Da Costa v Bitu-Mill
[2021] VSC 48
•11 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2019 01065
| SHAUN DA COSTA | Plaintiff |
| v | |
| BITU-MILL (VIC) PTY LTD | Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 14 September 2020 – 25 September 2020 |
DATE OF JUDGMENT: | 11 February 2021 |
CASE MAY BE CITED AS: | Da Costa v Bitu-Mill |
MEDIUM NEUTRAL CITATION: | [2021] VSC 48 |
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ACCIDENT COMPENSATION – Workers Compensation – Knee injury – Above knee amputation – Common law duty of care – Negligence by employer – Slip from ladder– Assessment of damages – Pain and suffering and economic loss – Appropriate assessment of vicissitudes of life – Pre-existing injury – Degenerative knee - Risk of injury occurring from underlying condition– Vicissitudes - Smith v Gellibrand Support Services Inc. (2013) 42 VR 197 - McIntosh v Williams [1979] 2 NSWLR 543 - Chester v The Council of Municipality of Waverley (1939) 62 CLR 1 - Malec v Hutton (1990) 169 CLR 638 - Wilson v Collingwood Stores (2014) 41 VR 531 – Fox v Wood (1981) 148 CLR 438 - Workplace Injury Rehabilitation and Compensation Act2013 (Vic) – Occupational Health and Safety Regulations 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr P Jens QC with Ms B Myers | IDP Lawyers |
HER HONOUR:
Mr Da Costa worked as an operator and leading hand with Bitu-Mill (Vic) Pty Ltd, a company that undertook road construction and resurfacing. His work required him to operate a machine called a profiler. When working at night on 1 February 2009, he injured his left knee. He suffered the injury while descending the steps of the profiler. He alleges that the state of the steps was a cause of his fall. Symptoms commenced at the time of the incident, but the treatment for Mr Da Costa’s knee condition, has been unsuccessful in alleviating his symptoms. After a number of surgeries the medical advice, which he accepted, was to undergo an amputation of his left leg above the knee.
He has brought an action for damages against his employer alleging that his injury occurred as a result of breaches of its common law duty of care as an employer and breaches of its statutory duties imposed by the Occupational Health and Safety Regulations 2007 (‘the Regulations’).
The defendant accepts that something happened at work on 1 February 2009 to cause the onset of pain in his knee. It disputes whether what occurred was caused by a defective step or was in any way due to its negligence or breach of the Regulations.
The defendant did not seek to minimise the devastating outcome that has occurred. Nor was it contended that the treatment outcome, though highly unusual, was anything other than a known albeit small risk of complications from surgeries properly conducted. There was no attempt to argue that the chain of causation was broken.
The significant dispute as to damages lay in the nature of the underlying but asymptomatic degenerative state of the knee and the part played by an old knee injury many years earlier. The argument raised by the evidence was about the likely progression of that underlying degenerative knee absent the work injury, and the effect that it might have had on Mr Da Costa’s capacity to continue into the future in his work as a profiler operator or in other work. In other words, when assessing his damages how does the underlying knee condition impact upon an appropriate assessment of the vicissitudes of life that might be encountered by Mr Da Costa absent the work injury.
For the reasons that follow, I have concluded that the defendant did breach its duty of care and statutory duty and that such breaches were a cause of the plaintiff’s injury, loss and damage. I have assessed damages at $2,108,567:
(i)$480,000 for pain and suffering;
(ii)$994,275 for past economic loss in accordance with the agreed calculations;
(iii)$634,292 for future economic loss.
These assessments are prior to any reduction to be made in accordance with s 343 of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (‘WIRCA’) for amounts of compensation paid.
The events of 1 February 2009
Mr Da Costa said on 1 February he commenced work at about 6.30pm working an evening shift. The incident occurred in the early hours of the morning at the conclusion of his shift. He was descending from the profiler having loaded it onto a float. The incident was unwitnessed, and there is only the plaintiff’s evidence as to what occurred.
He recalled a location close to the CBD which the incident report[1] identified as Victoria Street, Brunswick. On that evening he was to operate a one metre profiler. His payslip identified it as the WF10 machine.[2] On commencement, it was his job to check the machine before starting operations. This included attaching lights that had to be mounted on the conveyer belt and on the sides of the machine to illuminate the work areas while working at night and which were locked away to prevent theft when the profiler was not in use. He also had to check the water and oil and complete a general checklist. There was a pre-start check sheet form that as the operator he was required to complete each shift.
[1]Plaintiff’s Exhibit 3, Incident Notification Form stamped 2 April 2009 (‘Incident Form’).
[2]Plaintiff’s Exhibit 1,Plaintiff’s pay slip for week of 1 February 2009 to 7 February 2009, including Safety Notice (‘Pay slip and Safety Notice’) .
The profiler is a machine which digs up the existing road and which carries the dug up material along a conveyer belt to be loaded on to an accompanying truck. The reference to a one metre profiler is a reference to the width of the drum that digs up the road. The company had other, bigger profilers that have a two metre width and a smaller profiler digs 350mm width. The profilers can be hydraulically raised and lowered to adjust the depth to which the drum would dig up the road. At the time of the incident the defendant had approximately nine or ten profilers[3] of various sizes in operation along with other types of road construction machinery and other vehicles.
[3]Transcript of proceedings, Da Costa v Bitu-Mill (Vic) Pty Ltd (Supreme Court, S ECI 2019 01065, Forbes J, 16 September 2020) (‘T’), 28.
The profiler machines were taken on floats between jobs. They did not always return to the company headquarters in Campbellfield between jobs. At the end of his shift on 1 February 2009, Mr Da Costa had to load the profiler on to the float parked near the worksite. He said this was around 11.00pm or midnight. Before loading the profiler on to the float he had to remove and lock away all the light sets on the machine. In order to drive the profiler on to the float, Mr Da Costa had to set the profiler high, so that the drum did not hit the ramps. When loaded, he left it set high so that the float driver could adjust the position as necessary.[4]
[4]Ibid 38.
On this day, the plaintiff said that the conditions were dark – the street was fairly dark and the float driver was not there to turn on the float lights. He said that the weather was drizzly.
Mr Da Costa was in the process of getting down off the profiler. Access was from a set of ladder-like steps at the rear of the machine. The steps were vertical and he would climb and descend these steps facing into the steps and the machine, much as if he was using a ladder. The steps had handrails either side.
In his evidence-in-chief, Mr Da Costa described what happened. He said that there was no light illuminating the rear of the machine. He could not particularly see the steps below where he had to place his feet. He got to the bottom step and his left foot slipped on the bottom step of the machine and his knee twisted.[5] He said then that:
But when I hurt my left leg I let go of the handrail on - with my right hand and grabbed my left knee. It was in a lot of pain. So I grabbed my left knee. When I’ve done that my leg’s actually buckled, so the leg’s gone forward, and I had – at that stage I still had my left hand holding onto the other rail. As my leg’s buckled I’ve slipped off with my left hand and I fell onto the ground. I fell on my left side onto the float.[6]
[5]Ibid 39, 40.
[6]Ibid 39.
When he hit the float he described his shoulder, leg and knee as slamming down on the float. He said then when getting off the float he lost his footing and fell again, hitting the ground off the float. He said he filled out the job paperwork in his car and, as he had to start another job early next morning that was even further away from his home than the present job, he drove directly to the next worksite and slept in his car between shifts.
In cross-examination about the mechanism of the fall, he said:
I put my left foot on the bottom step and my foot slipped, I grabbed my right – my right hand I took off the rail and I grabbed my left knee. While I was doing that my leg buckled and my left hand came off the rail on the profiler and then I fell.[7]
[7]Ibid 79.
When he was asked whether there was any doubt about it being the bottom step on which he slipped, he said:
…look, I wasn’t quite 100% sure, but I’ve been doing a lot of thinking about this. The only step that moves on that profiler because it’s rubber mounted is the bottom one. All the other steps were worn. But the bottom one on the profiler is rubber mounted. I stepped on it. My foot – the step moved. My foot slipped. I grabbed it with my right hand. I grabbed my left knee.[8]
[8]Ibid 79,80.
The plaintiff did not make any report of the incident that evening. He said he reported his injury to Derek Thomas, profiling operations manager and Matthew Graham, the owner, in the days following the incident. He said he told Derek Thomas when he came to a worksite and asked him what he had done to himself. Mr Da Costa said ‘I told him I’d fallen off a profiler’.[9] Mr Da Costa also said that he told the blokes he worked with, everyone knew he had fallen off a ladder.[10]
[9]Ibid 41.
[10]Ibid 87.
