Dominic Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Limited
[2013] ACTSC 210
•16 October 2013
DOMINIC FISCHETTI v CLASSIC CONSTRUCTIONS (AUST) PTY LTD AND VERO INSURANCE LIMITED
[2013] ACTSC 210 (16 October 2013)
NEGLIGENCE – worksite injury – plaintiff concreting subcontractor to defendant builder – scope of duty of care – plaintiff injured lifting heavy and awkward weight – almost all of plaintiff’s work by subcontract with defendant – lifting task a task for unskilled labourer – no trade skill involved – breach of duty established – defendant negligent – no contributory negligence
DAMAGES – personal injury – low back injury – plaintiff lifting heavy weight at building site – injury to L 4-5 disc impinging on L4 nerve root – pain in low back and right leg – totally incapacitated for work as a concreter – unsuited to any work within his physical capacity – consequential major depression
Civil Law (Wrongs) Act2002
Occupational Health and Safety Act1989
Work Health and Safety Act2011, s 267
Occupational Health and Safety (Manual Handling) Regulation 1997 (ACT), s 38
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
No. SC 930 of 2008
Judge: Master Harper
Supreme Court of the ACT
Date: 16 October 2013
IN THE SUPREME COURT OF THE )
) No. SC 930 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: DOMINIC FISCHETTI
Plaintiff
AND: CLASSIC CONSTRUCTIONS (AUST) PTY LTD
ACN 063 114 867Defendant
AND:VERO INSURANCE LIMITED
ABN 48 005 297 807
Third Party
ORDER
Judge: Master Harper
Date: 16 October 2013
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $822,641.00.
The plaintiff claims damages for personal injuries which he suffered on or about 19 December 2005 in the course of his work as a concreter. The incident occurred at a recently completed private house at Nicholls. The defendant company was the builder of the house. The plaintiff, through a company of which he was the sole shareholder and director, was a subcontractor on the project.
The plaintiff’s case is that he was required to remove three large pieces of concrete, with a colleague, lifting them onto the back of a utility or small truck, and that in doing so he injured his back. His case is that the defendant company owed him a duty of care not to expose him to the risk of the injury which he suffered, and that the company negligently committed a breach of that duty.
The plaintiff
The plaintiff was born in Canberra in 1963. He is a single man with no children. He was 42 at the time of the injury and is now 50. He was educated in Canberra to Year 9. He was not a high academic achiever at school. He spent two years as an apprentice motor mechanic. He did not complete the apprenticeship but worked for some time as a labourer, gaining experience with concrete work, in which he specialised from the mid-1990s. In the early 1990s the plaintiff worked as an employee of Giovanni D’Ambrosio, then a concreting sub-contractor to the Tanchevski brothers through their various businesses and companies. Thereafter he worked almost exclusively for the defendant company or other businesses and companies controlled by the same people, Michael and George Tanchevski. They were involved in residential construction as project builders.
After a few years Mr D’Ambrosio, who was approaching retirement, asked the plaintiff to work as a contractor for him, rather than as an employee. The plaintiff made this change. There was no practical difference to his work.
After some time there was another change. The plaintiff attended a meeting with Michael Tanchevski and Mr D’Ambrosio, who wanted to reduce his workload. The proposal was that the concreting work would be split roughly equally between the plaintiff and Mr D’Ambrosio. As time went by the plaintiff did more and more of the work and Mr D’Ambrosio less and less. The plaintiff operated as a sole trader, sometimes engaging his brother, Mario Fischetti, as a subcontractor to provide labouring assistance. The Tanchevski brothers provided the concrete and the plaintiff supplied the reinforcing steel, submitting from time to time invoices reflecting the quantity of concrete and the quantity of steel which had been used.
On larger jobs Mr D’Ambrosio would help the plaintiff, or the plaintiff would help him. As time went by Mr D’Ambrosio’s share of the work gradually reduced until the plaintiff ended up doing most of the concreting work. The plaintiff through his company did a small amount for other builders, but the Tanchevski work was by far the bulk of his work.
In April 2004 Michael Tanchevski told the plaintiff that if he wanted to continue doing work for his businesses, he would have to set up and trade through a company. In May 2004 the plaintiff purchased a shelf company, the name of which he changed to Correct Concreting Pty Ltd, and thereafter the work he did was invoiced in the company’s name.
In December 2004 the defendant company entered a building contract with Mr Robert Douglas and his wife to build a house on their land at Nicholls. The plaintiff through his company undertook the concrete work under subcontract, including the slab for the house, the driveway and other paving. During this project, which went on for some months, Mr D’Ambrosio also worked on the site, though not with the plaintiff. He carried out general labouring work by direct arrangement with the defendant.
The incident which caused the plaintiff’s injury
During December 2005 Mr and Mrs Douglas moved into the house. Shortly afterwards they received a complaint from a neighbour that a section of the concrete driveway had encroached onto his land. Mr Douglas rang Michael Tanchevski with instructions to remove the encroaching concrete. His estimate was that the concrete to be removed was about 4 metres long and about 40 cm wide, with a varying depth of up to 150 mm. The concrete was reinforced with steel mesh.
Mr Tanchevski arranged for a concrete-cutting business called Consaw to attend at the property and cut the concrete with a concrete saw. The concrete was cut in position, with one long cut and three cross-cuts, into three pieces but left in place. Mr Tanchevski contacted Mr D’Ambrosio and asked him to contact the plaintiff and arrange for the two of them to remove the concrete. Mr D’Ambrosio telephoned the plaintiff, who agreed to help with the job.
The plaintiff’s recollection is that he attended to remove the concrete on Monday 19 December 2005. There is no contemporaneous written record to corroborate the precise date. There is in evidence an invoice from Consaw, dated 21 December 2005, and I can infer that the cutting was done no later than that date. It is not inconsistent with the plaintiff’s recollection as to the date being accurate. Mr D’Ambrosio gave evidence that the incident had occurred shortly before Christmas 2005 but he could not remember the day or date.
