Butler v Natural Ideas Pty Ltd
[2000] QSC 87
•12/04/2000
SUPREME COURT OF QUEENSLAND
CITATION: Butler v Natural Ideas Pty Ltd [2000] QSC 087 PARTIES: JUSTIN MATTHEW BUTLER
(plaintiff)
v
NATURAL IDEAS PTY LTD
(defendant)FILE NO/S: SC No 1173 of 1998 DIVISION: Trial Division PROCEEDING: Civil Trial DELIVERED ON: 12 April 2000 DELIVERED AT: Brisbane HEARING DATE: 5, 6, 7 April 2000 JUDGES: Dutney J ORDER: Judgment for Plaintiff in the sum of $187,143.73 CATCHWORDS: EMPLOYMENT LAW – NEGLIGENCE – BREACH OF STATUTORY DUTY – INJURY OF EMPLOYEE – action for damages for negligence and breach of contract of employment or breach of statutory duty – plaintiff injured while loading furniture into truck – whether foreseeable that such injury could occur – whether defendant failed to provide a safe system of work – whether reasonable steps taken to avoid risk of injury. COUNSEL: R W Morgan for the plaintiff
R T Whiteford for the defendantSOLICITORS: Irish Hughes Bentley for the plaintiff
Heiser Bailey & Mortensen for the defendant
The plaintiff has sued his former employer for damages for negligence, breach of
contract of employment or breach of statutory duty. The claim is alleged to arise
from a back injury caused by incidents at work on 7 February 1994 and 8 February
At the time of the alleged incidents the plaintiff was employed by the defendant as a
driver.
The defendant carried on business as an office furniture manufacturer at Tingalpa.
Part of the plaintiff’s duties included loading furniture (mainly desks) into the
defendant’s truck from a loading bay at the factory, driving the truck to the delivery
destination and unloading.
The tray of the truck driven by the plaintiff was about 525 mm above the height of
the loading bay. Behind the truck tray was a step to facilitate access to the tray.
The step was about 145 mm above the height of the loading bay with a further step
up of 380 mm to the tray.
At least one trolley was available for use in the defendant’s factory but the evidence
is that it was not generally used. No instructions were given to the plaintiff in
relation to its use and it was at least inconvenient because of the narrow corridors
between items of furniture; it was more convenient when bringing furniture to the
loading bay to lift it over other items rather than carry or wheel it between them.
The plaintiff says that on the morning of 7 February 1994 he was loading a desk
into the truck with the assistance of another employee, Keith. The plaintiff was
walking backwards carrying the heavy end of the desk. The desk weighed about
59 kg distributed as to 36 kg at the heavy end (where the drawers were) and 23 kg
at the lighter end. While backing up the step to the truck tray the plaintiff felt a
pain in his lower back as he pulled the desk to lift it up the step. The plaintiff
completed loading the desk. The plaintiff says that he reported the incident to Tim (Dawson), the foreman. Mr Dawson has no recollection of this or subsequent
events. He does not deny them but has simply forgotten with the passage of time
whether they did or did not happen.
The plaintiff completed the day’s work including loading and delivering other
furniture.
That night the plaintiff says his back was a bit sore and he thought he may have
pulled a muscle.
On the following morning at about 10 am the plaintiff says that he was carrying a
desk with an apprentice. The desk was the same as the one described for the
previous day. The plaintiff was again carrying the heavy end and walking
backwards. The apprentice let go with one hand and the desk twisted and the
plaintiff tried to hold it steady. The weight of the desk brought the plaintiff to his
knees as he tried to prevent it dropping on the ground.
The plaintiff says he immediately felt extreme lower back pain that wouldn’t go
away. He was affected so that he couldn’t walk straight.
The plaintiff recollects that the incident was seen by Tim. He says that Tim told
him to relax, asked him if he could still work and load the truck and directed two
other workers to help finish the loading.
The plaintiff finished the day’s work but was unable to do any lifting. He returned
to work the next day and says he reported to Tim and the boss, Tony, that his back was still sore and he needed to see a doctor. He says that they asked him if he could
stay at work or drive the truck but the plaintiff said he just needed to see a doctor.
Mr Dawson does not recall the incident. Mr Tony Mancuso, the managing director
is reasonably confident the incident was not reported to him at the time but says he
would not have signed the Workers Compensation Form 3 (exhibit 80) unless the
details had been confirmed to him by Mr Dawson.
