Churchill v the Electrolytic Zinc Co of Australasia Ltd
[1987] TASSC 52
•16 September 1987
TASSC A48/1987
CITATION:Churchill v The Electrolytic Zinc Co of Australasia Ltd [1987] TASSC 52; A48/1997
PARTIES: CHURCHILL, Peter John
v
THE ELECTROLYTIC ZINC CO OF AUSTRALASIA LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 46/1986
DELIVERED ON: 16 September 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Cosgrove J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff:
Defendant:
Solicitors:
Plaintiff:
Defendant:
Judgment Number: TASSC A48/1997
Number of paragraphs: 34
Serial No A48/997
File No 46/1986
PETER JOHN CHURCHILL v
THE ELECTROLYTIC ZINC CO OF AUSTRALASIA LTD
REASONS FOR JUDGMENT COSGROVE J
16 September 1987
The defendant company operates a large manufacturing plant at Risdon. In a division of the plant known as "the Leach", calcium in the form of limestone is introduced into a solution for the purpose of neutralising other components thereof (presumably acid). So long as the temperature of the solution remains high, the calcium creates no problem. However, the manufacturing process requires the solution to be cooled. When the cooling occurs, the calcium is precipitated as gypsum, which clogs up pipes, covers walls and floors, and is generally a nuisance. One of the places where cooling is induced is known as "the Nickel Tower". The Tower is altogether about 65 feet high. It is not fully enclosed at the top. The solution is introduced into the top of the Tower by a pipe. On entering the Tower, it falls onto a system of grates which operates as a splash mechanism, breaking up and distributing the solution till it falls like rain. The floor of the Tower is stainless steel. It slopes in a gradient of about 1 in 11. The wall on the lowest part of the floor acts as a weir, causing the solution, as it falls, to form a pond from the surface of which the solution flows over the weir into another part of the plant. The purpose of the weir construction is to form an air seal at the base of the Tower.
Above the pond there is a large aperture in the wall of the Tower. From that aperture a floor extends back some distance to a large fan. The fan is designed to blow air into the Tower from outside. That air is therefore at the ambient temperature, which is always lower than the temperature of the solution as it enters the Tower. This influx of air, together with the fall of the solution is the cooling mechanism.
In order to distribute the incoming air as evenly as possible throughout the tower, a series of four baffles has been constructed within the tower opposite the aperture. Each baffle is constructed of ¼" stainless steel, and has an asymmetrical V shape, the top limb of the V being about 5 feet long and the lower about 1 foot long. The angle of the V is 130o. Each V stands on its side with the concave side facing the fan. They are about 5 feet apart, and are stepped down in successive vertical planes as they recede from the fan. The bottom of the one nearest to the fan is about 6 feet above the floor within the aperture and 3 feet within the Tower from the aperture. Each baffle, as one recedes from the fan is 2 feet lower than its neighbour, so that the fourth baffle is approximately level with the floor within the aperture.
As the solution falls, the baffles become coated with gypsum, and gypsum is also precipitated into the pond and thence to the floor of the tower. It is necessary from time to time to clear the gypsum out of the Tower. This is called "knocking down the Tower".
From the centre of the floor a shaft protrudes upwards about 3 feet. The top of this shaft is always above the surface of the pond. The bottom of it opens upon a bay below. Before "knocking down" is commenced, influx of the solution into the tower is prevented by stopping up the mouth of the overhead pipe. Then the pond is drained by taking a "stop" or seal out of the bottom of the weir. When the solution stops falling and the pond is drained, the floor has a deposit of about a foot or so of slushy gypsum on it, and the lower walls and baffles bear a gypsum deposit of varying solidity on them. Workmen enter the Tower at the top and knock the gypsum off the grates. They or others then enter the Tower through a door positioned about halfway up the highest baffle and side on to all the baffles. There they see 2 large horizontal pipes connecting baffles 1 and 2 (nearest fan and highest) and another 2 pipes connecting baffles 3 and 4 (furthest from the fan and lowest). The pipes run from near the top of the lower baffle across to a lower point on the higher baffle. They lay planks on these pipes across the width of the Tower and proceed to bar off the gypsum from the walls and the baffles using chisel faced crowbars. Whilst on the planks the workmen are facing the concave side of one baffle and the convex side of its neighbour. It will be obvious that, so placed, there are many faces of the bottom limbs of the baffles which they cannot attack. They bar off all the gypsum that they can and shake more off by striking the baffles with a sledge hammer. But it is not totally effective. They then leave the tower and enter it again by a door giving on to a floor within the fan aperture. Then they step out on to the deposit of gypsum, of which the bottom is slushy, and the top mostly hard and uneven, consisting of pieces varying from about 32" x 18" x 6" to quite small pieces, and attack the bottom of the baffles with the bars and where possible, hammers. Those attending to baffle No. 1 are now almost 7 feet below the bottom of it and 8 feet below the apex of the V They are working overhead, chiselling at the gypsum with long bars. Their footing is uneven and their eyes uplifted. On 21 March 1985, whilst he was so engaged, the plaintiff fell and injured his wrist. (I find this as a fact. I will give reasons later for so finding).
