Bradshaw v Sydney Airport Corporation
[2013] NSWDC 53
•30 April 2013
District Court
New South Wales
Medium Neutral Citation: Bradshaw v Sydney Airport Corporation [2013] NSWDC 53 Hearing dates: 23/04/2013 - 24/4/2013 Decision date: 30 April 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Verdict for the plaintiff against the first defendant for $297,618.63
Catchwords: Occupier's liability, previous accident Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Leonard v Smith (1992) 27 NSWLR 5Category: Principal judgment Parties: Joshua Dean Bradshaw (Plaintiff)
Sydney Airport Corporation (First Defendant)Representation: A Lidden SC and M Campbell (Plaintiff)
D Talintyre (First Defendant)
Brydens Law Office (Plaintiff)
Sparke Helmore (First Defendant)
File Number(s): 2011/00334404 Publication restriction: No
Judgment
The plaintiff was born in 1972. He left school during Year 9 and soon commenced work as a labourer. This has been the nature of his work ever since. On 23 October 2008 he fell at work and was injured. He says that his injuries were caused by the first defendant and, in this action, he seeks damages.
The plaintiff settled his differences with the second defendant. It has played no part in the hearing before me.
The first defendant (which I will now refer to as the defendant) is the occupier of the area where the plaintiff was injured. It accepts it owed him the duty of care of an occupier but otherwise denies liability. In case it is wrong about liability, the defendant alleges contributory negligence on the plaintiff's part. It also challenges the nature and extent of the injuries allegedly suffered by the plaintiff.
The action is governed by the Civil Liability Act 2002 (the "CLA"). In an Amended Defence filed on the first day of hearing the defendant included an assertion that the plaintiff had been injured as a result of an obvious risk.
The primary defence was that the plaintiff's accident had not occurred as alleged. Rather he had fallen at a different place and for different reasons.
The plaintiff claimed damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and past and future care.
Some background
The plaintiff's background is generally set out in the chronology (Exhibit B). Of particular interest are the plaintiff's previous injuries. He hurt his back in 1993 and suffered symptoms for "a couple of years". He again hurt his back in March 2003 and again recovered, this time after rehabilitation and some months off work.
Most significantly, the plaintiff was involved in a motor vehicle accident on 23 June 2007. He injured his neck, his right shoulder, his chest and his hand. He was stationary in a motor vehicle that was struck from behind. It was a forceful collision and the plaintiff was off work for about four months. He was initially on light duties.
The plaintiff made a claim arising from the motor accident. It was settled by an "Agreement For Release" for $125,000 inclusive of costs on 10 March 2011 (Exhibit 1, Tab 33). Both parties said that the settlement should be taken into account to avoid double compensation. This is a difficult task. The most I know of the motor accident claim is contained in the letter of particulars from the plaintiff's solicitors (Exhibit 3, Tab 32) and that the plaintiff was not entitled to non-economic loss (under Section 131 of the Motor Accidents Compensation Act 1999). I can draw very little from the settlement amount, not knowing the amount of costs nor the break up of the amount attributed to each head of damages. At best I can 'bear in mind' the settlement in assessing damages.
The plaintiff's fall, which is the subject of this action, occurred on 23 October 2008. The plaintiff said that by this date he was back at work on full duties. His right shoulder was "good". His neck was "occasionally sore" and his hand had recovered. I think a better indication of his state of health at this time can be found in the report of Dr Deveridge dated 22 October 2008. The plaintiff had seen this doctor, a general surgeon, at the request of his solicitors on 14 October 2008, only some nine days before his fall. The examination was part of the preparation of the plaintiff's motor vehicle accident claim. The doctor recorded the following complaints as at 14 October 2008:
"Currently he continues to experience frequent neck, aches, pains and stiffness. He will typically experience a sharp pain, sometimes after a sudden neck movement but at other times of spontaneous onset. It will typically last for 2 or 3 hours and then settle. On other days he is just aware of an aching sensation, but it is always on the right side of his neck extending up to the base of his skull. Pain is likely to increase with repetitive neck turning or if he holds his neck in one position for long eg with downward gaze. He has ongoing pain and limited movement at the right shoulder. He has difficulty lifting much weight away from his body or above shoulder height. He can experience a catching sensation near the ball of the shoulder. His sleep is disturbed some nights by the neck and shoulder symptoms. He can be stiff in the morning and weather change may have some impact on his daily symptoms."
