Czatyrko v Edith Cowan University - [2001] WADC 164

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CZATYRKO -v- EDITH COWAN UNIVERSITY [2001] WADC 164

CORAM: MARTINO DCJ

HEARD: 1-4 MAY 2001

DELIVERED : 27 JULY 2001

FILE NO/S: CIV 1534 of 1999

BETWEEN: BRETT CZATYRKO
Plaintiff
AND
EDITH COWAN UNIVERSITY
Defendant

Catchwords:

Negligence - Employer and employee - Duty of care - Safe system of work - Workers' compensation - Motor vehicles - Third party insurance - Bodily injury directly caused by, or by the driving of, a motor vehicle - Damages - Personal injuries

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Workers' Compensation and Rehabilitation Act 1981

Result:

Judgment for the plaintiff

Damages assessed

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Leonard Cohen & Co
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
State Government Insurance Commission v Wagner (1993) 62 SASR 175

Case(s) also cited:

Abbot v Pacific Industrial Co (WA) Pty Ltd as Trustee for Steelfab Unit Trust t/as Pacific Industrial Co (1979), unreported; FCt SCt of WA; Library No 9700634; 4 March 1997
Ames v MacLeod [1969] SC 1
Clark v Ryan (1960) 103 CLR 486
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
Edwards v Buck (1991) 4 WAR 150
Hart v Rankin [1979] WAR 144
Leigh v Quito Pty Ltd t/as Benara Nurseries (2000) A Tort Rep 81-561
Motor Accident Commission v ANI Corp Ltd & Anor 26 MVR 57
R v MacDonagh [1974] 1 QB 448
State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434
Thomas v O'Shea (1989) A Tort Rep 80-251
Tink v Francis [1983] 2 VR 17
Transport Accident Commission v Jewell [1995] 1 VR 300
Watts v Rake (1960) 108 CLR 158

MARTINO DCJ:

Introduction

The plaintiff was born on 16 July 1961. The defendant is a university incorporated pursuant to the Edith Cowan University Act 1984.
On 13 January 1997 the plaintiff was an employee of the defendant, employed as a general assistant. The plaintiff claims damages for personal injuries he claims he suffered in an accident on that day as a result of the breach of duty of care owed to him by the defendant. He alleges the accident occurred when he was working on the tray of a truck loading and arranging boxes on the tray. He took a step backwards expecting to step onto a mechanical lifting platform. The platform had been lowered. He fell to the platform, which was almost on the ground, and then bounced off onto the ground.
The defendant denies liability. It contends that any injury suffered by the plaintiff was caused or contributed to by his own negligence, that the plaintiff has failed to mitigate his loss by taking up employment, that any injury, loss or damage suffered by the plaintiff was caused or contributed to by injuries sustained in a horse riding fall in 1993/1994 and that the plaintiff is not entitled to damages because his injury was not a serious disability as defined in s 93D of the Workers' Compensation and Rehabilitation Act 1981 as that section applies to the plaintiff.
The plaintiff in turn contends that s 93D does not apply to his claim by reason of s 93B(3)(a). The plaintiff's contention is on the basis that the Motor Vehicle (Third Party Insurance) Act 1943 applies to his claim for damages because his injury was directly caused by, or by the driving of, a motor vehicle. Although this contention was not made in the pleadings counsel for the defendant informed me that the defendant was aware of it before trial and was not taken by surprise.

The plaintiff

The plaintiff completed Year 12 of high school. He then obtained employment in various unskilled jobs. In around 1980 he obtained work as a sample preparer with Pilbara Laboratories. He progressed to becoming an assay supervisor. That job involved training of staff, preparing rock samples, putting the samples through a furnace and analysing the results. He became head supervisor, responsible for three shifts and 12 employees. His job as a supervisor continued to require physical labour. The plaintiff left that work to become a storeman in the retail alcohol industry. He held that employment for approximately six months and then took up employment with the defendant as a general assistant in the properties department. He commenced working with the defendant in February 1990.
The plaintiff's employment with the defendant required the moving of furniture, loading of trucks, delivering of items such as computers and filing equipment, acting as a parking inspector, mail distribution, bus driving and clerical duties.
The plaintiff's duties have included bus driving for international students. On one occasion in or around 1993 he took a group of international students to a horse riding venue. He rode a horse with the students for about an hour and a half. He did not suffer any accident. However, the next day, he had pain in the right hip for which he sought medical attention. He was admitted to Royal Perth Hospital for approximately one week. The plaintiff returned to work with the defendant approximately two weeks after the riding incident. From then on he suffered pain in his right hip intermittently. The pain did not prevent him continuing his work and he had no further time off work by reason of hip pain.

