, and was a keen board surfer.
Lisa worked for the Commonwealth Public Service. In about March 2006 she accepted a move to Canberra, and the plaintiff accompanied her. He quickly found work in house building. In July 2006 he took up employment with the defendant, working on the construction of office buildings at Canberra Airport. He worked on various buildings in the course of that employment. At each building site he was given a site induction covering safety and emergency procedures. He did a number of courses with the company, including manual handling, electrical awareness, fall prevention and first aid.
By the time of his injury the plaintiff was a sub-foreman, responsible to a foreman. His salary had recently increased to about $102,000.00 plus superannuation. He was working as much as fifty or sixty hours a week.
The company made use of items of plant called telehandlers on the various sites at the airport. At the time of his injury the plaintiff was helping the driver of one of these vehicles, a Merlo. Photographs of the telehandler are in evidence. It bears a resemblance to a tractor, but with the larger wheels at the front. The driver’s cabin is on the left. On the right is a crane arm hinged to the rear of the vehicle and in line with the vehicle’s forward direction. The vehicle is described in the evidence as an all-terrain machine with a telescopic boom fitted with a lifting attachment. It is said to be extremely versatile and is used mainly in mining and on construction sites. It can be used as a mobile crane, a forklift or an elevated work platform by fitting different attachments. The vehicle in question had been hired by the defendant and was registered as a motor vehicle for use on public roads. It had a heavy counterweight to cope with slopes and uneven ground, and with the use of the boom to lift heavy weights.
The plaintiff’s evidence was that it was common on the site to be asked by a telehandler driver to steady the load in front of the vehicle by hand. He had done this on many occasions, although no one had formally set out a system as to how this was to be done, or shown him how to do it. There had been other workers doing it on site, and he would generally be given such instructions as were necessary by the driver at the time. The plaintiff did not have a ticket to drive such a vehicle, or a ticket as a dogman. He had not had any experience of moving loads around sites with a telehandler before his employment with the defendant.
He was injured on site on 29 August 2008.
On 17 September 2008, not quite three weeks after the injury, the plaintiff made a signed statement taken by an investigator engaged by the defendant’s workers’ compensation insurer. This was well before the commencement of the present proceedings. It was never necessary for the plaintiff to commence proceedings for workers’ compensation: the insurer accepted his claim and made payments to him and on his behalf.
The statement was made more than four years before trial, at a time when the plaintiff’s memory of the incident would have been fresh.
He said that he had been working on the various sites at the airport for about a year before the incident. He started work on the day at about 6:30 am. His first task was to prepare for a concrete pour for kerbing and guttering. For this purpose he needed to tie some steel reinforcement lengths into hobs. At about 7:00 am he went over to speak to Jay Cash, a foreman working for the same company on the adjoining site, to ask whether he had any lengths of steel he could use. The plaintiff walked through a gate separating the two building sites. He saw Mr Cash tying a quantity of two-metre lengths of steel, he thought about forty lengths, using chain. He asked Mr Cash whether he had any steel which he could use on his own site. Mr Cash did not have any spare steel rods but asked the plaintiff whether he could give him a hand getting the load of steel lengths to the other side of the building he was working on.
The plaintiff agreed to assist. Mr Cash connected the bundle of steel lengths to a hook attachment on the telehandler. Mr Cash got into the driving cabin of the vehicle. The plaintiff’s task was to walk in front of the vehicle holding the load to prevent it swinging around or from side to side. To get from their starting position to their destination, they needed to drive out onto Pialligo Avenue, a public street with some early morning traffic. The plaintiff said that if Mr Cash had not had his assistance, the steel rods might have swung out and hit a car. It was normal for the load to be moved in this way, and the plaintiff had helped to hold it many times before. They had to go through a few gates. Mr Cash drove the vehicle at slower than walking speed. The plaintiff was located predominantly on the right side of the vehicle, that is on the other side of the boom to the driver’s cabin. As they moved forward, the plaintiff could see Mr Cash clearly and was aware that Mr Cash could see him. He was one or two metres in front of the vehicle.
