Duffy v Salvation Army (Victoria) Property Trust
[2013] VCC 683
•17 June 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-01081
| MATHEW DUFFY | Plaintiff |
| v | |
| SALVATION ARMY (VICTORIA) PROPERTY TRUST | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Bairnsdale | |
DATE OF HEARING: | 3, 4 and 5 June 2013 | |
DATE OF JUDGMENT: | 17 June 2013 | |
CASE MAY BE CITED AS: | Duffy v Salvation Army (Victoria) Property Trust | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 683 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Duty of care
Legislation Cited: Occupational Health and Safety Act 2004; Wrongs Act 1958, as amended by the Occupiers Liability Act 1985, s14B3
Cases Cited:Czatyrko v Edith Cowan University [2005] HCA 14; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hopgood v Wodonga Regional Health Service [2012] VSC 169; Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45; Swain v Waverley Municipal Council [2005] HCA 4; Victorian Stevedoring v Farlow (1963) VR 594.
Judgment: The plaintiff’s claim is dismissed. Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | - |
| For the Defendant | Mr P Scanlon QC with Mr A Saunders | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 The plaintiff is a thirty seven year old disability support pensioner, having been born in March 1976. He is a shearer by occupation.
2 In March 2006, the plaintiff was a participant in the Work for the Dole Program (“the Program”) initiated by the Commonwealth through its agents, the Department of Employment and Workplace Relations and Centrelink.
3 The defendant was the occupier of premises at 63 Macleod St Bairnsdale (“the premises”).
4 Pursuant to the Program, the plaintiff was directed to undertake work at the premises.
5 At all material times, the defendant accepted the plaintiff as a “worker” pursuant to the Program.
6 On 8 March 2006 (“the said date”), the plaintiff sustained injury at the premises when he attempted to prevent a detached vanity unit mirror from falling to the ground from the rear of a truck (“the incident”).
7 It was alleged the incident was caused by the negligence of the defendant, in that it failed to provide a safe system of work with competent fellow employees, required the plaintiff to perform duties that were too onerous for him, failed to provide any or any adequate equipment for the unloading of a vanity unit (“the unit”) from the truck at the premises, failed to ensure that a mirror had not become detached from the unit while being unloaded from the truck and requiring the plaintiff to prevent a large mirror from falling to the ground during the course of unloading from a truck.
8 It was also alleged the defendant failed to comply with the regulations made pursuant to the Occupational Health and Safety Act; and failed to comply with Part IIA of the Wrongs Act 1958, as amended by the Occupiers Liability Act and in particular, s14B3 thereof.
9 It was alleged that the defendant was under a duty pursuant to s14B3 of the Wrongs Act to take such care, as in all the circumstances of the case was reasonable, to see any person on the premises would not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
10 It was alleged the incident was caused by a breach of the aforementioned duty, the particulars thereof being those detailed in the Particulars of Negligence.
11 As a result of the incident, the plaintiff suffered injury to the left shoulder, probably left rotator cuff injury, severe and constant pain, depression, psychological injury and probable permanent disability.
12 The defendant admitted incorporation, being the occupier of the premises and that it had a duty to take reasonable care in all the circumstances for the safety of people at the premises.
13 If there was any negligence or breach of duty, which was denied, contributory negligence was alleged in that the plaintiff failed to take care for his own safety reaching to catch a large falling mirror when he knew or ought to have known to do so presented a risk of injury to himself and failing to remove himself from a position of danger.
The view
14 The parties attended the premises for a view on the afternoon of 3 June 2013.
15 The plaintiff indicated a concrete driveway in the premises at the Bailey Street entrance into which the flat tray truck was reversed and stationary on the said date. The plaintiff described how the truck had its front poking out about two or three metres out the roller door entrance onto Bailey Street.
16 Immediately prior to the incident, the plaintiff was standing about five metres to the rear of the truck’s tray to the right side. He was standing near where there is presently some shelving, but he did not think that shelving was there on the said date.
17 There were about seven people standing behind the tray before the incident happened and there were a couple of people around the plaintiff near where he was standing. There were also people just in the premises going about their normal business, but they were not in the driveway.
18 The plaintiff was not involved in unloading the unit and mirror from the truck. Whilst the unit was being unloaded, the mirror on it became loose. The plaintiff moved from his stationary position to about a metre behind the tray, where he then in effect caught the mirror. The plaintiff demonstrated how he then put the mirror down on the ground in the position where he caught it.
The Plaintiff’s evidence
19 In examination-in-chief, the plaintiff stated he was on a disability support pension for the last year because of his shoulder injury.[1]
[1]T27
20 The plaintiff started Year 12 but did not complete it. He has worked in shearing sheds all his life with his father, a shearing contractor, doing all jobs except classing wool.[2] He has been employed in other sheds doing similar work.