The accident

On 13 January 1997 the plaintiff was required to place the books from an office onto the back of a truck for removal to another campus. There were approximately 30 to 40 boxes of books. The plaintiff did this task with another employee, Mr Reece Fendick.
The plaintiff and Mr Fendick each had a trolley. They each used the trolley to get boxes and load them onto the truck. After a few trips they decided that Mr Fendick would continue to get the boxes of books and the plaintiff would remain on the truck stacking the boxes.
At the back of the tray of the truck there was an hydraulic lifting platform. The platform was approximately a meter and a half in length and the width of the truck's tray. It was powered by the truck's battery. When the platform was going up it made a loud noise. It made a loud sound when it reached the top. The platform made no noise when it was going down.
When the task of loading the truck was partially completed and the plaintiff had about a meter of space left on the truck he stepped backwards, expecting to step onto the platform. The platform was not at the same level as the tray of the truck because it was being lowered by Mr Fendick. Mr Fendick had not given any indication that he was going to lower the platform. The plaintiff fell onto the platform which was not far off the ground. His fall was probably a meter. He landed on the platform on his right side, landing onto his hip and his leg. He bounced off the platform and landed on the ground on his back.

The injuries suffered in the accident

The next day the plaintiff felt sore in the right side of his body and his right hip. He saw a general medical practitioner and had time off work. He returned to work on 24 March 1997 on light duties, working four hours a day.
In April 1997 the plaintiff saw Dr Patrick Hanrahan, rheumatologist, on referral from his general medical practitioner for his ongoing right hip pain. Dr Hanrahan arranged for steroid injections into the plaintiff's right hip. This provided relief of pain for three days, but the symptoms then re‑occurred.
The plaintiff has seen a number of medical practitioners and there has been a range of views as to the reasons for his ongoing symptoms. Dr Hanrahan is of the view that the plaintiff suffers post‑traumatic persistent synovitis in the right hip caused by the fall on 13 January 1997. He assesses the plaintiff as having a 25 per cent loss of function of the right leg with an inability to do heavy or repetitive lifting, repetitive bending, squatting and kneeling and as having a capacity to undertake sedentary duties. Dr Hanrahan's view is that the pain in the hip suffered by the plaintiff in 1993 was due to some form of calcific inflammation, perhaps precipitated by horse riding. In his opinion the plaintiff had made a full recovery from that 1993 pain.
Dr Brian Dare is a specialist in occupational medicine. He examined the plaintiff at the request of the defendant's solicitors on 10 December 1998 and 20 November 2000. In his opinion the plaintiff has an inflammatory condition of his right hip which is a result of the fall in 1997. Dr Dare considers the fall was a new injury and that the plaintiff had recovered from the condition for which he had required treatment after horse riding in 1993.
Dr Oscar D'Souza is a general medical practitioner. He has been treating the plaintiff for his hip injury since 29 January 1997. In his opinion the plaintiff suffers an inflammatory arthropathy, the cause of which is unclear. In his view it is not possible to say whether the plaintiff would have been incapacitated by the arthropathy in his right hip if he had not sustained the injury on 13 January 1997.
Mr Douglas Sneddon, orthopaedic surgeon, saw the plaintiff on 6 November 2000. Mr Sneddon is of the opinion that the plaintiff has an inflammatory arthropathy of his right hip, the nature of which is unclear. In his opinion, there was a flare‑up of his underlying inflammatory arthropathy as a result of horse riding activities in 1993 and the fall while employed by the defendant in January 1997. In a report dated 24 April 2001 Mr Sneddon expressed the following opinion:
"If the incident of the 13 January 1997 had not occurred, and if the diagnosis is that of an "inflammatory arthropathy of the right hip", and no other aggravating factor had occurred, then it is probable that he could still be asymptomatic. However, if some other precipitating event had occurred, eg. horse riding, that provoked symptoms in 1993, then it is probable that the present symptoms would have occurred from such other aggravation."
Mr Sneddon had also seen the plaintiff in 1993. Another orthopaedic surgeon, Mr Richard Beaver, has expressed the opinion that the plaintiff suffered a labral tear in 1993. Mr Sneddon does not agree. In Mr Sneddon's opinion there is nothing to indicate that there was a labral tear in 1993. The plaintiff did not have an injury that could have produced such a tear and the plaintiff's symptoms subsided very quickly. Such tears do not usually heal spontaneously and the fact that within several weeks the plaintiff seemed to be entirely back to normal hip function suggested to Mr Sneddon that the plaintiff did not have an ongoing labral tear.
