Dean Malcolm Gimbert v Boyd Goodear (Taree)
[2007] NSWDC 200
•5 October 2007
CITATION: Dean Malcolm Gimbert v Boyd Goodear (Taree) [2007] NSWDC 200 HEARING DATE(S): 23/7/07-26/7/07, 3/9/07.
JUDGMENT DATE:
5 October 2007JURISDICTION: Civil JUDGMENT OF: Rolfe DCJ DECISION: 1. Reasons for Judgment delivered and published.; 2. SO for Mention before me at 9.30am on Thursday 8/11/07 with parties to bring in SMO to reflect the Court’s determination.; 3. I direct that the exhibits be returned. CATCHWORDS: Worker injured on building site - Obligation of Builder to keep site safe for access - Negligence of Employer - Causation - Consideration of S 151Z(2) of Workers Compensation Act 1987 - Assessment of Damages LEGISLATION CITED: Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Civil Liability Act 2002CASES CITED: Fox v Wood (1981) 35 ALR 607 PARTIES: Dean Malcolm Gimbert (Plaintiff)
Boyd Goodear (Defendant)
Great Lakes Glass & Aluminium Pty Limited (Cross-Defendant)FILE NUMBER(S): 42/2006 COUNSEL: R Letherbarrow SC with D Wilson (Plaintiff)
D Nock SC with J Ryan (Defendant)
J Guihot (Cross-Defendant)
JUDGMENT
1 The plaintiff in these proceedings, Dean Malcolm Gimbert, was injured in an accident at work on 19 August 2004 when he was delivering windows to a construction site at 9 Bold Street Laurieton New South Wales. The plaintiff claims damages from the defendant because he alleges the defendant had the care and control of the construction site and breached the duty of care which he owed to the plaintiff. I will turn to the particulars of negligence later in this judgment.
2 The defendant has brought a cross-claim against the plaintiff’s employer, Great Lakes Glass and Aluminium Pty Limited, trading as Great Lakes Windows (the “Employer”). The defendant alleges that if the plaintiff was injured, then his injuries and any loss and damage suffered by him were caused by the Employer’s negligence. I will return to the particulars of negligence alleged against the Employer later in the judgment.
3 I should say from the outset that the plaintiff is a poor communicator. The plaintiff had difficulty understanding questions asked of him. He was very literal both in his understanding of the questions and the answers he gave. The plaintiff did not display a particularly good command of the English language. In saying this, I am conscious of the fact that the plaintiff was not a well educated man and my assessment of him was that he was not very intelligent (no disrespect intended). The plaintiff has had to rely on manual skills during the course of his life to obtain employment. In addition, it was abundantly clear from the plaintiff’s evidence that the plaintiff is a poor historian regarding some matters. He had trouble recalling his medical history in particular. In this respect the Court in its determination of the matter has been guided by the contemporaneous medical evidence that was obtained by the parties and put into evidence. Most of it, in any event, is uncontroversial. Notwithstanding the difficulties I have highlighted, I am quite satisfied that the plaintiff was both a truthful and very honest witness.
4 The plaintiff was born on 10 August 1958 and so he is now 49 years of age. He left school in 1974, having obtained the school certificate. The plaintiff recalled that whilst at school he injured his right elbow in a spear tackle. For the next 12 years, until 1986, the plaintiff worked as a tyre fitter for several companies in Gunnedah and for a short time was a labourer at the Gunnedah Abattoirs. He also worked as tyre fitter at Toronto in Newcastle. The plaintiff vaguely recalled that whilst working at the abattoirs he had a fall and “got a bad back out of it”.
5 The plaintiff could not recall being injured in a motorcycle accident in the early 80’s and having left knee problems as a consequence.
6 In 1987 the plaintiff moved from Gunnedah to Mount George, near Wingham, and started work at Cleaver’s Tyre Service as a tyre fitter. He began a relationship with Therese Nipperese, whom he married in 1994. They had two sons now aged 19 and 17 respectively. The sons live with Ms Nipperese who separated from the plaintiff later in the year they got married, 1994.
7 In 1990 the plaintiff left his position with Cleaver’s Tyre Service in Wingham and commenced truck driving for “Kandoo Carriers”. This company supplied the plaintiff with a ten ton truck and he often had to travel from his home to Sydney to collect white goods which he then loaded onto the truck. He did most of his deliveries in and around the Taree area, although sometimes he went further north to Ballina. The plaintiff unloaded the white goods when he got to his destination.
8 The plaintiff did not remember injuring his shoulder in a motor vehicle accident in July 1991.
9 When asked about consulting Dr Wootten, a general practitioner, in May 1993 or thereabouts for left sided back pain, the plaintiff said he did not remember Dr Wootten although he did recall going to the Wingham Family Practice. He also said that he always remembered having back problems and occasionally he had problems with his elbow. He recalled having a knee operation at some stage.
10 The plaintiff was injured after throwing a trolley onto a truck in September 1995. The plaintiff was hazy as to the details of this accident and could not recall how long he was off work for.
11 Although the plaintiff recalled seeing Dr Hopcroft on a number of occasions, he was vague about the dates and the reasons why he saw the doctor. He said in evidence that he recalled suffering numbness down his right leg and being in a lot of pain and having some traction. He vaguely recalled aggravating his back in 1997 when lifting a motorcycle, but could not remember whether or not he sought medical attention for it.
12 In September 1997 the plaintiff started receiving a disability pension. He was on the pension for approximately 6 years when the Employer offered him a casual position. This was on 9 August 2003 and the plaintiff immediately took up the offer. The plaintiff said that when he accepted the offer of employment his back was better, he felt that he could do the work and he was keen to go back to work. In this respect the Employer’s business was selling windows and glass doors. The position offered was casual truck driving.
13 The plaintiff was only employed casually for a short period and very soon became a full time employee of the Employer. His job was to load the Employer’s truck at the factory and take it to locations where he had to unload the deliveries. Most times the plaintiff drove a ten tonne Rhino truck, occasionally a smaller vehicle.
14 The plaintiff said he did his deliveries with a partner. At the time of the accident the plaintiff’s partner was Matthew Scott. The plaintiff and Mr Scott had worked together for some eight months. They both loaded and unloaded the truck manually. On the day of the accident the load included windows and long doors with hard glass in them. The doors were about six metres in length.
15 At the commencement of his employment the plaintiff weighed 120 kilograms, but with what he said was a lot of hard work, he significantly reduced his weight and became fitter during the course of his employment.
16 The plaintiff’s working hours were, at the least, between 7am and 4pm, but there was a lot of overtime involved. The plaintiff lived in Wingham; the business was located at Tuncurry and the Employer allowed the plaintiff to take the truck home.
17 The deliveries the plaintiff did were at varied locations, for example, Wollongong and South West Rocks. Generally the plaintiff spent most of his time delivering to building sites where residential buildings were being predominantly built. Most of the time the frameworks for these buildings had been constructed and they were at a point where the builder in each case was ready to install windows. On average, the plaintiff delivered to between five and eight sites per day.
18 The plaintiff said he had no trouble doing any of this work, although from time to time his back was sore. He said he did not complain about it. The plaintiff could not recall having pains in his chest and the middle of his back in May or June 2004 and getting time off work. As best as he could recall, the plaintiff said he only had one day off prior to the accident. The plaintiff’s desire was to stay in the job until he retired. In this respect, the plaintiff left me in no doubt that this was his goal. He struck me as a proud man who was ashamed that he had been out of the workforce before August 2003 and he grabbed the opportunity to work for the Employer when offered the position. He said he had a good boss and he felt fit to do the work. The objective evidence demonstrates that he was a good worker and good at his job.
19 Prior to the accident the plaintiff was living in a large shed at Comboyne Road Wingham. He had been living there for five to six years. The shed was on a large area of land and the plaintiff did a bit of gardening including planting and pruning roses and growing tomatoes and lettuce. He did his own housework and shopping.
20 Prior to the accident the plaintiff had been in a relationship with Jennifer Gee for about two years. Ms Gee lived in her own home in Taree. The plaintiff was in the habit of helping Ms Gee around the house and specifically, mowing the lawns and doing the garden work. He did this on weekends and sometimes after work.