They re-entered the site, travelling in all some 800 m. They moved towards the basement of the building under construction. The ground they were moving over had recently been turned over and was uneven, with the usual rubble found on building sites. There was scaffolding around the building, with an opening down an incline into the basement area. The width of the load was such that the plaintiff had to align it to the direction of the movement of the vehicle to make sure that it did not strike the scaffolding on either side. To hold the load in this position he had to move directly into the path of the right front wheel of the vehicle. He was looking towards the entry point through the scaffolding. He lost his footing. He was not sure whether he tripped on a rock or a small hole, and could not remember seeing anything specific on the ground. He had not been looking at the ground. He fell forward and let go of the steel, stumbling with his left leg out behind him. The front right wheel of the vehicle ran over the top of his left foot, ankle and shin. He fell to the ground in intense pain and began yelling. The vehicle stopped on top of his foot for a couple of seconds before reversing off his foot.
The driver got out of the cabin. A fellow employee came over and rendered first aid. The plaintiff was put on a stretcher and carried to the first aid room. In due course an ambulance arrived and took him to Canberra Hospital.
The plaintiff estimated the weight of the telehandler at about eight tonnes.
He said in the statement that he considered the cause of the accident to be human error. I cannot be sure whether this was his expression or whether the wording was put to him by the investigator. He said that he had been concentrating on where he was going and where he had to position the load, rather than where he was in relation to the machine. It was something he had done many times before, and he said that the same method was used by other employees. He was unaware of any accidents happening with a telehandler prior to this. At the time he did not think about any alternative way of performing the task. It was a fairly simple job although it did require some strength to control the load and stop it from swinging.
Photographs of the site showing the telehandler were tendered, confirming that the surface was uneven, with rocks and other debris which were potential tripping hazards.
The plaintiff gave evidence at the trial generally to the same effect as his signed statement. In July 2007, when the plaintiff first started work at the airport, he signed a document in relation to a site induction, in which he certified that he understood and agreed to comply with the occupational health and safety requirements set out on the form. The signed form was tendered by senior counsel for the defendant. There is nothing in the form bearing upon the specific task the plaintiff was engaged in when injured. Indeed, the form seems to me to have been focused generally upon what was expected by the employer of the employee, rather than upon any responsibilities of the employer for the safety of the employee.
Senior counsel tendered a report by Marcia Lusted, a certified professional ergonomist and physiotherapist of thirty-five years experience. Ms Lusted gave oral evidence. Her experience includes work on construction sites developing procedures, undertaking safety audits, training workers in risk assessment methods, and designing work processes to prevent injuries. She is generally familiar with construction sites and with telehandlers. She was given a history generally consistent with the evidence of the plaintiff. She was unable to view the building site because by the time she was brought into the matter the building had long been completed.
She noted that it was possible for the boom of the telehandler to obscure the driver’s view of a person to the right of the vehicle.
Her evidence was that normally in the construction industry a foreman is required to undertake a risk assessment in the form of a job safety analysis with the workers who are to undertake a hazardous task. This normally results in a document which is signed by members of the working team, which is checked by a safety officer before the task is commenced. She said that this would be particularly important where a load was to be moved along a public road.
In her opinion there had been other methods readily available to move the steel rods the distance they were moved. They could have been loaded onto a truck and driven there, and this would have been the safest choice. Another method would have been to use the forklift attachment on the telehandler, and to lift the steel on a pallet or stillage. This would have made the load more stable and prevented it from swinging around or from side to side.
Using the method which was adopted, the load could have been steadied by the use of a rope or tagline. A person steadying the load by hand should have been placed on the left side of the load, where he would have been in the line of sight of the operator. The task being undertaken by the plaintiff was a high risk one, steadying a heavy load of steel by hand. The plaintiff had been too close to the vehicle and may well have not been visible to the driver at the moment of his fall.
Ms Lusted was in Court and heard the plaintiff give his evidence. In her oral evidence she said that another risk factor not mentioned in her report was the level of noise generally found on building sites, making it difficult or impossible for driver and assistant to talk to each other.