At all events, on the day in question the plaintiff attended at the house, where he met Mr D’Ambrosio and Mr Douglas. Mr D’Ambrosio had a small truck which was to be used to take the concrete to a tip.
He observed the concrete, cut into three pieces, each a little less than 1.5 metres in length. The reinforcing steel had been cut and was protruding and sharp in places, making for an awkward lift.
The plaintiff and Mr D’Ambrosio struggled to lift each of the three pieces. The plaintiff asked why Mr Tanchevski had not had the concrete cut into smaller pieces, or brought in a bobcat to remove them. Mr D’Ambrosio replied that they were there and should get on with the task. They used a crowbar to lever the pieces out of their position beside the driveway. They lifted the first piece, one at each end, to about chest height to get it onto the tray of the truck. They got the first two pieces onto the truck. Mr Douglas was present but did not offer (no doubt sensibly) to assist with the lift. When the time came to lift the third piece, the plaintiff was struggling. In the course of the lift he felt something go in his back. The plaintiff’s evidence was that the lift was particularly awkward because the truck was parked on a slope, and Mr D’Ambrosio was shorter than the plaintiff. It was necessary for them to carry each piece of concrete five or six metres to the truck. The plaintiff said that on the third lift one of his legs almost buckled under him, his knee going to the ground. He felt a twitch in his back and did not think he could continue with the lift, but he succeeded in doing so. Immediately afterwards he left Mr D’Ambrosio to dispose of the pieces, and drove home in some pain in the low back and right leg. He said that this was his last job for the year, and that the Christmas closedown commenced a couple of days later, for about a month. His evidence in chief was that this had been his last job for the year, and that he next worked at the end of January when he returned to the same house to seal the surface of the driveway.
It was put to the plaintiff in cross-examination that on the day in question he could have made a telephone call to Michael Tanchevski to ask him to arrange for a bobcat, or for the concrete to be cut into smaller pieces. He agreed that he could have done so. He was asked in re-examination why he had not made that telephone call. His answer was that Mr D’Ambrosio had not wanted him to, but had wanted the job completed immediately. He took the view that it was not really up to him, because Mr Tanchevski had requested Mr D’Ambrosio to carry out the task and to enlist his help. If he had been on his own he would have telephoned, but he was not prepared to, as he saw it, go over Mr D’Ambrosio’s head. He thought that if he did so either Mr D’Ambrosio might get upset, or Mr Tanchevski might get upset, and insist that the task be completed on the day.
Mr Douglas gave evidence confirming that he had asked Mr Tanchevski to remove the concrete encroaching on the neighbouring block. He observed the concrete after it had been cut into three pieces, and he was present when the plaintiff and Mr D’Ambrosio attended to remove it. He knew both of them because he had often been on site during the construction of his house over the previous months. Although he conceded that he had no particular expertise in estimating weight, from his own practical experience he thought that each of the three pieces would have weighed more than 100 kg. He watched as they lifted each of the three pieces and put them on the back of the truck. He heard the plaintiff complain to Mr D’Ambrosio that the pieces were too heavy and should have been cut into smaller pieces or a bobcat should have been provided to lift them. He heard Mr D’Ambrosio respond with words to the effect “Look, let’s just get on with this and get it done and get out of here”.
The plaintiff had returned to his property early in 2006 to wash the driveway surface with acid. They had a conversation during which the plaintiff said that he believed that he had injured his back in lifting the pieces of concrete the previous month, and that he had had a bad back since then. During the lifting process he observed the plaintiff’s legs to “virtually buckle under the weight of the concrete”.
Mr D’Ambrosio gave evidence in the plaintiff’s case. He had known Michael Tanchevski since the 1980s. At that time he was in partnership with another concreter. He and his partner had worked almost exclusively for Mr Tanchevski’s business.
He had employed the plaintiff as a concreter. After some time, the plaintiff ceased to be an employee and became an independent contractor. They shared the work, and over time the plaintiff did more and more and Mr D’Ambrosio less and less. Mr D’Ambrosio’s partnership came to an end in 2000 because his partner had a heart attack. By 2005 he was still doing some concreting work for the defendant, and other general work on building sites, for example collecting orders for cement and electrical and plumbing items. He regarded this as casual work, an hour or two at a time, which he recorded in a book and invoiced from time to time. He had done some work of that nature on Mr and Mrs Douglas’ house. He did not start work until the construction project was well advanced.
Just before Christmas in 2005 he had a telephone call from Mr Tanchevski, who told him to get in touch with the plaintiff and meet him on site. He saw the concrete. He could not recall how many pieces it had been cut into. They moved the concrete by hand. The pieces were heavy. They placed them on the back of his truck.
The oral evidence relevant to quantum
After completing the lifting task, the plaintiff went home. His sister was living with him at the time. He complained to her of having hurt his back. He said that he thought it would get better with time, and with the benefit of the Christmas break. He was suffering from severe low back pain and from pain down the right leg. When he returned to work at the end of January 2006, a month after the incident, he found that the pain increased markedly with his heavy concreting work. His first task for the New Year was cleaning and sealing the driveway, which he described as fairly light work. He complained to Mr Douglas about having hurt his back. His sister tried to persuade him to see a doctor but he did not want to do that and was sure his back would get better.
It had not improved by the beginning of March 2006. His sister made an appointment for him to see his general practitioner, Dr Gan. Dr Gan referred him for a CT scan which disclosed a disc protrusion at L4-5 on the right side. He then referred the plaintiff to Dr David McGrath, an occupational physician. Dr McGrath advised the plaintiff to start thinking about a different career, but the plaintiff had only ever done concreting work and was unqualified, by experience or otherwise, for any other kind of work.
He continued with his concreting work for a further two years or so. He took Oxycontin, and used morphine patches, both prescribed by Dr McGrath. They gave him some relief, but as he continued to work his back became worse. He saw himself as having no choice but to continue with the full range of concreting tasks.