It is Mr Sneddon's opinion that the plaintiff's underlying inflammatory arthropathy was made symptomatic for a short period in 1993 and made symptomatic for a long period by the accident in 1997. In Mr Sneddon's view, by reason of that underlying arthropathy, the plaintiff was at risk of developing symptoms from activities of daily living. He assesses the plaintiff as having a permanent 10 per cent loss of function of his right leg. Mr Sneddon does not believe that the plaintiff will require a total hip replacement in the foreseeable future.
Dr Steve Clark, occupational physician, saw the plaintiff at the request of his solicitors. In Dr Clark's opinion the plaintiff suffered post‑traumatic synovitis of the right hip as a result of the fall while employed by the defendant in 1997. In his opinion the plaintiff may be pre‑disposed to this condition as a result of an underlying inflammatory process.
Mr Richard Beaver, orthopaedic surgeon, saw the plaintiff initially on 4 March 1997 at the request of the defendant's insurer. It is Mr Beaver's opinion that the plaintiff suffers from an inflammatory arthropathy affecting the right hip which pre‑dated the injury of 13 January 1997.
In Mr Beaver's opinion the plaintiff suffered an injury in the horse riding incident in 1993 which was likely to be a tear of the acetabular labrum, a supporting structure of the hip. This injury caused an inflammatory process initially. That inflammatory process subsequently settled, but was re‑activated in 1997. The mechanical alteration to the plaintiff's right hip caused by the horse riding incident in 1993 caused subsequent slow deterioration in the function of the right hip. Mr Beaver doubts that the plaintiff would have remained symptom free even if he had not suffered the trauma of 13 January 1997.
The defendant called Mr Ratan Edibam, orthopaedic surgeon. In Mr Edibam's opinion the plaintiff has no ongoing problem with his right hip. There was no degenerative change or inflammatory disease or any other pathology.
I accept the evidence of the plaintiff as to the duration of his symptoms following each of the events in 1993 and 1997. I consider it unlikely that the plaintiff suffered any major trauma in the horse riding incident in 1993. I hold this view for two reasons. The first is that the pain following the horse riding incident did not come on as a result of any fall. It came on simply from the horse riding. The second is that I consider it unlikely that if the plaintiff suffered a major trauma in 1993 he would have recovered so quickly and been substantially unrestricted and symptom free until the incident in 1997. I prefer the evidence of Mr Sneddon as to the cause of the plaintiff's symptoms. I find Mr Sneddon's assessment most consistent with the history of the plaintiff's symptoms. I conclude that the plaintiff did have some form of underlying arthropathy in his right hip which was made symptomatic for a short period in 1993 and has been made symptomatic since January 1997 by the fall while working for the defendant. I find that it is unlikely that his condition will substantially improve in view of the length of time that he has suffered these symptoms. I also find that by reason of his underlying arthropathy the plaintiff was at risk of developing symptoms even if he had not suffered the fall in January 1997. I also accept Mr Sneddon's evidence that a hip replacement is unlikely to be required.

Liability of the defendant

As the plaintiff's employer the defendant had a duty to take reasonable care to avoid exposing him to unnecessary risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. The plaintiff was working on the back of a truck and there was an obvious risk of injury if he should fall from the back of the truck. It was also obvious that when the loading of the truck was almost complete so that there was limited space left on the tray of the truck the plaintiff would step onto the platform. As the platform could be lowered without any sound it was foreseeable that the plaintiff would not know that the platform had been lowered and would fall when he stepped where the platform had been. One simple method of avoiding that risk of injury would be to ensure that the plaintiff received a clear warning when the platform was lowered. That warning could have been provided either by having a device which emitted a sound when the platform was being lowered or by having a system whereby the person who lowered the platform informed any person on the tray of the truck that the platform was about to be lowered. I conclude that the defendant was in breach of the duty of care that it owed to the plaintiff in failing to have such a device or system and that in consequence the plaintiff fell from the back of the truck and suffered injury.