21 Although, as I said earlier, the plaintiff’s recollection about a number of matters was poor, in my assessment, the plaintiff had a good recollection of the accident because it had such a traumatic effect on him and he was better able to communicate the circumstances of the accident to the Court compared with other aspects of his case. The plaintiff said it was a Thursday and it happened at 5 o’clock in the afternoon.
22 On the day of the accident, but shortly prior to its occurrence, the plaintiff and his assistant, Matthew Scott, had delivered some windows and glass doors to a building site in Bold Street Laurieton where the defendant’s brother was doing building work. The plaintiff soon found out that the delivery had been made at the wrong address. Accordingly, the plaintiff and Mr Scott returned to this site, retrieved the windows and proceeded to the defendant’s building site at 9 Bold Street Laurieton, just 400 metres down the road.
23 Exhibit B is a plan of the three villas which were being built at 9 Bold Street Laurieton by the defendant. Exhibit A is a plan of Unit 1 which shows, looking at the property from Bold Street, a garage on the left hand side of Unit 1. Exhibit B shows the driveway on the right hand side of Unit 1 which gave access to Units 1, 2 and 3 at 9 Bold Street Laurieton.
24 The plaintiff said that he retrieved about 16 windows and glass doors from the site where they had been incorrectly delivered. He and Mr Scott put them in the truck and they drove to 9 Bold Street. The plaintiff said the light was good at the time, but it had been drizzling during the day. There was mud on the site, but nevertheless the plaintiff thought he would be able to reverse the truck down the driveway which ran alongside Units 1, 2 and 3 as shown in exhibit 2. The plaintiff said that in and around the whole site he could see bricks, pallets, sand and mud. At that stage the units had been constructed to the point of framework only.
25 The plaintiff chose to go down the driveway as it gave easy access to the garages for units 2 and 3 where he proposed to leave the windows and doors. The driveway, however, was not sealed and all the plaintiff could see was mud. He said at the front of the property he did not observe any curb and guttering, but merely grass.
26 As the vehicle started to reverse down the driveway it stopped because its wheels were spinning. The plaintiff and Mr Scott got out and decided whether they could tackle the job in a different way. The plaintiff’s evidence was that the shortest possible route from the street was a little track or opening between some bricks and a pile of sand. The object of the exercise was to clear this pathway or opening so the plaintiff and Mr Scott could carry the windows and doors through to the location of the double garage, which was part of Unit 1 as can be seen on exhibit B.
27 During his evidence the plaintiff drew the diagram which is exhibit G. In red ink, he drew the truck where it was parked in Bold Street and the path which he and Mr Scott took across the grass, past the front of the property and through the builders’ mess between the bricks and the pile of sand. With a black X the plaintiff drew the location where the windows were left in the garage.
28 The plaintiff said that in order to make a pathway for themselves, he and Mr Scott moved the pile of sand referred to earlier, to make the situation “more safe”. He said the pile of sand was about ten feet wide and four foot in height. On exhibit G the plaintiff drew a rough circle with the letter “S” above it indicating where the pile of sand was. He said he and Mr Scott shoved it to one side so that there was sufficient room for them to carry the windows and doors through.
29 So far as the plaintiff could tell, both behind the sand and between the pile of sand and the framework, the ground, although wet, appeared to be clear. When asked what the state of the building site was the plaintiff described it as terrible. At other locations he he had seen gravel driveways, wooden planks or even a person at a location who would assist and give directions. These things were missing at the defendant’s site.
30 There were some small windows included in the load, so Mr Scott and the plaintiff took these through to the garage first. They did so without any difficulty. They then started carrying the larger windows. The two of them had to carry one window at a time with one at the front and one at the back.
31 The plaintiff said that he was carrying a glass door or window lengthways, with the side upright. It was about three or four metres in length. The plaintiff was in front of Mr Scott and facing towards the garage where they were going to place this door. Mr Scott was carrying the door at the rear. The plaintiff said that he had the door on its side (but vertical) with his left hand on the bottom of it and around the reveal. His right hand was extended over the top of his head, holding the top of the door. The plaintiff said he was about six foot tall and the top of the door was slightly above his head height.
32 The plaintiff said he had proper work boots on, but as he was going along, and just after he has passed through the opening that he and Mr Scott had made, he slipped and his leg went from under him. The plaintiff landed on his back and his side. The plaintiff did not see what it was that caused his foot to slip, but he noticed dirty mud underneath him. When he fell, the plaintiff said he fell backwards to the right and the window fell on top of him. He ended up flat on his back with the door or window covering his chest.
33 The plaintiff marked, with a very rough red “X”, on exhibit G the spot where he slipped, which he said was about two to three metres from the entrance to the garage.
34 When he slipped and fell the plaintiff said he heard a crack in his lower back just above the belt line. He felt a lot of pain immediately and lay there for a while groaning. Mr Scott took the window off his body and he rested for a while. However, the plaintiff said he was determined to finish the job and so he and Mr Scott retrieved the rest of the windows from the truck and placed them in the garage where the floor was covered. The plaintiff did this with considerable difficulty, but felt he wanted to complete the job.
35 The plaintiff and Mr Scott then left the building site, but because the plaintiff was in so much pain, rather than taking Mr Scott home to Tuncurry, he dropped him at the Employer’s depot at Taree and then went straight to Ms Gee’s place. The plaintiff said at that point he could not cope by himself.
36 In cross-examination the plaintiff said that although he had been instructed by the Employer about how to load and unload the truck, he was not given any concrete information about what to do at building sites, other than to “just deliver”, whether or not anyone was on the site or not. When no one was on site the practice was to put the windows and doors in a garage if there was one; if not, the practice was to place them near a fence line. Sometimes the plaintiff would ring up the boss and find out what to do if a site was vacant and there was no one there to give instructions.
37 In the case in question, Mr Gimbert said he could not remember if he was told precisely where on site he should leave the windows. He said that, generally speaking, it was left to him to use his commonsense.
38 Mr Gimbert said that between the curb and the front boundary of the property at 9 Bold Street there was a small drain in amongst the grass and mud.
39 Mr Gimbert said he did not know if anyone would be on site when he delivered the windows and assumed that the builder had spoken to the Employer and asked for the windows to be delivered at the site. He made this assumption because the job sheet which was provided to him specified 9 Bold Street as the location at which he should deliver the windows. In any event, when he arrived at the site he looked around to see if there was someone on location and called out. Although he was asked why he would expect someone to be there so late in the day, Mr Gimbert said it was not unusual for tradesmen to work back at that time of the day. Mr Scott said the same thing when he gave evidence.
40 Although there were two of them on the delivery, Mr Gimbert said it was his decision to put the windows in the first garage if he and Mr Scott could have reversed the truck close to the first garage, (which they were unable to do) and again, it was his decision to put them in the other location which he marked on exhibit G. As far as he could recall, the pile of sand was displaced by either him or Mr Scott using two pieces of timber. Mr Scott’s best recollection was that he used a shovel, but to my mind and I am so satisfied, nothing turns on this minor point.
41 In cross-examination Mr Gimbert effectively gave the same evidence about the circumstances of the accident as he had given in chief. He said he put his hand around the front of the door and held it about a third of the way up from the bottom and that the top of the door was above his head and his put his right hand across his head on the top of the door. He said he was walking face forward when he slipped and that it happened very quickly, with the result that he fell backwards and slightly sideways, resulting in the door hitting him in the chest. He remained flat on his back.
42 The plaintiff was adamant that he did not slip in the area of the drain or watercourse in front of the boundary of 9 Bold Street and that he had slipped where recorded on exhibit G.
43 Matthew James Scott gave evidence that he is employed by Inghams as a chicken boner. Prior to this, Mr Scott was employed by the Employer for two years. He started in 2002 making fly screens and ceased his employment in 2004. The plaintiff was already employed when Mr Scott started with the Employer and shortly after he started, Mr Scott graduated to working in the delivery truck with the plaintiff. He said the plaintiff always drove the truck. His observation of the plaintiff was that he was a pretty fit person and a good, hard worker. Mr Scott did not perceive or observe any health problems that the plaintiff had. The plaintiff never complained to Mr Scott about his state of health.