It was the defendant’s case that all that had occurred on 1 February 2009 was a twist of the knee. The defendant submitted that the first time that the plaintiff had given this sequence of events in the form outlined above was at trial and that contemporaneous documentation suggests that what had occurred was simply a twist of the knee at work without mention of a fall. This submission had relevance for the issue of breach of duty – that is the lack of any contemporaneous recording of the incident being caused by a defective or inadequate step. It is also relevant on the issue of causation given the medical evidence of the underlying degenerative state of the left knee. The defendant also submitted that Mr Da Costa’s evidence about the manner of injury and other matters contained a number of inconsistencies which affected his reliability as a witness.
Three documents were put to the plaintiff as the first written records of what had occurred. It was put to Mr Da Costa that the incident notification form that he completed on 5 March 2009 described the incident as ‘Loaded machine on float, twisted knee getting off’.[11] Mr Da Costa accepted that he had completed the form and agreed that while he could easily have written that he fell off the steps, he said that there was no more room on the form to describe the incident any further.
[11]Incident Form (n 1).
Mr Da Costa was also questioned about his WorkCover claim form, also dated 5 March 2009 in which he described the incident as ‘twisted knee getting off profiler and float’.[12] He accepted that there was no mention of a slip or a fall or of the state of the steps that he was using in the claim form.
[12]Plaintiff’s Exhibit 2, Claim form dated 5 March 2009 (‘Claim Form’); T (n 3) 92.
It was also suggested to him when he first saw his general practitioner on 10 March 2009, some five weeks or so later, he told Dr Lovig nothing about a fall or a slip. Dr Lovig’s note[13] recorded only that he had a sore knee with a question mark over a twist. Mr Da Costa disagreed with this and said ‘No, I told him the whole story’.[14] The plaintiff accepted that Dr Lovig, his longstanding general practitioner, was someone he could confide in and tell exactly what happened. It was his evidence that he did so.
[13]Exhibit 24, Reports of Dr Lovig, note of 11 January 2013.
[14]T (n 3) 91.
None of the incident report, the claim form or Dr Lovig’s note record anything that identifies a cause for the twist of the knee. Self-evidently no fall is recorded. The defendant submits that the plaintiff’s evidence of falling and striking his knee is inconsistent with these documents and should be rejected.[15]
[15]Defendant, ‘Outline of Defendant’s Closing submissions’, Submissions in Da Costa v Bitu-Mill (Vic) Pty Ltd, S ECI 2019 01065, 25 September 2020 (‘Defendant’s submissions’) [33].
However there was another contemporaneous history recorded that did describe a fall. In particular, the letter from the first treating orthopaedic surgeon, Mr Peter Hamilton to Dr Lovig dated 18 March 2009 commenced this way:
Thank you very much for asking me to see Shaun who is a 40 year old road construction worker who injured his left knee at work in late January early February when he fell or slipped from a machine float, when moving the machine off the float striking his left knee landing and twisting it at the same time.[16]
[16]Plaintiff’s Exhibit 16, Letter from Dr Rob Lovig to Mr Peter Hamilton dated 18 March 2009 (‘Dr Lovig letter March 2009’).
The plaintiff’s wife gave evidence. She said that her husband had told her the next day when he came home from work that he had fallen off a profiler and hurt his knee.[17]
[17]T (n 3) 298.
Derek Thomas gave evidence. As well as being work colleagues, the plaintiff and Derek Thomas were friends. They had known each other since about 2000. At the time of the incident Mr Thomas was the profiling operations manager of the defendant. Mr Thomas said he recalled a conversation with Mr Da Costa about jarring his knee. He said he thought it was getting off a float or something, but could not recall whether Mr Da Costa had explained exactly what had happened.[18] Later, Mr Thomas said:
I recall him saying something in regards that he fell off the float when he was putting the machine up or something, and he jarred his knee, and my recollection to that is he didn’t do the incident report because it was only a slightly jarred knee.[19]
[18]Ibid 404.
[19]Ibid 419.
The fact that 11 years have passed since the incident makes it inevitable that the memory of witnesses is affected both by the passage of time and, in Mr Da Costa’s case, the repetition of events for medical and legal purposes. I have no doubt given the very dire consequences that have unfolded since the event it is one that Mr Da Costa has given a great deal of thought. One would expect some variation in accounts over such a long time. The question is whether that variation affects the reliability of his sworn evidence on the circumstances and cause of the accident as described by him.
In Mr Da Costa’s case his memory was demonstrably wrong in some matters. For example he thought he had worked long hours in the lead-up to the injury and that he had worked on the same profiler at the next site on the following day. In both cases his memory was contradicted on production of his payslip.[20] In those cases, when confronted by the documents he conceded the inaccuracy of his memory.[21] On other occasions, when similarly confronted with documentation that did not accord with his memory, he remained certain of his memory despite it being at odds with the documents. One example was the Bureau of Meteorology record of no recorded rainfall.[22] The document records rainfall for the whole of Melbourne and does not exclude the existence of light localised drizzle, insufficient to trouble recording in a rain gauge. I accept his memory of the general conditions at the time. As he said, the event was for him life changing, although not appreciated at the time as such.
[20]Payslip and Safety Notice (n 2).
[21]T (n 3) 124 [27]; 147 [29].
[22]Defendant’s Exhibit P, Bureau of Meteorology document.
As to the circumstances, while some contemporaneous documents mention only a twist of the knee, others do mention a fall. Mr Da Costa’s evidence that he told Mr Thomas and others of a fall is borne out by Derek Thomas’s evidence that he recollected being told of a fall.
Unfortunately neither Dr Lovig nor Mr Hamilton were available to give evidence about histories that are recorded by them. I accept that Dr Lovig’s note is brief and is not a complete record of what he was told by the plaintiff. So much is clear by the absence of any reference to it occurring at work yet the accepted WorkCover claim has been supported by a certificate signed by Dr Lovig since it was lodged in March 2009. I accept that Mr Da Costa gave a more detailed account of what had occurred to Dr Lovig than that which the doctor recorded, which was consistent with his own sworn evidence at court.
Dr Hamilton’s history broadly includes each of the elements described by the plaintiff: a slip, a fall, a twist and a strike. Mr Hamilton is explicit that he does not provide opinions on relationships between events such as work accidents and subsequent injuries.[23] Whilst the sequence of slip, fall, strike and twist as recorded by Mr Hamilton is not identical to the sequence as described by Mr Da Costa, I am not persuaded that Mr Hamilton’s account is more accurate as to the order of events. There is a less contentious inaccuracy in the history as recorded: that Mr Da Costa was moving the machine off (rather than onto) a float. This leads me to accept Mr Da Costa’s evidence as to the sequence of events rather than a sequence as may be extrapolated from Mr Hamilton’s correspondence.
[23]Plaintiff’s Exhibit 16, Letter to Maurice Blackburn dated 5 December 2014, indicating that answers to questions posed are covered by content of the medical records and will not be further answered.
The defendant submitted that Mrs Da Costa could have given evidence of any swelling to her observation in the days immediately following the incident. Her failure to do so, it was submitted should lead to an inference adverse to the plaintiff on the question of whether or not his knee was swollen following the fall and from there to affecting the reliability of the plaintiff’s evidence as to how the incident occurred. Neither Dr Lovig nor Mr Hamilton record swelling. In my view a lay observation of swelling, described such a long time after the events would have little probative value. I would not draw an adverse inference. The presence or lack of swelling was commented on by some medical witness may be quite variable as an indicator of acute injury and is discussed below.
On balance Mr Hamilton’s history undercuts the defendant’s submission that Mr Da Costa gave no contemporaneous history, or indeed description over the years to doctors, of anything more than a twist to the knee. The contemporaneous documents put to the plaintiff give an incomplete, rather than an inconsistent, description of what occurred. There was no challenge to the plaintiff’s description of twisting his knee, only what occurred afterwards.
I accept that when descending the steps in poor light and damp circumstances, the plaintiff’s left foot slipped probably on the bottom step, causing his left knee to twist. This in turn led to his leg buckling in a fall from the ladder to the float and then from the float to the ground, striking his left side including his left leg as he described.
What caused the slip, twist and fall?
There is no dispute that the defendant as employer owed a duty to take reasonable care to avoid exposing Mr Da Costa to an unnecessary risk of injury. The plaintiff’s allegations of breach of this duty of care centred around the following issues as being a cause of the slip and fall:
(a)the condition of the access steps at the rear of the profiler; that they were bent, defective and in poor state of repair and maintenance;
(b)that the employer failed to heed and respond to complaints about the condition of the steps on the profiler; and
(c)that there was inadequate lighting in the area of steps on the profiler.
In addition, breaches of the Regulations applicable to plant and equipment, which incorporated duties in respect of the profiler, were relied on. These were breached by failing to undertake hazard identification when the machine is operated, if hazards were identified to undertake a risk assessment and then failing to act to eliminate, reduce or control the risk as identified as required by regs 3.5.22 to 3.5.31. These failures were said to be a cause of the slip and fall.