She agreed in cross-examination that she had not spoken to the driver. Any benefit to the defendant from this concession was balanced by the fact that the driver did not give evidence, nor was there any contemporaneous statement by the driver tendered.
It was put to Ms Lusted in cross-examination that having regard to the ground surface on the site, particularly on the slope where the plaintiff fell, there was a relatively high prospect that a person walking might slip or trip. She agreed with this proposition.
She was asked whether she agreed that the method adopted was an appropriate or safe one having regard to the fact that there had been no record of any similar injury arising from the method. She did not agree with this. On the contrary she said it had been like a time-bomb waiting to happen. It was just luck that it had not happened previously.
It was put to her that in expressing the opinion that the accident could have been prevented if another method of moving the steel had been used, she was relying on the benefit of hindsight. She disagreed with this. She said that in the construction industry it was necessary to analyse a task of this kind before deciding on the method to be used.
The plaintiff’s evidence was that when the wheel ran over his foot he was in intense pain. He looked at his foot after his boot was removed. He said that the bottom of his foot had burst out and that it looked like a burst sausage on a barbecue.
Treatment was carried out at the hospital on the day of admission but it was necessary for the surgeon to wait for a few days until the swelling subsided. On 7 September 2008 Dr Bryan Ashman, orthopaedic surgeon, operated. The injury was described on admission as a compound fracture dislocation of the left mid-foot. The initial treatment consisted of debridement of the wound, followed by elevation for a week or so. Dr Ashman operated a week later, carrying out internal fixation of the fractures and dislocations, inserting four screws. The foot was immobilised in plaster for a time. The plaintiff remained in considerable pain while in hospital. After three days he was sent home where he was nursed by his partner. His foot was placed in a moon boot and he used crutches for a time. The screws were removed in mid-January 2009.
Initially the plaintiff was unable to do anything much for himself at all, but after a time he could look after himself to some degree with help from his wife and his parents who had come up from Victoria to assist. He needed to sit on a plastic stool in the shower, with a waterproof bag over the plaster on his leg. He was on crutches for about two months and his partner had to attend to almost all of the domestic chores. He went to Geelong at the end of the year for Christmas, wearing the moon boot. He recalled that he was taking morphine as a painkiller.
The insurer arranged for physiotherapy and some rehabilitation in the form of gym work, which the plaintiff found extremely painful but which he knew he had to go through.
After the screws were removed the plaintiff continued to attend his general practitioner and his physiotherapist. He returned to work in February 2009 on light duties part-time. He got back to full-time duties in April 2009.
He found the work difficult, particularly the long hours and the need to climb and descend stairs. He was on his feet almost all the time at work. He had problems walking on rough ground.
In about mid-2010 he came to the view that he could not keep working with the defendant as he had been. The next day his partner told her supervisor that they were leaving Canberra and returning to Victoria. The supervisor made arrangements for her to work from the Melbourne office of the Commonwealth department where she was working, and they went back to Geelong. The plaintiff resigned from his employment. He found work in Geelong as a foreman with a company engaged in building schools, on a similar salary, but the hours were long and he found it difficult. In November 2010 he was retrenched as the employer’s work contracted. He began to undertake building work as a subcontractor, where he had more control over his working hours, and he was still working in that capacity by the time of trial. His evidence was that he had difficulty working from ladders and walking on beams or on uneven ground, and with working at floor level. By the time of trial he was still taking painkillers at the rate of about six Panadol Osteo and one or two Mobic a day. He had pain in his foot every day, even when sitting. He had been able to get back to surfing and coped all right with this. He was earning considerably less as a subcontractor than he had been with the defendant. He thought that he would have continued to take such work as was available on multi-storey construction sites if it had not been for the accident.
He had had orthotics fitted to his boots, and found this helpful.