44 Generally speaking, Mr Scott said that he and the plaintiff worked between 7am and 4pm, but there was quite a bit of overtime. The amount of overtime depended on the number of deliveries that needed to be done and on average, he and Mr Gimbert finished work between 5 o’clock and 6 o’clock in the afternoon at least three days a week.
45 Mr Scott’s habit was to drive his car to work and meet the plaintiff at the Employer’s depot. The plaintiff was always there before Mr Scott. Every now and again the plaintiff had loaded the smaller windows onto the truck in anticipation of doing the delivery. In this respect Mr Scott said that they delivered as far north as Port Macquarie and as far south as Sydney. They also did some deliveries west of Tuncurry.
46 On average Mr Scott said that he and the plaintiff did about six deliveries each day. On some occasions it was necessary for them to drive back to the depot and reload the truck.
47 The materials delivered included sliding doors which were very heavy. Windows were much lighter, but larger windows needed two persons to lift them. There was no lowering mechanism on the truck and so he and Mr Gimbert had to load them in an upright way with one person remaining on the truck and other person on the ground. They took turns at this.
48 Mr Scott said he and Mr Gimbert had been to another site just down the road before they attended 9 Bold Street Laurieton. He thought it was around about 4.30pm and the light was good. Although it had been raining, it had stopped by the time they got to 9 Bold Street.
49 Mr Scott described the yard at 9 Bold Street as pretty messy. As he recalled, the framework on the units had been constructed but there was no roof. The building block was essentially rectangular with the longer part running down the driveway side.
50 Mr Scott remembered they had tried to reverse the truck down the driveway but it was too muddy and the vehicle started to slip. They therefore drove the truck to the front and parked it in the street outside the site. As best as he could recall there was a concrete gutter in place.
51 Mr Scott said that looking into the front yard of the site one could see a lot of building materials, timber, bricks and generally builder’s mess everywhere. There was also some sand.
52 Mr Scott remembered that there was a small drain near the edge of the road. He marked both the location of the drain and the pile of sand on his hand drawn plan in the witness box (exhibit K). Clearly, on Mr Scott’s evidence, the drain was outside the boundary of the property.
53 Like Mr Gimbert, Mr Scott said that they made a track through the front yard so they could get to the garage, which appears on his plan. It is the same garage that Mr Gimbert identified as being the location where the windows were left.
54 Mr Scott also drew the route that he and Mr Gimbert took when they carried the windows from the truck to the garage. There were about 15 windows and they had delivered more than half of them when the accident happened. Mr Scott said that he and the plaintiff were carrying either a window or a door, whatever it was it was pretty big and was about three metres in length. The plaintiff was carrying the object at the front and Mr Scott brought up the rear. Mr Scott said he could not remember which way the plaintiff was facing. Mr Scott said the ground was muddy in the area where the plaintiff fell and his fall happened quickly. Mr Scott said he could not remember exactly how he was holding the window or door because it was hard to remember precisely several years later. Mr Scott thought they were probably carrying the window or door flat on its side, but he could not really remember. In cross-examination he was pretty sure the plaintiff was walking backwards, not forwards. The window went with the plaintiff as he fell and Mr Scott himself let it go to avoid injury. The window ended up on top of the plaintiff and Mr Scott had to move it off him. He said it was across the plaintiff’s chest and he was in a fair bit of pain and clutching at his lower back. After a respite, they finished delivering all of the windows into the garage, notwithstanding his observation that the plaintiff was in pain.
55 Mr Scott said that during his employment he had delivered to hundreds of building sites and in comparison, this one was pretty bad because it was very muddy, there was no gravel to walk on, no planks of wood and generally the access to it was bad.
56 In cross-examination Mr Scott was asked about the job sheet which he confirmed that he and the plaintiff received before they did a delivery. As best as he could recall, it included generally the name of the site, the identity of the builder at the site and what product had to be delivered. He reiterated that no instructions were given about where to place materials and that generally, he and Mr Gimbert would place windows and doors in a garage if there was one at a building site.
57 When asked why they had tried to reverse down the driveway, Mr Scott said it was simply to make the job easier for themselves because there were three units and windows had to be delivered to each of the three units, as was made clear on the job sheet, apparently. He reiterated that it was too wet for the vehicle to reverse because the wheels kept spinning and so they had to park the truck in the street and work out a way of getting the windows onto the site. Mr Scott was clear in his evidence that the plaintiff slipped over in the mud.
58 A statement that Mr Scott had given the plaintiff’s solicitors was in evidence as exhibit 4. He agreed that it was likely to be more accurate than his oral evidence because it had been given on 5 August 2005, just 12 months after the accident. He conceded that in exhibit 4 he said that the accident occurred at 5.30pm, but in this respect he still said there was sufficient light for them to see what they were doing.
59 Mr Scott, like Mr Gimbert, to whom he had not spoken about his evidence, was quite clear that Mr Gimbert had not slipped in the area where the shallow drain was located outside the front boundary of 9 Bold Street.
60 In paragraph 15 of exhibit 4 Mr Scott said the following:
“It had been raining a couple of days prior and the ground was quite muddy. The whole place was slippery and muddy and there was no appropriate means of access except to go through the mud.”
61 Mr Scott was not challenged about this evidence.
62 The plaintiff relied on the expert evidence of Mr Robert Fogg, a professional engineer. His report dated 10 October 2005 was in evidence as part of exhibit E.
63 The plaintiff told Mr Fogg over the telephone that, at the time immediately before the accident occurred, he parked his truck on the road as there was no available access route to the building site to enable him and his offsider to unload the windows and frames. The plaintiff told Mr Fogg that he and his offsider had to move rubbish and level a pile of sand in order to make an access path to the garage where the windows and window frames were to be stored. The plaintiff told Mr Fogg that there was no defined access path from the road to enable the delivery to be done, that the site was very muddy and that there was a significant amount of rubbish on the site that made access difficult.
64 As part of his report, Mr Fogg included at page 6 a photograph of the completed house and garage to which the plaintiff had delivered the windows. It will be seen that the approximate delivery route which appears on the photograph is very similar to the path drawn by the plaintiff on exhibit G.
65 In his report, Mr Fogg said that there were several things that the defendant could have done to prevent the accident which had occurred. In my opinion, the matters Mr Fogg refers to are commonsense. Essentially he said that a clear path to the garage could have been installed by placing a load of road-base which would be sufficient to make the walkways effective under all conditions. The cost would have been insignificant. Alternatively, Mr Fogg said that the defendant could have arranged the clearing of a path suitable for pedestrian access and the spreading of sand if he knew the delivery date of the windows. This could easily be achieved by using a Bobcat or Kanga, so that clear and dry access was available. The cost would be as little as $150.
66 Mr Fogg said in evidence, based on what was recorded in his note of his telephone discussion with the plaintiff, that the plaintiff told him he slipped in a depression towards the front of the street. The defendant therefore submitted that if Mr Fogg’s evidence was accepted, the plaintiff must fail. However, I do not accept Mr Fogg’s evidence on this point because, as I said at the beginning, the plaintiff is a poor communicator. Indeed, Mr Fogg said in evidence that the information he obtained over the telephone from the plaintiff was rather rambling and even at the end of the telephone conversation Mr Fogg was still in a level of doubt about the facts.
67 The Court is better placed than Mr Fogg to determine what occurred. I am not satisfied that Mr Fogg obtained an accurate account from the plaintiff about what happened. Mr Fogg did not speak to him in person and obtaining the details by telephone made it very difficult for the plaintiff to communicate what happened.
68 Despite extensive cross-examination on the topic, including reference to the account recorded by Mr Fogg, the plaintiff’s evidence as to the location of the accident did not change. I therefore prefer the plaintiff’s evidence to the Court about what happened over the evidence contained in Mr Fogg’s notes. Mr Scott’s diagram of the location of the accident (exhibit K) was entirely corroborative of the plaintiff’s evidence. Accordingly, I am comfortably satisfied that the plaintiff slipped and fell within 2-3 metres of the front garage situated on the left hand side of the property, as viewed from the roadway.