That afternoon he visited his general practitioner Dr Hodge, who, after examination, suspected a fracture of the scaphoid bone. He bandaged the wrist and arranged for Xrays. The Xray showed no fracture but, it not being uncommon for Xrays to fail to disclose scaphoid fractures, he placed the wrist in plaster. Xrays 14 days later showed no fracture, so Dr Hodge prescribed anti–inflammatory drugs and the plaintiff was referred to Mr Binns, an orthopaedic surgeon. On 23 April 1985 Mr Binns arranged for him to wear a wrist support. On 22 May Mr Binns considered that there had been some improvement and certified the plaintiff as fit for work from 27 May. It should be noted that this certificate issued because the plaintiff asked the surgeon to "give (him) a trial back at work". He went back to normal duties, but his wrist was still sore. On 13 June he reported this to Mr Binns, who issued a certificate for light duties. On Monday 17 June he was assigned to the task of "sending the rat". As I understand it, this is a scouring process. The instrument called "the rat" is placed in a pipe, sealed by a valve. Pumps are activated to build up liquid pressure behind the valve, and when an adequate pressure is reached, the valve is operated so as to release the liquid which chases "the rat" through the pipe. The plaintiff's task was to turn a large wheel which operated the valve. Because of the pressure, it takes a considerable effort to turn the wheel. It hardly falls within the scope of light duties. When the plaintiff turned the wheel, he experienced severe pain in his injured wrist.
On 18 June he again saw Mr Binns, who found a full range of movement but with pain. Mr Binns decided that an arthrogram was the next appropriate diagnostic step. This procedure involves a general anaesthetic and the injection of dye into the wrist. If the dye runs into spaces where ligaments should be, intercarpal ligamentous damage (which Mr Binns suspected) is confirmed. The procedure is painful and would not have been suggested if conservative measures offered significant hope of recovery. The arthrogram confirmed Mr Binns' suspicions. However he persevered with conservative treatment for a couple of months. No improvement resulting, he then offered the plaintiff the choice of arthrodesis of the wrist or continuing pain. The plaintiff chose arthrodesis and this was performed in November. Afterwards, the arm was immobilised in plaster. That was removed on 28 January 1986 but he was told to wear a brace on his wrist. He was reviewed regularly but continued to complain of discomfort. On 28 May 1986 the arthrodesis was surgically explored. It was found that the bone graft across the dorsal aspect of the wrist was thin and could be bent with ease. The arthrodesis had failed. A further bone grafting procedure was performed and the wrist and intercarpal joints were internally fixed with a large plate and screws. After 2 weeks he was discharged from hospital in plaster. The plaster was removed on 22 August 1986. He was instructed to wear a wrist brace. He was periodically reviewed, and Mr Binns reports that on 15 December 1986, the arthrodesis was clinically sound, but still painful. He had a full range of movements of his fingers and his grip was quite good.
For each arthrodesis a bone graft was taken from a hip, one from the left and one from the right. Each of these operations involved the severing of a nerve that runs along the iliac crest. This often results in altered sensation in the area below the hip bone.
No physiotherapy was recommended for the plaintiff nor was he told to continue to exercise his left arm.