He was seen by an orthopaedic surgeon in Melbourne, Dr Steven Leitl at the request of his solicitors. Dr Leitl diagnosed arthritis in the foot, and advised the plaintiff that he was eventually likely to require further surgery in the form of a fusion of the arthritic joints. This would be expected to reduce or eliminate the pain at those levels, but would result in a complete restriction of any movement at the fused joints. The plaintiff said that his intention was to put off any such surgery as long as he could put up with the pain. He did not think that he would be able to continue doing the sort of work he was doing after a fusion operation. Ladder work, squatting and negotiating uneven ground were part and parcel of his work and he did not think that he would be able to cope with these activities after fusion. A number of occupations were suggested to him in the alternative but he did not accept that he had the skills or qualifications for any of these.
He developed low back pain in 2011, which had largely resolved but continued to flare up occasionally by the time of trial. He walked with a slight limp, being unable to use the front of the left foot, and had problems of pain and stiffness in the left calf. He had had some relief from attendance at an osteopath. Perhaps once a month he had a bad day where he was unable to do much at all. He had some difficulty with footwear because of a hump over the top of the left foot which had developed since the injury. He had difficulty driving a manual car for any distance. It had been suggested that the lump on the top of the foot could be removed surgically. The plaintiff said that he had accepted the advice of his doctor that he should put any such surgery off for as long as he could.
Senior counsel for the defendant put to the plaintiff in cross-examination that one of the reasons he had resigned from his employment with the defendant and decided to return to Victoria was so that he could be near his family. He agreed that this had been a factor. He also conceded that he and his partner might have decided to move to Victoria at about the same time regardless of the injury.
The plaintiff’s evidence was corroborated by his partner. She said that he had been in excellent health before the injury and had been a keen and active sportsman. She estimated that in the early stages she had been spending an average of about an hour a day attending to the plaintiff’s needs and doing things around the house that he would normally have done, plus a further two to three hours on weekends. By the time of trial she still needed to assist in this way, perhaps for an hour or two a week. Her evidence was not challenged.
A substantial volume of medical records was tendered in the plaintiff’s case, including more than 150 pages of hospital records and 40 pages of documentation produced by Dr Ashman. I was taken to almost none of this documentation in address despite my usual practice of informing counsel that I would not scrutinise the documentation in detail, with the exception of those parts to which I was directed. The practice of inundating the judicial officer hearing an action of this nature with documentation most of which is irrelevant to any issue between the parties is to be discouraged. The plaintiff’s tender bundle, Exhibit A in the proceedings, comprises more than 500 pages. I can only hope that multiple copies of it do not have to be created for inclusion in a set of Appeal Books.
Dr Leitl saw the plaintiff in Melbourne in May 2011, and provided a detailed report to the plaintiff’s solicitors. He recorded the history of the treatment after the injury, noting on physical examination a bump over the top of the left foot causing a change in its shape, and a flattening of the medial arch. The plaintiff told him that he had little pain at rest, but that he did have pain and stiffness once standing. He had been unable to run since the accident. He had been given a set of orthotics about a month earlier, and these were of real benefit. He was taking anti-inflammatories two or three times a week. He had got back to surfing. He walked with a limp, and had quite marked stiffness of the left-mid foot. X-rays and scans showed that he had developed post-traumatic arthritis affecting the mid-tarsal and tarso-metatarsal joints, which was likely to get worse over time. Dr Leitl thought that he would eventually need a fusion of those joints, and surgical removal of the bony deformity of the dorsum. His prognosis was for continuing pain and dysfunction in the left foot for the indefinite future. Dr Leitl thought that in about ten years he would probably be forced to find sedentary employment. He would be unable to continue working as a carpenter on building sites. The bony bump on the dorsum of the left foot was likely to enlarge over time, and the plaintiff would require attention to his footwear to deal with this. He might benefit from cortisone injections in the affected joints as a temporary measure, but ultimately surgery would be required, at a cost of about $15,000.00, requiring about three months off work. The long term prognosis remained poor. The injury the plaintiff had sustained was well recognised as causing serious long-term problems.
Dr Leitl spoke to the plaintiff by telephone shortly before the hearing, although he did not have the opportunity for a further physical examination. The plaintiff told him that he was by then taking increased amounts of analgesics and anti-inflammatories, indicating that his pain had increased and that the arthritic changes had probably become worse. He thought it was likely that the plaintiff would come to fusion surgery within ten years. Such surgery would be likely to lead to improvement but not to complete pain relief. A successful fusion should extend the plaintiff’s working life as a carpenter and enable him to undertake domestic duties more easily.