69 The defendant also submitted that if Mr Scott’s evidence was accepted, then the plaintiff was carrying the window or door in completely the wrong way. However, I prefer the plaintiff’s evidence to that of Mr Scott to the extent of there being any material inconsistency. I was struck at the time by Mr Scott’s frankness in telling the Court he could not remember how the window was being carried (either vertically or horizontally) because of the lapse of time since the accident occurred. Although, in cross-examination, Mr Scott said he was pretty sure the plaintiff was walking backwards and not forwards, he had said in chief that he could not really remember which way the plaintiff was facing.
70 On the other hand, I found the plaintiff’s evidence about these matters convincing. He is the one who suffered the accident and its consequences and it is hardly surprising that his recollection about the circumstances of the accident was good.
71 The plaintiff’s girlfriend, Jennifer Margaret Gee, gave evidence. Some months after the accident, Ms Gee went to the scene and took the photographs which are in evidence as exhibit C. At the time she took the photographs the plaintiff was with her and he told her that he had slipped near the garage, which can be seen in photo 4 on the left hand side of the property.
72 Ms Gee also gave evidence about the plaintiff’s health and circumstances prior to the accident and subsequently. Her evidence was that she met the plaintiff in 2002 when she was living in Taree and he was living in his shed at Wingham. When the accident occurred Ms Gee said that she and the plaintiff were not living together. Nevertheless, Ms Gee said she saw the plaintiff every day up until the accident and physically she observed and became aware of the fact that he had a problem with his back which played up. Nevertheless, Ms Gee described the plaintiff as a pretty active man and not a whinger. He told her that he was looking to get back to work when she first met him and he was over the moon when he was employed by the Employer.
73 Ms Gee said that after she and the plaintiff got together, he had a knee cartilage removed and he occasionally complained to her about aches and pains he had in his elbow. Notwithstanding, he did a lot of mowing and gardening around his shed, which was in the area of half an acre. He also planted some trees and did a bit of gardening.
74 The plaintiff, before his accident, used to do the mowing at Ms Gee’s place, which was a double size block with a double storey house on it. The plaintiff did gardening for Ms Gee as well. When he mowed the lawns he did them all at once and used a push mower. Ms Gee said that some of the mowing was done after a full day’s work delivering windows.
75 Ms Gee said that the plaintiff lost 20 kilograms once he started work and “his belly was gone”.
76 For her part, Ms Gee is a process worker and has been so for a number of years. She works up to five days a week depending on the season and the availability of work.
77 Ms Gee saw the plaintiff at about 6pm or 6.30pm on the day of the accident, after the plaintiff had suffered his injury. She described him as being in a lot of pain and he had trouble walking. He told her he had been carrying a large door and had slipped and fallen on his backside.
78 On the night of the accident the plaintiff was in an awful lot of pain and no good the next day. Ms Gee said the plaintiff stayed with her for four to five days and went home for a week, but he had to move back in with her because of the difficulties he was experiencing. He would fall down stairs, his legs went from under him and so on. She observed the plaintiff frequently having to have hot showers and baths to try and soothe the pain and she said he was often awake for a long time during the night.
79 Between the date of accident and when the plaintiff had surgery on 26 April 2005 Ms Gee said she was always helping him with things like undressing, she washed his feet and assisted him when he went to the toilet. She brushed his hair. The plaintiff pottered around the house and tried to help Ms Gee with a bit of dusting.
80 Ms Gee said that when the plaintiff came out of hospital after his operation he was very depressed. A hospital bed was placed in Ms Gee’s home for the plaintiff to use and they had it there for six months. Ms Gee said the plaintiff spent a lot of time in bed due to the pain he was suffering from. He only got out of bed briefly to walk around a bit and try and get a little bit of exercise. During this period whilst the plaintiff was bedridden, Ms Gee had to bathe him, dress him, provide him with a bed pan and to sum it up, she treated him as if he were “just like a baby”.
81 Ms Gee observed that the plaintiff eventually got a bit better after his surgery because he was able to become more mobile, but nevertheless, he complained a lot about pain in his leg and he gets very frustrated. In Ms Gee’s observation, the plaintiff’s condition plateaued out six months or so before the hearing and he has not got any better since then.
82 Ms Gee said the plaintiff was not a whinger before the accident but because of the problems associated with it, he has become one. He gets depressed, so much so that he goes to bed and cries. She said the plaintiff sulks and was not like this before the accident.
83 The plaintiff tries to help Ms Gee by doing a bit of housework and occasionally he lies down and does some gardening outside.
84 The plaintiff complained about not being able to bend and not being able to stand for too long. He does not like the fact that Ms Gee has to do jobs that he regards as a man’s job, such as mowing and so on. As a result, the plaintiff has become very short tempered.
85 Notwithstanding the plaintiff’s attempts to do the housework, Ms Gee says she still has to do most of it such as cleaning the floors, the bathroom, the vacuuming and the shopping. Occasionally the plaintiff does a bit of mowing and digging in the yard as well as the weeding already described.
86 Ms Gee said in her observation the plaintiff takes between 14 to 16 tablets per day. She said that generally speaking the plaintiff has a poor memory and his recollection of things was much better before he had the accident. She cited, by way of example, the fact that the plaintiff’s best friend had died last year, a man he had known since school and he now cannot remember the date of his friend’s death.
87 Stephen Saxby is a foreman employed by the Employer and he gave evidence that Mr Butcher is the principal of the company.
88 Mr Saxby has known the plaintiff for 20 years and he regards him as a close friend.
89 In 2003 a truck driver employed by the Employer up and left without notice and so Mr Saxby called the plaintiff and invited him to see Mr Butcher about the position. As a result, Mr Gimbert saw Mr Butcher and was offered the position of delivery driver.
90 Mr Saxby knew that the plaintiff was out of work at the time. He thought that this had occurred because the plaintiff’s previous employer had gone out of business.
91 From Mr Saxby’s point of view, apart from a few aches and pains, the plaintiff appeared to be in good health. Mr Saxby was not aware that, immediately prior to his employment, the plaintiff was receiving a disability pension.
92 Mr Saxby’s role was to supervise the production in the factory at Tuncurry. Occasionally Mr Saxby has delivered windows and doors when assistance was required. He was not really familiar with any system pertaining to deliveries.
93 Mr Saxby said he saw the plaintiff most days he was at the Employer’s factory and observed him loading doors and windows onto the truck. He described the plaintiff as a good worker and he was very particular about the way in which he loaded the windows and doors and handled them.
94 Mr Saxby learned about the plaintiff’s accident on the night of the day that it occurred. Mr Gimbert rang him and said he had fallen and hurt his back and the plaintiff asked Mr Saxby to come and collect the company’s truck from Ms Gee’s residence, which he did.
95 Mr Saxby is still a close friend of the plaintiff and socialises with him about once a week. Mr Saxby described the plaintiff as now half the man he was before. In Mr Saxby’s observation the plaintiff is not capable of doing any work because he is very restricted in his movements. He was previously a jovial man but he is not like that any more. Mr Saxby’s impression of the plaintiff is that he would love to have the job back if he was 100 per cent fit. He said the plaintiff was a very good truck driver.
96 In cross-examination Mr Saxby reiterated that before the accident he had no idea that the plaintiff had any major physical problems or that he had been in hospital. In this respect he described the plaintiff as a very private person.
97 Mr Saxby was unaware that the plaintiff had not worked for quite a while prior to the accident. He thought the plaintiff had only been off work for a few months.
98 When asked about the system of deliveries, Mr Saxby was aware that a job sheet was filled in at the factory detailing the items that had to be delivered, the identity of the builder and the location of the site to which the materials had to be delivered. As far as he was aware, the job site did not record specifically where at the site the materials should be placed.
99 Mr Saxby said deliveries were made during normal working hours between 7am and 5.30pm. Generally, the person who ordered the product knew when the Employer was delivering and sites were usually left unlocked for this purpose. If there was no one on site when the driver arrived, it was up to the driver to decide where to put the materials.
