Di Tommaso v Her Majesty's Attorney General for the State of Tasmania
[1988] TASSC 111
•21 November 1988
Serial No B43/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION:Di Tommaso v Her Majesty's Attorney General for the State of Tasmania [1988] TASSC 111; B43/1988
PARTIES: DI TOMMASO, Augusto
v
HER MAJESTY'S ATTORNEY GENERAL FOR THE STATE OF TASMANIA
FILE NO/S: 71A/1987
DELIVERED ON: 21 November 1988
JUDGMENT OF: Underwood J
Judgment Number: B43/1988
Number of paragraphs: 39
Serial No B43/1988
List "B"
File No 71A/1987
AUGUSTO DI TOMMASO v HER MAJESTY'S ATTORNEY GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
21 November 1988
The plaintiff was employed by the Education Department as a labourer and general handyman at its premises at 7 Wrights Avenue, Glenorchy. On the 3 March 1985 he injured his back in an accident at work and by these proceedings seeks to recover damages from the Attorney General for negligence, breach of statutory duty and/or breach of contract.
The premises at Wrights Avenue were used by the Hobart Technical College for courses in various trades including plastering, floor covering and roof tiling. The roof tiling course was conducted each year from 1975 until 1978. The average number of students in each course was about six and during each year the class of students attended at Wrights Avenue on three occasions of ten days each. On each "block", as the ten day period was referred to, the students received both theoretical and practical tuition in the trade of roof tiling. These courses and the plastering classes were conducted in a large room on the first floor at Wrights Avenue.
In 1974, to enable practical tuition to be given, the Technical College had constructed four model roofs. Each was of a different design. The first was a model of a gable roof, the second of a gable roof with window, the third of a hip roof and the fourth was a model of a gambrel roof. The pitch of the roofs varied from 25o to 45o. The models were constructed out of oregon pine beams and hardwood battens which measured 50mm x 25mm. The base of each model, which rested on the floor, measured 400cm x 460cm. The height of each model varied. The tallest was the gable roof with window being 230cm high.
At the commencement of each block the students in the roof tiling course removed the battens and were then taught how to cut them in the appropriate manner and nail them on the beams. On each occasion this was done some new battens were used but, as far as possible, the old battens were re–cut and reused. Once the students learned how to cut and fix the battens they were taught how to fasten the tiles to the battens. In order to do this they climbed on the battens in exactly the same manner as they would if fixing tiles to a house in the course of construction.
The last roof tiling course was conducted in 1977 or 1978 and thereafter, the model roofs were of no further use. They remained on the first floor at Wrights Avenue until 1981 or 1982 when the space was needed for another course. The models were then dismantled and two of them, one of which was the gable design with window, were re–erected in the grounds of 7 Wrights Avenue. Mr. Huxley, the principal at Wrights Avenue, gave the necessary instructions for the dismantling of the models and the re–erection of two of them but there is no evidence of the identity of the persons who carried out this work. Presumably, it was done either by servants of the Education Department or by independent contractors engaged by the Department.
Outside the building the two models were placed on a few bricks, presumably to keep the oregon beams just off the ground, and the apex of the roof of the gable design with window was supported by a vertical piece of timber also resting on a few bricks. The unused models remained outside and exposed to the weather until March 1985 when it was decided to dismantle them to make way for a new road that was about to be constructed.
On the 3 March 1985 Mr Huxley asked the plaintiff to dismantle the models. I find that he issued no instructions as to the manner in which the work was to be done nor did he inspect the models before work commenced. The plaintiff set about dismantling the model of the gable roof with window. He used a pinch bar and hammer. He climbed on the battens in the same way as he had often seen the students do when using the models for instruction. A batten, about four feet six inches above the ground on which the plaintiff was standing whilst using his pinch bar broke and the plaintiff fell to the ground. In the fall he sustained a large disc prolapse at the L45 level which resulted in permanent and serious disability.
I accept the evidence of the plaintiff's son, Angelo, who saw the model roof very shortly after the accident, that the batten which broke under the plaintiff was not hardwood but radiata pine. This batten, in common with all the others was discoloured by years of exposure to the weather. A piece, about 18 inches long, had broken clean away and was lying on the ground when Angelo Di Tommaso arrived on the scene. At one end of the broken piece was a knot in the wood.
The evidence concerning the size of this batten was vague and conflicting and I am not able to make a finding with respect to its precise size. However, I am satisfied that it was smaller than 50mm x 25mm and larger than 40mm x 18 mm.