Contributory negligence of the plaintiff

The defendant contends that the plaintiff's injuries were caused or contributed to by the plaintiff's negligence in:
1.Failing to look behind himself before stepping backwards;
2.Failing to keep any or any proper lookout;
3.Not paying any or any sufficient attention to where he was stepping; and
4.Failing to exercise reasonable care for his own safety.
A worker will be guilty of contributory negligence if the worker ought reasonably have foreseen that failure to act as a reasonably prudent person would expose the worker to a risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. The plaintiff stepped backwards believing that the lifting platform was still at the same level as the tray of the truck. He believed that because he had not been told that the platform was to be lowered nor heard any sound to indicate that it was being lowered. In those circumstances I conclude that the plaintiff's conduct in stepping backwards where he believed the platform to be was not a failure to exercise reasonable care for his own safety.

The plaintiff's capacity for work following the accident

The plaintiff returned to work for the defendant after the accident, initially for four hours a day on light duties. He gradually increased his hours, reaching seven hours per day but remaining on light duties. He was restricted by pain in his hip and this reduced his capacity to carry out his pre‑accident duties. He ceased working for the defendant when he accepted a redundancy offer.
The defendant contends that the plaintiff failed to mitigate his loss by not accepting or seeking employment. By further and better particulars dated 2 May 2001 the defendant contends that the plaintiff was offered a position as campus services officer at the defendant's Joondalup Campus by Kevin McCarthy, the general manager of Campus Services. Mr McCarthy gave evidence, but did not give evidence of any such offer.
There is a reference in a report from Dr Clark dated 13 August 1998 that the plaintiff was offered a position at the Joondalup Campus in an attempt to accommodate his restrictions. No one from the defendant actually gave evidence about any such offer. The plaintiff denied that he had been made such an offer. I conclude that there were discussions about the possibility of that employment, and those discussions included some discussion with the plaintiff, but no offer of employment was ever presented to him for him to either accept or reject.
After an initial reluctance on his part to do so, the plaintiff eventually accepted a redundancy package offered by the defendant. I accept that it was reasonable to do so in the circumstances where the plaintiff was unable to carry out all his duties with the defendant. The defendant does not contend that the plaintiff failed to mitigate his loss by accepting the redundancy that it offered him.
The plaintiff has endeavoured to obtain employment since the accident but has so far been unsuccessful.
I find that there was no failure to mitigate on the plaintiff's part.

Whether the Motor Vehicle (Third Party Insurance) Act 1943 applies to the plaintiff's claim

The Motor Vehicle (Third Party Insurance) Act 1943 applies to death or bodily injury to any person directly caused by, or by the driving of, a motor vehicle. For the purposes of the Act the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it was not a consequence of the driving of that vehicle or of the vehicle running out of control: S 3(7). In my view, Mr Fendick was using the platform of the truck as a loading device and was not driving the truck from which the plaintiff fell: State Government Insurance Commission v Wagner (1993) 62 SASR 175. In my view, the Motor Vehicle (Third Party Insurance) Act 1943 does not apply to the plaintiff's claim and the Workers' Compensation and Rehabilitation Act 1981 does apply.

Calculation of plaintiff's loss

The defendant operated a salary sacrifice scheme whereby employees could make a contribution of their wages up to the amount required to be paid by employers under the Superannuation Guarantee Legislation. The employer would supply an additional amount of superannuation above the legal requirement to a matching amount. The plaintiff took advantage of this benefit.
The plaintiff ceased working on 1 March 1998. At that time his normal salary was $28,000 per annum. From 1 March 1998 when the plaintiff ceased employment to 30 June 1998, the statutory superannuation rate was 6 per cent. For that period the plaintiff's nominal salary was $28,000 per annum. After the salary sacrifice of 6 per cent that equates to $26,120 gross per annum or $400 net per week. The plaintiff's loss for the period 1 March 1998 to 30 June 1998 is therefore:
$400 x 17 weeks = $6,800