100 Mr Saxby said that most of the aluminium doors manufactured by the Employer are approximately 2.1 metres high. The width varies from between 1.4 metres to 4.8 metres depending on requirements for particular buildings. In any event, all such doors required two persons to carry them. Generally, they are carried in a vertical position and not a horizontal one. Mr Saxby was unaware as to whether drivers were instructed how to carry the windows when unloading and delivering them on site.
101 The Defendant, Boyd Raymond Goodear gave evidence that he is a licensed builder and has been operating his own business since 2001. Mr Goodear’s father is also a builder and they have worked together over the years.
102 Mr Goodear said he was the builder of the three units located at 9 Bold Street Laurieton and the property on which the units were built was owned by a company with which he was associated.
103 At the time of the construction of the 9 Bold Street units, Mr Goodear was also constructing buildings in two other locations, one 400 metres down the road and another at Kew, about 4-5 kilometres away. Mr Goodear was involved in the management of the work being done at Camdenview Village, a site on which his father was the builder.
104 Mr Goodear did not become aware that Mr Gimbert had an accident on 19 August 2004 until he was served with some documents, which presumably related to these proceedings, about a year after the accident.
105 Mr Goodear’s work diaries were in evidence as exhibit M. He said he recorded in the diary in the boxes which appear on each page, the location at which his tradesmen and employees were working. His diary recorded that on 19 August 2004 it was raining.
106 Mr Goodear said in chief that he had ordered the windows for 9 Bold Street Laurieton from the Employer. He remembered that the windows were delivered to the wrong address, a site just down the road. Mr Goodear said that before he discovered the windows at the wrong site, he rang up the Employer because he was expecting the windows to be delivered to 9 Bold Street and they had not been delivered. He could not recall who it was he spoke to at the Employer’s office, but he was told that the windows had been delivered. As a result, Mr Goodear went looking for them and found them down the road. Once he found the windows, Mr Goodear rang the Employer.
107 Mr Goodear said he would have gone to the 9 Bold Street site in the morning on the day of the accident just to check it out, as was his habit with all of his jobs. He said at the time the frames and trusses were complete and he was getting ready for the bricks to be delivered.
108 Mr Goodear said the site was relatively flat in terms of access to it from the road. If one pulled up outside the site, it was possible to back a trailer into the property and this was done hard up against the house frames to the left hand side where the garage was, because that was where the temporary power box was located. According to Mr Goodear, the driveway running down the right hand side of the units was in fine condition. It was made out of brown top soil. However, Mr Goodear was unable to say whether, if it was wet, such a driveway would have provided access to a 10 ton truck.
109 Mr Goodear said the access route to the garage (where the plaintiff and Mr Scott left the windows) was the first access route to have been built. It had been graded with an excavator and was made out of fine crusher dust. Trucks had been driven over it.
110 Mr Goodear said in chief that when he went to the site on 19 August 2004 he took no particular notice of the driveway and did not notice anything unusual about the rest of the site. He said he then went to the Camdenview Village retirement site and saw the windows were there. In that respect, Mr Goodear initially said he could not recall if he did anything further to contact the Employer on that date. He then said that he first discovered the windows had been delivered to 9 Bold Street on 20 August 2004, the day after the accident.
111 When asked whether he had given the Employer any instructions before 19 August 2004 about where to put the windows when they were delivered, Mr Goodear said he told them to put the windows in the garages if possible.
112 In cross-examination Mr Goodear agreed that he ordered the windows on 6 August 2004, having received an initial quote some months before.
113 In terms of delivery, Mr Goodear said that the Employer contacted him and told him that the windows had been manufactured and assembled and were ready to be delivered. It was then that he gave instructions for them to be delivered on site in the three garages.
114 Mr Goodear could not recall the initial delivery date that was specified and he conceded that he may have contemplated the possibility of the windows and doors being delivered to the site whether or not he or his employees were present. He had done this in the past with other deliveries. I am satisfied that this was what occurred.
115 In terms of the arrangements he made to ensure the building site at 9 Bold Street Laurieton was safe for persons delivering the windows, Mr Goodear said that all the garages were cleaned out, he did not have to do a thing and the site “was fine”.
116 Although it was Mr Goodear’s habit and practice to check each site he was working on every day, he conceded that on 19 August 2004 he did not check to see if the site was slippery, even though rain had fallen. Nevertheless, Mr Goodear was adamant that on 19 August 2004, when he went to the site, in terms of making an assessment as to whether a person or persons delivering the windows would have a safe means of access to the garage, access to the garage access was safe, as always. Mr Goodear said he did not need to carry out a particular assessment because the access had always been safe and clear. When asked whether he checked to see if there were piles of sand, bricks and timber pallets which might prevent access, his response was “that was always clear”. Mr Goodear agreed that the surface over which a deliverer would have to walk from the street to the garage was covered in the layer of crusher dust, but he said he made no observation on the day in question about whether the surface was slippery because of the rain that had fallen.
117 Mr Goodear conceded that up until the morning that he gave his evidence to the Court, he had always thought that the Employer had delivered the windows to 9 Bold Street without giving him any warning. However, prior to going into the witness box, Mr Goodear had been made aware that his telephone records disclosed that on the day of the accident he had spoken to someone at the Employer’s office by mobile phone. Notwithstanding, Mr Goodear still maintained that the Employer had failed to notify him of the delivery of the windows to 9 Bold Street. He denied that his memory was poor.
118 Mr Goodear conceded it was extremely important for a builder to provide a safe means of access to a site for delivery persons. It was standard procedure. He agreed that there had been a lot of rain in the week of the accident. He said that he would have told the Employer not to deliver on 19 August 2004 because of the rain if he had known of their intention to deliver on that date.
119 Mr Goodear agreed that the day after the accident he had arranged for three employees to be on site for eight hours installing the windows. He agreed they must have started at about 7am. He denied that this was because he had known in advance of the delivery on 19 August 2004. He also acknowledged that nothing more could have been done to progress work on site without the windows being delivered. He agreed the situation was urgent from his point of view because he needed to be paid by the site owner.
120 Mr Goodear said that prior to the date of the accident about 13,000 bricks had been laid. The bricklayer had used sand which Mr Goodear maintained was always placed “in a strategic location” so it did not impede access of those on site. He agreed that there would have been leftover bricks, sand, cement, fire clay and timber on site.
121 When pressed, Mr Goodear agreed that if on 19 August 2004 he had been told that the windows were being delivered he could easily have spoken to his workers to let them know that they had to be there first thing in the morning on 20 August 2004.
122 I am comfortably satisfied that Mr Goodear made contact with the Employer on a number of occasions in respect of the delivery of windows. First of all, he placed the initial order on 6 August 2004 and then arranged for the windows to be paid for on 14 August 2004. Moreover, the telephone records in evidence establish that, to my satisfaction, Mr Goodear made at least two telephone calls in the week commencing 16 August 2004, which on the balance of probabilities, I am satisfied related to the delivery of the windows. I am also satisfied that Mr Goodear spoke to the Employer’s office on the day of the accident. Taking these and the other matters I have referred to into account, I am satisfied that the defendant was aware and in fact expecting the plaintiff to be in attendance at the building site at 9 Bold Street Laurieton on or about the day of the accident. I am also satisfied that the defendant was aware that the delivery might be made when he and his workers were not present at the site.
123 The defendant, as the builder, was in charge of the building site at 9 Bold Street Laurieton. The plaintiff was delivering windows to the building site so that the defendant could get on with the job of building. In the circumstances, it is beyond doubt that the defendant owed the plaintiff a duty to exercise reasonable care for the safety of persons (such as the plaintiff) who were delivering building materials to the site. The defendant had a duty to ensure that access to the site for persons such as the plaintiff was safe. The evidence of the plaintiff and Mr Scott was that the condition of the site was much worse than at other building sites. The plaintiff described it as “terrible” and Mr Scott described it as “pretty bad”. In this respect, I do not accept the defendant’s evidence that the access route which the plaintiff took to the garage was safe. I am satisfied that the entrance and the access route taken by the plaintiff and Mr Scott was muddy and littered with building debris. I am satisfied that the plaintiff slipped and fell because of the muddy conditions at the site. I am therefore satisfied that access to the site was unsafe and the defendant breached his duty of care to the plaintiff in this respect.