At some time during the period May – December 1986, the plaintiff began attending a general practitioner, Dr Hunter. No evidence was given by Dr Hunter, but Dr McCafferty, a psychiatrist, said that he saw the plaintiff on 18 December at Dr Hunter's request. The referral was in relation to pain in the left wrist, depressive symptoms, and pain in the right wrist. The latter can be disregarded.
Some light is thrown on the plaintiff's condition during 1986 by Mrs O'Connor, who began living with the plaintiff in late 1985. She has 2 children and he has custody of 2 children. She met the plaintiff after he suffered his injury and before the first arthrodesis. He was then psychologically normal. She said that she "was going out with a man with a sore arm". It was not "bothering him" a great deal. She visited him in hospital after the first arthrodesis. He was very ill, vomiting, and very pale. Afterwards he became depressed, moody, and unpredictable. Just before the second operation there was a dramatic change, and he became more unstable, and occasionally violent towards his children. However, he continued to garden quite actively, to chop and stack wood, and perform other chores, all being accomplished with one arm.
Dr McCafferty found the plaintiff to be anxious, agitated, "pre–occupied by his wrist and the pain in it and the effects of this injury on his ability to work and in fact on his whole personality". He diagnosed a major depressive disorder and chronic pain syndrome. He prescribed anti–depressants and began psychotherapy. He is still treating the plaintiff and believes that there is some lifting of his depression.
In about March of 1987, the defendant company which was paying Workers Compensation and medical expenses began to consider what could be done to get the plaintiff back to work. He was examined by their specialists who recommended a return to work as a messenger. He did so on 27 May, but after 3 hours asserted that he could not carry on. He was seen by Dr Clark (PhD in Science) who is the Manager of Personnel Services at the Risdon plant. The plaintiff's reasons for his inability to work were a confused compound of maladies, including pain in his wrist and resentment against the defendant company. (It appears that the task given him was to accompany the messenger on his rounds and some other menial duties. His workmates mocked him giving him the title of "the shadow" and similar pejorative terms).
He was allowed to go home to consult his own doctor, but his workers compensation payments were reduced by 75%. On 18 June, a meeting was held at Risdon. Dr Clark and the plaintiff were there, as were the medical and legal advisers of both parties to this case. It was agreed that the plaintiff restart as assistant messenger, but that he should spend half of each day at the Douglas Parker Rehabilitation Centre. His pay was restored to the full Workers Compensation amount, ie average weekly earnings, and the deduction was made up. A programme of progressively increased work duties was made up in draft. At this stage, the matter came to trial.
LIABILITY
The first issue to be resolved is whether the undoubted ligamentous damage which the plaintiff sustained was caused by his fall in the Tower. I have already found that it did, but because the defendant company contends that it was caused by pulling on the Rucksuk hose, I must give my reasons for so finding.
When the plaintiff reported to the First Aid Centre after his fall, he complained only of pain in his left calf muscle. That was treated by ice pack and soon resolved. The plaintiff gave evidence that he fell on his left arm and leg and that when he went to first aid he "didn't sort of feel anything in my wrist". The leading hand in the gang, Mr Millington, who was working on the same baffle as the plaintiff, said that he saw the plaintiff fall on his left hand, and that he complained immediately of pain. The plaintiff said that he first felt pain in the wrist when he picked up the hose, and it became severe when he pulled on it. However, when he reported to his supervisor immediately thereafter, i.e. 40 minutes after the fall, he attributed his wrist pain to the fall. Mr Kingston, who was operating the hose, said that the plaintiff complained of pain as soon as he picked up the hose and that if he pulled on it, it was a very light pull.
Mr Binns said flatly that the injury was caused by a fall on the outstretched hand. He was able to describe the way in which the hand must have been extended at the time of the fall by reference to the particular type of ligamentous damage which he observed when he removed the ligaments. Pressed by Mr Bessell with the theory that the injury was caused by pulling on the hose, he said, "No, it won't cause it". He went on to explain that once the pathology of tearing was there, the subsequent pain on grabbing some object was to be expected. He said he would expect some initial pain, but it may well have been slight "a bit of mild discomfort", until use put further strain on the injured part. He said there would probably be no initial swelling.