In October 2012 the plaintiff was seen by Dr Leon Le Leu, occupational physician in Canberra, for the purpose of a report to his solicitors. Dr Le Leu accepted that the plaintiff was suffering low to moderate pain continuously in the left foot, with daily swelling. The prognosis was for the present level of symptoms and disability to continue for the foreseeable future. The injuries had already precipitated extensive degenerative changes in the left foot, causing a moderate permanent disability. The plaintiff was unable, and would be permanently unable, to return to work of the kind he was doing immediately before his injury. Fusion surgery might slightly improve his working capacity by reducing the level of pain, but not to the extent that he could return to unrestricted pre-injury duties, or undertake work of a moderately to highly physical level. Dr Le Leu thought that he should be able, with care, to work in light to moderate domestic carpentry work following successful fusion. After surgery he would need a short period of physiotherapy and rehabilitation.
Dr Le Leu generally agreed with Dr Leitl, whose reports had been provided to him.
I had the benefit of a brief report by Ms Sing, a podiatrist at Ocean Grove in Victoria dated 11 April 2011. She noted that the plaintiff had suffered an injury to the Lisfranc joint in the left foot. She said that Lisfranc injuries were common in people who had sustained trauma, and were often painful and difficult to treat. It appeared from x-rays that the entire left mid-foot was riddled with arthritis. The plaintiff had a very pronated foot structure which contributed to his problems, and needed to be treated with orthotics. He would need to have these custom-made at a cost of about $700.00 a pair, including appointments, assessment and casting.
I should say that it is not apparent to me that Dr Leitl or Dr Le Leu were fully apprised of the physical demands of the plaintiff’s present work as a carpenter in house building. Despite their optimism, I understand the plaintiff’s misgivings about whether he would be able to continue with that kind of work after a fusion operation. Perhaps he would for a time, but there are aspects of the work which would clearly be a problem for him following a fusion, in particular work involving ladders.
The defendant’s insurer sent the plaintiff to an orthopaedic surgeon, Dr Anthony Smith. Dr Smith saw the plaintiff on three occasions, in October 2009, July 2010 and October 2012. When he first saw him there was not yet any evidence of the development of arthritis, although Dr Smith recognised this as a possibility. At that time he thought that the plaintiff’s prognosis was good, that he should be able to keep working in his usual occupation, and that he would not require further operative or other treatment.
When he saw the plaintiff the following year, he had seen x-ray and bone scan reports showing some arthritic changes. The arthritis was not likely to deteriorate much further. The plaintiff was fit to continue doing the work he was doing at that time. His injuries represented a 6% whole person impairment (presumably, at that stage, for the purposes of his workers’ compensation entitlements).
Dr Smith saw the plaintiff again shortly before the hearing. He acknowledged that the plaintiff had developed some arthritic changes within the left foot, which was obviously deformed. He thought that the plaintiff would not change much in the future, although he might be a bit worse in a decade or so. He did not think that the plaintiff required surgery at that time. He said that it might come to pass that formal fusion would be required. He could not predict when this would occur and said that it was statistically unlikely. If the plaintiff had a fusion operation, he would be off work for at least three months, but if it was successful he should be able to work without restriction until retirement age.
Dr Smith thought that on the balance of probabilities as opposed to possibilities, the plaintiff would be able to work until retirement age in his job as a carpenter without any further surgery.
The defendant’s solicitors sent the plaintiff to Dr Nicholas Burke, occupational physician, in September 2012 for a report. The plaintiff was by then living in Victoria. Dr Burke thought that at some stage in the future the plaintiff might require an arthrodesis. It was difficult to know when this might happen. It was likely to be longer into the future if the plaintiff was in a sedentary occupation. His disabilities at the time Dr Burke saw him were likely to be permanent. These principally related to prolonged standing, squatting, kneeling, and walking on uneven ground. A fusion would be likely to lead to some improvement in symptoms, but with a reduction in range of motion and an increase in stiffness. It would probably result in a reduction in pain levels. Dr Burke thought that the plaintiff would be able to work as a carpenter after fusion surgery. He did not think that the plaintiff needed any domestic assistance, or that he would do so in the future. The prognosis generally was guarded, however.