In July 2006 he was referred by his general practitioner to a neurosurgeon, Dr Pik. There was discussion of surgery but the plaintiff did not take this further.
In late 2006 or early 2007 the plaintiff turned to morphine tablets which he obtained from an acquaintance without the intervention of his doctors. He conceded that this activity was unlawful, but he found that the morphine tablets were much more effective in relieving his pain. He progressed to smoking a substance, which I infer was probably opium, and then to taking heroin by injection. He obtained these through the same acquaintance. He continued to work during this period but became depressed. There were occasions when Michael Tanchevski was critical of the speed at which he was working. In the earlier months of 2008 the plaintiff noticed that he was getting less work from the Tanchevski business, and he eventually became aware that they were giving work to another concreting subcontractor. In mid-2008 he stopped working for Mr Tanchevski, and by the end of 2008 he had stopped work altogether.
In July 2008 the plaintiff was given employment by Belconnen Concrete through a family connection. He worked there for about three months, but gave it away. He found that he could not cope with the work because of his back.
Dr McGrath referred him to a psychologist, Tom Sutton. He attended a number of counselling sessions with Mr Sutton.
He changed to another general practitioner, Dr Watson, who prescribed valium and administered five cortisone injections into the lumbar area. The plaintiff found the experience unpleasant and the injections unhelpful.
After leaving Belconnen Concrete the plaintiff made a further attempt at work as an employee, with a firm named Quinro Concrete who had advertised a position, but he was unable to work full time, which was unacceptable to the employer, and he left after about two months. After that he worked for only one or two days with some people he knew, on a single job, and has not worked since.
In about October 2008 the plaintiff was involved in two car accidents. He denied any injuries of significance or permanent consequences from either of these accidents.
The plaintiff had some interaction with police about his illicit drug use. His evidence was that he remained on heroin for only about eight months. After giving it up he was put on a methadone program, on which he remained at the time of trial. He was also by then using prescription painkillers and anti-depressants. He was continuing to see Mr Sutton at about monthly intervals.
In January 2010 he was taken to the Canberra Hospital by police and admitted suffering from depression, with suicidal feelings.
He gave evidence that by the time of the trial he had no life. He no longer engaged in his pre-injury activities of camping, fishing, soccer and body-building.
He said that he had had no serious problems with his lower back before the injury, although, like every concreter, he had periodic episodes of muscular pain.
The plaintiff was taken in cross-examination to entries in his general practitioner’s records as to complaints of low back pain well before the incident at the end of 2005.
He conceded that at some earlier time he had been caught growing marijuana, for which he received a suspended sentence.
There were reported complaints to general practitioners about low back pain as early as 1992. The plaintiff’s explanation was that these problems were muscular and that he generally made a full recovery from episodes of back pain.
He agreed that he had seen his general practitioner during 2004 with a complaint of pain in the right hip and leg, and that he had had a limp at that time. He had taken a couple of weeks off work but had recovered fully.
Corroborating evidence was given by the plaintiff’s sister, Anna Maria Dallavenezia. She lived with the plaintiff from 2003 until the end of 2008. She recalled him coming home on the day of his injury, complaining that he had hurt his back lifting concrete. He asked her to put some cream or gel on his back. She suggested he go to the doctor. He was distressed and appeared to be in a lot of pain. She helped him by rubbing cream on his back and he also used heat packs. It was apparent to her that he was uncomfortable lying in bed and that his sleep was affected. He developed a limp. In the New Year she made an appointment for him to see a general practitioner, and accompanied him to the first appointment. She subsequently went with him to see Dr McGrath and Dr Pik. The plaintiff seemed to her to be deteriorating and not coping well, although he kept working.
Ms Dallavenezia became aware, apparently some time after the event, that her brother had started to rely upon illicit drugs. She rationalised this as being a reasonable response to his pain and depression. She made reference to a couple of occasions when she thought he had been close to suicide.
She denied being aware of any incidents before December 2005 where he had complained of back pain or hip or leg pain. She could not remember him taking two weeks off work during 2004.
In chief she volunteered information which went well beyond the questions she was asked, and it seemed to me that she had come to court determined to assist her brother’s case as far as she could. Nevertheless, after hearing the cross-examination, I had no reason to conclude that her evidence was untruthful or even significantly exaggerated.
The plaintiff’s brother Mario Fischetti also gave evidence in the plaintiff’s case. He had worked with his brother from about 1998 or 1999, after taking a redundancy package from the ACT Public Service. He was not present on the day of the concrete removal but remembered hearing about the incident. The plaintiff told him he had hurt his back. His recollection was that this was on the last working day before the Christmas closedown. His observation was that the plaintiff’s back never recovered, but gradually got worse over time. He thought that he had worked with his brother on the first job at the end of January 2006, when he noticed that the plaintiff was hobbling. He suggested that his brother go to the doctor but his brother said that they needed to keep working or the builder might give their jobs to someone else. The plaintiff began coming to work late. He complained of back pain. He used morphine patches and wore a back brace. There were occasions where he had to help the plaintiff take his boots off because he was unable to reach them. The plaintiff did less of the work, increasing the burden on his brother, who eventually left because he could not cope with it. In about early 2008 he resumed work with ACT Parks and Gardens, through a labour hire company.
He did not recall his brother having any difficulty with the heavier work prior to Christmas 2005, and had no specific memory of the plaintiff complaining of back pain at earlier times.
Senior counsel for the defendant cross-examined Mario Fischetti from his diaries, which he said he had kept for tax purposes. He was asked about an entry to the effect that on 20 December and 21 December 2005 he had worked on a footing at Queanbeyan. He recalled the job which he said had been for his cousin. He was asked whether the plaintiff had worked on that job as well, and said that he had. They had poured concrete for footings. It was put to him that it was apparent that he had worked with the plaintiff for the two days immediately following his injury. His response was that his brother had not said anything to him about it at that time.