I accept the expert evidence of Mr Ralph, a civil engineer with special expertise in the area of material testing. From the evidence of Mr Ralph and Mr Huxley I made the following findings of fact:
(i)the rafters of the model roof on which the plaintiff sustained his accident were spaced 500mm apart;
(ii) when originally constructed hardwood battens, 50mm x 25mm were nailed to these rafters;
(iii)such construction was in conformity with the Australian Standards for roof framing and good building practice;
(iv)pine wood battens are not as strong as hardwood battens. The former are brittle and liable to snap under stress. The latter are not brittle and, if subjected to sufficient stress, liable to splinter rather than snap;
(v)use of radiata pine battens on rafters spaced 500mm apart, unless at least twice the size of the hardwood battens, is dangerous in that it exposes those who climb on them to the risk of injury if one breaks;
(vi)the strength of untreated radiata pine and, to a lesser degree untreated hardwood, diminishes with exposure to the weather as a result of the onset of rot.
A great deal of evidence on the issue of liability was lead in an unsuccessful attempt to establish the circumstances in which the pine batten which broke under the plaintiff was fixed to the model. The room in which the models were kept when used for instruction was also used for the plastering course. Model walls and ceilings were constructed for use in the latter course. Radiata pine battens measuring 40mm x 18mm were used by the plastering course students. The large room in which the models for both courses were kept was also used to store spare materials. There was a rack or racks of battens used in the plastering course. Also stored in the room were bags of plaster, corners, cornices and the like. Roof tiles and miscellaneous pieces of timber were kept in various locations in the room. It was suggested on behalf of the plaintiff that the Education Department kept an inadequate supply of re–placement hardwood battens and the students used those kept for the plastering course. Whether that was so or not I am unable to determine but in my view none of that evidence assists in the resolution of the issue of liability. The removal, in 1981 or 1982, of the models from the first floor room at Wrights Avenue by persons unknown could not have been effected without completely dismantling each model. How much of the dismantled material was re–used to re–erect the two models outside the building cannot be determined. There was no evidence about the size or nature of any of the timber battens fixed to the two models which were re–erected outside the building apart from the one on which the plaintiff was standing when he had his accident.
Whether this pine batten was fixed to the model by servants or agents of the Department or an independent contractor is immaterial in the sense that the plaintiff's employer owed him a "non–delegable" duty to ensure that reasonable care and skill would be taken not to expose him to unnecessary risk of injury and to provide him with a safe place to work. In Kondis v Transport Authority (1984) 55 ALR 225 Mason J (as he then was) said at 235:
"The employer has the exclusive responsibility for the safety of the appliances, the premises and a system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non–delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences."
See also Turner v South Australia (1982) 42 ALR 669 at 675. The degree of care and foresight expected from an employer will depend upon the circumstances of the case. See Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18 at 26; Waugh v Kippen (1986) 160 CLR 156.
The radiata pine batten was unsafe for the plaintiff to stand on. The plaintiff's employer knew that. In evidence Mr Huxley referred to the risk of climbing on pine battens similar to those used in the plastering course. He said that to use such battens on the model roofs would be irresponsible "because they are a dangerous material to be used in roof tiling when people are carrying a heap of tiles on their back going over the roof".
The models had been exposed to the weather for a number of years. They stood in overgrown grass and weeds.
The timbers were weather stained and discoloured. It would have been a simple matter for Mr Huxley to inspect the structure at the time he instructed the plaintiff to dismantle it. Had he done so the presence of at least one batten of inadequate size and strength would have been apparent to him and a simple instruction to the plaintiff to use a ladder or to dismantle the model without standing on the inadequate batten would have avoided the accident. The employer's duty was to take reasonable care for the plaintiff's safety and to warn him of unusual risks and dangers. Having regard to the neglect to which the model roof had been exposed for some years the discharge of that duty, at the very least, called for inspection of the roof before the plaintiff commenced work and had that been done the risk of injury, which became a reality, would have been apparent and a simple instruction or warning avoided it.
Accordingly, I conclude that the plaintiff's employer was in breach of the duty of care it owed him and by reason of that breach the plaintiff suffered loss, injury and damage. Although contributory negligence was pleaded against the plaintiff, counsel for the defendant did not submit that any finding should be made against him on this issue. Although the danger would have been apparent to Mr. Huxley there is no reason to suggest that it would have been apparent to the plaintiff. The plaintiff had often seen the students in the roof tiling course climb on the battens in the same way as he did and there is no evidence to suggest that he did, or omitted to do, anything he should have done to avoid the accident.
In 1952, the plaintiff, who was born in Italy, migrated to Australia. He was then aged 20 and unmarried. His school education finished during the war when he was only 11 or 12 years old. He later attended night school for a brief period when aged 16 or 17. He is able to read and write Italian and has a limited ability to read and write English. Although he has lived in Australia for over three decades his ability to communicate in the English language is not good although, he said that he could understand English better than he could speak it.