The description of the plaintiff's then current position is very different to the description he gave in his oral evidence. The presentation to Dr Deveridge was of a much more significantly affected person (in his neck and right shoulder) than the picture given to me. Perhaps this was because at that time he was putting his best foot forward in furtherance of his motor vehicle claim.
Based on his physical examination and on the various scans that he observed, Dr Deveridge came to the following conclusion:
"The neck injury is chronic and stabilised and he has reached maximal medical improvement for that injury. The shoulder joint derangement is still undiagnosed and I cannot determine whether or not he has reached maximal medical improvement for that, injury, at least until the investigations are to hand. The prognosis is for ongoing disability at the current level, on an indefinite basis, and is therefore somewhat guarded."
It is also noteworthy that Dr Deveridge was then "unable to indicate whether or not he will require shoulder joint surgery" until an ultrasound and possibly an MRI had been carried out.
The plaintiff's oral evidence was replete with absences of memory and failures of recollection. Although many of the events about which he was asked occurred some years ago I am satisfied that the plaintiff did not give an accurate history of his pre-fall condition. I prefer Dr Deveridge's conclusions as an indication of the plaintiff's condition immediately before his fall.
One of the effects of my conclusion, namely the rejection of the plaintiff's evidence about his pre-accident condition, is that it must infect the balance of the plaintiff's evidence, in particular about his ongoing condition. It must also affect those medical opinions based on an incorrect history.
One point in the plaintiff's favour is that, whatever his condition, he was back at work apparently doing fulltime duties. It must be said, however, that the plaintiff's description of his duties did not suggest particularly heavy work. The plaintiff actually said that he could probably now do his old job although he would not be able to do the work of a general traffic controller which involved the setting up and dismantling of a particular site. This was not the case at Sydney Airport
The fall
On 23 October 2008 the plaintiff, in the course of his work for Wilson, was stationed at a boom gate outside the Domestic Terminal (Terminal 2) at Sydney Airport. The boom gate area was known as Romeo 9.
At about 8.30am the plaintiff was relieved from his position so that he could go on a meal break. The person taking over was Ms Arleen Beckman. The plaintiff accepted that he spoke to Ms Beckman when she took over and may have continued to do so as he left the boom gate. However, he said the accident occurred some time later when he had reached a restricted parking area known as Romeo 12. This was about 50 metres from the boom gate.
Romeo 12 was open only to taxis, buses and hire cars. Private vehicles were not allowed. As he was walking on the footpath alongside the restricted area the plaintiff noticed a private vehicle. He told the driver to move on. As he did so he stepped down from the footpath to the concrete roadway. His right foot came down on the grate that is depicted in Exhibit A. The plaintiff rolled on his ankle and fell to the right. He put his right hand out to break his fall and landed heavily on his right side.
The defendant accepts that the grate was a trip hazard. It had been apparently ineffectively repaired and is probably also upside down.
The defendant put to the plaintiff that the accident had occurred outside the International Terminal. It was suggested to the plaintiff that he had been talking to Ms Beckman and as he walked away from her, backwards, he carried on the discussion, still looking at her. He then slipped off the footpath and fell. No grate was involved. The plaintiff rejected this version, both as to location and the absence of the grate.
Ms Beckman gave evidence and generally related the version that had been put to the plaintiff. I do not accept her evidence. Under cross-examination she wavered in defending her version. For example, at one time she said it was possible that the accident had occurred outside the Domestic Terminal, at another being absolutely certain that it was outside the International Terminal. I do not think Ms Beckman was dishonest. Rather I think the passage of time has made her evidence unreliable.
To some extent her evidence was contradicted by the draft statement that was made to an investigator (Exhibit J). In this statement she says the plaintiff was walking away from her with his head turned back towards her. In oral evidence she said he was walking backwards. She initially said the statement was not signed because it was correct. She later said she had not signed it because it was incorrect. She thought the statement had been taken this year.
I find the most reliable evidence of the facts of the accident to be in the contemporaneous documents that were prepared by the plaintiff's employer. These can be found at Tabs 3, 4 and 5 of Exhibit 3. In addition, the plaintiff's version is supported by the histories in the workers compensation claim forms at Tabs 6 and 7 respectively.