The evidence as to risk of injury
(i) Conditions of the steps
The plaintiff’s evidence was that he frequently worked on the one metre profilers, both the WF10 with tracks as he was using on the day of the incident and another which had tyres. The set-up of the steps on these machines was described by the plaintiff: they consisted of steps made of flat metal treads, attached to vertical metal side rails. He described the machine as also having two handrails for use with the steps. He said that the step treads were perforated to assist with grip and would become worn from constant use almost to the point of being polished. He said the bottom step on the profiler was held in place not by metal side rails but by rubber ones.
The purpose of the rubber was because the lowest step was prone to damage from hitting kerbs or the ground whilst the machine was in operation. This was particularly so when the hydraulics were set with the drum low. The plaintiff said:
The one that got the most drama was the rubber mounted one. That’s why they were on rubber: because they would get dragged along the ground or hit sideways against objects, whether it be a gutter or a hole or a trench. The other steps above it also got knocked around for the same reason.[24]
The rubber side rails meant also that the bottom step was able to move when it was stepped on.
[24]T (n 3) 34.
Mr Schapendonk was called by the plaintiff. He was a friend and, for a time, a colleague of Mr Da Costa. He worked with the plaintiff prior to the plaintiff’s employment with the defendant and later worked with him at Bitu-Mill for a period of 12-18 months. During the time at Bitu-Mill, Mr Schapendonk drove a street sweeper, which were the vehicles that would follow the profilers, cleaning up the road for the asphalt crew to move in. He gave evidence of his observations of the rear of the profilers and said the steps at the rear used to get knocked sideways or dragged depending upon what had happened when driving the machine. He said he could observe the level of knocking around that occurred by how twisted the rubber had become.[25]
[25]Ibid 195, 196.
Mr Thomas, called by the defendant, said that Bitu-Mill, as at 2009, had machinery maintained by a full-time mechanic with a workshop and a mobile workshop that could attend on site. All operators had the mechanic’s contact details and could contact him if on site work was needed on a machine. Mr Thomas said otherwise there was a system of maintenance with services every 250 hours of use, done either in-house or by the manufacturer.
Mr Thomas said the machines were purchased from the manufacturer and Bitu-Mill did not make changes to the equipment as manufactured. He did however seem to suggest that some changes might be made at a customer’s request if done by an engineer. He gave the example of shrouding around the conveyer belt, in response to incidents to protect people entering enclosed spaces.[26]
[26]Ibid 407.
Mr Thomas described the bottom step on the one metre profilers as being attached by rubber uprights because ‘they can get knocked when they are doing full-depth excavation’.[27] He said that the steps could be knocked or damaged by other plant or by a tree and have been removed.[28] He says the purpose of the rubber uprights is to allow the steps to be flexible so they do not actually snap or break off.[29] As to the frequency of this occurring, Mr Thomas said it was not a thing that happened daily but that it had happened previously. His evidence was that it was more common on the larger profilers.
[27]Ibid 408.
[28]Ibid.
[29]Ibid.
Although Mr Thomas could not recall any requests to repair the steps of profilers, he did recall himself removing a damaged step, bringing it to the workshop for repair and then placing it back on the equipment on site.[30]
[30]Ibid.
Mr Withers, the mechanic employed in 2009 by Bitu-Mill, also gave evidence. He said about 95% of his work at that time involved profilers of various sizes. He was familiar with the machine the plaintiff was operating at the time of the incident. He said he would be notified of defects or the need for repairs by a phone call from the operators to him or to Derek Thomas. Mr Withers would get authority from Mr Thomas to fix repairs depending upon the nature of the defect. He had authority to decide if defects required an immediate repair on site.
Mr Withers said he did from time to time have to do work repairing the steps for the profilers. He said it is pretty much impossible to get on to the machine if the steps are broken. He said of the access stairs on the one metre WF10 profiler, ‘I know them all too well’.[31] When asked to describe what he meant by that answer, he said:
[31]Ibid 441.
That machine, being a small machine, um, you have to access it from the rear. There’s only one…you’ve got to realise that the machine, if it’s lowered to the ground, that the bottom step is actually just about touching the ground. Oh, if the machine’s raised up, which half -most of the time it’s raised up so the drum is not in the road, you know, it’s all then 400, 500ml…from the… the first step from the bottom of the road to ground level… And if there’d been a problem with the step, with that bottom step, your next step is probably six to 700ml above ground level which makes it very hard to get up on the machine.[32]
Of the bottom step, he said:
…the problems we’ve had with those [bottom steps] being that the rubber would break or tear, or the bottom step would bend itself.[33]
Mr Withers described the metal steps themselves as having a number of problems. They would catch, so as to bend, break or crack the steel. The perforations on the step would wear down so they did not grip as well. He said in that case they would either replace the step or would put a piece of weld on the top of the step itself and fill the perforation back up which gives it grip.[34]
[32]Ibid 441, 442.
[33]Ibid 443.
[34]Ibid 445.
Mr Da Costa gave evidence about the state of the machine generally as an older machine that was showing its age and had numerous problems to be patched up.[35] He said the steps were knocked around and the perforated holes punched upward on the tread had worn away.[36] He said in cross-examination that he was able to get up and down the ladder several times that night without a problem.[37] In answer to the proposition that nothing was impeding his use of the ladder he described, ’No, the ladder was damaged and bent. The ladder was compromised. But you could get up and down it to do the job which had to be done that night.’[38]
[35]Ibid 31.
[36]Ibid 30.
[37]Ibid 107.
[38]Ibid 107.
The defendant relied on documents showing the service history for WF10 between January and March 2009 and a Job report of 1 February 2009. In particular the Job report shows that earlier on in the day of the plaintiff’s injury the machine was attended by a Wirtgen (the manufacturer) mechanic to jump start the machine because of a flat battery and to repair a hydraulic spool to correct a ‘LUR leg lift fault’. The document sheds no light on the state of the steps on the machine that day in my view. The records show Mr Withers worked on WF10 shortly before February 2009. Whilst I have no doubt that Mr Withers would have observed a broken step while working, I am not persuaded he would have assessed the state of the steps while undertaking mechanical maintenance.
The plaintiff also produced a safety notice that was attached to his payslip for the period of 1 February 2009 to 7 February 2009. The safety notice was signed by Mr Artufel, who was also the person who ensured that the WorkCover and the incident reports were completed. Mr Artufel was a manager[39] or accountant and the person who dealt with all the company forms at Bitu-Mill.[40]
[39]Ibid 420.
[40]Ibid 188.
The safety notice read:
Please be aware that we have had an incident of a worker injuring themselves climbing down the step ladder from a profiler.
The step ladders are in line with the body so as not to protrude from the machine. As such they are steep and vertical albeit easily accessible.
Care needs to be taken when using the steps. (Refer SWMS).
The steps but (sic) are in accordance with manufactures (sic) standards so we are unable to alter them. Report any damaged step rails to the workshop using (sic) when completing the daily plant inspection sheet.
We will look into coating the handrails with a non-slip paint so as to improve grip when holding on to the rails whilst traversing the steps. Be very cautious when negotiating the steps and pay attention to footwear conditions as well.
If anyone has further suggestions to help avoid a repeat of injuries as a result of using the steps, please discuss with management.[41]
[41]Pay slip and Safety Notice (n 2).
The plaintiff located this document at home in a file of payslips on the eve of trial. The defendant had not discovered such a document. The defendant does not concede that the safety notice relates to the plaintiff’s incident but called no evidence that it related to some other incident. Mr Thomas accepted that it was possible but would not accept it was probable it related to Mr Da Costa as there was ‘nothing to say that somebody else hadn’t stumbled down one of the other bigger machines and injured themselves.’[42] The assumption underpinning that answer relies on accepting that such an incident might occur to workers, on some regular basis, at least more than once a week.
[42]T (n 3) 420.
Mr Da Costa’s evidence was that there hadn’t been people falling off ladders any of the time before his fall that he was aware of. It is likely that the safety notice related to his fall and was in response to a verbal report made in the days following the incident.
(ii) Complaints about the state of the steps
Mr Withers said he would regularly get phone calls from operators, including reports of problems with the steps.[43] Although neither Mr Thomas nor Mr Withers, understandably given the passage of time, could recall the plaintiff making any complaints about problems with the steps on the one metre profilers before the incident, both accepted that although they could not recall complaints that the plaintiff may in fact have done so.
[43]T (n 3) 440[24]; 441[11].
Mr Da Costa gave evidence that he did make complaints about the steps. He said his complaints were verbal not written. They included complaints to Mr Thomas and to Mr Withers.[44] The plaintiff said his complaints were directed at worn and damaged steps and at the state of the machines in general.
[44]Ibid 35.
The defendant submitted that I should draw an inference adverse to the plaintiff from the failure of Mr Schapendonk to give evidence of any report to him by Mr Da Costa about the condition of the steps. It is not necessary to do so given the evidence available from the Plaintiff, Mr Withers and Mr Thomas on the question of complaint. Further Mr Schapendonk being a sweeper driver would be unlikely to have any role in receiving reports about profiler machines such that evidence on this topic from him might be expected.