The diary revealed that on 19 December 2005 Mario Fischetti had been involved in pouring a concrete slab at Dickson. His recollection was that this had been for the defendant company. On 20 and 21 December he had gone to the site at Queanbeyan, where his cousin was building a new house, and poured the slab with the plaintiff.
Mario Fischetti referred to his diaries towards the end of his evidence in chief. Senior counsel for the defendant called for production of the diaries, which were produced for inspection during the morning adjournment, just before the commencement of the cross-examination. I accept that the defendant had not had previous access to the diaries, and had not been in possession of any information which might have given rise to the issue of a subpoena for their production prior to trial. It is, however, regrettable that nothing about the Queanbeyan job for their cousin was put to the plaintiff while he was giving his evidence. As I have said, there is no contemporaneous documentation verifying 19 December 2005 as the date of the plaintiff’s injury. He would, I am sure, have remembered the job for his cousin at Queanbeyan, and this might well have triggered a recollection as to whether the injury occurred before or after that job. It seems extremely unlikely that the plaintiff would not have mentioned the lift, and his back injury, to his brother if it had happened the day before the Queanbeyan job. The only contemporaneous document which might assist is the invoice from Consaw for cutting the concrete, which was dated 21 December 2005. That invoice date is consistent with the cut having been carried out on 21 December, and the removal of the concrete perhaps as late as Friday 23 December 2005. In the circumstances I cannot be satisfied on the balance of probabilities that the plaintiff’s injury occurred on 19 December, and hence cannot be satisfied that the injury occurred before the plaintiff and his brother undertook the work for their cousin. It seems to me on balance more likely that his injury did not happen until Friday 23 December 2005.
The medical evidence
No evidence was called for the defendant. Almost all of the evidence in the plaintiff’s case was tendered in report form. Oral evidence was given by Dr Leon Le Leu, a specialist in occupational medicine who was qualified as an expert witness by the solicitors for the plaintiff.
There are reports in evidence by three general practitioners who have treated the plaintiff. Dr Michael Gan of Palmerston saw the plaintiff on 3 March 2006, complaining of, primarily, right buttock pain radiating down the anterior thigh, with a history of an injury lifting concrete slabs. He referred the plaintiff for a CT of the lumbo-sacral spine and an ultrasound of the right buttock. The CT scan revealed mild to moderate degenerative facet joint changes at L4-5 and L5-S1. The scan revealed mild posterior disc bulges, with loss of disc space height at L5-S1. There was a disc protrusion at L4-L5 causing right foraminal stenosis with probable nerve root impingement at L4 on the right side.
Dr Gan referred the plaintiff to Dr McGrath, and also to a physiotherapist.
Dr Gan saw the plaintiff again in July 2006 and referred him to Dr Pik, neurosurgeon.
Dr Tim Watson, a general practitioner at Gungahlin, saw the plaintiff in July 2007. He gave a history about the lifting incident, which Dr Watson recorded as having happened in October 2005. It is unclear how this inconsistency with the rest of the evidence occurred. The plaintiff gave Dr Watson a history consistent with his oral evidence. He was unable to work when he saw Dr Watson. He continued to work until January 2008 after which he went onto unemployment benefits with Centrelink. He said that his symptoms were often intolerable. He was unable to cope with routine household tasks, or with pre-injury recreational activities. This had affected his psychological state. He complained of low mood, withdrawal, fatigue, poor sleep, poor concentration and irritability. On examination he was tender at the L4-5 and L5-S1 levels and movements of the lumbar spine were restricted. Dr Watson diagnosed an adjustment disorder with depressed mood, in addition to the physical low back condition. The findings were consistent with the history of physical injury. Dr Watson thought that the plaintiff should not continue with concreting work but should look for a new vocation. He should eventually be fit for office work on reduced hours, perhaps three hours a day for three days a week, with no prolonged sitting or standing. His prognosis was guarded. Dr Watson saw the plaintiff again for a report in September 2010 and remained of the same opinion.
Dr Steve Kennealy of the same practice took over the plaintiff’s care in June 2009. He was given the same history. He noted that the plaintiff was suffering from sciatica as well as lower back pain, due to the irritated L4 nerve root. Dr Kennealy also found restriction of spinal movement on physical examination. He agreed that the plaintiff’s prognosis was guarded. It was unlikely that he would be able to return to concreting. He was unsuited to office or computing work because of his limited reading and writing skills, and experience generally. Dr Kennealy thought that the plaintiff’s concreting work had been the predominant factor in the development of his symptoms, made symptomatic by the incident in December 2005. He was unlikely to return to lifting or carrying, which would exacerbate his condition. His outlook for future employment was bleak. He would require analgesics for his lumbar spine from time to time, and also massage and physiotherapy. He was totally incapacitated for work as a self-employed concreter. Additionally he suffered from chronic major depression. He would require lifelong treatment for his lower back condition.
Dr McGrath saw the plaintiff for the first time in March 2006. He found the plaintiff not a particularly good historian. The symptoms were consistent with irritation of the L4 nerve root into the right leg. The prognosis was for continuing disability. He thought it doubtful that the plaintiff could continue to work as a concreter. His limited education was a factor in adapting to any other kind of work. The plaintiff had been inconsistent in attendance at Dr McGrath’s clinic, preferring to self-manage and treat. His spinal condition was the result of long years as a concreter with repetitive high spinal loading, which had become symptomatic following the incident at about Christmas 2005.
Dr McGrath expressed the opinion in July 2010 that the motor vehicle collision of 27 October 2008 was unlikely to have made any material difference to the plaintiff’s lower spinal disability.
Dr Pik saw the plaintiff in July 2006 for the first time. He was given a history of the development of severe right leg pain and low back pain in December 2005, which he attributed to disc prolapse. He thought that surgery might improve the right leg pain but would not make the back stronger or prevent recurrence of disc prolapse in the future.