Accordingly I am satisfied that the plaintiff stepped off the footpath and onto the metal grate which is depicted in Exhibit A. I am also satisfied, as conceded by the defendant, that the grate is a trip hazard. I would go further so as to describe it as a substantial hazard not protruding above the surface of the roadway and not obviously presenting as dangerous other than on close inspection. Although the plaintiff was a person who regularly traversed the area of the grate I think that, unless he had given it specific attention, it would not have presented as an obvious danger.
After the fall
The plaintiff was not sure when he took the photographs which are Exhibit A. It was either on the day of his fall or the following day.
The plaintiff reported the incident and then went to the International Terminal where there was a medical centre. He saw a Dr Keller. Initially his evidence was to the effect that this was the only consultation with Dr Keller but it is clear that he saw this doctor on a number of further occasions. He then saw his normal general practitioner, Dr Pang. The plaintiff made a claim for workers compensation payments but said he only received benefits for about two weeks. This was because the insurer apparently took the attitude that his neck and shoulder conditions were not related to his fall. This is not surprising as the insurer was not made aware of any injury to the neck or shoulder until a later claim made in December 2008 (Exhibit D).
The plaintiff said he went back to work in February 2009 on light duties. Some of the histories to doctors suggest he returned to work much sooner.
Unfortunately his employer, Wilson, lost the contract at the airport and the new contractor, Secom, did not hire the plaintiff.
Since leaving Wilson the plaintiff has worked for about six months for Sydney Traffic Control and for another traffic control company called ETM Services. He said that both jobs came to an end when he told the employer that he was unable to set up the site. He later accepted that when he left Sydney Traffic he was told that there was no further work available.
The plaintiff was living in shared accommodation at the time of the accident. This was in Ramsgate. He left this accommodation to take up other shared premises in Wyong where he remained for about a year. He then went to Killarney Vale also for a year and then to Long Jetty for about three months. He has been in his present accommodation at Bateau Bay for three weeks.
The plaintiff lives with a Ms Bobbie Jo Williams. They have been in a de facto relationship for about nine months. Ms Williams was previously sharing accommodation with the plaintiff but they had no romantic connection. She did not know him prior to the fall.
To some degree consistent with his evidence about other matters, the plaintiff's evidence on domestic care was entirely unsatisfactory. There was almost no evidence about the amount of housework he did before his fall. It seemed to have been approached, perhaps logically, on an as needs basis between the people who shared the accommodation. There was no indication of time taken on various tasks, let alone what these specific tasks were.
There is very little evidence about the plaintiff's domestic activities after the accident. I do not know any of the dates when his situation changed other than in very broad terms. I do not know how housework was shared other than when the relationship with Ms Williams began. The plaintiff said that at the present time Ms Williams does two to three hours a day of housework on his behalf. I found this evidence quite unbelievable. It is hard to imagine what tasks would take 15 to 20 hours per week, let alone taking into account that these were tasks done only on the plaintiff's behalf and done while Ms Williams is heavily pregnant.
Ms Williams is expecting to give birth in about a month. She gave evidence on the telephone because, due to her confinement, it is difficult for her to travel.
Ms Williams gave more sensible evidence about the domestic position. She said she currently does about 15 hours per week which is all of the housework, although the plaintiff does try to assist. She said that but for her pregnancy she would be able to carry out the tasks more efficiently and would normally take about 12 hours per week. She said she would expect, if the plaintiff was not injured, that the tasks were shared equally. She accepted that on some occasions the 12 hours might be achieved in a lesser time but on occasions the work might take longer.
The plaintiff submitted that the necessary threshold of six hours per week was met by the averaging of Ms Williams' estimates. Therefore it did not matter if the activities sometimes took 11 hours per week (and the plaintiff's share was 5½ hours) because at other times the work may have taken 13 hours so that the average of work on behalf of the plaintiff was six hours per week. I do not think this is a valid approach. Section 15 of the CLA specifically sets a threshold of six hours per week. Section 5E says the onus of proof is always on the plaintiff. The plaintiff must establish that six hours per week of domestic activity was performed and the weeks must be identified. They must also be identified to see if the 6 month requirement has been met.
As will be seen below, I accept there can be a place for averaging in the assessment of damages. There is no place for it however where there is a statute prescribing a specific formula as a pre-condition to the awarding of damages.