For the period 1 July 1999 to 30 June 2000 the statutory superannuation rate was 7 per cent so the plaintiff's effective salary would have been $397 net per week and his loss for that period is:
$397 x 2 years x 52 weeks = $41,288
From 1 July 2000 to date, the statutory superannuation rate is 8 per cent. In addition, tax rates have lowered, so the plaintiff's net weekly loss is $406. The plaintiff's loss is therefore:
$406 x 56 weeks = $22,736
The plaintiff's past loss of earnings since 1 March 1998 are therefore $70,824.
A campus services officer currently earns $31,439 gross per annum. The superannuation rate is currently 8 per cent. On 1 July 2002 it will go to 9 per cent. At 8 per cent the plaintiff's net salary after allowing for salary sacrifice would have been $450 and at 9 per cent it would have been $444.
The plaintiff was born on 16 July 1961 and is aged 40. The 6 per cent multiplier for one year is 50.7 and for the 25 year period until the plaintiff turns 65 is 686.9.
Having accepted Mr Sneddon's evidence, I find that there was a significant risk that the plaintiff would have developed incapacitating symptoms even if he had not suffered his injury. I therefore conclude that the reduction for contingencies should be greater than the usual reduction and should be 25 per cent. Although the plaintiff has endeavoured to find employment and has so far been unsuccessful, I accept that he does have some retained earning capacity and that there are prospects that he will obtain employment in the future. I conclude that the appropriate reduction for retained earning capacity is 30 per cent. I therefore calculate the plaintiff's loss of future earning capacity as follows:
$450 x 50.7  $ 22,815
$444 x (686.9 – 50.7)  $282,473
Subtotal  $305,288
Less 25% for contingencies  $228,996
Less 30% for retained earning capacity  $160,276
I calculate the value of the plaintiff's past loss of superannuation contributions as follows.
For the period 1 March 1998 to 30 June 1998 the total of contributions would have been 18 per cent of his gross salary of $28,000. This equates to $96.92 per week.
$96.92 x 17 weeks = $1,648
Less 30% for fund management fees and taxes = $1,153
For the period 1 July 1998 to 30 June 2000 the total superannuation contributions would have been 21 per cent of salary.
21% of $28,000 per annum = $113 per week
$113 x 2 years x 52 weeks = $11,752
Less 30% for fund management fees and taxes = $8,226
For the period since 1 July 2000 the superannuation rate has been 8 per cent, so the percentage of his salary contributed to his superannuation would have been 24 per cent which equates to $159 per week.
$159 x 56 weeks = $8,904
Less 30% for fund management fees and taxes = $6,233
The total value of past loss of superannuation contributions is therefore $15,612.
I calculate the future loss of superannuation entitlements as follows:
24% x $31,439 ¸ 52  $      145 p/w
27% x $31,439 ¸ 52  $      163 p/w
$145 x 50.7  $    7,352
$163 x (686.9 – 50.7)  $103,701
Subtotal  $111,053
Less 25% for contingencies   $ 83,290
Less 30% for retained earning capacity   $ 58,303
Less 30% for fund management fees and taxes          $ 40,812
For the future, the plaintiff will require medication at a total annual cost of $381.62. His life expectancy is 37 years. The multiplier for 37 years is 791.8.
An annual cost of $381.62 is $7.34 per week.
$7.34 x 791.8 = $5,812
Less 20% for the contingency that the

condition may have developed in any event = $4,650
In addition, the plaintiff will require to attend on his general medical practitioner and I allow a global figure of $1,000 for that claim.
In addition, the plaintiff received weekly payments of worker's compensation until 1 March 1998 and I accept that those weekly payments equate to his loss of earnings for that period. On that basis, the amount of workers compensation which are to be repaid to the employer and so included in this award are as follows:
Weekly payments received prior to 1 March 1998 = $28,067
Medical expenses = $24,364
Rehabilitation expenses = $4,959
I assess the plaintiff's general damages for the pain, discomfort and loss of function he has suffered as a result of his injury at $20,000.
In summary therefore I assess the plaintiff's damages as follows:
Past loss of earnings prior to 1 March 1998                   $ 28,067
Past loss of earnings since 1 March 1998  $ 70,824
Past loss of superannuation  $ 15,612
Interest on past loss of earnings and superannuation


since 1 March 1998 at 3% per annum  $    8,838
Future loss of earning capacity  $160,276
Future loss of superannuation  $ 40,812
Future treatment costs  $    5,650
Past medical and rehabilitation expenses  $ 29,323
General damages  $ 20,000
Total  $379,402