Boaden v Trustee for Shade Unit Trust T/as Clevershade
[2013] ACTSC 52
•28 March 2013
DARREN BOADEN v THE TRUSTEE FOR SHADE UNIT TRUST t/as CLEVERSHADE
[2013] ACTSC 52 (28 March 2013)
PERSONAL INJURY - fall from ladder in course of employment – duty of care of employer to experienced and trusted employee – contributory negligence – breach of statutory duty – assessment of damages resulting from wrist injury
Scaffolding and Lifts Regulation 1950 (ACT)
Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 46, s 102 (2)
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839
H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422
Millington v Wilkie t/as Max Wilkie Plumbing Services & Anor [2005] NSWCA 45; (2005) 62 NSWLR 322
Strong v Woolworths Ltd [2012] HCA 5
Fox v Wood [1981] HCA 41; (1981) 148 CLR 428
No. SC 879 of 2011
Judge: Sidis AJ
Supreme Court of the ACT
Date: 28 March 2013
IN THE SUPREME COURT OF THE )
) No. SC 879 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DARREN BOADEN
Plaintiff
AND:THE TRUSTEE FOR SHADE UNIT TRUST t/as CLEVERSHADE
Defendant
ORDER
Judge: Sidis AJ
Date: 28 March 2013
Place: Canberra
THE COURT ORDERS THAT:
Verdict and judgment for the plaintiff in the sum of $235,656.63.
The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
I make the usual order as to interest.
The exhibits will be retained for 28 days.
My reasons are published.
Darren Boaden was injured when he fell from the roof on which he was working on 18 May 2011. He claimed against his employer, the Trustee for the Shade Unit Trust, trading as Clevershade, claiming that it was negligent in the way in which he was required to carry out his work and that it was in breach of the statutory duty imposed under the Scaffolding and Lifts Regulation 1950 (ACT).
The defendant denied that it was negligent and denied that it was in breach of its statutory duty. The defendant also challenged the plaintiff’s claims of injury, damage and loss.
THE ACCIDENT
The plaintiff’s evidence concerning the circumstances in which he was injured was not challenged. It was as follows.
The defendant was engaged in the business of constructing decks, patio covers and sunrooms at residential premises. It employed the plaintiff as a project manager. The plaintiff’s duties in this role included dealing with clients and the defendant’s subcontractors and arranging to have defects repaired. Occasionally he personally undertook the repair of defects.
On 18 May 2011 at 9.30am he attended premises in North Lyneham to repair defective guttering that was leaking. He had been to the premises on prior occasions during construction work at the site and on inspection for the source of the leak. The repair was to be undertaken on the roof of the premises at the rear of the building.
The plaintiff worked alone. He used a transforming ladder. This type of ladder can be used in an A-frame, on stairs or it can be extended into a full length ladder. It was owned by the plaintiff.
On 18 May 2011, the plaintiff extended the ladder. He placed the base of the ladder on the tiled ground surface and rested the top on the gutter at an appropriate angle. The tiled ground surface was dry at the time he placed the ladder. The ladder extended about 500mm above the gutter.
The plaintiff ascended the ladder with the tools that he needed to undertake the repairs. He stepped onto the roof and lifted roof tiles to check the gutter assembly and look for the source of leaking water. There was water in the gutter and the plaintiff estimated that two to three litres of the water drained out when he opened it up. He carried rags with him to clean up the moisture but some spilled to the ground. Having decided how to fix the leak, he walked back across the tiled roof to the ladder to descend to obtain the materials he needed.
He placed his left hand on the ladder, his left foot on the rung nearest the gutter and put his right hand onto the ladder. Whilst he was in the process of placing his right foot on the ladder, it slid out from beneath him. The plaintiff tried to take hold of the gutter but was unable to prevent his fall to the ground. He fell onto the ladder.
When he fell he found himself lying in water that was on the surface of the tiled area where he had placed the ladder.