In addition, if I am wrong on the issue of averaging, I do not in any event accept Ms Williams' evidence that the plaintiff would, but for his fall, have performed six hours a week of domestic activity. The evidence about the pre-fall activities of the plaintiff is scant and this description is also apt to the period after the fall. Although Ms Williams could give some estimates of when their relationship started I certainly do not accept that when Ms Williams was simply a part of the household, shared with an unknown number of other persons, that the plaintiff would have performed six hours per week of domestic activity.
The ages of Ms Williams' children suggest that she has had a previous partner. If this person was living with Ms Williams then one would have expected him to have participated in domestic activity. The same applies to any other persons sharing the accommodation. I do not find the evidence is sufficient to establish that but for the accident the plaintiff would have performed any specific number of hours of domestic activity. I also do not find that any particular number of hours of activity is now being performed to meet the plaintiff's needs.
Liability
A useful starting point in resolving liability is to look at the duty of care owed by an occupier to a legal entrant. This was plainly set out in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned".
I think the above formulation is consistent with Section 5B of the CLA, although it is still necessary to ensure the plaintiff has established the ingredients of the section.
Section 5B is as follows:
"5B 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 determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care 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 that creates the risk of harm."
The defendant did not concede that if the plaintiff was injured in the circumstances described by him that a finding of breach of duty would flow. In my view, this step is easily made. Applying Section 5B the risk of a person falling over when stepping onto the obviously defective grate (and admitted trip hazard) was foreseeable. The risk of this occurring was not insignificant. There was a very good chance that if a person stepped onto this grate that a fall might occur. In circumstances of this nature I am satisfied that a reasonable person in the occupier's position would have taken precautions against the risk of harm.
In relation to Section 5B(2) I think that there was a strong probability that harm would occur if someone fell as a result of stepping on the grate. It is well known that falls can produce serious injury. The burden of taking precautions to avoid the risk of harm was not heavy. In fact it is obvious that a repair had been attempted. Perhaps it was intended to be temporary but, whatever the case, it only added to the risk of harm. I do not think Section 5B(2)(d) is relevant.
I am accordingly satisfied that there has been a breach of duty of care on the part of the defendant.
Contributory negligence
My initial thought was that there was contributory negligence on the part of the plaintiff for not looking where he was stepping. However, I was persuaded by senior counsel for the plaintiff that at best there was a momentary act of inadvertence on the plaintiff's part, bearing in mind that he was concerned to move on the private vehicle that had strayed into the restricted area. The presence of this vehicle is apparent from the employer's documents which I have referred to above and I am satisfied that the plaintiff was undertaking this task when he stepped off the footpath.
On this basis I find that the plaintiff was not guilty of any contributory negligence.
Quantum
This has been the more difficult part of this case. It has been especially complicated by the plaintiff's motor vehicle accident injuries and my finding that his oral evidence about his condition immediately before the fall is unreliable.
It has also been complicated by the medical debate between the doctors relied upon by the respective parties. The attack made by each party on the other's expert witnesses was strong. Senior counsel for the plaintiff went so far as to describe Dr Dalton as "irrational". Despite this Dr Dalton was not required for cross-examination.
On the defendant's side the submission was made that Professor Murrell, the treating surgeon, should not be accepted and nor should other doctors supporting the plaintiff. At the commencement of the hearing I was informed by defendant's counsel that three doctors would be giving evidence. I looked forward to their evidence to assist me in resolving the issues of the plaintiff's condition having regard to his earlier injury. I was later informed that the doctors had made it "difficult" for the defendant to arrange for their attendance. I appreciate that doctors are busy and are often reluctant to come to court. That, however, is not an excuse for not taking appropriate steps to have them attend.
The plaintiff's claim exceeds the jurisdiction of this court ($750,000). The defendant's submissions allow for damages of $3,220. The vast gap between the parties' respective figures is a product of their different submissions on the plaintiff's medical state when he fell and the nature of his ongoing condition. Plainly, the court would have been greatly assisted by the hearing of medical evidence. This was accentuated by the submissions of the parties concerning precise medical questions. For example, the defendant made a close analysis of the different parts of the plaintiff's shoulder that may or may not have been injured and upon which there may or may not have been surgery. The plaintiff made similar submissions, which also took into account a reading of MRI scans. Once again all of these matters would have benefited from the doctors explaining their opinions and being cross-examined upon them.