Since arriving in Australia the plaintiff has been continuously employed in unskilled or semi–skilled work. For 18 years he worked for the Australian Newsprint Mills Ltd. at Boyer as a machine operator. In 1975 he took long service leave and left that employment to commence with the Education Department in Wrights Avenue in August 1975.
Three years after the plaintiff arrived in Australia his childhood girlfriend came to Australia and they married. Of that union there are two children, Vincent aged 30 and Angelo aged 27. Both sons are bricklayers by trade.
The plaintiff's work at Wrights Avenue required him to do some cleaning and to be in charge of the store in which the tools and materials used by the students were kept. In addition, he was obliged to undertake any other general manual work required to be done around the premises.
Before the accident the plaintiff was an industrious, hardworking man. He was close to his wife and two sons. He loved and maintained a large garden growing both flowers and vegetables. His wife described it as the best garden in Rosetta. With his sons he cut and carted in 12 tonnes of firewood each year, enough for his own use. He owned a block of land opposite his house at Rosetta and just before the accident it had been decided that he and his sons would build two units on it. Occasionally, he used to go fishing or hunting with his sons. Perhaps the best picture of the plaintiff's pre–accident life appears from the following extracts taken from the evidence–in–chief given by his wife. This evidence was not challenged in cross–examination:
"He usually clean all the garden round and all nice and clean around the house. He builded the chooks house, and you know, he look after the chooks, and the garden and the front of the garden, and the front of the house I mean. And he done a lot of things. He was cutting some wood and ........"
"He usually come home quarter to five or five o'clock. He usually changing his clothes and goes straight to the garden, and I have his drink ready, and because he was so proud of his garden and we had the best garden round Rosetta and I have to bring the drink round to him up in the garden."
"And about how long would he spend in the evening in the garden?...... Until – dusk. Then he go for a run."
"And how regularly would he do that?.....Two, three times a week. He gone for run and then have a shower and have tea. He was a very fit man."
"We used to go out, we used to go to the Italian Club ......... every time we had opportunity. Every time was something on."
The plaintiff was aged 52 at the time of the accident. After falling to the ground the plaintiff experienced severe pain in his back and was only able to crawl from the scene of the accident to the building at Wrights Avenue where he was found by fellow employees and taken in the back of a utility to the hospital. There, an x–ray was taken and he was discharged without admission for rest at home. During the ensuing month the plaintiff experienced severe pain in the area of his lower lumbar spine principally on the left side. He spent much of the time lying flat on the floor, a position which seemed to give him some relief. At the end of a month there was a little improvement in the level of pain so he returned to work but after one day found the level of pain so intense he could not continue and he has not worked since that day.
Five weeks after the accident he first consulted Mr Binns, an orthopaedic surgeon. An x–ray then taken suggested that there may have been a small fracture in the lower lumbar spine. That suggestion was later dismissed. Mr Binns advised the wearing of a corset. It gave the plaintiff some relief from the symptoms in his back but pain began to develop in the left leg. The plaintiff was unable to bend, his sleep was interfered with and the pain was constant. Mr Binns conducted a myelogram test at Calvary Hospital and diagnosed a large disc prolapse at the L45 level. Initially, conservative methods were adopted for the treatment of the plaintiff's condition but they were unsuccessful and, on the 28 August 1985, the plaintiff was re–admitted to hospital. There Mr Binns performed a laminectomy and removed the disc prolapse at the L45 level on the left side.
The plaintiff's condition improved after surgery in that he no longer had sciatica but the pain in the area of the lower lumbar spine on the left side persisted. Mr Binns advised continuation of the use of a corset and swimming. In February 1986 the range of movement in the plaintiff's back decreased and the level of pain increased. He was re–admitted to hospital and given an epidural injection of cortisone. This treatment resulted in an improvement in his condition but pain and restriction of movement in the back remained.
Since then the plaintiff's condition has remained more or less the same. He is in almost continuous pain in the lower lumbar spine, principally on the left side. Forward bending is markedly restricted. He needs his wife's assistance to put on his socks and trousers. He can squat but only slowly with care. He cannot lift heavy weights. He can walk only limited distances and cannot run for the movement jars his spine. He cannot sit in the same position for long periods and pain interferes with his sleep. The level of pain varies according to the degree of exertion upon the spine and external factors such as cold and wet weather. There have been occasional periods of exacerbation such as occurred in March 1985 when he was re–admitted to hospital for another epidural injection of cortisone. The plaintiff wears a steel brace during the day and an elastic one to sleep in. He takes anti–inflammatory drugs and uses a TENS machine and ice packs to give him relief from pain.
I accept Dr Binns' opinion that the plaintiff's condition is likely to remain much the same as it has been over the last year or so.