In January 2013 the plaintiff measured the distance from the gutter to the tiled ground surface to be slightly less than 2.5 metres.
LIABILITY
Mr Wall, the managing director of the defendant, was responsible for construction work. When a job was sold it was subcontracted to builders who took a percentage of the value of the job they built. The subcontractors provided tools, motor vehicles and insurance. The practice was that a representative of the defendant went to the site with the subcontractor to go over the job. Scaffolding owned by the defendant was supplied to the subcontractor if it was necessary to work at height. The defendant also provided ladders and other equipment if it was required.
The plaintiff was initially engaged by the defendant as a subcontractor to carry out building work on its behalf. He owned his tools and equipment, including the ladder that he used at the time of the fall. As a subcontractor he was responsible for taking care for his own safety and he was conscious of safety issues.
In January 2010 the defendant employed the plaintiff full-time as a project manager working from its office. The plaintiff was aware that he was given the position as project manager because of his experience and capacity. He was also aware that the proprietors of the business respected and trusted him and expected him to inform them if he had difficulty performing his work. He accepted that it was reasonable that they expected that he would be able to look after himself.
The plaintiff had been to the property at North Lyneham three times prior to the accident and was familiar with the site. He was aware that tiles had been laid and he knew therefore what to expect in terms of the ground surface. He was not surprised to find water in the gutter but he was unable to see from his position on the roof where it landed when it fell to the ground.
He was tested about action that he could have taken to avoid the risk that the ladder might move. He denied that he could have moved the ladder whilst he was on the roof. He said it was too heavy and he would be concerned that it would drag him from the roof. It was not his practice to move a ladder whilst on a roof.
The plaintiff was unaware at the time of his accident that he could have fixed the ladder by removing roof tiles and tying the ladder to the roof trusses beneath them. He agreed that it was not difficult to remove and replace roof tiles. He was aware that the defendant owned scaffolding. He did not think it was necessary for the purpose of the work he was to undertake on 18 May 2011. In addition it was not practicable to carry scaffolding particularly when he was visiting a number of sites each day.
He said the use of the ladder in its A-frame formation was inherently dangerous if placed at the height necessary to access the roof of the North Lyneham property. He thought he had a high quality ladder and he had no reason to doubt it. The plaintiff had never used a safety harness and he did not own one. In any event, he said, it would not assist when ascending or descending a ladder.
The plaintiff agreed that the defendant always provided assistance to him for work on site if he required it. He agreed that this assistance had been provided since the accident and that he was no longer permitted to work on a roof without assistance.
The plaintiff said that he was unaware of regulations that required ladders placed above a certain height to be fixed in place or held by a second person. The defendant at no stage offered him the assistance of a second person for this purpose. The defendant did not instruct him how to place a ladder or climb up or down a ladder. He did not know about regulations concerning working at heights and he assumed that, if the ladder was of good quality, it was fit for its purpose.
The plaintiff agreed that he held a certificate in occupational health and safety that was issued in 2006. He said it was general and was obtained while he was working in a different industry.
Mr Wall agreed that the defendant provided the plaintiff with no training in matters of occupational health and safety. Mr Wall relied on the plaintiff’s experience as a subcontractor and did not check the extent of his knowledge. He did not inspect the plaintiff’s equipment to check if it was safe because he used that equipment when he worked as a subcontractor. He did not go to sites with the plaintiff to check if he was adopting appropriate safety procedures. Mr Wall left it to the plaintiff to assess the equipment required when he undertook maintenance work.
Mr Wall did not personally undertake risk assessments. He expected subcontractors to check the risks involved in their work. Similarly he expected the plaintiff to assess the risks of the work that he undertook. In summary, he assumed that the plaintiff’s experience as a subcontractor provided him with the skill and capacity to assess and deal appropriately with any risks involved in his work.