Mr Bye, who first saw the plaintiff in March 1987, and had not consulted with Mr Binns, and was therefore unaware of the precise damage done to the plaintiff's ligaments, preferred the pulling on the hose as the cause of the injury. His reasoning was this: if the damage to the soft tissues was such as to require an arthrodesis, there would be instantaneous pain and immediate swelling. He said that if there is a disruption there has to be swelling. The first complaint of pain occurred after the hose incident: ergo, the hose incident caused the damage. The theory is in difficulties from the outset, because Dr Hodge observed no swelling. The lack of swelling, Mr Bye said, would be consistent with a fractured scaphoid bone. That was Dr Hodge's diagnosis. Then Mr Bye agreed with Mr Binns to the extent that he said that a fall is the usual cause of ligamentous damage of this general nature. To cause it by pulling would be unusual but possible. It must also be noted that his theory rests upon the assumption that all the damage revealed on operation occurred on 21 March 1985. That is not necessarily so. Indeed the general tenor of the evidence, including that of Mrs O'Connor, tends to suggest progressive damage. For these reasons and because of Mr Binns' much greater involvement with the plaintiff's wrist, including his inspection of the damaged parts, I conclude that he is right and that the injury was caused by the fall. I think, too, that the attribution by the plaintiff of the pain to the fall so soon after the hose incident is significant. The plaintiff would not then have known that he had suffered a serious injury and would not have had the time, or the knowledge to consider the litigious possibilities.
The next question is – was the system of work such that a reasonable employer would foresee that it involved a risk of injury of this causal genus to employees? I think that the short answer to this question is that the company did regard the system as one which involved a hazard of falling. A number of employees gave evidence that falls frequently occurred. Mr Gilmour, who at the relevant time was manager of the Leaching Division, and who has since been promoted, made this note on the Accident Investigation Report:
"Unfortunately, there is no simple solution to this type of accident, as it is necessary to knock down the gypsum from the baffles prior to shovelling this out, and it is impossible to organize the gypsum to fall evenly on the tower base, then work from boards. A gypsum removal plant for Leaching would be tremendously attractive in preventing this hazardous cleaning problem, but justification is difficult."
Rather surprisingly Mr Gilmour was not challenged about the impossibility of working from boards. The final sentence of his comments was addressed to the whole cleaning process, including the Rucksuk hose, the "rat", and so on. However, in the course of his clear, useful and frank evidence, he agreed with Mr Read, for the plaintiff, that "in the circumstances of this accident it is hazardous because you are cleaning above your head whilst standing on the uneven gypsum base". Once the finding is made that there is a considerable risk of falling, it must follow that there is a risk of injury, and Mr Bessell's forceful submission as to the significance of the fact that this was the first time–loss accident since the system was introduced in 1976, supported though it was by some ingenious calculations, loses much of its weight. I find that the system involved a foreseeable risk of injury.
The next question is: what would a reasonable employer do by way of response to the risk? This "calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence along with the expense difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have" (Wyong v Shirt (1980) 146 CLR 40 at 47-48 per Mason J (as he then was)).
The particular hazard which is under review in this case has two principal factors – (a) working on an uneven and unstable platform and (b) working overhead so that one cannot see exactly where one's foot ought to be placed. Mr Bessell suggested that workmen should desist from working and look down before each step. Perhaps they should, but to expect them to do so is to ask too much care of workers and probably too much patience from foremen. It may be and was, for the purposes of argument in this case, conceded that not a great deal could be done about the platform. The question is:– what could have been done to obviate or limit the necessity of working overhead whilst standing on it. The answer is simple – remove all or nearly all of the gypsum from the baffles and walls before stepping onto the uneven gypsum. This could have been achieved by increasing the number of pipes used as bases for platforms and lowering them. If for every space between baffle and wall and baffle and baffle there was a working platform, each of the faces could be attacked directly, thus eliminating the difficulty of leaning over a baffle to clean the reverse face and enabling cleaning to extend to the bottom or almost the bottom of the baffle. Lowering the position of the platforms would also facilitate the cleaning of the lower area of the baffles. Under the present system, a man cleaning the reverse face is working, in some instances, on an area about a metre and a half below his feet. In others, he is leaning over a waist high baffle attempting to clean an area directly underneath him and below his feet. If the platform faced the area to be cleaned and was somewhere near the mid–height of it, access to the whole face would be much easier, and little or no gypsum would have to be removed from below. Mr Gilmour could see no obstacle to re–arranging the platforms.