Again, I am not sure that Dr Burke was fully informed about the physical requirements of the plaintiff’s present work as a carpenter in house construction.
Liability
There are in effect two counts of negligence against the defendant. The first is that the plaintiff’s injury arose from the defendant’s failure to provide a safe system of work, and the second is that the defendant is vicariously liable for the negligence of its employee, Mr Cash, in driving the telehandler.
As to the first count, I am satisfied that the defendant failed to carry out a risk assessment in relation to the method of moving materials around the building site by telehandler with an employee on foot to steady the load. No oral evidence was called for the defendant. I accept the expert opinion evidence of Ms Lusted that there were other readily available methods of moving materials such as the lengths of steel reinforcing rods, for example loading them on to the tray of a truck, or using the forklift attachment available for the telehandler.
I am also satisfied that the plaintiff was not provided with adequate training for the task he was performing when injured, and that the defendant should have ensured that the employee performing that task, if it had to be performed, held a ticket as a dogman.
I am accordingly satisfied that the employer failed to provide the plaintiff with a safe system of work, and that this was a cause of his injury.
I am satisfied that it was reasonably foreseeable that a person doing what the plaintiff was doing at the time of his injury might lose his footing and fall on the rough surface of the incline down which he was walking.
I am additionally satisfied that Mr Cash, the driver of the telehandler, was negligent. It seems to me more likely than not that his view of the plaintiff was impeded by the boom of the telehandler, and that he should have insisted that the plaintiff walk to the left of the load where there would have been no such impediment. It seems to me more likely than not that if Mr Cash had been able to see the plaintiff, considering the very slow speed at which the telehandler was moving, he could have stopped it before the front wheel struck the plaintiff.
Mr Cash was not called to give evidence in the defendant’s case, and there was no explanation for his absence as a witness. I draw the available inference that if he had been called, his evidence would not have helped the defendant’s case.
He was driving the telehandler in the course of his employment with the defendant. The defendant is plainly vicariously liable for his negligence.
I am not satisfied that the plaintiff was guilty of any contributory negligence. He was required to have his hand on the load of steel rods, and to guide it so as to avoid it coming into contact with the scaffolding through which the telehandler was moving down the incline. He could not have been expected to look at the ground surface with every step he took while performing that task. The relevant particulars of contributory negligence relied upon were pleaded as devising an unsafe system of work for himself by not using an alternative, safer method of transporting material, and failing to look out for his own safety and wellbeing. There is no evidence that it was the plaintiff’s responsibility to devise the system of work he was using, or that he had been instructed to use any alternative, safer method. I am satisfied that he was not guilty of any failure to look out for his own safety. This is not even a case of inadvertence falling short of contributory negligence of the kind considered by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529. The plaintiff was engaged in an inherently dangerous task, and could not have been expected to do more than he did in relation to his own safety.
The plaintiff is accordingly entitled to recover damages against the defendant, without reduction.
Damages
There was no real challenge to the plaintiff as a truthful and honest witness. I generally accept his evidence without reservation, taking some account of the fact that he was giving evidence about an incident which had occurred four years before trial, leading to some minor degree of unreliability as to detail.
His evidence about the effect of the injury upon him was corroborated by his partner, who was not challenged.
The opinion of Dr Leitl as to the probability of future surgery in the form of fusion is generally supported by Dr Le Leu and Dr Burke. I prefer Dr Leitl’s opinion on this issue to that of Dr Smith, who seems to me to have been over-optimistic about the degree of the plaintiff’s recovery and permanent disabilities throughout.
The injury was a very serious one. For more than five years the plaintiff has had continuing pain and restriction of movement in the left foot. Immediately after the injury the pain must have been excruciating. He has commendably continued to work. I accept that he and his partner would probably have moved back to Victoria at some stage, but I am in no doubt that they moved when they did because the plaintiff could no longer put up with the pain and inconvenience which he suffered working with the defendant at the airport.