124 In reaching this conclusion I have accepted the evidence of the plaintiff and Mr Scott. I have not accepted the evidence of the defendant, who was an unimpressive witness. He came across as a smart alec (see his evidence on Day 3 T 57.24 and T58.17) who did not like his building practices being challenged. Moreover, the defendant had at least three workmen in his employ who could have been called to give evidence to corroborate his assertion that access to the site was safe and he did not do so. The inference the Court therefore draws is that those persons’ evidence would not have supported the defendant’s case on the condition of the building site.
125 The defendant made a brief submission that the plaintiff ought be found guilty of contributory negligence because he was in as good a position as anyone to assess the suitability of the site for delivery and could easily have taken the decision not to deliver on the day. The submission is unreal because the defendant required the delivery urgently and the plaintiff was instructed to deliver by the Employer. There is nothing in what the plaintiff did which amounts to contributory negligence. It was not the plaintiff’s fault that he slipped on a muddy surface. The plaintiff did everything he could in the circumstances to take care for himself because he and Mr Scott cleared a path through sand and debris to enable them to carry out their duties. The defendant cannot rely on his own failure to provide a safe system of access to say that the plaintiff should have done something about it.
126 Accordingly, the Court rejects the defendant’s submissions on contributory negligence.
127 The defendant brought a cross-claim against the Employer alleging that the Employer was negligent.
128 In this respect, the Employer required the plaintiff and other employees to load trucks and deliver products to building sites such as 9 Bold Street Laurieton. I am satisfied on the evidence that the Employer gave no instructions to the plaintiff or other employees as to what they should do in the event that there were circumstances which gave rise to doubt about whether or not a delivery should go ahead. The plaintiff was not told that, for example, in wet weather conditions or where a building site was slippery or muddy, that he ought to telephone the Employer’s office and find out what to do and to seek the Employer’s instructions. The Employer left the plaintiff to his own devices. Whilst there was an element of commonsense involved, this does not abrogate from the Employer’s duty to give adequate instructions to employees such as the plaintiff. I am therefore satisfied that the Employer was negligent in this respect.
129 Apportionment between the defendant and the Employer is necessary on the question of the plaintiff’s damages.
130 In the circumstances, given that the defendant was in charge of the building site and was guilty of negligence in providing unsafe access to the plaintiff to the site, I apportion liability as between the defendant and the Employer on the basis of 80% to the defendant on the one hand and 20% to the Employer on the other.
131 I now turn to the question of the plaintiff’s damages.
132 Immediately after the accident, after he had dropped off Mr Scott at the Employer’s depot, the plaintiff went to Ms Gee’s place because he could not cope by himself with the pain he was in. The pain was in his back and down his right leg. The plaintiff did not immediately seek medical attention because he thought it might have been a sprain and would go away in a couple of days. Because this did not occur the plaintiff consulted his general practitioner, Dr Love, at which stage he could barely walk.
133 The plaintiff spent the first couple of weeks after the accident at Ms Gee’s place but wanted to go back to his shed and although he did so, he was unable to stay there because he was in too much pain and he returned to Ms Gee’s place. Essentially, he has remained there since.
134 As far as returning to work is concerned, the plaintiff went back to work for one day, but he was in too much pain and has not been back to work since.
135 A few months after the accident the plaintiff observed his right leg was getting weaker and diminishing in size. As a result, he was referred to a specialist, Dr Isaacs, who in turn referred the plaintiff to Professor Ghabrial in Newcastle. The plaintiff was also given a lot of medication to cope with the pain he was in. In this respect the plaintiff said his pain got worse and so he agreed to have surgery in May 2005. He was hospitalised for ten days or so and he returned to live with Ms Gee. They gave him a hospital bed and he used this in Ms Gee’s home for three to four months because he could not walk very much.
136 The plaintiff said Ms Gee did very many things for him including assisting him with his hygiene needs, helping him dress and combing his hair because he could not lift his arms above his head.
137 The plaintiff said that his problems have been static for the last 12 months or so. He is in pain all the time and taking painkillers. It affects his sleep. Cold weather makes it worse. He takes Neurontin, Tramal and slow release Panadol. He takes about 14 tablets a day.
138 The plaintiff uses a stick to walk when he is outside the house. If he does not use it he gets a very sore back from walking. As well, the plaintiff cannot stand still for very long, he has difficulty bending and cannot lift more than 7½ kilos.
139 The plaintiff said he hated his condition and it was getting him down because there was nothing he could do about it.
140 The plaintiff said he did a work trial at the behest of the workers compensation insurance company earlier this year. It involved picking up papers alongside the bank of the Manning River using a stick that was provided by the council. He did this for four hours with the result that he was in bed for three days after.
141 The plaintiff said that he had never done any office work, he has never had a computer and would not know how to work one. His reading and writing skills are very average. Since leaving school, he has only ever done manual work.
142 The plaintiff said Ms Gee’s house where he lives is on a quarter acre block. The house is a three bedroom house with a combined kitchen and lounge room and a bathroom. The plaintiff does a bit of weeding and a bit of mowing. He said that when he does the weeding he lies on the ground to do it on his side. When he does the mowing, which is infrequent, he does only a little bit at a time. Ms Gee does most of the outside work, approximately 75% of it.
143 The plaintiff said that he helps Ms Gee with the housework. The reality is that Ms Gee does all the cooking and ironing as well as the shopping. The plaintiff is most embarrassed about this.
144 The plaintiff said that if had the funds he would employ someone to do the work, that is to say, the lawns and the yard work, because he cannot do much of it and he did not expect Ms Gee to do it because she was working during the week and doing a lot of the domestic chores as well. The plaintiff also said that he would employ someone to do the domestic chores if he had the funds because it would save his back from hurting.
145 The plaintiff also said that he gets neck pain and pains in his right arm. He also has a problem with his elbow where he had an operation. He had operations on his knees in the past and they were in reasonable shape these days.
146 The plaintiff said that if he had no problem with his back, none of the other difficulties he had experienced with his arm, knees and so on would prevent him from working. He still gets radiated pain down his right leg.
147 In cross-examination the plaintiff agreed that before he commenced working with the Employer that he had been off work with his back problem.
148 The plaintiff said that he had done delivery work before commencing with the Employer involving heavy goods such as white goods and furniture.
149 The plaintiff could not precisely recall how long he had been on a disability pension prior to commencing work with the Employer. He thought it was about 3-4 years when in fact it was 6 years.
150 When asked about his prior medical history, the plaintiff said that he could not remember a lot about it because, as a result of the accident, he had lost a fair bit of his memory. He was under a lot of stress and it has affected his recollection.
151 When prompted in cross-examination the plaintiff recalled that he had a considerable period of time off work in 1995 because of problems in his right elbow. In this respect, exhibit 1, which was dated 22 November 1995, disclosed that the problem he had was an arthritic and weakened elbow, which was causing him pain. In September 1996 the elbow was still causing him problems (exhibit 2).
152 The plaintiff recalled first hurting his back while working at the abattoirs at Gunedah. He was off work, but could not recall for how long.
153 The plaintiff agreed that before the accident he remembered having a bit of trouble driving cars. The plaintiff said he always had had bad backs and pains, it was naturally associated with the work he did. However, the plaintiff maintained that he was well enough to start work with the Employer in August 2003. Whilst working for the Employer there were occasions, some days, when his back was a bit sore. Other times it was not.
154 I interpolate here that the defendant pleaded the provisions of s 151Z (2) of the Workers Compensation Act 1987 (the “WC Act”). In this respect, s 151H of the WC Act provides that no damages may be awarded against an employer unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worked that is at least 15%. Section 151H (4) provides that the degree of permanent impairment is to be assessed as provided by the section and Part 7 (Medical Assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the “WIM Act”). Section 322 of the WIM Act provides that the assessment of the degree of permanent impairment of an injured worker is to be made in accordance with the Workcover guidelines in force at the time the assessment is made and issued for that purpose (the “Guidelines”).