Mr Sutton saw the plaintiff in November 2008. He did not think that the plaintiff would benefit from an outpatient program because he was too depressed and emotionally distressed, and had a severely lowered belief about his ability to manage pain. Mr Sutton thought that he should attend a structured in-house program, such as the ADAPT program at the Royal North Shore Hospital in Sydney, with follow-up attendance with a psychologist such as Mr Sutton. His responses to pain were abnormal and his pain-coping techniques were very poor. He displayed significant depressive symptoms, with secondary anxiety. He had poor literacy and verbal skills and could not be expected to transfer to a clerical or office environment. He was suited only to work which was technical and “hands-on”. Teaching for him would have to be “show and do” rather than via lectures or book learning. The plaintiff was too depressed and emotionally distressed to benefit from an out-patient pain management program. He should be referred to a psychiatrist for prescription of pharmacological management by reason of his severe depression. His psychological reactions to his physical injuries were contributed to by his pre-existing personality and emotional issues. His coping style was poor.
Mr Sutton reported again in January 2010, following five counselling sessions with the plaintiff. He reiterated that the plaintiff would require a live-in pain management program, and that he needed immediate psychiatric treatment for his severe depression. He did not think that the plaintiff’s involvement in the car accident of October 2008 was relevant to his assessment of the plaintiff’s problems following the work injury.
Mr Sutton reviewed the plaintiff in June 2011. The plaintiff had previously put on a lot of weight but had lost much of this. He was continuing on his methadone program. His test results showed elevated suicidal ideation. He remained very uncomfortable in social situations. Mr Sutton diagnosed him as suffering from a major depressive disorder, partially managed by medication, and decreased in severity since he previously saw him. Mr Sutton remained of the view that the plaintiff would benefit from a pain management program such as was offered at Royal North Shore Hospital in Sydney, but he doubted whether the plaintiff was employable. He thought that he had settled into a disability routine.
Mr Sutton saw the plaintiff again on 5 March 2012, a week before the hearing. He remained obese. He was agitated and worried about the court proceedings. He said that he was sick of life. He seemed to be contemplating suicide. He was anxious about his financial problems. He showed no capacity for mental flexibility, introspection or insight. He had relapsed somewhat since June 2011. He was limited by his background to unskilled or semi-skilled manual labouring, for which he was physically unfit.
The plaintiff was referred by his solicitors to Dr Garth Eaton, occupational physician. Dr Eaton first saw him in January 2009. He was provided with earlier reports. He took a history and conducted a physical examination. His diagnosis was that the plaintiff was suffering from chronic spinal pain due to an injury to the L4-5 disc, and aggravation of existing degenerative spinal disease, with associated symptoms of major depression and anxiety. Dr Eaton thought that the plaintiff would benefit from continuing his exercise, strengthening and stretching regime, and taking his prescribed medication. Psychological counselling was also likely to be beneficial. Consideration should be given to Mr Sutton’s recommendation that he attend a pain management program in Sydney. Future surgery could not be ruled out. The prognosis remained guarded, and the plaintiff’s final condition was likely to deteriorate over the long term. His work as a concreter over many years had contributed to the development of degenerative changes in the spine, and the injury in December 2005 had precipitated the disc prolapse at L4-5 resulting in chronic spinal and leg pain. There was no real prospect of any sustained improvement. The suggested pain management program might improve his pain control and functional capacity but was not likely to change his capacity for employment or his level of physical impairment. He was totally and permanently incapacitated for heavy physical work. Because of his limited education and work experience he had very poor prospects of returning to the workforce. He would be fit only for light unskilled work. The reduction in working capacity was a direct result of his injuries in December 2005. There was likely to have been a level of asymptomatic pre-existing degenerative change in his spine, which had been severely aggravated in December 2005. Since then it was likely that the degeneration and deterioration had continued at a more rapid rate than would have been the case in the absence of the injury, and this was likely to continue.
Dr Eaton was provided with further material prior to trial. His opinion was that the motor vehicle accident in which the plaintiff was involved in October 2008 had not caused any significant aggravation of his back injury. Medical records predating the injury of December 2005 did not contain any evidence to suggest that the plaintiff had suffered severe radiculopathy prior to that injury. He had probably experienced episodes of back strain without major injury, a common occurrence with concreters, but in most such cases severe disc injuries and radiculopathy did not occur.
The plaintiff’s solicitors sent him to Ms Maureen Blane-Brown, clinical and forensic psychologist, for assessment and report. She saw him in April 2009. She diagnosed him as suffering from an adjustment disorder with mixed anxiety and depressed mood, which in her opinion was a direct result of the injury in December 2005. He would benefit from twelve sessions of treatment by a psychologist, followed by a maintenance program. She agreed with Mr Sutton that he would also benefit from a pain management program such as the one offered by Royal North Shore Hospital.
The solicitors for the plaintiff qualified an orthopaedic surgeon, Dr Matthew Giblin, for an expert opinion. He saw the plaintiff in July 2009. He expressed the opinion that the plaintiff had ruptured the L4-5 disc causing L4 radiculopathy. This had led to depression, and incapacity to work as a concreter. Dr Giblin thought that the plaintiff would benefit from physiotherapy, four to six treatments at a time, twice a year. He would need to see his general practitioner for prescription of medication, and would need gardening help once a fortnight, and help in the house for four hours a week. The car accident in October 2008 had not had any impact on the plaintiff’s back condition.
The plaintiff‘s solicitors also qualified another occupational physician, Dr Leon Le Leu. Dr Le Leu saw the plaintiff twice, in August 2009 and May 2011. By 2009 his opinion was that the plaintiff’s condition had stabilised. There was a possibility of improvement with surgery. The plaintiff’s disability had more probably than not been caused by the injury in December 2005. His symptoms were likely to continue indefinitely. They were caused by a disc bulge at L4-5 and compromise of the L4 nerve root. He had had a degenerative lumbar spine at several levels, including desiccation of discs and facet joint changes, prior to the injury. The plaintiff’s disability was severe. He was totally unfit for even moderately physical work, and would be limited to employment of a sedentary nature. He might have expected, with care, a further twenty years in concreting, with perhaps the last five to ten years being largely supervisory. As a result of the injury he had lost perhaps twenty years of a field in which he was expert, which was lucrative, and which he enjoyed. There was no evidence that the degenerative condition prior to the accident had caused any radiculopathy.