A pro forma of the pre-start check sheet was used by operators of the one metre profilers at the commencement of each shift. The company’s policy instruction manual said:
10. Safety Check
Drivers of company vehicles and plant will complete a ‘Prestart Safety Check’ according to the specified instruction or checklist for the vehicle or plant, at the beginning of each day shift e.g. Company owned vehicles: check petrol, oil, brakes, tyres, steering, lights, wipers, door locks, indicators. Clean windscreens, rear view mirrors and rear window.
You are responsible to ensure that a defect or fault is reported immediately and that it is attended to before you drive the vehicle.[45]
[45]Defendant’s Exhibit L, Employee’s policy manual dated 1 November 2006, issued 19 June 2003.
The check sheet was described as a ‘tick-box’ form,[46] mostly for mechanical checks and with a comments section. Such a document was not in evidence. There was no suggestion that the state of the steps was a specific item on the form to be ticked necessary for the profiler to be driven safely. Mr Da Costa repeatedly said that he made no written complaints about the state of the steps generally or in regard to WF10 in particular to management before the fall.
[46]T (n 3) 32.
Mr Da Costa was asked about completing the daily pre-start check sheet and said that in filling out the pre-start check sheets he made complaints or reports in writing about faults, sometimes writing ‘essays’[47] on the forms. He agreed he had not written any comment about the state of the ladder on the pre-start check sheet form on the night of the incident but said in the weeks before the incident he had reported damaged step rails on a pre-start inspection sheet which he understood went to the mechanic.[48]
[47]Ibid 76.
[48]Ibid 189.
(iii) Inadequate lighting at the access steps
The lights on the one metre profiler were not permanent fixtures. In any event that lighting was for the purpose of illuminating work areas, rather than access. The machines were large industrial machines and specialist pieces of equipment. They are obviously intended for use outdoors and under night as well as day conditions. The access steps, if maintained in proper condition contained a non-slip tread and two handrails, obviously contemplated use in very low light conditions. Mr Withers gave evidence that the machines are now manufactured with a light on a timer for the stairs.[49] He also said that he had the ability to fit lights to the profilers.[50]
[49]Ibid 458.
[50]Ibid 457.
Findings on Liability
I accept that the plaintiff made verbal reports about the condition of the steps on profilers to Derek Thomas from time to time as he did about a number of shortcomings or faults he observed in the machines that he was operating. I did not get the impression that the steps were a particular problem, rather that they were one of many aspects of machine operations that were brought to the attention of the mechanic and management for action. In my view the plaintiff’s memory was less certain when it came to written reports about the stairs. Verbal complaints were generally directed at the poor condition of the steps rather than them being defective.
Irrespective of his complaints, it is clear that the defendant was itself aware of the risk of slips and missteps using the steps. That risk arose from:
(i)the steps being damaged by direct blows causing cracks or dints or twists;
(ii)knocks to the bottom step causing the rubber to become worn and perish, so that it moves and the bottom step becomes less stable; and
(iii)perforations on the step tread becoming worn, increasing the slipperiness of the step.
The evidence of both Mr Thomas and Mr Withers confirms knowledge of these issues, independently of complaint by the plaintiff to them.
It is important to observe that the flexibility given to the bottom step by the rubber mounts is not designed to prevent damage, it simply lessens the amount of damage that occurs from the impacts which are known to be likely to occur during use. This reinforces the conclusion that the employer was aware that the steps, in particular the bottom step, were expected to sustain wear and damage through ordinary use of the machines.
I accept the plaintiff’s evidence that the state of the steps on the night in question was that they were bent and damaged and that the tread was worn but that they were in a condition that allowed him to access the machine on that night.
There was on the employer a duty to take reasonable care to ensure the condition of the steps was adequate to reduce the risk of slips and missteps by employees when using the steps. Knowing of the risk, it mattered not that falls were not frequently occurring; the lack of frequency might go to the reasonableness of steps to be taken, if any, to respond to managing the risk.
The defendant’s case was that it did have a system for identifying defects and shortcomings in the steps. That system began with the purchase of specialised equipment manufactured and not altered by the employer in any way. The machines were serviced at 250 hour intervals in accordance with the manufacturer’s specifications. There was no evidence that a standard mechanical service assessed the non-mechanical aspects of the machine’s bodywork including the steps. It otherwise relied on a system of checking and reporting issues via the daily pre-start check sheets supplemented by the reporting of urgent repairs directly to the mechanic, Mr Withers, or the manager.
It seems to me that the measures identified for checking, reporting and servicing are directed primarily at ensuring that the machines are mechanically safe to operate whilst being driven. In the absence of the steps being a specific item to check on the pre-start checklist, I cannot be satisfied that this daily procedure was a system directed at addressing the risk posed by the state of the steps.
In many ways, whether the state of the steps and the rubber uprights connecting the bottom step were adequate involve matters of degree. Absent a crack, or a tear, or a bend that makes the step unusable, some system was needed to determine when steps were bent or worn or the rubber was stretched past a point of safe use. Mr Withers described the problem with the bottom step saying ‘if that step had been broken it’s just near impossible to get to the next one’,[51] describing that if the machine was raised the second step would be 600 to 700 mm above ground level and thereby difficult to access.[52] Mr Withers said he would have expected that the ‘broken ladder’ would have been noted on the prestart form and that document to have been kept by Bitu-Mill given Mr Da Costa’s incident. His focus was on responding to a step that could not be used.
[51]T (n 3) 457.
[52]Ibid 442.
Operators doing their own daily visual inspection for the purpose of ticking a pre-set mechanical checklist results in an ad hoc system of operator identification of defects only if their attention is drawn to them. Whilst this may suffice for a defect that occurs during a particular use of the machine such as a tear or a break, it does not allow for monitoring the accumulation of small dints, the wearing down of perforations or the stretching of rubber as occur over time. Shortcomings of this nature are less susceptible to adequate one-off visual inspection by whomever is operating the vehicle on a particular shift. A system of regular inspection to assess the level of deterioration or a regular timetable for replacement of particular rubber mounts and step tread would decrease the risk posed by the deteriorating state of the steps.
Both Mr Thomas and Mr Withers gave evidence that at least in so far as the step itself went, replacement was not a large job. Mr Withers said ‘No, it’s a 20 minute job’.[53] Mr Thomas said he had had occasion when he had removed the step, brought it to the workshop for repair and then returned it to site and put it on again.[54]
[53]Ibid 445.
[54]Ibid 408.
There is a further deficiency in relying on the pre-start check sheet to identify where a worn step that while usable has nevertheless become unsafe. There was some difference in the evidence of Bitu-Mill as to how the pre-start sheets were handled. Mr Thomas said that all sheets went to the mechanic. Mr Withers thought they went through the office and he got only the ones with defects on them. He accepted that there might be as many as 700 or so check lists in the course of a week.[55] Mr Withers, appropriately, said that he was not there to look at forms that had no defects on them.[56] There was no evidence that in the office, there was a system of assembling or actioning non-mechanical reports contained in the pre-start sheets. While I accept that a ‘broken’ step might be actioned, I am not satisfied that, if a note included by an operator of a non- mechanical observation about a worn tread or bottom step that moves more than usual, such an observation would be drawn to the mechanic’s attention for action.
[55]Ibid 454.
[56]Ibid 455.
The importance of having such a system is clear. The machines are known to be operated across three shifts both day and night and across many sites, where conditions – light, weather conditions, surfaces on which machines are to be parked, access on to floats – are likely to be variable. Accepting Mr Da Costa’s recollection that it had been drizzling – although insufficient had fallen to be recorded as rainfall by the Bureau of Meteorology – the dark and damp conditions increased the risk of a misstep when descending. I find that the defendant, knowing that the bottom steps were prone to damage, had no system to identify and repair or replace steps that had become unsafe through an accumulation of knocks and wear.
Whilst the lack of lighting at the time made it difficult for Mr Da Costa to see where he was placing his feet, it is not the situation that he missed his footing in the dark. The adverse conditions may have been contributed to by the location of the float but they were conditions in which it might be expected that the steps be navigated. With two handrails, an adequate tread would have otherwise permitted a safe descent by a worker taking care for his own safety as Mr Da Costa was doing.
At some point as Mr Withers noted,[57] the company did attempt to put non-slip paint on the steps of different machines. It was unclear when that was. In addition, Mr Dimopoulos, engineer, was called by the plaintiff. He gave evidence as to a number of steps that could be taken in response to the problem created by a slippery tread. Although Mr Dimopoulos did not profess any familiarity with profiler machines generally or the model in question, the question of actions to minimise the risk of slips on steps or ladders, is more directed at the nature of the stairs themselves rather than familiarity with the type of plant on which they are present.
[57]Ibid 449.