The injury and its sequelae have had a marked effect on the plaintiff and his relationship with his family. I find that his earning capacity has been destroyed. All the plaintiff's skills and capacity to earn income depended upon his physical strength. That strength has been so reduced by the accident that his capacity to earn from it no longer exists. The plaintiff's age, background, experience and limited use of the English language makes it more probable than not that he will be unable to call upon any residual skills and capacity he has left to produce income.
The effect of the accident on the quality of the plaintiff's life has been profound. He can no longer tend to the garden he loves or cut firewood for his own use. He can no longer go hunting or shooting with his sons. Before the accident the plaintiff would occasionally join one of his sons on a building site and assist him laying bricks. Since the accident, although the plaintiff has been with one of his sons on a building site from time to time, he has been unable to do little more than wash a few bricks for a few minutes at a time.
His son Vincent proceeded to build the two units on the block opposite the plaintiff's home. With no work to go to the plaintiff went over to the building site on a daily basis. There he would potter around doing small tasks such as sweeping, holding timber while his son used a saw and washing paint brushes. Vincent encouraged his father to come over because he considered it good for him to be out of the house and occupied him but admitted that his father was of little real help to him and they frequently argued.
At home all day the plaintiff potters around the house doing a little light housework. The pain and restriction of movement in his back is always present. It makes him irritable. His wife said they no longer go to the Italian Club and seldom visit friends because the plaintiff complains that their houses are too cold and make his back ache. She said that since the accident "We never had much love at all" and "Every day, every day he's very nasty, he seems like pig now, I couldn't stand him no more – he give me ulcer in the stomach."
The plaintiff is entitled to recover damages for his past and future pain, suffering and loss of amenities of life, for the destruction of his earning capacity and for future medical expenses. The quantum of the last–mentioned head of damage was agreed at $4,000. Senior counsel for the plaintiff expressly denied the existence of any entitlement to a claim for damages in accordance with the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161. Counsel for the defendant took the unusual course of making no submissions at all on the issue of damages in his closing address.
Between the date of the accident and the 24 December 1986 the plaintiff suffered no financial loss from the destruction of his earning capacity as he received weekly payments during that period pursuant to the provisions of the Workers' Compensation Act which equalled the income he would have earned had the accident not occurred. As there is no finding of contributory negligence it is convenient to assess the plaintiff's damages for loss of earning capacity from the 24 December 1986. The plaintiff was then 54. I accept his evidence that he intended to remain with the Education Department until aged 65 and that, but for the accident, he would have done so. It was agreed that, had the accident not intervened, the plaintiff would have earned a nett income of $23,223.54 between the 24 December 1986 and the 30 June 1988.
It was also agreed that "the relevant award" was the Building Trades' Award (Group 3) and that, as at the 30 June 1988, had the plaintiff then been employed with the Education Department he would have been entitled to receive, in accordance with that award, $365.56 per week or $9.62 per hour.
It was further agreed that:
"Had the plaintiff been employed from 30.6.88 to retirement (at age 65) on September 6 1997 at $365.56 (G), $302.51 nett X 478 weeks, present value of $302.51 X 420 = $127,054.20."
In calculating for damages for loss of earning capacity a deduction must be made for contingencies and the sum of $26,000. This sum was paid to the plaintiff on the 6 January 1987 being the balance of the weekly payments due to be paid after the 24 December 1986 but redeemed by payment of a lump sum in accordance with the provisions of the Workers' Compensation Act 1927, s.24. In addition, some small allowance must be made to negative the discount factor applied in the agreed figures for the period between the 30 June 1988 and the date of judgment. Assessment of damages is a matter for judgment and not calculation although recourse to actuarial tables assists in the exercise of that judgment. The plaintiff's history of hard work and continuous employment suggests that, apart from other accident, it is likely he would have continued to earn income continuously until 65. In addition to earning wages in employment the plaintiff's economic capacity enabled him to save expenditure by cutting his own firewood and growing his own vegetables. No evidence was led of the value of such activities. However, I take all those matters into account and, after allowing for all weekly payments paid under the Workers' Compensation Act assess the plaintiff's damages for loss of earning capacity from the 30 June 1988 in the sum of $92,000.
In assessing the plaintiff's damages for past and future pain and suffering and loss of amenities of life I take into account, not only physical impairment and pain, but the loss of self esteem suffered by the plaintiff by reason of the diminution in his physical capabilities. Under this head I assess his damages at $25,000.
In summary therefore the plaintiff's damages are:
Damages for economic loss from the
24 December 1986 to the 30 June 1988 $23,223.54
Damages for loss of earning capacity
from the 30 June 1988 92,000.00
Damages for loss of the amenities of life 25,000.00
Damages for future medical expenses 4,000.00
Total $144,223.54
There will be judgment for the plaintiff against the defendant for $144,223.54.
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