The Claim in Negligence
The particulars set out in the statement of claim alleging negligence against the defendant related to the system of work adopted by the plaintiff, failures to identify and manage risk and failures to provide equipment such as scaffolding and a safety harness or the assistance of another staff member. It was also alleged that the defendant ought to have taken precautions against the risk that the tiled surface on which the plaintiff’s ladder rested would become wet.
The defendant’s answer to these claims was that it previously engaged the plaintiff to undertake work on a subcontract basis and it expected the plaintiff to take responsibility for compliance with occupational health and safety regulations. It therefore assumed that the plaintiff would take all necessary steps to safeguard against the risks involved in performing his work in the course of his employment with the defendant.
I have already noted that the defendant had the necessary equipment and staff to provide the plaintiff with protection from the risks to which he was exposed on the day of his accident.
Mr Wall told the court that the defendant gave the plaintiff no particular instructions concerning any particular item of work that he was to undertake. The defendant left it to the plaintiff, on the basis that he had experience as a subcontractor, to determine how his work was to be done and the extent to which he had sufficient equipment of his own for the purpose. The defendant did not ever check the extent of the plaintiff’s knowledge of occupational health and safety requirements or provide him with any induction or training.
The Civil Law (Wrongs) Act 2002 (ACT) deals with duty of care in the following terms:
42Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
44Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
In Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 686-688 Justice Mason when dealing with the principle of non delegable duty, said the following about the obligations of employers to their employees:-
32. The principal objection to the concept of personal duty is that it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. The failure in Wilsons' Case to acknowledge this departure and to advance a convincing reason for fixing the employer with a more stringent duty made the reasoning in Wilsons' Case vulnerable to criticism. However, when we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne (at p.755):
"... the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others ...".
...
35. That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. Indeed, there is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor. It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, e.g., in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge. But this is by the way, for it is not an issue that needs to be decided in the present case.
Further demonstration of the High Court’s attitude to the obligations of employers to provide a safe system of work appeared in its unanimous decision in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839. The court said that the appellant’s reliance on the following principle was well founded;
[12] ...If there is a real risk of an injury to an employee in the performance of a task in the work place, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards: Smith v The Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 342. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work; Smith v The Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 342-343 per Taylor J; Da Costa v Cockburn Salvage &Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 at 218 per Gibbs J; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 500 [128] per Kirby J.
The court noted that there was a real risk to the appellant that could readily have been obviated and said:
[13] ...In light of its failure to implement such or like measures the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant.
and
[16] An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterized as a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here. This was another matter to which the Full Court failed to pay due regard. The respondent was negligent...
While the responsibility of the defendant for the deficiencies in the plaintiff’s understanding of occupational health and safety principles when he was engaged as a subcontractor might be arguable, the law made it quite clear that the defendant became responsible for his safety on a building site when his status changed to that of an employee.
In the current case the defendant did nothing to assess the risks that might be faced by the plaintiff when he worked on the site. It did nothing to assess his level of awareness of those risks or to train him in matters of occupational health and safety. It did not provide him with training in or direct his attention to any of the requirements of the Scaffolding and Lifts Regulation, in particular the regulations that apply to persons using ladders or working where liable to fall a distance of more than 6 feet.
The foreseeability of the risk involved in the plaintiff’s work on the roof at North Lyneham was more than evident from the terms of the regulations designed to protect against those risks. The defendant did not suggest that compliance with these regulations would have been unduly onerous, expensive or inconvenient. Indeed the regulations could have been complied with and the risk faced by the plaintiff obviated by bringing to the plaintiff’s attention the need to fix his ladder in some appropriate way or by providing him with an assistant to hold the ladder when he used it to gain access to working spaces above the regulated height.
Having regard to these matters, I found the defendant in breach of its duty of care to the plaintiff and negligent.
Contributory negligence
The defendant submitted that contributory negligence on the part of the plaintiff was to be found in number of areas.