I have proceeded on the basis of doing the best I can and avoiding, unless the solution be capable of lay understanding, the various technical disputes that the parties endeavoured to agitate. A judge should not bring to bear any medical knowledge he might have nor attempt to resolve medical issues that fall outside common knowledge.
The first issue to be decided is what injuries the plaintiff suffered when he fell over. There is no dispute that he rolled his ankle and suffered ankle discomfort for some weeks. This injury is, however, of minor significance. The real dispute revolves around whether he injured, or aggravated, his neck and right shoulder injuries.
The defendant tracked through the medical records to demonstrate that there were no complaints about the neck or right shoulder for some time. In this regard I was taken to the records of Dr Keller and the various consultations with him before any mention of neck or shoulder problems appears. There were also the reports of Dr Pang and of the physiotherapist. All of these suggest that neck and shoulder symptoms did not arise for some weeks.
In the plaintiff's favour is the fact that he had returned to fulltime work and there is very little evidence of any treatment for his neck and shoulder for some time prior to the fall.
If he was exaggerating to Dr Deveridge to maximise his motor vehicle claim, then he must bear the consequences of that exaggeration. If this approach is wrong I still accept Dr Deveridge's report because it is so contemporaneous to the incident and because it describes a thorough examination by a specialist of the plaintiff's condition.
Dr Deveridge's report also has the advantage of blunting the defendant's case, put through Dr Dalton, that the treatment by Professor Murrell was either unnecessary or had nothing to do with the fall. Professor Murrell was sent Dr Deveridge's pre-fall report. He considered it and came to the view that 95% of the plaintiff's condition was due to the fall. Professor Murrell was not cross-examined. I think this point, together with the subsequent reports of Dr Deveridge, all combine to lead me to the conclusion that Dr Dalton's opinion should be rejected.
Returning to the injury suffered by the plaintiff in the fall, Ms Beckman said he had a heavy fall. I have no reason to doubt this evidence nor to doubt the plaintiff's evidence that he fell onto an outstretched right arm. Bearing in mind my conclusion about his pre-fall condition, these facts logically suggest further injury to the right shoulder. The fact that he did not immediately complain of it I think is consistent with the report of Dr Deveridge that he was having shoulder problems at the time of the fall and therefore did not make much of new symptoms in the shoulder that only became more severe during a course of physiotherapy.
I also think the second report of Dr Deveridge, dated 24 June 2010 (Exhibit G), is important and consistent with my above conclusion. Dr Deveridge's opinion, following his examination of the plaintiff on 15 June 2010 is worth quoting:
"As previously reported your client had developed a chronic musculo ligamentous cervical strain injury to the cervical spine and a derangement of his right shoulder joint as a result of the motor vehicle accident on 23.6.2007. Since that time he has significantly re-injured the right shoulder in the fall at work on 23.10.2008. At first he believed that this was merely an exacerbation of the previous shoulder injury, but it soon became clear that he had further significantly injured the shoulder joint. Unfortunately there was no pre-work injury medical imaging of the right shoulder joint, so it is impossible to determine the degree of damage sustained in the second injury, and to apportion the two injuries. However I did have the opportunity of measuring his pre and post work injury range of shoulder movement, and this has considerably diminished. The MRI study showed some supraspinatus tendinopathy, and the calcific changes suggest that this was a consequence of the 2007 accident; however the partial thickness tear of the infraspinatus tendon, most probably occurred in the fall in October 2008."
Of particular importance, in the above quoted passage, is Dr Deveridge's reference to his comparison of the measurement of the plaintiff's pre and post fall range of movement. There is a clear difference, confirming the new injury. I also think Dr Deveridge's comparative clinical findings provide a better basis for my conclusion than trying, without assistance from the doctors, to resolve the technical medical argument advanced by the parties.
I also accept Dr Deveridge's apportionment between the two injuries of "50/50".
The plaintiff submitted that non-economic loss should be assessed at 33% of a most extreme case. The defendant submitted that there should be no allowance for non-economic loss because the plaintiff, only having injured his ankle, did not exceed the threshold set by Section 16 of the CLA.
On the basis of my findings the plaintiff did injure or aggravate his shoulder and this has caused him considerable pain, which continues to date. He has also required surgery. However, factoring in Dr Deveridge's apportionment between the two injuries, the plaintiff's assessment becomes manifestly excessive.
In my view non-economic loss should be assessed at 20% of a most extreme case. This equates to $18,500 under Section 16.