When Dr Le Leu saw the plaintiff again in 2011 he noted a significant weight gain. His gait had deteriorated to a shuffle. He used a walking stick. His lumbar spinal degeneration was likely to accelerate.
Dr Le Leu was subsequently provided with pre-injury records including notes from the Calvary Hospital Emergency Department in June 2004, and copies of correspondence from Dr Gan. He accepted that there had been a history of back pain. However, the plaintiff had been able to work until the 2005 injury, and there was no prior history of radiculopathy. Dr Le Leu was convinced that the radiculopathy commenced with the injury in late 2005. Dr Le Leu was provided with the same pre-accident material as Dr Eaton, with whom he agreed. That material did not change his opinion on causation.
Dr Le Leu gave oral evidence by telephone. He accepted that the plaintiff had had some back symptoms prior to the 2005 injury, and he agreed that once a person with a degenerative spine starts getting symptoms, they usually continue to get intermittent symptoms, which tend to get worse over time.
Dr Le Leu thought that it would have been extremely uncomfortable and very hard for the plaintiff to engage in concreting work on the two days immediately after his injury. If he had worked on those days without complaint, it would be inconsistent with him suffering a disc rupture the previous day.
Dr Le Leu was asked in re-examination how long the plaintiff would have been likely to have worked as a concreter if the injury of December 2005 had not occurred, having regard to his degenerative spinal disease. The doctor thought that he could probably have kept working for a further period of five to fifteen years, probably closer to the middle of that, that is ten years. He said that this was “fairly speculative”.
No medical evidence was called, or reports served, on behalf of the defendant. The solicitors for the defendant completed the Certificate of Readiness so as to make it clear that there had been medical examinations on their client’s behalf by June 2010, with review appointments expected before the trial, and one or two expert witnesses intended to be called. I draw the available inference that such medical reports as were obtained by the solicitors for the defendant would not have assisted the defendant’s case.
Duty of care
It is clear on the evidence that the plaintiff was not an employee of the defendant at the time of his injury, although a number of years earlier he had been an employee. He was an independent contractor, albeit one who did almost all his subcontract work for the defendant. He did this through the agency of his own company, which does not seem to me to make any difference to the relationship or the existence or scope of a duty of care.
The duty owed by an employer to an employee is a personal, non-delegable duty of care requiring that reasonable care be taken. It is considerably more stringent than the duty generally owed by a principal to a subcontractor: a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. As the High Court said in a joint judgment in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 at [21], “the concept of distinguishing between independent contractors and employees is one too deeply rooted to be pulled out”.
In Leighton v Fox the High Court confirmed at [20] the following statement of principle of Brennan J in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 47-48, governing the circumstances in which a principal will come under a duty to use reasonable care to ensure that a system of work for an independent contractor is safe:
An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk, and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur.
In Leighton v Fox the High Court also confirmed at [62] the principle stated by Mason J in Stevens v Brodribb that:
. . . if an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work, and where there is a need for him to give directions as to when and where the work is to be done and to coordinate the various activities, the entrepreneur will come under a duty to prescribe a safe system of work.
These decisions were applications of the general law. It does not seem to me that the provisions of the Civil Law (Wrongs) Act2002 departed from, or added anything relevant to, the general law about the duty of care owed by a principal to an independent contractor.
The task which Mr Tanchevski had asked Mr D’Ambrosio to perform, and to enlist the help of the plaintiff in performing, was not a task which required the expertise of a concreter. It was a labouring task which any employed labourer could have performed. It was simply a task requiring the removal of pieces of set reinforced concrete. To use the words of Mason J in Stevens v Brodribb, it was a task “that might as readily be done by employees”.
There is no evidence of precisely what instructions were given by the defendant to ConSaw. In particular, there is no evidence as to whether ConSaw were given any instruction about the size of pieces of concrete into which the encroaching concrete was to be cut. There is no evidence as to whether ConSaw was told to cut that concrete into pieces small enough to be safely lifted by two men. There is no evidence as to whether ConSaw were told anything about how the pieces of concrete, after they had been cut, were to be lifted and removed. That is something the defendant might have been expected to have called evidence about, perhaps evidence by Michael Tanchevski, if such evidence would have assisted its case. There was no suggestion that Mr Tanchevski was unavailable to give evidence. There is an inference available to me, which I draw, that his evidence, and any other evidence which might have been available to the defendant on this issue, would not have helped the defendant’s case. Similarly, there is no evidence as to whether Michael Tanchevski, or anyone else on behalf of the defendant, took any steps to check on the sizes or weights of the pieces of concrete to be removed. Mr D’Ambrosio did not suggest in his evidence that he had been asked to make any assessment about whether the pieces of concrete were of a safe size and weight to lift and remove. Both he and the plaintiff could reasonably have assumed that these were matters which had been considered by the defendant.
It seems to me that it was entirely reasonable for Mr D’Ambrosio and the plaintiff to assume that the concrete they were to remove had been cut into pieces of a size and weight appropriate to be lifted and carried by two men. The defendant must be taken to be aware that Mr D’Ambrosio and the plaintiff would do their best to lift and carry the pieces of concrete and take them away.
In the event, the pieces were, with the benefit of hindsight, clearly too large and too heavy for two men to manage. This created a risk of harm to Mr D’Ambrosio and the plaintiff. The risk was foreseeable. It was something Mr Tanchevski should have thought about. The available precautions were very simple. The concrete could have been cut into smaller pieces. More men could have been assigned to the task. A bobcat or some other mechanical means could have been used to move the pieces. The risk of injury should have been apparent to someone in the position of the defendant, as should the likely seriousness of the harm which might flow.