The defendant claimed that the plaintiff could have taken steps to inform himself of the regulations and to comply with them. I did not accept that the plaintiff’s failure to educate himself could be classified as negligent when responsibility for training the plaintiff in matters of occupational health and safety, including the safety requirements of the regulations, rested squarely on the defendant.
Similarly the suggestion that the plaintiff was aware that he could have asked for assistance did not establish negligence on his part in the absence of clear and direct instructions from the defendant that, when working above a height of six feet, it was mandatory that he obtain that assistance.
I accepted that the plaintiff knew that water spilled from the gutter. His evidence was that he walked from the point at which he climbed onto the roof to the area of the defective guttering. This indicated that the area from which the water spilled was not where the ladder was placed. I decided that there was an element of hindsight in the suggestion that there was negligence on his part in failing to advert to the question of whether the water spilled onto the tiles beneath the base of the ladder.
In the Czatyrko decision, in finding that there was no contributory negligence on the part of the appellant, the High Court said;
[18] His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made.
In the current case the plaintiff was performing the work he was engaged to do unaware of the provisions of the regulations that were designed to protect him. It was not suggested that he disobeyed any direction concerning the manner in which he was to perform his work.
I considered therefore that there was no basis for a finding of contributory negligence against him.
Breach of Statutory Duty
It was accepted by the defendant that s 102(2) of the Civil Law (Wrongs) Act 2002 removed any defence of contributory negligence to the claim of breach of statutory duty.
It was apparent that the defendant had the means to provide the protection from risk that the regulations relied upon by the plaintiff were designed to meet. Mr Wall told the court that the defendant owned scaffolding and other equipment that could have been used by the plaintiff. Assistance of a second person would have been provided if sought by the plaintiff.
From the authorities to which I was referred by the parties, it appeared that there were two bases upon which the defendant could avoid liability to the plaintiff for the separate tort of breach of statutory duty.
In H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 at 466, Jacobs J said:
When a person carrying out building work delegates to an employee or sub-contractor the performance of acts required to be done in order to comply with the statutory duties he is not likely to be able in all cases prior to that delegation and the consequent performance of those acts to provide that employee or that sub-contractor with the protection which the particular statutory duty imposes. It must therefore often be the position that the statutory duty does not extend to the employee or sub-contractor engaged in the acts necessary for the fulfilment of that same statutory duty. When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions whereunder the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty.
In Millington v Wilkie t/as Max Wilkie Plumbing Services & Anors [2005] NSWCA 45; (2005) 62 NSWLR 322, Justice Hodgson considered at length the apparent conflict in prior authority on the question of the extent to which an employer carrying on building work was liable to an employee who acted in breach of a regulation in circumstances where there was no fault on the part of the employer. He said:
[39] ... in circumstances where an employer is carrying on building work and, without any fault of the employer, an employee uses a ladder in breach of regulation 80(6), although the employer will be in breach of the statutory duty, this does not necessarily mean that the employee will thereby have a cause of action for damages against the employer. The existence of such a cause of action depends upon an implication which depends in turn on identification of the class of person to whose benefit the statutory duty was imposed. The approach of Mason J in Buckman suggests that there may be excluded, from that class, employees whose actions have put the employer in breach, where nothing done or omitted by the employer itself has contributed to the breach.
...
[41] In the present case, the only fault of the employer that can be suggested is that it should have appreciated that the appellant might disobey the instructions given and use the ladder unsecured when left alone on the site. This would not be a casual act of negligence or a mistake made in the heat of the moment, from which employers should protect employees, but, on the findings of the primary judge, a deliberate departure from an instruction twice given by the employer. I do not think that there is in these circumstances any fault of the employer that could prevent the application of the principle to which I have referred, excluding the appellant from the class of persons for whose benefit the statutory provision was enacted.
...