There was some controversy at the trial as to whether the incident had in fact been
reported on the 8th or 9th or at all, but in view of the fact that the defendant admitted
the incident on the pleadings nothing seems to turn on it. The only issue open on
the pleadings is whether the incident had the consequence claimed.
On the evidence I am satisfied that the plaintiff did suffer a back injury as a result
of the incident on 8th February either alone or in conjunction with the incident
described on the 7th. On balance I accept that the incident on the 7th did occur as
well.
Dr Jenkins, a mechanical engineer, prepared an investigative report into the
described incidents. His conclusion, which I accept, was that the weight being
carried, particularly when the co-worker let go one corner, increased the “risk
index” of the task to a level likely to cause injury to most people.
In this case the medical evidence agrees that the plaintiff had a spodylosis in his
back creating a congenital weakness greatly increasing the risk of such injury.
Dr Fraser gave evidence that the heavier the work the more likely the spondylosis
was to become symptomatic. Dr Jenkins reports that the work could have been
made lighter by using a trolley to transport the furniture about the factory, a ramp or
hydraulic lift on the truck, or even by using more workers to carry the furniture.
No instructions were given to the plaintiff at any time as to the way in which he was
to carry furniture or load the truck. Both Mr Dawson and Mr Mancuso said that
they only employed experienced workmen and expected them to know how to do
things.
Mr Mancuso agreed with the plaintiff that congestion in the factory was such that
furniture could not always be moved by a trolley without clearing a path and I find
that the normal method of shifting furniture in the factory was in the way the
plaintiff was attempting when he was injured on 8th February. It was foreseeable
that carrying desks in the way the plaintiff did could cause injury especially when,
as Dr Jenkins says, the force and weight involved were such as to exceed the
relevant Australian Standard. The risk could have been removed or significantly
reduced by the simple method of requiring all workmen to use a trolley to move
furniture. This may have involved some shifting of furniture on occasion to widen
the passageways but I do not find this was significant or unreasonable. There does
not seem to me to be anything unreasonable in providing a ramp to wheel the
furniture onto the truck or a hydraulic lift, although in the end it seems to me that
the relevant injury was caused by adopting an unsafe method of moving desks
about the factory.
In the premises I am satisfied that the defendant breached its contractual and
statutory obligation to the plaintiff to provide a safe system of work and was
negligent. The plaintiff suffered a foreseeable injury which could have been
prevented with little cost or inconvenience.
As a result of the injury the plaintiff has a permanent disability ranging on the
medical evidence between 20% and 15% of the whole body of which between 7½%
to 15% is said to be attributable to the accident because of the existence of the pre-
existing condition. I prefer the middle range provided by Dr Blenkin of 15% whole
body of which 10% is attributable to the accident as a compromise between the
differing views. The plaintiff had suffered a shoulder injury in 1998 and possibly a
back injury at T12 in 1986 but these do not bear on the present symptoms.
The plaintiff’s injury has been very painful and debilitating. Nonetheless, in view
of his pre-existing condition and the heavy nature of his work the chance of
suffering such an injury was likely rather than possible.
The nature of the plaintiff’s condition is such that surgery is not likely to be helpful.
Prior to the accident the plaintiff was active in waterskiing and fitness boxing both
of which are now out of the question.
For pain and suffering and loss of amenity I award the sum of $35,000 of which I
attribute $25,000 to the past and award interest on that sum at 2% for six years
making an amount of $3,000.
The plaintiff has not worked since the accident. He has not sought work. His work
history prior to the accident was patchy. The plaintiff left school at 15 and worked
as a furniture removalist for most of the subsequent years, although for about
6 months he worked as a storeman. The plaintiff’s tax assesments for the years
ended 30 June 1993 and 30 June 1994 are in evidence. For 1993 the plaintiff’s
taxable income was $7,334 with tax payable of $386.80 making a net income of
6,947.20 or $134 per week. No tax returns were lodged for the years ended 30 June
1991 and 30 June 1992. In evidence the plaintiff said, and I accept, that in those
years his earnings were about $100 a day when he worked. Some of that was paid
in cash. The total was said to be of the order of $5000 to $7000 per year. The
storeman’s job was the longest period of continuous work the plaintiff had
undertaken.
A Mr Keith Hood who was a retired furniture removalist gave evidence. The
plaintiff worked for him on a casual basis for 3 to 4 years but only for one period
full time. The plaintiff was described as a hard worker who was not averse to
overtime.
At the time of the accident the plaintiff had been with the defendant about 3 weeks
and his net earnings (including overtime) averaged $415 per week. He was doing
significant overtime.