The plaintiff claimed out of pocket expenses of $16,500. This figure was accepted by the defendant but only if I accepted the plaintiff's full claim. The defendant, in its primary submissions, allowed a figure of $1,000. Based on my conclusions about the extent of the plaintiff's injuries I think he should be entitled, following Dr Deveridge's prescription, to half of the claimed amount. This is $8,250. This approach also takes into account Dr Deveridge's observation before the fall that he was then unable to predict the need for surgery.
The plaintiff claimed $20,000 for future medical expenses. This was admittedly assessed on the basis of a "guess". It is not based on any of the medical reports suggesting a need for treatment producing this figure. The defendant said there should be no allowance for future medical expenses.
At present the plaintiff is having very little treatment. He takes some painkilling tablets and sees a general practitioner from time to time, often for unrelated matters but mentioning his neck and shoulder. The plaintiff said that if he could afford physiotherapy he would like to have it. I think there should be some allowance for future treatment in case the plaintiff needs physiotherapy or consultations with a specialist from time to time. I think a figure of $5,000 is appropriate.
The plaintiff's claim for past wage loss was $125,545. The defendant said $2,000 was enough. The parties agreed that the plaintiff's net wage at the time of his fall was $650 per week. The plaintiff allowed for a deduction of $16,457 in respect of wages he had received from Sydney Traffic Control and EMS. There was also no claim for loss of wages prior to the plaintiff's surgery because the evidence was particularly vague on this point. The plaintiff, perhaps again putting his best foot forward, seemed to suggest in his evidence that he did almost no work after the fall. There are histories, however, that would suggest otherwise.
The calculation of past economic loss involves different considerations than non-economic loss in that although I have found the plaintiff's condition is 50% due to the motor vehicle accident injuries it must be acknowledged that he had returned to fulltime work before the fall and therefore the previous injury plays a smaller part.
The previous injury does, however, remain a component of the plaintiff's condition and therefore must influence the assessment of past economic loss; although not to the same extent as would produce a 50% reduction. It is also necessary, however nebulously, to take into account the plaintiff's settlement of the motor vehicle claim.
The plaintiff's claim is based on $731 per week for 3.75 years. The increase from $650 per week is based on the increase of average weekly earnings by about 25% since October 2008. The figure has been averaged to produce the $731. I think this approach is legitimate here as it must be recognised that had the plaintiff remained in employment his wages would have increased. On the counter side I also think it important to take into account that Wilson lost the contract at the airport and that, even if fit, the plaintiff may still not have been employed by Secom. There would then no doubt have been a period of unemployment.
Taking into account all of the above considerations I think the plaintiff's past lost income should be assessed at $450 per week for 3.75 years. This produces a figure of $87,750.
Past lost superannuation benefits at 11% on this figure are $9,652.50.
In respect of future economic loss the plaintiff's claim is for $400 per week for 27 years calculated on the 5% tables and reduced by 15% for vicissitudes. My first task is to comply with Section 13 of the CLA. In this regard I find that but for the accident the plaintiff would have retained a substantial working capacity which he would have pursued to age 67 but it would have been subject to the effects of the former injury producing time off work and perhaps periods of unemployment. I think these effects should be reflected in a higher percentage of vicissitudes, namely 20%.
The defendant's suggestion for future wage loss was nil. I disagree with this suggestion but also disagree with the plaintiff's submission. I think the lost capacity of $400 is too high because it does not sufficiently take into account the plaintiff's already existing condition. I think future wage loss should be calculated at $300 per week and, for the reasons I have already given, reduced by 20% for vicissitudes. The calculation is 300 x 783 x 0.8 = $187,920.
Employer superannuation contributions are about to increase to 12% so that I think the plaintiff's suggested loss of 14.07% on net future income is appropriate. This produces a figure of $26,440.34.
The plaintiff's claim for past domestic assistance is seven hours per week at $25 per hour for three years. This is $27,300. The defendant said nil. For reasons I have given above I agree with the defendant's assessment.
In relation to the future the plaintiff had alternate submissions. First of all a claim was made for seven hours per week of paid care at $40 per hour for the balance of the plaintiff's life expectancy. This resulted in a figure of $266,112. The alternate submission was to continue the gratuitous care, but now at a rate of $26.50. This was $176,299. The defendant's submission was nil to both alternatives.