[43] I would add that this principle applies only where the fault of the employer is excluded altogether; and that this will never be the case where the employer has breached a duty of care to provide a safe system at work. If an employer has delegated the provision of a safe system of work to an employee, and that employee fails to achieve a safe system and is thereby injured, the employer will be liable (subject to questions of contributory negligence) because the employer’s duty to provide a safe system cannot be delegated and so the employer’s independent obligation remains; see Nicol v Allyacht Spars Pty Ltd [1987] HCA 68; (1987) 163 CLR 611 at 625; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 at [44].
I did not accept that the defendant in this case could avoid liability on either of the bases set out above.
This was not a case where the plaintiff was particularly directed by the defendant to carry out his work in a manner that complied with the requirements of the regulations. Nor, as already noted, did the plaintiff deliberately disobey a direction as to the manner in which he was to undertaken his work.
He was simply not trained or directed on the requirements of the regulations or on the issue of ladder safety when working at heights in excess of six feet.
I find that the defendant breached its statutory duty to the plaintiff.
CAUSATION
Although the defendant did not claim that its conduct was not causative of the plaintiff’s injury, the burden of proof of causation remained on the plaintiff pursuant to s 46 of the Civil Law (Wrongs) Act.
The plaintiff was not asked what he might have done if instructed on issues of safety when using his ladder. In Strong v Woolworths Ltd [2012] HCA 5, the High Court rejected the contention that it was necessary to point to direct evidence that permitted an inference to be drawn concerning causation. At [34] the majority said that the onus of establishing that the respondent’s negligence was a necessary condition of the appellant’s harm could be discharged by consideration of the probabilities in circumstances in which evidence did not establish a necessary fact.
The plaintiff in this case was highly regarded by his employer. The defendant did not suggest that he disobeyed directions or engaged in fool hardy or risky behaviour. He had earned the confidence of the defendant and was trusted to work alone and without supervision. This evidence suggested to me that if educated and instructed by the defendant, the plaintiff in all probability would have followed instructions and taken steps to fix the ladder or to obtain the assistance of another person, thereby avoiding the risk that caused him to fall.
I was satisfied therefore that the defendant’s failure to train, direct and provide equipment or assistance was causative of the plaintiff’s injury.
ASSESSMENT
General Damages
The plaintiff suffered from a number of injuries prior to 18 May 2011 that were not relevant to the claim made in these proceedings. It was not disputed that at the time of the accident he was in good health and suffered from no relevant disability.
The plaintiff said that after he landed on the tiles he was initially unable to breathe and with considerable effort he moved onto his knees and began to breathe. At the same time he was able to access one of the two telephones that he carried. He telephoned an ambulance, his office and his wife and then he laid down on the tiles and waited.
At the time he was suffering from pain on the right side of his body, in his right wrist and elbow and he was bleeding from a cut on his finger.
The plaintiff was taken to Calvary Hospital where the fracture of one rib was noted and he was discharged with medication. The plaintiff continued to suffer with pain in his right side, his hands and his right elbow. After consulting with his general practitioner and a further visit to Canberra Hospital where he was admitted overnight on 24 May 2011, the plaintiff was ultimately referred for a CT scan of his right hand on 27 May 2011.
By this stage, it was evident that the plaintiff suffered fractures of two of his ribs on the right side, fractures of the capitate and lunate bones of the right wrist and a tear to the triangular fibro cartilage complex (TFCC). There was some debate amongst the medical experts concerning the possible fracture of a third bone in the wrist, the triquetrum. It was apparent however, that the plaintiff suffered a significant injury to his dominant right hand.
A fibre glass cast was placed on his wrist up to a point close to the plaintiff’s elbow. The plaster remained in place until 5 August 2011. When the cast was removed, the plaintiff used a brace that he continued to use up to the date of the hearing to provide support for his wrist.