He gave evidence as to a number of actions that could have been taken, including a reflective strip being placed across the leading edge of each step to improve vision in low light circumstances, the provision of a non-slip surface on the tread and along the leading edge or nose of the tread. He said that where a worker is not able to ensure that his foot is placed directly on top of the step, in those circumstances he said the foot may be placed at a different angle or in a different position and rely on the corner section of the step for grip. Or finally a hinged bottom step that could hinge up out of the way during use and hinged down when needed for access and egress.
Mr Thomas gave evidence that the company did not modify the vehicles or make engineering changes to the equipment.[58] Replacement of steps is not a modification of the machine and the evidence clearly demonstrated that Bitu-Mill can and did replace the tread of the steps and the rubber side rails when they became torn or broken. There was no impediment to a system of regular inspection and replacement.
[58]Ibid 407.
Both a systemic approach to the repair and replacement option identified by Mr Thomas and Mr Withers and reflective and non-slip coverings on the tread as suggested by Mr Dimopoulos are relatively simple and straightforward steps. They are directed at maintaining an aspect of the profiler that has a bearing on the safety of the drivers who operate it but has no role in the mechanical operation of profilers. Although the risk was recognised and it was a risk that was faced a number of times each shift by each driver of the various profiler machines, no system was devised to provide safeguards. Despite the absence of other incidents or injuries it could not be said that the risk was unforeseeable or was fanciful. The safety notice that was issued in February 2009 about the risk of using the stairs makes clear the existence of a real risk known but not previously addressed.
Breach of Statutory duty
Given my finding of negligence on the part of the employer it is not strictly necessary to deal with the question of breach of statutory duty. I will make only a few comments.
The evidence in respect of this aspect was brief. Mr Thomas said that annual risk assessments were done on the machines.[59] No detail was provided as to who conducted such assessments or how they were approached. Still less was there evidence as to any relevant hazards that were identified by such assessments of the machines or the steps taken to reduce or eliminate the identified hazards. A Safe Work Method Statement (SWMS) existed in February 2009 as referred to in the Safety Notice[60] but no evidence was led as to the content of that document. In any event it was not the method of work being undertaken by Mr Da Costa that was in issue, rather the state of the equipment he was using.
[59]Ibid 415.
[60]Pay slip and Safety Notice (n 2).
The profiler is clearly ‘plant’ to which Part 3, Division 5 of the Regulations applies. The Regulations require an employer to identify, eliminate or if this is not possible reduce identified risks to health and safety of persons associated with the use of the plant. The knowledge of Mr Thomas and Mr Withers as to the expectation of damage to the steps in using the machine, as demonstrated by the rubber side rails for the bottom step to lessen damage, might amount to an identification of the hazard in compliance with the Regulations. However even if I were to draw this conclusion, there is simply no link connecting the process of annual risk assessments with identification of action taken by the employer to minimise or eliminate the risk posed as the steps became worn or damaged.
Damages
Mr Da Costa was born on 5 September 1968. At the time of the incident he was aged 40 years old. He is married to Joy, and they have four children. On leaving school at year 10, he completed a four-year motor mechanic apprenticeship. He worked using this qualification for a number of years. He remained working there after concluding his apprenticeship for a time. He then worked as a branch manager of a Kmart Tyre & Auto Centre for three years and then ran his own motor mechanics business for six or seven years. In this business he employed other mechanics and took on an apprentice. He then returned to Kmart for a further few years.
He then spent some years working as a cleaner of exhibitions before obtaining work in 2001 with a road construction company as a road sweeper/driver. Since 2001 he has worked as a machine operator with various road construction companies. He was invited to work at Bitu-Mill by Derek Thomas in 2004. He began there as a road sweeper/operator and was trained by Bitu-Mill to become a profiler driver and became a leading hand.
Mr Da Costa was an experienced and, by Mr Derek Thomas’s assessment, an extremely good employee. The plaintiff continued to work in the week following the incident. He first sought medical treatment on 10 February 2009 from his general practitioner, Dr Lovig, who arranged an x-ray.[61] He took a period of planned leave when he went on a fishing trip with Derek Thomas and others. Derek Thomas said he recalled Mr Da Costa having issues with his knee during that trip.[62]
[61]Plaintiff’s Exhibit 18, X-ray Left Knee, 23 February 2009.
[62]T (n 3) 404.
Dr Lovig reviewed him at the end of February and noted that although he was continuing to work, he was in considerable pain and discomfort and so by 27 February was referred to an orthopaedic surgeon, Mr Peter Hamilton. He was initially seen by Mr Hamilton in March 2009, who thought he had suffered a medial meniscal tear. This was confirmed on an MRI scan, as was the presence of an undisplaced old osteochondral defect and marked degenerative changes. Mr Da Costa stopped work to undergo an arthroscopy on 8 April 2009. The operation note recorded Grade 3-4 osteoarthritis.[63]
[63]Defendant’s Exhibit N, Operation note of Mr Peter Hamilton, 8 April 2009.
History of prior injury
In light of the findings as to the extent of degenerative change that was present in the knee joint, the history of prior injury is important. During his apprenticeship the plaintiff suffered a left knee injury at work on 25 May 1988. On that day, he suffered a locking of the left knee while walking up some stairs out of a mechanic’s pit. He required an arthroscopy, where he described removal of a piece of bone that had broken loose and jammed between the moving parts of the joint. The plaintiff said that his knee was fine after that and did not give him any further problems.
In the two decades between incidents there was no evidence of the plaintiff having any problems or of making complaints of knee pain. This was in circumstances where the plaintiff continued in work requiring at least moderate activity and leisure activities that included water skiing and basketball, both of which place stress and strain on knees. There was no suggestion of any difficulties which might contradict the plaintiff’s evidence on that point, but the quiescent state of the knee given his past injury is still of significance when assessing the damage caused by the 2009 incident.
The plaintiff did not resume work as a profiler/operator after this first surgery. He did for a time from August 2009 work in light, alternative duties in a role of ‘supervisor’ and ‘trainer’. It seems that this role was created to meet his circumstances at the time, but the only ongoing supervisor’s role was that of Mr Thomas himself. This meant that the opportunity for promotion or transfer with the defendant into a permanent more sedentary role was not great. During the period of alternate duties, Mr Da Costa underwent a series of three synvisc injections into the left knee which did not give relief.
The plaintiff’s alternate duties ceased when he went off work again in January 2010 to undergo total knee replacement surgery, as recommended by Mr Hamilton. The plaintiff has been unable to resume any work since this surgery and his employment was formally terminated in April 2012.
Mr Da Costa initially made good post-operative progress after the first total knee replacement. He was to have outpatient rehabilitation and gradual withdrawal of the narcotic analgesia that had been prescribed for him. However, during rehabilitation he developed an unusual gait pattern which seems to be related to poorly controlled pain rather than from any surgical complication.[64] Pain management and gait retraining were recommended rather than further surgical intervention.
[64]Plaintiff’s Exhibit 16, Letter from Mr Hamilton to St John of God – Nepean Rehab, 11 October 2010.
Mr Da Costa developed problems of the knee giving way and Mr Hamilton recommended a patella resurfacing procedure of the joint replacement. This was undertaken on 9 May 2011. For a time the problem of giving way in the knee stopped after the resurfacing surgery, however control of pain still required attention, and Mr Hamilton thought it important to re-establish a pattern of rehabilitation quickly. The plaintiff’s own assessment was that the resurfacing did not help and produced no change in his symptoms.
The problems of giving way and of pain continued, and Dr Lovig referred his patient for a second opinion to Mr Adrian Trivett. Mr Trivett performed an examination of the knee joint under anaesthetic to assess any cause for ongoing instability and pain and concluded that the plaintiff would likely benefit from revision of the knee replacement.
On 20 August 2012, Mr Da Costa underwent a revision total knee replacement. He described being unhappy about undergoing further operative treatment but was advised by the surgeon that it would improve his quality of life, and so he accepted the advice. Following this surgery he had clunking in the knee and was using a single point stick. Gait problems continued and a gait analysis was undertaken.
By June 2014, Mr Trivett was recommending a second revision of the total knee replacement, this time using a zimmer or hinged prosthesis. The plaintiff underwent this procedure but said that he still had the same pain and the same clunking. He gave evidence that he was getting frustrated by the lack of explanation that he could understand as to why the operations were being recommended but were not resulting in improvement.
Ultimately on 5 September 2016, Mr Trivett, after two revisions of the total knee replacement, undertook a third revision, this time an arthrodesis, fusing the leg by inserting a pin. The plaintiff described this as extending from the hip, through the knee and down to the ankle. It had the effect of fusing the joint so that the leg remained straight and unable to be bent.
Mr Da Costa described daily difficulties presented by being unable to sit in a chair or on a toilet, being unable to step into trousers or reach to put on socks and shoes. He described being unable to travel in some cars, as he could not fit into the seats.