155 Relevantly, s 323 (1) of the WIM Act provides that in assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. If the extent of a deduction is difficult or costly to determine, then, in accordance with s 323 (2), it is to be assumed, for the purpose of avoiding disputation, that the deduction, or the relevant part of it, is 10% of the impairment unless the assumption is at odds with the available evidence.
156 It should also be noted that s 151G of the WC Act provides, in the event that the worker succeeds in a claim against an employer, only damages for past and future loss of earnings may be awarded.
157 As between the plaintiff and the defendant, leaving to one side for the moment the effect of the provisions of the WC Act, the plaintiff’s claim falls to be determined in accordance with the provisions of the Civil Liability Act 2002 (the “CL Act”).
158 The plaintiff’s claim for non-economic loss is to be determined in accordance with the provisions of s 16. In this respect, counsel for the plaintiff submitted that the plaintiff’s case ought be assessed as 40% of a most extreme case. The defendant submitted that even if the whole of the plaintiff’s back injury was related to his current injury, the plaintiff would be assessed at no more than 30% of a most extreme case.
159 As noted earlier in the judgment, the plaintiff was a poor historian. I have no doubt that the plaintiff was honest in telling the Court he simply could not recall many of the matters going to his medical history. He has been badly affected by the accident both physically and mentally. My assessment was that this has contributed to clouding his memory about all of his medical problems.
160 The evidence establishes that in the early 1980’s the plaintiff injured his left knee in a motorcycle accident and had a cartilage removed. In July 1991 he injured his shoulder in a motor vehicle accident. Two years later he consulted his GP, Dr Wooten, complaining of severe left-sided back pain with radiation down his leg and foot. He gave a history of hurting the back at the abattoir some years beforehand.
161 In October 1993 he gave a history to Dr Wooten of right elbow pain and complained of left knee pain in February 1994.
162 In September 1995 the plaintiff injured his right elbow whilst throwing a trolley onto a truck during the course of his work. Shortly after he consulted Dr Hopcroft, the orthopaedic surgeon, complaining about the right elbow. He was given hydro cortisone injections and commenced on anti-inflammatories.
163 In March 1996 Dr Hopcroft reviewed the plaintiff and referred the elbow problem to Dr Hitchen, another orthopaedic surgeon, with the result that an arthrotomy, osteectomy and wash out of the elbow were performed in Port Macquarie Private Hospital.
164 In October 1996 the plaintiff consulted Dr Wooten with increased right lower back pain, radiating down his right leg. The plaintiff had difficulty urinating and moving around and so was admitted to hospital where he was in traction for a short time.
165 In December 1996 the plaintiff again saw Dr Hopcroft complaining of paraesthesia and numbness and pain radiating into his right leg down to the fourth and fifth toes, including the lateral border of his foot and heel. This was followed up with extensive treatment including physiotherapy, vertical traction and various forms of analgesia and anti-inflammatory medication.
166 In May 1997 there was a further incidence of back pain when the plaintiff aggravated by lifting a motorcycle. He had right-sided sciatica to his thigh and distribution of numbness to his toes and foot. There was a bit of left-sided sciatica which resolved with treatment.
167 In September 1997 Dr Hopcroft certified the plaintiff as unfit for work due to problems with his elbow and his back and it was at this point that the plaintiff went onto a disability pension.
168 In May 1999 the plaintiff saw his GP Dr Wooten. The clinical note records “Chronic pain syndrome. Pain in back, knee, elbow and neck – depressed as well.” The plaintiff was put on a trial of Tryptanol and referred to Dr Hopcroft again.
169 In July 1999 the plaintiff consulted Dr Hopcroft with muscle twitching and cramp in his calf at night and he was referred for a CT scan. That showed marked pathology at L4/5 and L5/1 levels, giving rise to significant pain and sciatica.
170 In October 1999 Dr Hopcroft certified the plaintiff as being likely to return to work part time within 6 months and full time work within 6-12 months.
171 In April 2000 the plaintiff consulted Dr Isaacs, an orthopaedic surgeon, following a complaint of low back pain radiating down into his right leg. It was considered that there was a central protrusion at L5/S1 and to a lesser extent, at L4/5, but there was no evidence of significant root compression. The plaintiff also complained about pain in the neck and some forearm pain and pins and needles in the left hand.
172 In 2002 the plaintiff had the cartilage removed from his right knee.
173 On 30 January 2003 the plaintiff saw his GP Dr Wooten and the notes record “Chronic low back pain – on disability pension. Prolapsed discs. Acute flair up lifting at home. Low back pain worse since then.”
174 Shortly before the accident the plaintiff consulted another GP, Dr Love, complaining of left lower rib pain and he was referred for x-rays of the chest and thoracic spine. On 8 June 2004 he saw Dr Love again concerning his thoracic pain and was given time off work.
175 After the accident the plaintiff consulted his GP, Dr Love, whose notes record the plaintiff’s complaints about his back pain, including intermittent radiation to the right thigh.
176 Early on in the piece the plaintiff told Dr Love he was keen to go back to work but Dr Love certified him as unfit for work. In September 2004 Dr Love certified the plaintiff fit for suitable duties, but after he had spent a day riding in the work van and suffering severe problems with his back, Dr Love certified him as unfit for work. The CT scan of the lumbar spine performed by Dr Love revealed “Broad-based posterior protrusion into the L4/5 disc … and … a broad-based central posterior protrusion of the L5/S1 disc bulging into the spinal canal and causing an impression on the thecal sac.”
177 After observing the plaintiff had a wasting right calf, Dr Love referred him to Dr Isaacs, to whom the plaintiff complained about pain across the lower back radiating into the right leg down to the foot. An MRI scan of 13 October 2004 of the lumbar sacral spine suggested “Disc degeneration of the L4/5 level … with a right paracentral disc protrusion with indents of the dural sac … and disc degeneration at L5/S1 … and … mild narrowing of the left foramen. No nerve root compression.” After seeing Dr Isaacs again the plaintiff returned to his GP Dr Love, who put the plaintiff on Oxycodene, Nurofen Plus and Endone and gave him lumbar block injections on 22 November 2004.
178 The plaintiff was again reviewed by Dr Isaacs who recommended surgery and this is how the plaintiff was referred to Dr Ghabrial, who recommended delaying surgery for three months.
179 After seeing both Dr Love and Dr Isaacs again, the plaintiff was admitted to Warners Bay Private Hospital on 25 April 2005 and underwent a double level posterior fusion the following day at L4/5 and L5/S1. The operation was performed by Dr Isaacs and the plaintiff was in hospital for about 10 days.
180 In October 2005 the plaintiff, whilst still seeing Dr Isaacs, also consulted Dr Hopcroft on 5 October 2005. In his report of that date, Dr Hopcroft said the plaintiff had been suffering from significant long-standing lumbar spondylitic changes with intervertebral disc bulging at L4/5 and L5/S1 levels and that the plaintiff had had an episode of aggravated pain arising from the work related injury of 9 August 2004 resulting in the double level discectomy and fusion. At that point in time, Dr Hopcroft said the plaintiff was not fit to return to his pre-accident employment and he believed the plaintiff would remain significantly compromised in terms of returning to the workforce and would only ever be fit for light physical work undertaken at bench top level.
181 Dr Hopcroft’s assessment of the plaintiff (which I accept) was not challenged in terms of his identification and diagnosis of the plaintiff’s medical condition. What was in dispute was the extent to which the plaintiff’s problems were attributable to the accident on 19 August 2004.
182 In a supplementary report of 5 October 2005, Dr Hopcroft assessed the plaintiff, in accordance with the WIM Act guidelines, as having a whole person impairment of 12% as a result of the accident on 19 August 2004. He arrived at that figure by attributing 50% of the plaintiff’s problems to his pre-existing condition. In that respect, in terms of the assessment of the plaintiff’s claim against the defendant under s 16 of CL Act, the defendant conceded it would be open to the Court to attribute 50% of the plaintiff’s back injury to the accident on 19 August 2004 and the remaining 50% to his pre-existing condition at the date of the accident.