He had become a high income earner in comparative terms, by choice, and I am sure he would have continued to look for well-paid work of that kind, and, with his experience, to find it. He does not seem to have been out of work for any appreciable period between jobs, and he seems to have been extremely good at his work as a carpenter and at foreman level.
It seems to me on the medical evidence that he is likely to come to further surgery for fusion, probably in about ten years, notwithstanding his intention to postpone surgery for as long as he can. That surgery, it seems to me, is likely to reduce but not eliminate the pain in his foot. Following such surgery he will have lost most if not all of what remains of movement at the affected joints. Notwithstanding what has been said by some of the doctors, I accept the plaintiff’s evidence that this will severely restrict his ability to work on building sites, even with house construction and renovation work.
The plaintiff seems to me well motivated to work for as long as he can and to do as much as he can. He is now 38. After fusion I think he is likely to try to remain in carpentry and construction work to the extent he can. He has considerable experience in that field, and may well be able to move into a role where he can employ more junior staff to attend to the heavier physical work while he fulfils a more managerial role.
He is likely to continue to gain benefit from the wearing of orthotics, even after surgery. The orthotics will need to be replaced every few years.
For general damages for pain and suffering and loss of enjoyment of life, senior counsel for the plaintiff seeks an award of $220,000.00. That figure seems to me well above the range customarily awarded in this Court, although it may be that such a figure might be awarded in other parts of Australia. Senior counsel for the defendant suggested a range of $100,000.00 to $120,000.00.
It seems to me that an appropriate award in the circumstances of this case is $130,000.00, and I allow that amount.
Having regard to the period of time since the injury, and the greater pain and suffering in the early period, I apportion that award equally between the past and the future. The past proportion attracts interest. The interest rate to be applied is 4% per annum. It is just on five and a half years since the injury. The damages for the past period must be apportioned over that period, although weighted a little more towards the early period. For interest on the past component of general damages I award $8,000.00.
The defendant’s insurer has made payments by way of workers’ compensation for treatment and related expenses of $30,906.40 to the date of trial. It is common ground that, seeing that the same insurer indemnifies the defendant in these proceedings, that amount should not be included in the award of damages.
The plaintiff claims a further sum of $3,000.00 to cover expenses not paid by the insurer, for such things as medication and travel. I accept the plaintiff’s evidence about expenditure on over-the-counter medication. I am satisfied that the claimed amount of $3,000.00 is reasonable in that regard. I allow $500.00 for interest on that sum, taking into account the fact that interest should be allowed at commercial rates.
There is a substantial claim for future treatment expenses. This claim includes the cost of chemist medication, orthotics, osteopathic care and future surgery with all its concomitant aspects. The amount allowed for surgery needs to be discounted to recognise that it probably will not happen for another ten years. The evidence is indefinite as to how often the orthotics will need to be replaced. I allow a rounded figure of $25,000.00 for future expenses.
As to loss of earning capacity, the plaintiff has received workers’ compensation benefits for his periods off work after the accident. There is no evidence that he has suffered any actual loss. As I explained in relation to expenses, because it is the same insurer, the compensation payments should not be included in the damages, nor should the insurer be entitled to recoup them from the awarded damages.
There is no evidence that the plaintiff suffered any actual loss until he was retrenched in Victoria by Ireland Brown Constructions, where he was earning about the same as he had earned in Canberra. From then on he engaged in less well remunerated work, earning about $800.00 net per week by comparison with his pre-termination earnings of about $1,550.00 net per week plus superannuation. This obtained from November 2010, a period of about three years and four months. This amounts to a difference in earnings over that period at about $130,000.00 net. That figure should be reduced to reflect the possibility that the higher paid work in Canberra might not have continued for much longer than the Ireland Brown work in Victoria. There is no evidence about this. For past loss of earnings I allow $100,000.00.
That loss has been suffered over about three years and four months, and attracts interest at commercial rates for which I allow $10,000.00
Counsel for the plaintiff have provided me with a calculation of their claim for future economic loss. The figures total almost $850,000.00, which I see as excessive.