The plaintiff was born on 24 August 1968 and was 25 at the time of the injury. He
is modestly educated and has no formal qualifications. In common with many of
his age and education it is not unlikely that the plaintiff’s pre-accident work history is not necessarily a reflection of his potential or future once he matured and settled
down.
One the other hand, the plaintiff was at a high risk of suffering an injury of the type
he suffered. Dr Fraser’s opinion was that it was probable that if he had not suffered
injury when he did he would have probably suffered a similar injury within 5 years
(not necessarily at work) because of the inherent weakness in his back. Dr Fraser
agreed that the likelihood would be less with less strenuous activity and that studies
he was aware of into the coincidence of spondylosis and symptoms suggested
between 20% and 50% of persons with the condition remained symptom free
throughout life. Dr Blenkin was less pessimistic. His research showed up to 70%
of people with spondylosis remained symptom free but agreed the figure would be
less if strenuous activity was involved although he could not say by how much.
In calculating past and future economic loss I have to take into account the
prospects the injury would have been suffered anyway from some other unrelated
event. I also take into account that the plaintiff has some, at least theoretical,
residual earning capacity in areas such as a gatekeeper at a factory or warehouse. In
addition, I have not overlooked the fact that the injuries the subject of this action are
not the only problems the plaintiff has suffered from. He has continuing shoulder
problems from his 1988 accident and has suffered planter fasciitis as well as
abusing marijuana and alcohol from time to time. All of the above suggests a
relatively modest amount should be allowed for weekly losses of earnings. In my
view he would in all probability have earned more than he had averaged in the past
but his history and condition does not allow me to find he would have stayed with
the defendant or otherwise been continuously employed throughout the period.
Taking all of the above into account I have decided to allow past economic loss at
the rate of $200.00 per week for 320 weeks making $64,000 for the past and to
allow a similar rate of loss for the future for the period of 10 years at 5% making
$82,600. Because the plaintiff has been in receipt of a disability pension
throughout most of the period since the accident I do not propose to allow interest.
The plaintiff’s injuries have seriously affected his capacity to care for himself and
perform the normal tasks of daily living. Nonetheless, as was demonstrated by his
being able to live without assistance for 9 months during 1997 and 1998 he can,
with difficulty, do most things for himself. His present partner, Ms Sutherland,
confirmed that he could cope with difficulty. Having said that, I am of the view
that the injury has created a reasonable need for assistance from time to time for
some tasks. In this case a global amount is appropriate and I allow $5000 for the
past and a further $5000 for the future.
In relation to special damages claims, have been made as follows:
(a) Workers Compensation refundable expenses of $3,724.26 which I allow.
(b) Travelling of $732.00 of which cross examination revealed the bulk was unrelated to the accident. I allow $150 in total. I disallow the
cost of visiting Dr Pentis and using cabs as these were related to the
litigation only.
(c) Pharmaceutical expenses of $1,204.45. This comprises up to 10 Panadeine Forte a day until 1996 and then 20-40 a year.
Cross-examination revealed the true figure to be about 40% of that
claimed. I allow $481.78.
(d) Heat cream of $300 which I allow. (e) Shoe innersoles of $300. I find that this most likely results from the plantar fasciitis and heel pain of which the plaintiff also complains
rather than the accident and I don’t allow it.
(f) I allow $70 for a lumbo-sacral corset. (g) $6,215 is claimed for chiropractic visits. There were five visits a week from February 1999 to June 1999 and twice-weekly visits from
June 1999 to October 1999. In the end the plaintiff ceased the visits
because they were causing more pain and not giving relief. The
defendant says I should disallow them entirely because they gave no
ultimate benefit and Dr Fraser says there was no medical basis for
them. I am satisfied that it was reasonable for the plaintiff to try this
form of relief but that the length of time over which the treatments
continued and the frequency of them was not. I allow 50% of the
amount claimed or $3,107.50.
Taking the above specific findings into account and those items not in dispute I
assess quantum as follows:
General damages $35,000.00 Interest on $25,000 at 2% for 6 years $3,000.00 Past loss of income $64,000.00 Future loss of income $82,600.00 Fox v Wood $2,962.05 Past care $5,000.00 Future care $5,000.00 Loss of superannuation at 6% past economic loss $3,360.00 Loss of superannuation at 6% of future economic loss $4,336.50 Special damages $7,933.54 Interest on amount not paid by WorkCover at 6% for 6 years $1,515.34 Sub Total $214,707.43 Less WorkCover refund $27,563.70 TOTAL $187,143.73
I give judgment for that amount and will hear argument as to costs.
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