In September 2011 the plaintiff was referred to Dr Christopher Roberts, orthopaedic surgeon. Dr Roberts initially recommended physiotherapy and a three month waiting period to allow the fractures to heal. Regretfully the pain continued and Dr Roberts told the plaintiff that surgery was his only option. On 24 April 2012 Dr Roberts undertook an arthroscopy of the plaintiff’s right hand in a one day procedure. The plaintiff said that this surgery initially reduced his pain but did not increase the range of movement of the wrist. He said that his pain levels subsequently returned to those that he experienced prior to the surgery.
The plaintiff complained of increased pain with sudden movement or after extended use. He once more consulted Dr Roberts, whose advice was that if the pain became intolerable, his only option was arthrodesis. The plaintiff said that he did not currently plan to undergo surgery of this nature but he would do so if the pain became intolerable and he was unable to use his wrist. He said the pain was getting worse, particularly when he used the hand.
In January 2013 the plaintiff worked at the weekend for three hours building a new gate. This work aggravated his hand and caused the paint to increase so that, when he returned to work on Monday, he was unable to write. He consulted his general practitioner who prescribed anti-inflammatory medication which he continued to take to the point of the hearing. He said that he continued to use anti-inflammatory medication when pain and swelling increased, although he used it sparingly because of its side effects.
Prior to his injury, the plaintiff used his boat for waterskiing and knee boarding and fishing. He played tennis, squash and golf. Since the accident, he had not engaged with waterskiing or knee boarding, tennis or squash. He played golf three times but suffered wrist and hand pain whilst playing and afterwards. The plaintiff fished less frequently because wrist pain occurred after two or three hours and he had difficulty moving his boat on and off its trailer without assistance. He said he could previously do this unaided.
The plaintiff agreed that he complained to his general practitioner in January 2011 of back problems and degenerative disease in his spine was diagnosed. He was prescribed Celebrex and Tramal for this condition and he took both medications intermittently prior to the accident. The plaintiff agreed that he had been prescribed Efexor for a period of six years.
Dr Stubbs noted that, in terms of impairment, the plaintiff had two residual problems, they being a mild restriction in range of movement and a loss in grip strength. Dr Stubbs provided extracts from long term studies of similar injuries which he said established that the extent of the plaintiff’s impairment was likely to be modest and the plaintiff’s condition was unlikely to deteriorate.
Dr Cairns and Dr Le Leu, on the other hand, were of the opinion that the injury exposed the plaintiff to the development of osteoarthritis that potentially would require intercarpal or radiocarpal arthrodesis. These views appeared to be consistent with the advice given to the plaintiff by his treating orthopaedic surgeon, Dr. Roberts, that he should return for further consultation if the pain in his wrist became intolerable when consideration might be given to treatment by way of arthrodesis.
All of the medical experts agreed that their findings were consistent with the history of injury and the plaintiff’s presentation. None suggested that the plaintiff’s complaints were unfounded or exaggerated, nor did the defendant submit that the plaintiff was other than genuine in his complaints of ongoing pain and impairment.
I took into account therefore those complaints, including the complaint that pain in the plaintiff’s wrist was gradually increased.
This evidence lead me to conclude that the opinions of Dr Cairns and Dr Le Leu were to be preferred to Dr Stubbs’ optimistic view that the condition of the plaintiff’s wrist was stable.
In assessing his general damages, I had regard to the immediate post accident period of pain and suffering from the rib and wrist bone fractures and that following the subsequent surgery. I had regard to the continuing discomfort and restriction in capacity and to the prospect of deterioration in the plaintiff’s wrist to the point where arthrodesis might be required with the obvious result of increased impairment.
Taking these matters into account I awarded the plaintiff $85,000.00 for pain and suffering allocating $30,000.00 to past pain and suffering and $55,000.00 to the future. I allowed interest on the past component in the sum of $1,100.00.
Loss of Income Earning Capacity
At the time of his injury the plaintiff was 42 years old, he is now 43. After completing his education to Year 12 the plaintiff trained as an aircraft mechanical engineer and worked for Qantas at its jet base in Mascot. His work involved checking and servicing aircraft components. He said he worked in confined spaces at times.