Mr Bessell submitted that the onus lay on the plaintiff to show that such an alteration to the system would be effective and not unreasonably onerous in terms of expense. That is not necessarily so (see the quotation from Devlin L in Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 369), but it probably is so in this case. The burden of proof may, however, be discharged by inference or common sense (see Dixon CJ at 364 and Taylor and Owen JJ at 368 in the case cited). When a suggestion of this nature is made, its feasibility admitted, and no contrary evidence adduced as to its efficiency or cost, it is easy to conclude that the expense involved is not prohibitive and that it would be, as it appears, an improvement. Then Mr Bessell submitted that the onus lay on the plaintiff to show that if the suggested system had been in use, the plaintiff's accident would have been prevented. He relied on a dictum of Owen and Taylor JJ at 369/70 in the same case of Neill. The dictum is:
"Additionally of course, it must appear that the plaintiff's injuries would have been prevented if the standard practice or the alternative method had been employed".
This sentence, in my opinion, is merely shorthand for the fuller expression in the immediately preceding sentence where it is said that the breach of duty by the employer may be proved "by showing that an appropriate method which would eliminate or minimize the risk was reasonably available".
If the plaintiff was, by the existing system subjected to a greater risk than was reasonable of the type of accident which befell him, then it would avail the defendant nothing to show that the risk cannot be totally eliminated, e.g. by showing that there must always be a vestige of gypsum to be removed from below.
I find therefore that the defendant was in breach of its duty to the plaintiff and that the plaintiff thereby suffered damage.
DAMAGES
The plaintiff has an arthrodesed wrist. He has no flexion or extension therein, but retains rotation and all finger movements. Each arthrodesis has been a serious operation requiring a stay in hospital of 2 weeks or so. In addition, he has had an arthrogram, involving general anaesthesia and two days in hospital. Mr Binns expressed the view, which I accept despite some contrary evidence, that the loss of use of the hand involved in arthrodesis is of the order of 35%. He has had bone taken from each hip, and has an unpleasant alteration of sensation for about a hand's breadth and depth underneath the site of the surgery.
The other physical aspect of his present condition is the wasting of the muscles of his left arm. It is almost total in the forearm, pronounced in the bicep area, and noticeable in the region of the shoulder. The wasting is due to disuse. The causes and consequences of disuse require separate consideration.
For long periods, his arm was in plaster, sometimes to the armpit, and sometimes to the elbow. This however, is only a partial cause of the wasting. The whole cause is that, from the time of the first operation in November 1985, he has barely used the arm at all, whether in or out of plaster. In order to understand this, it is necessary to delve, so far as one can, into his personality. In doing so, I rely heavily on the evidence of Dr McCafferty and to a lesser extent on that of Mr Law and of course on the evidence of Mrs O'Connor, Mr Eaton and the plaintiff himself. So far as I am able to glean from that evidence, the plaintiff before the accident was very active physically, strong for his size, and somewhat aggressive in personality. His work was physical – as a labourer in a variety of jobs; and his recreation was physical – fishing and hunting including shooting deer and kangaroo. He played some sport but it was not important to him. He was a fighter, not averse to pub brawls, and proud of his pugilistic capacity and of his reputation as a man not likely to take lying down any real or imagined affront. His mental development was poor. He had his own moral code, instanced by the fact that he obtained custody of, and cared for, two of his children. When first injured, he was resilient in his approach as his request to Mr Binns for a trial return to work showed.