In the post-operative period from this surgery, the plaintiff developed a significant wound infection. According to the history obtained by Mr Doig and Mr McLean, this required inpatient treatment after being taken by ambulance to the Dandenong Emergency Department.
Mr Da Costa then came under the care of a third orthopaedic surgeon, Professor Ton Tran. He described Professor Tran as giving him two options – either a further revision to re-do the fusion or an amputation. Mr Da Costa said he just could not go through with the fusion procedure again. It was clear that by early 2017 he was well and truly beyond the point of accepting that revisions could improve the situation. It is also worth observing that even back in October 2015 Mr Da Costa had considered the possibility of amputation. Mr Trivett recorded:
Today Shaun has raised the possibility of amputation and fitting of a prosthesis as a solution to his knee problem. This gave a clear indication as to how much the knee condition is affecting Shaun’s life.[65]
[65]Plaintiff’s Exhibit 17, Report of Mr Trivett, 29 October 2015 (‘Mr Trivett reports’).
Professor Tran performed an above knee amputation on 23 May 2017.[66] Mr Da Costa has trialled a prosthesis but finds it problematic and rarely wears it. A new prosthetic socket was manufactured and fitted as the initial one was not right for weight bearing. The new one still gives him problems. He generally gets about using a wheelchair. The problem of pain was not resolved by the amputation. Phantom pain as well as stump pain is experienced by the plaintiff. Neuromas have formed at the stump site and have required surgical removal in May 2019 by Mr Donnan. Neuromas have made the wearing of a prosthesis painful. Mr Da Costa says that presently he tries to wear it at least once a week. However I got the impression that doing so was a trial for him and he preferred to get about using either the wheelchair or crutches, although he is fearful of slips and falls occurring when using crutches.
[66]Plaintiff’s Exhibit 11, Report of Prof. Ton Tran.
The surgery to revise the stump and remove the neuromas resulted in a shorter stump and so consequent changes in gait patterns, requiring further rehabilitation.
Throughout the orthopaedic developments Mr Da Costa has been supported by rehabilitation at St John of God Hospital and in particular by Dr Baguley, rehabilitation physician. Dr Baguley has also requested involvement of Dr Taverner, post-amputation. Dr Taverner has attended Mr Da Costa including during his inpatient admissions at St John of God and at the Beleura Private Hospital as detailed below.
As is unsurprising in the face of the surgical outcomes outlined above, Mr Da Costa’s mental health has taken a battering. By 2015, Mr Trivett was noticing that:
Shaun continues to be frustrated by his knee….Shaun has pointed out that he is completely demoralised with his knee and it has had a substantial impact on his life and his family in every respect.[67]
[67]Mr Trivett Reports (n 65).
Dr Stone, psychiatrist, became involved in the plaintiff’s care at St John of God Hospital in October 2014, at Dr Baguley’s request. Dr Stone diagnosed a major depressive disorder with anxiety features and has prescribed medication regimes since then.[68] At the time Dr Stone became involved Mr Da Costa had already been prescribed an antidepressant by his general practitioner. There is no suggestion of a history of psychiatric illness independent of the injury.
[68]Plaintiff’s Exhibit 8, Report of Dr Stone, 19 June 2020.
Dr Stone’s diagnosis has remained unchanged over time. Dr Stone has recently commenced transcranial magnetic stimulation, a newer, non-medication treatment for treatment-resistant depression. It is too soon to know the outcome of that treatment.
In June 2016, Dr Stone admitted the plaintiff to Beleura Private Hospital for a week and again for a fortnight in August 2019.
In addition, Dr Stone has referred his patient to a number of psychologists, including Julie McLeish in 2017/18 and Tania Wilson from 2019 for additional support to his mental health.
Dr Taverner is also addressing activity-dependent lower back pain affecting both the use of the prosthetic and his mobility more generally. Dr Taverner has attempted to use Ketamine to wean Mr Da Costa off the high amount of opioid medication that he is taking, but the Ketamine was not tolerated. As a result, Mr Da Costa is presently using Endone, OxyContin, Virica and Panadol Osteo, all on a daily basis in varying amounts as well as sleeping medications, antidepressant medications and tablets for anxiety.[69]
[69]Plaintiff’s Exhibit 10, Report of Dr Taverner, 24 August 2020.
Dr Lovig has retired and Dr Rastegar has taken over as treating general practitioner. She has described ongoing pain and excessive sweating of the stump and is presently awaiting approval for proposed treatments, all of which have been slowed and impacted by COVID-19, worsening Mr Da Costa’s mental health and levels of frustration.[70]
[70]Plaintiff’s Exhibit 9, Reports of Dr Rastegar, 25 August 2020, 13 May 2019 and 16 February 2018.
Mrs Da Costa gave evidence about the impact of the injury on family life. At the time of the accident Shaun was the breadwinner and she, a childcare educator by training, was a full-time parent. She said that she had returned to full-time work about eight years previously because she needed to support the family. She described a stable and happy marriage and family life prior to the incident. By contrast, she describes that:
Now he spends the majority of his time in the room on his own watching television or outside in his little shed. But he might tinker around a little bit with things, but he doesn’t like a lot of contact with people. He will take himself away from the situation of people dropping in. He might have dinner with us a couple of times a week, not every night, and then as soon as he’s finished eating he’s gone. He won’t stay around for conversations with the kids, not a lot of patience now with the children.[71]
She says of his mental state that:
….he gets to a point that he just doesn’t feel like he can cope anymore… and he doesn’t know how to calm himself down. And although we’re here, I’m not here 24/7. The kids aren’t here 24/7, so it’s very hard for him to rely on all of us or even talk about it. He feels like he’s let everybody down, so he finds it very hard sometimes to talk to us about it.[72]
[71]T (n 3) 299.
[72]Ibid 301.
Mrs Da Costa also described decreased motivation around the house and less engagement in leisure activities, particularly fishing. She said a caravan purchased by them in 2010 intended for use for family holidays was now no longer used as it was too hard for the plaintiff to get in and out of it.
Apart from the incident of the left knee injury in 1998, medical records demonstrated a right foot injury in 2006 when it was run over by a truck which resulted in three months off work and an illness in 2007 causing leg and arm symptoms, which was not diagnosed but resolved. These injuries were not associated with any adverse mental health response or ongoing psychological symptoms and the physical symptoms resolved.
In December 2010 the plaintiff suffered an acute myocardial infarction complicated by atrial fibrillation. He was admitted to Frankston Hospital. The heart has been successfully treated with no ongoing cardiac condition.[73] The parties were agreed that absent the knee injury this heart condition would have kept Mr Da Costa absent from work for a twelve week period from December 2010.
[73]See Plaintiff’s Exhibit 23, Report of Associate Professor Jelinek, 20 December 2019, a report tendered on this condition.
The plaintiff has been unable to resume work as a profiler since 28 March 2009. He worked for the defendant in alternative duties between 10 August 2009 and 15 January 2010. The parties agreed that until trial this amounted to a total of 577 weeks. Subtracting 12 weeks for incapacity associated with the heart attack leaves 565 weeks.
The parties were also agreed that the earning rate to be applied, as a matter of mathematics and not an assessment of the appropriate damages to be awarded, was an average nett weekly figure of $1,582.[74] This lead to a calculation of past earnings at $893,830 and past superannuation at $80,445 to the time of trial.
[74]This figure derives from what the plaintiff was earning at the time he was injured in 2009 being a figure of $90,000 gross per annum and a present earning of $140,000 gross per annum, adjusted to net amounts ($1,281 and $1,882 net per week respectively) and averaged to apply to the entire past period.
As to the calculation of future earnings, the parties were agreed that the applicable multiplier to age 67 is 521.8. Applied to the agreed present nett weekly figure of $1,882 a calculation of future earnings of $982,028 and future superannuation at $75,125 is made before the application of any discount for vicissitudes.
The real contest between the parties was how these calculations should be adjusted to take account of what the plaintiff might have earnt had he not been injured.
Evaluating the loss and damage
The vulnerability to injury that comes about by the advanced level of degeneration that is present in the knee does not reduce the damages awarded. The presence has in fact led to a more significant injury than might be sustained by someone with a healthy and non-degenerative joint. Where a breach of duty is established causing injury, the liability is for all injury and its consequences. Latham CJ, in Chester v The Council of Municipality of Waverley,[75] said that once breach is established the defendant:
was liable for all the consequences, though those consequences were of an unexpected kind. It was said by MacKinnon, LJ:
It may be that the plaintiffs are of that class which is peculiarly susceptible to the luxury of woe at a funeral so as to be disastrously disturbed by any untoward accident to the trappings of mourning. But one who is guilty of negligence to another must put up with idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner has had an unusually fragile one.[76]
[75](1939) 62 CLR 1 (‘Chester’).