The plaintiff left Qantas after 2½ years, staying at home to care for his two children whilst his wife pursued her career.
The plaintiff and his family moved to Canberra in 1999 where he obtained work with the defendant as a subcontractor constructing decks, patio covers and sunrooms at residential premises. He said he was able to undertake the work without difficulty. As already noted in January 2010 he became a full time employee of the defendant working as a project manager from its office. His tasks involved ordering the materials, managing contractors on site, liaising with clients, collecting progress payments, issuing warranties and ensuring that contracts were completed in accordance with the Building Code of Australia. The plaintiff also undertook a trouble shooting role dealing with clients and contractors, arranging to have defects repaired and frequently completing the repairs himself.
The plaintiff returned to work about two months after his injury and was placed on restricted duties for six to seven weeks whilst his arm remained in a cast. During this period he was driven to sites and he was not permitted to lift weights. He worked restricted hours.
His duties were then changed permanently. He no longer undertook maintenance tasks on site. He helped in the warehouse but he did not lift beams or use ladders.
The plaintiff was away from work for a further six weeks after surgery in April 2012.
The plaintiff said that he continued to attend sites as a building supervisor but he was unable to undertake his pre-accident maintenance and repair work because he had lost strength and dexterity in his right hand. For the same reason, he said he would not be able to return to his former occupation as an aircraft engineer where in many cases power tools could not be used and it was necessary to reach into small spaces to install screws and nuts manually.
The plaintiff said that he was coping with his work and he wanted to continue working with the defendant. At the time of the accident he earned $800.00 net per week. His weekly income at the time of the hearing was $1,000.00 net.
The plaintiff agreed that his relationship with the defendant was a happy one and that he had supervisory skills that would be of potential value to another employer.
In mid-2012 the plaintiff enrolled in a course at Canberra Institute of Technology in Certificate III Business Accounting that he expected to complete online part time over a period of two years. The course was designed to qualify him for work as an accountant preparing tax returns. The plaintiff was hopeful that the qualification would allow him prospects of employment in the finance industry. The plaintiff said he could use a keyboard if his hands were rested. He used a mouse in his left hand.
The plaintiff was able to drive a manual vehicle with some pain, particularly if long periods of driving were involved.
The medical experts agreed that the condition of the plaintiff’s right wrist was such that he could not return to his full pre-injury duties or to work as an aircraft engineer.
The plaintiff had no plans at the time of hearing to change employment. He said he always had in the back of his mind that he might return to aviation engineering, as a contractor on a fly in fly out basis. He said there was good money in this type of work.
Mr Wall confirmed that the plaintiff would remain an employee of the defendant for as long as he chose. However, Mr Wall confirmed that the defendant’s business was currently on the market. He agreed that there was no guarantee that the plaintiff would continue to be employed after the sale, but said “You’d be silly if you sacked him” (Transcript 64.35).
The parties agreed that the plaintiff’s past income loss amounted to $10,607.78. The claim for Fox v Wood adjustment was allowed in the agreed sum of $2,121.55.
The issue of the extent to which the plaintiff was entitled to compensation for future loss of income earning capacity was complicated by the fact that at the time of the hearing he was assured of his existing employment at least until the current proprietors sold the business operated by the defendant.
It was apparent that, if the plaintiff was not retained by the incoming operator of the business, he could not return to work involving aircraft componentry or as a subcontractor on a building site.
I accepted therefore that the injury to his right hand resulted in a measure of restriction on his income earning capacity.
Commendably, the plaintiff has commenced studies that will provide him with additional skills. Coupled with the evidence that established that he was a reliable and trustworthy employee, I concluded that it was appropriate, as suggested by his counsel, that I deal with the reduction in his income earning capacity by way of a buffer against potential future loss.
I considered that the relatively modest sum of $55,000.00 or approximately one year’s net income was an appropriate buffer against potential loss of income arising from this reduction in income earning capacity.