I am satisfied that the plaintiff has suffered a loss of earning capacity for the future which is likely to be reflected in actual loss of earnings. The 3% multiplier for a man aged 38 to age 60 is 824, to age 65 is 938 and to death is 1192. To calculate an appropriate figure for the plaintiff’s impairment of earning capacity for the future, I am minded to adopt a multiplier of 900, a weekly rate of $500.00 and a reduction rate of 15% for vicissitudes. I allow $380,000.00 for impairment of earning capacity for the future.
There is a claim for loss of superannuation benefits. I am persuaded that this is made out for the past, at the conventional rate of 9% on the amount allowed for past loss of earnings. I allow $9,000.00 for loss of superannuation benefits for the past. There have been no submissions about whether there should be any allowance for interest on this amount and this is not the right case to embark on that debate.
For the future, an allowance for loss of superannuation benefits is appropriate to the extent that that loss would have been reflective of earnings as an employee. The plaintiff has spent considerable periods as a self-employed subcontractor, and I am far from satisfied that he would have spent the rest of his life as an employee. Nevertheless some allowance should be made. I allow $10,000.00 for loss of future superannuation benefits.
There is a claim for the tax deducted from the plaintiff’s workers’ compensation benefits. It does not seem to me that an allowance in the award is appropriate in this regard. This would be an appropriate allowance where a plaintiff who had received workers’ compensation benefits succeeded in tort against a third-party tortfeasor, and was required to repay the gross workers’ compensation amount to the employer or its insurer. This is not such a case. The workers’ compensation payments will not form part of the award, because the employer and the tortfeasor are the same entity. There will be no Fox v Wood allowance.
A claim is made for domestic and other assistance. Part of this claim would come within what has become known as the Griffiths v Kerkemeyer component. The principle arising from that decision relates to services provided by others without cost to the plaintiff. In the present case the claim extends to the commercial value of activities formerly provided by the plaintiff to the household: in effect, to his partner and himself. Damages in that regard are recoverable pursuant to s 100 of the Civil Law (Wrongs) Act 2002, which also now covers Griffiths v Kerkemeyer entitlements. The evidence is that the plaintiff required considerable support during the early periods, particularly after surgery, and that his need for assistance has been for some years down to about a hour per week. The Court has in recent times allowed $25.00 an hour for this need for services. For the past I allow $5,000.00 plus interest of $1,000.00. For the future I allow $20,000.00, after making the conventional 15% deduction for vicissitudes.
The individual components of the award of damages are as follows:
General damages $130,000.00
Interest on past portion $8,000.00
Expenses – past $3,000.00
- Interest $500.00
- Future $25,000.00
Loss of earnings – past $100,000.00
- Interest $10,000.00
- Future $380,000.00
Loss of superannuation benefits – past $9,000.00
- Future $10,000.00
Care and domestic assistance – past $5,000.00
- Interest $1,000.00
- Future $20,000.00
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$701,500.00
I reiterate that that amount is in addition to the sums already paid by the defendant’s insurer by way of workers’ compensation, and that the insurer is not entitled to any deduction on that count.
The total seems to me a proper reflection of the impact of the negligence of the defendant upon the plaintiff. There will be judgment for the plaintiff for $701,500.00 plus costs.
I shall order a stay of the costs order for 21 days, in case there are factors which should be taken into account of which I am presently unaware. If either party wishes to make application for a different order as to costs, notice of such an application may be given informally to the Court by email with a copy to the solicitors for the other party within that 21-day period. If such notice is received I shall make an order in chambers extending the stay until further order of the Court.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
.Associate:
Date: 12 March 2014
Counsel for the plaintiff: Mr MJ Cranitch SC & Mr JR Sainty
Solicitors for the plaintiff: Blumers Personal Injury Lawyers
Counsel for the defendant: Mr SH Pilkinton SC
Solicitors for the defendant: Dibbs Barker
Date of hearing: 10 December 2012
Date of judgment: 12 March 2014
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