[76]Ibid 9 Citing Owens v Liverpool Corporation (1939) K.B. at pp 400,401
However, it is also necessary to take account of the possibility that the underlying condition could have affected the plaintiff in any event. On the one hand a person may go through life and the underlying condition may never have had any effect absent the wrongdoing. In this case a wrongdoer is liable for the full measure of damages. On the other hand it may be a condition that would ultimately have brought the plaintiff to the same position, in which case the wrongdoer is liable only for the acceleration of the inevitable that has been brought about by the wrongful act. Between these two outcomes lies the possibility that absent negligence, the condition may have become symptomatic at some later point in time. When that might occur and the course that the condition might follow – both as to severity of symptoms and treatment options to ameliorate those symptoms – are not susceptible to determination on a balance of probabilities.
The approach to such hypothetical considerations was not controversial. Malec v Hutton[77] described the correct approach when considering damage or impairment of capacity that might occur from conditions or events for which a defendant is not legally responsible. As Brennan and Dawson JJ said:
By contrast, earning capacity can be assessed only on the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false – for the plaintiff has been injured – the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.[78]
[77](1990) 169 CLR 638.
[78]Ibid 639,640.
In McIntosh v Williams,[79] Moffitt P and Samuels JA described the exercise of evaluating a hypothetical outcomes in this way:
Where an evaluation of a loss has to be made and the extent of the loss depends upon an uncertain event, which has not occurred by the time the evaluation is made, such evaluation must be made by reference to the chance of the event occurring, and not by whether the occurrence was or is probable. This is so whether the time when the event would ordinarily have occurred is before or after the time when the evaluation is made, which, for present purposes is the date of the trial.[80]
[79][1979] 2 NSWLR 543 (‘McIntosh’).
[80]Ibid 550.
The Court of Appeal looked at the explanation of these principles given when charging a jury in Smith v Gellibrand Support Services Inc.[81] At trial the plaintiff claimed damages for an aggravation of a degenerative spinal condition arising from two specific incidents. There was evidence that she also suffered from unrelated medical conditions, in particular carpal tunnel syndrome. Medical evidence to the underlying spinal degenerative condition and the carpal tunnel and other unrelated conditions did not establish that they would have interfered with the plaintiff’s capacity to work, only that there was a risk that they might have done so. The judge’s charge to the jury directed them to take account of such matters when considering the vicissitudes applicable to that plaintiff not as matters of probability. The Court said that where the evidence does not establish,
with a reasonable measure of precision what the pre-existing condition was at the time of ... injury and what was its probable future development and progression[82]
the trial judge was correct to instruct the jury to have regard to such conditions as vicissitudes when assessing appropriate damages to be awarded to a plaintiff.
[81](2013) 42 VR 197.
[82]Ibid 213 [64].
The parties agreed that the state of the evidence in this case as to the underlying degenerative knee condition made it appropriate to approach the assessment of damages taking into account the underlying condition as a vicissitude specific to the plaintiff’s situation.
The defendant takes the plaintiff as he is, with this advanced degenerative change in his left knee, compensating him for the onset and maintenance of significant symptoms, but with regard for the fact that the precarious nature of the knee joint (with loss of cartilage leaving bone on bone on the medial side of the joint) posed a risk that the knee would have become symptomatic even if the incident of 1 February 2009 had not occurred.
For Mr Da Costa that hypothetical situation of what might have eventuated absent tortious injury needs to take account of both the general vicissitudes of life – the chance that other events might have influenced his capacity to earn, as well as the specific consideration of the extent that his underlying, but previously asymptomatic, knee condition might have adversely impacted his working capacity and his enjoyment of life. The medical evidence addressed the chances of symptoms commencing and the extent of the impact that might be anticipated by those symptoms absent the injury that in fact occurred.
Medical Evidence of the underlying condition and the effect of the injury sustained
Medico-legal opinion from a number of orthopaedic surgeons was relied upon as to the underlying condition and the injury occurring in the incident. The plaintiff called Mr Iain McLean and Mr Stephen Doig. The plaintiff also relied on a medical report of Professor Buzzard.[83] The defendant called Mr Rodney Sim, and Mr Peter Lugg.
[83]Plaintiff’s Exhibit 26, Report of Professor Buzzard dated 24 May 2018.
It was common ground that at the time of the incident the plaintiff’s knee, although asymptomatic, had within it a significant level of degenerative change. The MRI taken shortly after revealed a probable old osteochondral defect. Mr Doig described the 1998 injury as causing a defect - an osteochondritis dessicans – when a piece of bone from the medial femoral condyle dies and flakes off as a loose fragment in the knee which causes locking. Arthroscopy removes the loose fragment and allows the knee to settle. However, a defect is left on the surface of the femoral condyle from where the fragment detached and that defect means that the knee is ‘a little more vulnerable in the long term towards developing degenerative change’.[84] There was also agreement that it was the osteochondritis dessicans which was responsible for the significant degenerative change present in the plaintiff’s knee by the age of 40.
[84]T (n 3) 248, Mr Doig.
Mr McLean accepted that it was inevitable that the degenerative change would produce symptoms and limitations at some point in time.[85] He said that the balance can be tipped so that symptoms commence with minor or moderate trauma or with more significant trauma.[86]
[85]Ibid 271.
[86]Ibid 279.
Mr Simm, whose opinion was provided ‘on the papers’ without an examination, concluded that:
This man had end stage fully thickness chondropathology of the medial femoral condyle. He was therefore prone to develop medial knee pain with minor to moderate mechanical loading of the knee, which may occur as a result of changing direction while weight bearing, squatting, walking with a heavy load, particularly upstairs, and particularly with trauma such as a twisting injury and a fall.[87]
[87]Defendant’s Exhibit A, Report of Mr Simm, 13 September 2018.
Mr Lugg commented that a loose body in the knee of a young person (aged 19, as Mr Da Costa was in 1988) absent trauma is likely from an osteochondral defect known as osteochondritis dessicans. Mr Lugg described the outlook for those who develop osteochondritis dessicans, as having a poor prognosis commonly leading to significant degenerative change. This in Mr Lugg’s view explained the significant degree of osteoarthritis in the knee, which would not ordinarily be present in a 40 year old.
There being agreement about the nature of the underlying condition and the vulnerability to injury that it gives rise to, the contest in the medical evidence was when was the condition likely to become symptomatic absent the injury and what were the prospects for treatment of those symptoms.
Severity of trauma
The different history of a simple twist, or a slip and twist as submitted by the defendant and recorded in the early documentation would indicate a mild to moderate trauma only. The slip and twist accompanied by the fall to the float and then the ground striking the knee was, as the doctors agreed, a more significant trauma.
The opinions as to how quickly the knee might have become symptomatic were influenced but the severity of the trauma that did cause symptoms to start.
Mr Lugg’s opinion of symptoms within the immediate future was in part premised on his understanding of the precipitating incident as a simple twist. Mr Lugg opined that given the bone on bone condition of the knee, sudden conversion to pain is common. He expressed the opinion that the onset of symptoms at some stage was likely absent the work incident or even the 1988 locking incident.[88]
[88]Defendant’s Exhibit C, Report of Mr Lugg, 8 July 2020 (‘Mr Lugg report’).
Mr Simm accepted a more substantial incident but based his conclusion on the absence of symptoms sufficient for the plaintiff to cease work or seek medical attention for a period of ten days.
Mr McLean thought that despite the MRI report, he did observe some oedema on the MRI scan itself but held the view that while significant, or indeed any, trauma could precipitate symptoms, the long standing changes meant that the passage of time made the development of symptoms inevitable.[89]
[89]Plaintiff’s Exhibit 6, Report of Dr McLean, question 2.
Given my findings at [33] as to what occurred in the incident it follows that I accept that a more significant trauma to the knee was sustained precipitating pain and other symptoms that led him to arthroscopy and subsequent treatment. However, it is clear that the symptom onset and the ‘cascade’ of problems that followed were accepted as being capable of being initiated by even the less traumatic twisting incident.
When might the knee have otherwise become symptomatic?
Mr McLean said the timing of the onset of symptoms was totally unpredictable, likening it to a worn tyre on a car.[90] He said while it was inevitable that the driver will be stranded with a flat tyre it was impossible to predict when that would be. Mr Doig thought that it was possible that the knee would become symptomatic with the passage of time but thought that significant activity without symptoms in both his job and leisure activities probably made it unlikely that he would develop symptoms in the immediate or intermediate timeframe.[91] He thought, given the absence of mechanical symptoms such as catching or locking, it probable but not definite that symptoms would develop over the next one to two decades and could not say with what severity those problems might present.
[90]T (n 3) 277.
[91]Plaintiff’s Exhibit 5, Report of Mr Stephen Doig, 28 July 2020.
Mr Doig thought that his level of activity and the absence of symptoms meant that although it was possible, he was unlikely to develop symptomatic osteoarthritis in the immediate to intermediate time frame.