In the circumstances, I am satisfied that the defendant owed a duty of care to the plaintiff to take precautions against the risk of the injury which he suffered. The risk could easily have been avoided. It was foreseeable that a person in the plaintiff’s position might suffer an injury of the kind he suffered if those precautions were not taken. I am accordingly satisfied that the defendant committed a breach of its duty of care. There is no issue that the plaintiff suffered personal injury as a result of the breach. I am therefore satisfied that the plaintiff has established negligence on the part of the defendant.
If it were necessary, I would also find the defendant guilty of negligence by reason of failure to comply with the now repealed Occupational Health and Safety (Manual Handling) Regulation 1997 (ACT). Section 38 of the Regulation provided that an employer must take all reasonably practicable steps to ensure that persons at or near a workplace under the employer’s control who are not the employer’s employees are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking. Section 39 provides that a person who has, to any extent, control of a workplace must take all reasonably practicable steps to ensure that it is safe and without risk to health. A workplace is defined to mean any premises where employees or self-employed persons work, and work to mean work as an employee or as a self-employed person. A failure to comply with the Regulation is pleaded as a particular of negligence, rather than the independent tort of breach of statutory duty. The latter tort is not available – the Occupational Health and Safety Act1989 provided to that effect: see now Work Health and Safety Act2011, s 267.
Section 5 of the Regulation requires an employer to undertake a risk assessment of each manual handling task likely to be a risk to health and safety, taking into account the actions and movements involved in the manual handling, the postures and positions which must be taken by each person involved in the manual handling, and the weights and forces involved. If a manual handling task is assessed as being a risk to health and safety, the employer or person in control must take reasonably practicable steps to minimise the risk, if necessary redesigning the task to eliminate or minimise the risk, and where appropriate provide mechanical aids and arrange for an appropriately trained person or group of people to undertake the manual handling.
There is no evidence that the defendant undertook any kind of risk assessment in respect of the removal of the concrete, or took any of the steps required by s 6 of the Regulation as to risk control. The failure of the defendant, as person in control of the workplace, amounted in the circumstances to a breach of its duty of care to the plaintiff.
Contributory negligence
The defendant relies on a defence of contributory negligence, the particulars being as follows:
(a) Failure to undertake any or any proper risk assessment prior to commencing concreting work.
(b) Failure to obtain suitable equipment and/or labour to break up and move any concrete.
(c) Failing to take any or any adequate precautions for his own safety and the safety of his employees as a director and employee of Correct Concerting Pty Ltd.
(d) Failure to exercise reasonable care given his experience obtained in the building industry over a number of years as an employee and conducting his own business as an expert concreting contractor.
I am not satisfied that it would be reasonable to expect the plaintiff to have carried out a risk assessment. It does not seem to me that it is fair to describe him as having been engaged in concreting work. It was not his responsibility to obtain equipment or labour to break up or move the concrete. As I have said, the task he was asked to help with was a simple labouring task, not one which required or utilised the experience of a concreter. Nevertheless the defence raises the question of whether he failed to take adequate precautions for his own safety. On his own evidence, he was aware in the course of the lift of the first piece of concrete that the pieces he and Mr D’Ambrosio were expected to lift were too heavy and, because of the sharp ends of the reinforcing steel, too awkward to be moved manually. Nevertheless he persisted, encouraged in that regard by Mr D’Ambrosio, with the lifting and carrying of the second and third pieces of concrete. It is apparent on the evidence that it was during the lifting and carrying of the third piece of concrete that his injury happened. He was, it seems to me, too easily persuaded by Mr D’Ambrosio to continue with the removal, when a reasonable person would have realised that it was dangerous and would have declined to take the removal task any further. Having said that, there were only three pieces to be moved. Mr D’Ambrosio was obviously keen to complete the task immediately, and it was made apparent to the plaintiff that this was Mr Tanchevski’s wish also. He was, I think reasonably, worried that if he refused to complete the task, this might affect Mr Tanchevski’s willingness to continue to give him work as a concreting subcontractor.
It was open to the plaintiff to stop the task. There were, it seems to me, good reasons why he did not adopt that course. With the benefit of hindsight, we now know that by continuing with the task to its completion, the plaintiff suffered a serious low back injury, but he was not to know that this would happen, or even that there was any particular likelihood of it happening.
The question is whether a reasonable person in the plaintiff’s position, including his situation as a regular subcontractor to the defendant, should have refused to continue with the task until completion. All things considered, I am not persuaded that his failure to stop work on the job was unreasonable, or something I would have expected a reasonable person in his position to do, having regard to his continuing relationship at that time with the defendant.
I am not satisfied that the plaintiff was guilty of contributory negligence.
Damages
I am satisfied on the evidence that the plaintiff suffered an injury to his L4-5 intervertebral disc shortly before Christmas 2005, in the course of lifting heavy pieces of concrete at the Douglas home at Nicholls. From the time of the injury he has suffered significant low back and leg back. He persevered with concreting work despite his pain, with the assistance of analgesia including illicit drugs. With the passage of time he became gradually less able to cope with his work as a concreter. By October 2008 he was unable to continue with that work and has been totally incapacitated since. He is unfit for heavy work in the construction industry, and is unsuited by experience, training, intelligence and generally, for other work. He suffers from major depression, aggravating his general incapacity for work.
I am satisfied that the plaintiff had degenerative changes in the low back prior to this injury, but that they were generally asymptomatic. Typically for a concreter, he suffered from episodes of low back pain from time to time, but these were muscular rather than caused by nerve root involvement.