The first operation and the realisation that he was a partial cripple for life was a great shock to him. He stopped going to hotels. He explained that he felt that others might take advantage of his disabilities to beat him up. That statement is significant in that it is unrealistic and it shows the beginning of an unfounded timidity. He was resentful, more or less generally and became moody and difficult. The realisation that he had to go through it again was, as Mrs O'Connor obliquely said, an even greater shock. He had not the means to cope with it, and at this crucial stage, he received no adequate professional help and no advice as to exercise. The support or brace recommended by Mr Binns became a 24 hour a day fixture. He shielded his arm from contact, avoiding semi–crowded areas such as shopping centres. He required Mrs O'Connor to sleep on a different side of the bed so that she would not touch his wrist. He gave up playing darts, although he is right handed. He used his right hand only to open cupboards and refrigerators, although he could easily have used his left for that purpose. He required Mrs O'Connor to cut his meat, butter his bread and wash his hair and back. He was, as Mr Law said, "timid" about his arm. This continuing state is significant in an aggressive person. His left arm became fixed in a sling position as if it were a sick baby. Some of his demands on Mrs O'Connor were plainly attention–seeking, or self–pity, but before one makes too much of that, it is necessary to bear in mind that he mowed the lawn, dug and worked a fairly extensive garden, chopped and stacked fire wood. He went out in the bush with Mr Eaton, taking his children and camping out with them. He split logs one handed with a blockbuster, and helped load the split wood onto a lorry. He did not give up; he gave his left arm up. When this strong aggressive man was told to become a messenger's assistant, he was insulted and resentful. He said, "Give me the money and let me go". He felt that he was being "put down" by his employers and the doctors. That condition persists, although I thought that I perceived some lifting of it during the trial. In order to cure it, he requires:
(a)a fresh start with new medical advisers. He feels that his present advisers have failed him. I except Dr McCafferty and Mr Law.
(b) removal of the plate in his hand.
(c)an immediate exercise programme and physiotherapy to build up his arm and demonstrate to him that it is far from useless.
(d) counselling or psychotherapy with Dr McCafferty to continue.
(e)as soon as his arm begins to be more useful, and the pain necessarily involved in re–starting it lessens, return to work in a useful job.
Although this conclusion is stated as my own, I think that it also represents the consensus of opinion of Dr Clarke, representing the defendant company, and the medical and legal advisers on both sides of the case. In order to be successful, this programme will require from the plaintiff a great deal of determination and fortitude. The decision to make the effort and to fight through the pain must be made by him. The courage and stamina to keep going must come from him. In this respect the determination which he has shown to cope one–handed with outdoor tasks is very encouraging. But a doubt must remain.
Even if optimum success is obtained, it is unlikely that he will achieve as good a result as a person whose rehabilitation began immediately after operation. And, as with any graft, there is the possibility of a further fracture, which could be psychologically devastating. If he ponders that risk overmuch, it will hinder his recovery.
The defendant company has said that it will guarantee him employment for 12 months, and allow him time off work for any necessary medical or para–medical purposes. Thereafter, his continued employment will depend on his attitude and genuine desire to work. The defendant company is in my opinion, a concerned and fair employer and will give the plaintiff every opportunity to rehabilitate himself.
There are no special damages. There are some future expenses. They are:
A Removal of the plate in the hand –
This is agreed at $1,000
B Psychotherapy with Dr McCafferty –
I allow 25 sessions at $106 per session = $2,650
C Physiotherapy at $20 per visit –
I allow for 50 visits = $1,000
Sub Total = $4,650
In assessing damages for pain, suffering, loss of amenities and loss of earning capacity, I must make some allowance for the risk that, even with the maximum co–operation which it is fair to expect from this plaintiff, the rehabilitation programme may not succeed, or may only partially succeed. It would not be right to approach this aspect of the matter in a way which demands from the plaintiff heroic stoicism, nor would it be right to pander to any tendency to self–pity. The touchstone must be what it is reasonable to expect of him. Applying that standard, I am reasonably confident that rehabilitation will be successful, but not totally so. Whatever degree of success is obtained, the plaintiff is permanently handicapped in the labour market. The effect of that handicap will be less apparent if he remains at Risdon. It would not be necessary to allow for periods of unemployment. However, given his work history, his personality, and his general background that might be too much to expect. Nevertheless, there is no immediate prospect of unemployment. There is a prospect of under–employment.
Under neither head of damage can an appropriate amount be arrived at by a process of mathematical calculation. Although no allowance is to be made for future inflation, one must take into account, when seeking guidance from past decisions, the decline in purchasing power of the dollar. For pain, suffering and loss of amenities, past and future, I allow $25,000.00. For reduced earning capacity I allow $50,000.00. There will be judgment for the plaintiff in the sum of $79,650.00
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