183 The plaintiff relied on Dr Hopcroft’s reports and his oral evidence. Dr Hopcroft provided a supplementary report of 23 May 2007 in which he expressed the opinion that the plaintiff may well have been able to continue working had it not been for the accident, but he would have likely experienced ongoing back pain and sciatica with various strain injuries because of his pre-existing problems.
184 Dr Hopcroft was the only doctor who gave evidence and, essentially, he maintained in evidence the opinion I have set out above. He said in evidence that, under carefully guided circumstances, the plaintiff could have kept working but he would have had to have been told that he was in line for problems. The type of accident that he suffered was predictable.
185 Dr Hopcroft assessed the plaintiff as a person who, but for the accident, would have kept working, notwithstanding his previous difficulties. I agree with Dr Hopcroft’s assessment in this respect because the plaintiff impressed me as a person who had a strong work ethic, notwithstanding the period of time he had been out of the workforce before he started to work for the Employer. He had a good work history prior to 1997 and he is a proud man who would have soldiered on. Nevertheless, the thrust of Dr Hopcroft’s evidence and that of all of the doctors was that at some stage (assuming the accident had not occurred) the plaintiff would have reached a point where he would not have been able to work any longer by reason of his physical disabilities and not just his age. The point was reached when the plaintiff suffered the injuries in the accident which occurred on 19 August 2004.
186 When Dr Hopcroft was called to give evidence, there was no cross-examination of him to challenge his whole person impairment assessment of the plaintiff or the opinion he expressed that 50% of the plaintiff’s assessed impairment was due to a pre-existing injury or condition.
187 In my opinion, Dr Hopcroft was in the best position to provide an assessment to the Court of the plaintiff’s condition, not only because he gave evidence and was available for cross-examination, but because he had seen the plaintiff on numerous occasions prior to the accident, including 6 November 1995, 26 March 1996, 24 September 1996, 27 May 1997 and 14 July 1999.
188 Accordingly, taking all of the above matters into account, I assess the plaintiff, in terms of his claim for damages for non-economic loss in accordance with s 16 of the CL Act as 28% of a most extreme case.
189 As noted above, s 151H of the WC Act provides that no damages can be awarded against an employer unless the injury results in a degree of permanent impairment that is at least 15%. In this respect I accept the assessment made by Dr Hopcroft of 12% whole person impairment as a result of the accident. In doing so, I prefer his assessment over the assessments made by Dr Ghabrial and Dr Millons for a number of reasons. First, as noted, Dr Hopcroft had seen the plaintiff on numerous occasions prior to the accident and so he was not dependant merely upon the plaintiff’s post-accident history. Dr Isaacs’ pre-accident reports of 3 April 2000 and 10 May 2000 are clearly supportive of Dr Hopcroft’s assessment of impairments.
190 Dr Ghabrial assessed the plaintiff’s pre-existing impairment at only 10%, but this was based on incomplete records, the inference being that Dr Ghabrial did not see Dr Hopcroft’s reports or any from the general practitioner Dr Wooten. The Court infers he would have mentioned them if he had seen them.
191 Dr Millons’ assessment of the plaintiff as 20% whole person impairment was reduced from 22% to 20% by virtue of the plaintiff’s pre-existing problems, which in my opinion, the doctor underestimated. Again, he did not have Dr Hopcroft’s reports or the material from Dr Wooten’s practice in front of him.
192 Based on the above findings, it follows that the cross claim should be dismissed and that costs should follow the event on the ordinary basis. Before making such orders, however, I will entertain submissions if there are other matters to be considered.
193 I turn now to the plaintiff’s claim for economic loss against the defendant.
194 Past treatment expenses have been agreed at $83,704.61.
195 The plaintiff continues to take medication as prescribed and there is no reason for the Court to assume anything other than that this will continue for the rest of his life. Similarly, the plaintiff will need to attend upon his GP. The plaintiff submits that an allowance of four consultations per annum with the general practitioner at a cost of $50 per visit is appropriate, that is, $3.85 per week. For my part, I would have thought it more likely that the plaintiff will have to see his general practitioner every two months, but as against this, one has to take into account, as I do, that if the accident had not occurred the plaintiff would have required medical treatment from his general practitioner from time to time in connection with the pre-existing back problem. Accordingly, I accept the submission made by the plaintiff.
196 In terms of future medication, based on the Workers Compensation Insurer’s list of payments, the plaintiff submits that an allowance of $57.29 per week for the remainder of the plaintiff’s life (multiplier 884.8) is an appropriate figure. I accept the figure, which in lump sum terms comes to $50,690, is a starting point, but again, an allowance ought be made for the fact that the plaintiff would in any event have required medication to deal with his pre-existing back problem. Accordingly I allow the plaintiff $30,000 for this item.
197 In terms of past economic loss, the evidence establishes the plaintiff was earning $396 per week at the date of the accident. There are no figures before the Court in terms of comparable earnings, but if this amount is adjusted by taking into account CPI increases, one arrives at a current figure of $471 per week, or $433 net per week, being the average of the plaintiff’s pre-accident earnings and those adjusted by CPI for 155 weeks since the accident. In this respect I am satisfied that the plaintiff would have continued in his employment with the Employer for that period of time and accordingly I allow him $67,115 for past lost earnings.
198 The Fox v Wood component to be included in the plaintiff’s damages is $8,403, as agreed.
199 In terms of future economic loss the Court’s determination must be made in accordance with s 13 of the CL Act.
200 I am comfortably satisfied the plaintiff will never return to his pre-accident position and has no residual earning capacity, having regard to his current disability, his level of education and the fact that he is a man of low intelligence (no disrespect intended). In coming to this conclusion I have taken into account Mr Doig’s report, which is in evidence.
201 My assessment of the plaintiff is that, because of the type of person he is, he would have endeavoured to continue to work until 65 years of age, even if he had been in pain. However, I think it quite probable that the pain would have become too much for the plaintiff and he would have had to retire earlier from the workforce. In my opinion, the prospects of this occurring were 40% and the plaintiff’s award of damages will be adjusted on this basis, on top of which there will be an allowance of 15% for vicissitudes.
202 Accordingly, I allow the plaintiff $470 net per week until age 65 years, less 55%.
203 In terms of past domestic assistance, I am satisfied on the evidence that for the four weeks after the plaintiff had surgery in April 2005 he was provided with 40 hours of assistance, and so I allow $20 per hour for that period.
204 As to the balance of the 151 weeks for past gratuitous attendant care services claimed by the plaintiff, having regard to both the plaintiff’s evidence and that of Ms Gee, I allow the plaintiff 7 hours per week at $20 per hour for that period.
205 In terms of future services, I have taken into account the evidence of the plaintiff and Ms Gee and the evidence of Pamela Malloy, a registered nurse, whose report was in evidence. Although Ms Malloy assessed the plaintiff’s requirements at 15 hours per week, her report was not updated and she was unaware of the plaintiff’s current position and his own efforts to look after himself and do other domestic chores, in which respect the plaintiff is highly motivated. In the circumstances I allow the plaintiff 9 hours per week at the commercial rate of $30 per hour. Counsel for the plaintiff submitted that the allowance should be made until the plaintiff attains the age of 70 years, taking into account the plaintiff’s pre-accident condition. In my opinion, taking that into account, the allowance should be made on the basis that by the age of 60 years, due to the pre-accident condition, the plaintiff would have required these services any way.
206 In view of the Court’s findings on the apportionment issue, there should be a deduction of 20% from the plaintiff’s damages against the defendant in accordance with s 151H of the WC Act. Prima facie, the plaintiff should have his costs on the ordinary basis. However, if the parties wish to be heard on this issue, I will entertain submissions.
207 To enable the parties to consider these reasons, I stand the proceedings over for mention before me at 9.30am on Thursday 8 November 2007. Short minutes should be brought in on that occasion which reflect the Court’s determination thus far. If there remain matters which are still to be decided, such as costs, I will fix a timetable for further submissions.
208 I direct that the exhibits be returned.
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