I generally accept the evidence of Dr Kennealy, Dr Eaton and Dr Le Leu as to causation. I accept Dr Le Leu’s opinion evidence that the plaintiff would probably have been able to continue with his pre-accident work as a concreter for about ten years from the date of his injury. I accept the evidence of Mr Sutton that the plaintiff would benefit from a live-in pain management program such as the program conducted by Royal North Shore Hospital in Sydney and that he will require medical and psychological treatment for the foreseeable future. I cannot be sure that he will decide to undertake the program, but he may well accept the preponderance of medical advice that he would benefit from doing so.
Senior counsel for the plaintiff submitted that I should award $110,000.00 by way of general damages for pain and suffering and loss of enjoyment of life. Senior counsel for the defendant did not put a range but did not really take issue with the submission on behalf of the plaintiff. It seems to me that a proper figure for general damages for the plaintiff would be $100,000.00 and I award that amount.
It was common ground that half of the sum awarded for general damages should be apportioned to the past and half to the future. It is approaching eight years since the plaintiff’s injury. I allow for interest on the past component of general damages the sum of $16,000.00
Treatment expenses to the date of trial were agreed at $7,083.00. That figure will have increased since trial. To the date of judgment I allow $8,000.00. There is no claim for interest.
Senior counsel for the plaintiff seeks $15,000.00 for future expenses, acknowledging that the assessment of the figure for this component is a matter of judgment rather than of mathematical calculation. I allow $12,000.00 for future treatment expenses.
As to loss of earning capacity, primary records were tendered in the plaintiff’s case including tax returns, notices of assessment and bank statements. Also tendered without objection was a report by Mr GW Davis, an accountant with qualifications in economics and commerce, and extensive experience as a forensic financial loss analyst. There was no challenge to Mr Davis’ opinion evidence. He calculated the plaintiff’s loss of earnings due to his injury up to 30 June 2011 at $209,471.00. I accept Mr Davis’ methodology and the assumptions on which his opinion is based, subject to one matter: it appears that he failed to give credit for an amount earned by the plaintiff during his employment by Quinro Concrete of $10,101.00. Mr Davis allowed only $2,200.00 for that income. His figure up to 30 June 2011 should accordingly be reduced by $7,901.00 to $201,570.00.
I am satisfied that, based upon Mr Davis’ report, by 30 June 2011, if it had not been for the injury, the plaintiff would have been earning $1,923.00 per week before tax, or $1,409.00 after tax. Senior counsel for the plaintiff is content to rely on that figure as representing the plaintiff’s weekly loss from that date to the date of judgment. That is a period of 119 weeks. Thus the plaintiff’s loss of earnings for the past will be allowed in the sum of $369,241.00.
That figure attracts interest at the prescribed commercial rate. In the absence of specific submissions from counsel for either party I propose to adopt an interest rate of 9% per annum, spread evenly over the period since the plaintiff gave up work in October 2008, that is five years, on the assumption that the loss has been incurred evenly over that period. For interest I allow a rounded figure of $83,000.00.
Based upon the evidence of Dr Le Leu, senior counsel for the plaintiff seeks damages for loss of earning capacity for the future on the basis that the plaintiff would probably have worked for about ten years from the date of his injury in December 2005. That is, he would probably have worked until about the end of 2015 – a further two years and about ten weeks, that is 114 weeks. This needs to be marginally discounted to arrive at a present value, and further discounted by the conventional 15% to take account of the vicissitudes of life. For the future I allow $130,000.00.
There is no claim for superannuation benefits, there being no evidence that the plaintiff was paid a wage or salary by his company, or that the company paid any superannuation contributions.
There is a Griffiths v Kerkemeyer claim for services provided to the plaintiff by his sister in the past, and by others, based upon his past and future need for help around the house and in the garden. I accept the evidence of Dr Giblin that the plaintiff has a requirement for domestic assistance, of the order of four hours a week in the house, and help in the garden once a fortnight. The plaintiff is entitled to be compensated for this need regardless of whether he engages paid assistance, or even whether or not a friend or family member actually provides the services for him. The appropriate rate is within the range of $20.00 to $25.00 per hour. It seems to me that it is reasonable to allow an average figure of $100.00 per week. It is almost eight years since the injury. For the past I allow $40,000.00. That amount attracts interest at the prescribed commercial rate. Again I adopt 9% as the applicable rate, in the absence of specific submissions by counsel, and apportion the amount evenly over the period since the injury. For interest I allow $14,400.00.
For the future, I adopt the multiplier for a man aged 50 for life (981). I then reduce that figure by approximately half, to take account of the vicissitudes of life and the likelihood that a time would have come in any event in the plaintiff’s life when he needed assistance of this kind, particularly having regard to the fact that he had engaged all his working life in heavy concreting work and would have continued to do so but for the accident. For the future Griffiths v Kerkemeyer component I award $50,000.00.
The individual components of the award of damages are accordingly as follows:
General Damages $100,000.00
Interest on past component $16,000.00
Out-of-pocket expenses – past $8,000.00
- future $12,000.00
Loss of earning capacity – past $369,241.00
- Interest thereon $83,000.00
- Future $130,000.00
Griffiths v Kerkemeyer – past $40,000.00
- Interest $14,400.00
- Future $50,000.00
___________
$822,641.00
On consideration, that total seems to me to represent a proper reflection of the effect of the negligence of the defendant upon the plaintiff, and to compensate him adequately for his injury and its consequences.
There will be judgment for the plaintiff for $822,641.00. In the normal course costs would follow the event but I shall provide the parties with an opportunity to be heard as to costs in case there are considerations unknown to me which should be taken into account.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 16 October 2013
Counsel for the plaintiff: Mr RL Crowe SC and Mr DI Richards
Solicitors for the plaintiff: Maurice Blackburn
Counsel for the defendant: Mr MJ Cranitch SC and Mr MB Inglis
Solicitors for the defendant: Hicksons
Counsel for the third party: Mr AR Muller
Solicitors for the third party: Moray & Agnew
Date of hearing: 13, 14, 15 March 2012
Date of judgment: 16 October 2013
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