I reject the plaintiff's claim based on gratuitous care for the same reasons as I rejected it for the past. I do, however, accept that he has a disability which is in part due to the fall and which is likely to affect him in carrying out heavy work. He has a current restriction of lifting no more than 1kg. I do not however see why he cannot perform tasks that do not involve lifting or using his right arm above shoulder level. I also do not accept that the plaintiff, but for his fall, would have carried out substantial amounts of domestic activity. At best I think he would have been involved in occasional assistance to his partner. I do, however, recognise that his partner will soon have three children, including a baby to look after and that the plaintiff will be limited in his capacity to assist.
On the basis of my findings I think the plaintiff should be allowed two hours per week for 20 years. I have limited the claim to 20 years because I think by this time the plaintiff's partner will have become much more active in domestic activity and the plaintiff's previous injuries will no doubt continue to play their part. The defendant agreed with the rate of $40 per week.
On the 5% tables the calculation is 40 x 2 x 666.4 = $53,312.
A summary of the damages I have awarded is as follows:
| Non-economic loss | $18,500.00 |
| Out of pocket expenses | $8,250.00 |
| Future out of pocket expenses | $5,000.00 |
| Past economic loss | $87,750.00 |
| Past lost superannuation benefits | $9,652.50 |
| Future economic loss | $187,920.00 |
| Future lost superannuation benefits | $26,440.34 |
| Future paid care | $53,312.00 |
| Total | $396,824.84 |
Section 151Z
The defendant submitted that the plaintiff's damages should be reduced pursuant to Section 151Z of the Workers Compensation Act 1987 to reflect the negligence of the plaintiff's employer. The defendant submitted that the employer's negligence should be assessed at 25%. The plaintiff said nil but certainly not more than 10%.
Before applying the percentages it is first of all necessary to define the process to be applied if there is a finding of negligence on the part of the employer. The parties were in agreement with the following: if I found that the plaintiff's condition as a result of the fall was such that he should be assessed at having a more than 15% permanent impairment (Section 151H) then I should apply the formula set out in Leonard v Smith (1992) 27 NSWLR 5. If, however, I was not satisfied that the 15% threshold had been met then I would simply reduce the plaintiff's damages by my finding, if any, of the extent of the employer's negligence.
There is no evidence upon which I could make a finding that the plaintiff had met the 15% threshold. The medical reports do not assist and it would be entirely inappropriate for me to try and assess a percentage of permanent impairment.
In relation to the negligence of the employer there was absolutely no evidence about any of the employer's activities at the airport. The plaintiff submitted that absent such evidence I could make no finding of negligence. I think there is some weight in this submission; however, an employer does carry a non-delegable duty to its employees. It is also evident from the documents in Exhibit 3, in particular at Tabs 3 and 5 that there was a degree of contact between the employer and the defendant. The letter at Tab 5 is signed by a person describing herself as the "Assistant Manager Wilson Traffic Sydney Airport". Wilson, based on the evidence of the plaintiff and Ms Beckman, was in charge of traffic control at the various terminals of Sydney Airport. This was no doubt an extensive exercise suggesting a presence of some degree at the airport. There was also apparently a management presence on site (Ms Tina Hamblyn).
An employer has a duty to ensure its employees have a safe place to work. This would involve ensuring that an area that is frequently traversed by its employees, while they are carrying on their duties on foot, should be safe. The obviously defective drain should have been identified. Doing the best I can, based on its appearance in the photographs, the grate does not appear to have been very recently inserted (ie, on the same day).
I think the employer should have inspected the general area where its employees worked and that a reasonably competent inspection would have identified the substantial hazard created by the grate. I think the employer was negligent.
The duty of an employer to an employee is very high. For this reason, notwithstanding the limited evidence, I think the employer's contribution should be assessed at 25%. This takes into account that a large part of the employees duties are on foot negotiating footpaths and roadways, often in circumstances of busy traffic. The employees are entitled to expect that the areas they must negotiate will be safe. Inspection of these areas would not have been onerous.
Accordingly I reduce the total damages by 25%, producing a figure of $297,618.63.
I make the following orders:
(a) Verdict for the plaintiff against the first defendant in the sum of $297,618.63.
(b) Subject to hearing submissions on costs, the first defendant is to pay the plaintiff's costs of the proceedings.
**********
Decision last updated: 30 April 2013
0
2
3