The plaintiff’s superannuation loss was allowed in the sums of $1,167.00 for the past and $6,050.00 for the future.
Domestic Care
The defendant took no issue with the plaintiff’s claim for two hours per week of domestic assistance for ten weeks immediately after the injury and for six weeks after the arthroscopy. I therefore allowed the amount claimed of $5,100.00.
The plaintiff claimed that he required one hour of assistance per week thereafter and into the future. His evidence on this aspect was that, prior to the accident, he helped in the house with laundry, vacuum cleaning and dusting. He could no longer vacuum clean because it irritated his hand. He said he took lighter loads of washing to be hung out in a basket that he carried with his left hand. He sometimes obtained the unwilling assistance of his children in hanging out washing.
Outside the house he previously undertook landscaping work in a 500 square metre garden. He built retaining walls and installed a spa on a sloping site. He said he now obtained the help of his son with heavy lifting and digging and he could no longer carry out the landscaping work for a full day without taking a break. The plaintiff was able to mow the lawn but the use of a whipper snipper aggravated his condition and his son assisted him with this task.
Dr Le Leu reported there was little that the plaintiff could not do but it was a matter of the extent to which he could tolerate the discomfort that housework and gardening work caused.
The defendant contended that the plaintiff’s requirement for future care was minimal and could be dealt with in the assessment of his general damages.
I did not accept this proposition. There was sufficient evidence to establish an ongoing need. The fact that the plaintiff’s son, who provided some assistance with gardening, would in all likelihood at some stage move out of the family home and no longer be available for this purpose did not, in my view, mean that the assistance he provided would no longer be required. It merely meant that the plaintiff would have to look elsewhere for this assistance, either on a voluntary or paid basis.
In addition, I could not disregard the material concerning the gradually deteriorating condition of the plaintiff’s wrist and the need for additional assistance that this deterioration was likely to generate.
For these reasons, I considered the plaintiff’s claim for one hour per week of assistance for the future to be reasonable and I allowed it in the sum of $26,669.00.
Medical Expenses
Past out of pocket expenses were agreed in the sum of $26,754.80.
The plaintiff claimed the sum of $15,240.00 for the future cost of painkilling medication. The plaintiff said he consulted his general practitioners for new prescriptions for medication at intervals of about four months. The defendant pointed out that the plaintiff was using some of his medication on an intermittent basis before the accident to deal with spinal condition. I therefore discounted the amount claimed to provide for medication by 20% and allowed the sum of $12,192.00.
The plaintiff also claimed an allowance for the potential cost of wrist fusing surgery. Doing the best I could with the figures provided in Exhibit D, and allowing for two nights of hospitalisation following surgery I calculated the costs to be $7,789.00. Having regard to the uncertainty concerning the requirement for future surgery, I allowed one half of the estimated cost in the sum of $3,894.50.
Summary
There will be a judgment for the plaintiff in the sum of $235,656.63, comprising:
General Damages $85,000.00 Interest on past damages @ 2% $1,100.00 Income Loss Past: $10,607.78 Present: $55,000.00 Fox v Wood 2,121.55 Superannuation Loss Past $1,167.00 Future $6,050.00 Domestic Care Past $5,100.00 Future $26,669.00 Medical Expenses Past $26,754.80 Future $16,086.50 Total $235,656.63
ORDERS
Verdict and judgment for the plaintiff in the sum of $235,656.63.
The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
I make the usual order as to interest.
The exhibits will be retained for 28 days.
My reasons are published.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of his/her Honour, Acting Justice Sidis.
Associate: Chanel Schultz
Date: 28 March 2013
Counsel for the plaintiff: Mr S H Pilkington SC
Solicitor for the plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: Mr B A Meagher SC
Solicitor for the defendant: Moray & Agnew Solicitors
Date of hearing: 18 February 2013
Date of judgment: 28 March 2013
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