Mr Simm thought that the loading on the knee in activities like water skiing and basketball increased the plaintiff’s chances of becoming symptomatic earlier. Mr Simm was of the view that it was ‘only a matter of time before the left knee became asymptomatic either inside or outside the workplace’. Mr Simm’s prediction of problems within a few years of February 2009 was based upon three principal factors;
· the ongoing recreational pursuits of water skiing and basketball, which exposed him to the risk of a precipitating event.
· The initiating event itself, although traumatic, was not a major event as Mr Simm understood it.
· his view that the plaintiff was ‘on the cusp of experiencing pain’[92] and that it would take very little for his knee to become painful.
However these factors were qualified by the statement: ‘Unfortunately it is not possible to predict with any accuracy when this would have occurred’.
[92]T (n 3) 360.
Mr Doig disagreed that the recreational pursuits which put the knee under stress and loading made it likely that symptoms would commence earlier rather than later. He reasoned that although there was some truth in Mr Simm’s opinion that a greater load increased the chance of symptoms being provoked, maintaining good musculature with strength and mobilisation also acted to protect the knee. He said it is impossible to balance the protective and the wearing elements of activity.
Mr Lugg was also asked to opine ‘on the papers’ whether it was probable, assuming the incident had not occurred, but assuming the worker continued in his social, domestic and leisure activities as outlined…that the worker’s knee would have become symptomatic and required a total knee replacement’. If so he was asked to give a best estimate of the timeframe. Mr Lugg accepted that the work incident aggravated the asymptomatic degenerative changes[93] but that absent the work incident he would still have developed symptoms and required a knee replacement ‘in a fairly similar time scale as that that has occurred.’[94] This was because his knee joint was grade 3 to 4 degenerative changes ‘close to bare bone’.[95] In cross examination he said that ‘a fairly similar time frame’ meant that he might have become symptomatic within two to three years at which time a range of treatment would be contemplated before considering a knee replacement.
[93]Ibid 385.
[94]Mr Lugg report (n 88).
[95]Ibid; T (n 3) 382.
What outcome might the course of treatment have achieved?
Mr Hamilton initially performed an arthroscopy probably in the expectation of finding some acute tear and so being able to improve the level of pain being experienced.[96] The arthroscopy was premised upon there being some acute injury even though Mr Hamilton recorded an absence of swelling. The medical evidence that confirmed that there is a role for arthroscopy in a man of 40 years to define pathology and deal with any reversible changes.
[96]T (n 3) 385, Mr Lugg.
However, the medical evidence demonstrated that the effectiveness of arthroscopy in the presence of osteoarthritis in the knee joint was questionable, even in 2009. While not critical of Mr Hamilton’s decision to operate, other orthopaedic surgeons, among them Mr Simm and Mr Lugg,[97] even at that time might have recommended a conservative approach for as long as possible and then considered a total knee replacement. Presently the Australian Knee Society do not advocate arthroscopy in these circumstances although there is a body of orthopaedic surgeon who still do so.[98]
[97]Ibid 347, Mr Simm; Ibid 385, Mr Lugg.
[98]Ibid 346, Mr Simm.
One of the reasons for postponing surgical treatment of a degenerate knee joint was the studies demonstrating that men of 50 years and above had better outcomes from replacement surgery than younger men.
Therefore the hypothetical course of Mr Da Costa’s knee joint needs to look not only when the symptom onset might have commenced but the prospect that he may well have been offered a conservative course of treatment for a time in an effort to delay any replacement surgery and consequently the higher chance of a good outcome. Absent the incident of February 2009 even Mr Simm thought that when his knee became sore, that with conservative treatment Mr Da Costa might have reached the age of 50 before requiring a total knee replacement. [99]
[99]T (n 3) 349.
The expected outcome from a total knee replacement is that a person is able to return to a reasonable level of function and most things that they want to do. This expected level of function, less active with age, was said to be one reason why older males have better outcomes from the procedure than younger men. Even with a good outcome from knee replacement surgery activities such as water-skiing and climbing ladders would be impacted.
While I accept that the plaintiff’s recreational pursuits placed him at risk of being subjected to a precipitating incident, I also accept that such activity protects the knee by strengthening the musculature as Mr Doig described. The sketch of Mr Hamilton at the time of arthroscopy was in evidence[100] and commented on by Mr Lugg. Mr Lugg described the area of the medial or inner side of the femoral condyle, thatched by Mr Hamilton, as classically the area associated with an osteochondritis dessicans.[101] He said the changes were not widespread throughout the joint. Mr Lugg said he would expect development of a varus deformity. Mr Doig explained that a varus deformity occurs when the loss of cartilage separating the bones on the inner side of the joint leaves bone on bone so that the leg appears bowlegged. As at 2009 Mr Hamilton did not note any varus deformity. Mr Doig explained that Mr Hamilton’s record of normal alignment in 2009, while surprising given there was bone on bone, indicated that ‘the medial compartment was not completely worn out’.
[100]Defendant’s Exhibit N, Operation note, 8 April 2009.
[101]T (n 3) 378 [3],390 [8].
Given the absence of any symptoms of instability undertaking strenuous activities regularly for a long period prior to February 2009 and the more significant nature of events that precipitated the onset of symptoms I would conclude that the chance of remaining asymptomatic for a longer time was greater than the chance of becoming symptomatic on mild to moderate trauma within an immediate or short time frame.
The longer the period until onset of symptoms, the shorter the period needed to treat conservatively until reaching the age of 50 and thereby an improved prospect of a favourable outcome from replacement surgery. Symptoms before replacement and limitations on activities after even a successful replacement would have some ongoing impact upon leisure activity and capacity for some more strenuous work activities.
Allowance must also be made for a less than optimal outcome from any surgery in the hypotheses that arise considering vicissitudes. However the prospect of an outcome as adverse as has in fact occurred to Mr Da Costa, was an outcome that all of the orthopaedic witnesses agreed was exceedingly rare. The degree of risk of such an outcome occurring in the is in the experience of all four orthopaedic surgeons a very low risk, seen on very few if any occasions over long surgical careers.
In the face of technically successful replacement surgeries, Mr Simm ascribed the outcome to the plaintiff’s adverse pain response to the initial arthroscopy and opined that it was due to an amplified pain response presumably a peripheral or central sensitisation of the nervous system. However, I do not accept his evidence on this question. Although Mr Hamilton in November 2010 thought there was an abnormal gait pattern not consistent with joint replacement fixation or positioning,[102] those with expertise in pain management and treating his pain levels, Dr Baguley[103] and Dr Taverner made no reference to such an explanation for pain levels. Gait and the occurrence of infection after the 2017 surgery were other implicated explanations. This is not a situation where the inevitable onset of symptoms in the knee at some later time gave rise to a real possibility of leading to the same outcome.
[102]Defendant’s Exhibit M, Letter of Mr Hamilton dated 16 November 2010.
[103]Plaintiff’s Exhibit 15, Report of Dr Baguely 16 February 2015 who opined that Mr Da Costa had developed features suggestive of re-emergent anteroposterior instability of his left tibiofemoral joint post workplace injury.
It is appropriate to make an allowance for vicissitudes specifically relating to the underlying degeneration in the assessment of pain and suffering damages as well as loss of earning capacity.[104]
[104]Wilson v Collingwood Stores (2014) 41 VR 531[38] citing Winston v Roach [2003] NSWCA 310 [73] – [77].
Damages Awarded
No matter what the explanation for the distressing and unremitting level of pain suffered by Mr Da Costa since his initial surgery, there can be no question that it continued at an unbearable level leading him to consent to amputation
I consider an appropriate figure for pain and suffering to be $600,000. Allowing for knee symptoms to have interfered with his recreation and enjoyment of life at some future point and the prospect of requiring treatment, including a knee replacement procedure, I would reduce the damages by 20%. I therefore assess general damages at $480,000.
The agreed calculations resulted in past loss of earnings including superannuation at $974,275. The effect of the heart attack in December 2010 having been the subject of agreement between the parties and there are no other past events identified that might have affected earning capacity absent the injury. The plaintiff was a good and valued employee in a company that is still operating and had grown substantially since 2009. There is no basis for making allowance for prospect of lack of employment in the past. In addition to this figure an estimate of $20,000 was agreed by way of damages representing the tax paid on compensation payments in accordance with the principles in Fox v Wood.[105]
[105](1981) 148 CLR 438.
Both parties in submissions urged the practical approach of allowing the past loss as claimed and dealing with the vicissitudes globally when considering an appropriate discount for future loss. I have adopted this approach reached my overall conclusion as to an appropriate discount of the claimed future loss by considering risk of interruption to work capacity from the underlying knee injury both in the past and future.
I would allow a discount of 40% on calculations regarding future loss to reflect the risk that some interruption or a shortening of Mr Da Costa’s ability to exercise his earning capacity would have occurred absent the injury occasioned by the negligence of the defendant. The agreed calculation of future loss, including superannuation was $1,057,153. Damages for future economic loss are therefore awarded at $634,292.
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