[2]T27
21 About fifteen years ago, the plaintiff did a little bit of bar work and also some vegetable picking.[3]
[3]T28
22 The plaintiff confirmed the wage figures set out in his answers to Interrogatories. He has not worked for the last two or three years.[4]
[4]T28
23 At the time of the incident, the plaintiff had too much shearing work, for his father and others, if anything. His work was starting to overlap. As that work could be sporadic because of the weather and sheep numbers, the plaintiff had always been on Centrelink.[5]
[5]T29
24 At the time of the incident, the plaintiff was in excellent health. He had never had any previous problems with his left shoulder.[6]
[6]T29
25 The plaintiff confirmed the date of injury was 8 March. He thought he had worked at the premises one earlier day which might have been 1 March.[7]
[7]T30
26 On the first day the plaintiff worked at the premises, Gus Morgan, a manager of the defendant, introduced him to Cameron Guyatt, another volunteer. They showed the plaintiff the ropes and exactly what to do.[8] They showed him how to depress bales of clothing into wool bales. The plaintiff was excellent at that task and he did it in no time at all, having used a wool press all his life.[9]
[8]T30
[9]T30
27 Mr Morgan and Mr Guyatt also got the plaintiff to go through the electrical equipment, test it and label it with prices. Further, they directed the plaintiff to sort through different clothes and put them in different categories or baskets.[10]
[10]T31
28 The plaintiff was given “just a general instruction” about how to do those jobs.[11]
[11]T31
29 On 1 March, the plaintiff might have worked just over half a day. Over the following days he was told to come back to work at the premises. Mr Morgan, TAFE, Mission Australia and Centrelink told him to come back on the 8th. The plaintiff’s work was all part of the contract with the Program.[12]
[12]T32
30 The plaintiff could not recall what he did between 1 and 8 March, save that it was his birthday.
31 The plaintiff arrived at the premises at 9 am on the said date. He could recall he then pressed clothes into bales, sorted through more clothes, checked more electrical equipment, and labelled and priced them.
32 At the time of the incident, about noon, the plaintiff was standing away from the back of a tray truck watching it being unloaded. There was only a large bedroom vanity unit with mirror on the tray.
33 There were about two or three people on the tray truck and approximately four people on the ground taking the weight of the unit.[13]
[13]T32
34 The truck was a 1950s or 60s model and had a fairly round nose. It was very large, and the tray was very tall, wide and long. The tray was possibly 150 centimetres high from the ground and possibly over three metres wide. It would have been six or seven metres long.[14] It had a flat tray, with possibly some slight ridges around the edge of one to three inches. There could have been a ridge on the back of the tray.[15]
[14]T33
[15]T33
35 The plaintiff then noticed that at least one of the people unloading had his hand underneath the unit and mirror and trying to take its weight, lifted the mirror off its pivots. The large mirror fell to the ground instantly. The plaintiff then rushed in and caught the mirror with his left hand and stabilised the mirror on the side with his right hand.[16]
[16]T34
36 The plaintiff “just suddenly rushed in to stop the danger, and he just instantly got to the mirror and caught it and pulled it up before it hit the ground.”[17]
[17]T34
37 The plaintiff then just slowly lowered the mirror to the ground. He put his left hand underneath the bottom of the mirror and grasped it with his left hand as hard as he could. He grabbed the mirror with his right hand on the right side and stabilised it as well as he could, and slowly he pulled it up, and then slowly put it to the ground.[18]
[18]T35
38 The mirror weighed about 100 kilograms. It was possibly taller than the plaintiff who is 167 centimetres tall, so it would have probably been about 1.8 tall and a metre wide. It was a long octagon bevelled mirror, extremely thick and solid.
39 After putting the mirror down, the plaintiff stood up, and was in slight shock due to what had happened. He “just sort of grabbed his left shoulder a few times to see how it was, because it almost came off.” He had constant pain after that, and had extreme trouble sleeping that night.
40 The plaintiff thought that he went to lunch after the incident and came back and did a few more slight jobs, and that was pretty much it for the day.[19]
[19]T35
41 When asked did he tell anyone at the premises what had happened, the plaintiff said “Most of them saw it, approximately, yeah. More than 90 per cent of the people there saw it, I think, in the back room.” He told someone formally the next day, as he could not sleep that night from pain.[20] The plaintiff told Mr Morgan in the shop, but could not remember exactly what he told him.[21]
[20]T35
[21]T36
42 The plaintiff just told Mr Morgan that he had trouble sleeping that night because of the pain in his shoulder, and they needed to record the incident. Mr Morgan filled out a handwritten note on the incident, which the plaintiff took straight around to Bridget Gibson at TAFE. He gave her a copy of that incident report and also gave a copy to Centrelink and Mission Australia (Joblink).[22] The plaintiff asked Ms Gibson to fill out an incident report that day, 9 March.[23]
[22]T36
[23]T36
43 Since the incident, the plaintiff has not returned to the defendant to work and he has only gone back to TAFE to talk to Bridget Gibson.
44 After the incident, the plaintiff tried to continue with normal shearing, but his shoulder kept on dislocating, and it made shearing extremely dangerous. He was not exactly sure when he went back to shearing. He was constantly on and off, depending on the weather.[24]
[24]T37
45 The plaintiff last did any shearing work in about 2009 for his father. In the last four years he has tried to do light duties, but even that was too dangerous.[25] He needed to be 100 per cent to do roustabout, otherwise it could be dangerous for others around him and it was his job to protect them from dangers as well.[26]
[25]T37
[26]T38
46 The plaintiff thought he possibly last worked at the end of 2009. Since then he had tried, but the lack of sleep because of his permanent injury made it difficult to concentrate on anything. He tried any work that was not too intensive, possibly just handyman work.[27] He has not had any paid work since then.
[27]T38
47 The plaintiff first saw Dr Worboys on 26 March 2006 about his injury. His shoulder was then extremely painful, and he was getting no sleep at all because of it, and he wanted it to be investigated. He could not recall if he was initially given medication.[28]
[28]T38
48 The plaintiff possibly saw Dr Worboys a couple of times. An ultrasound and x‑ray were organised by Bairnsdale Medical Group, the only place where the plaintiff had treatment.[29] He had physiotherapy at the hospital, the last treatment being perhaps at the end of 2011.
[29]T39
49 The plaintiff had a hydrodilatation in about February 2010 organised by Mr Rehfisch, whom he saw about three times. He was the last specialist the plaintiff had seen. The plaintiff had also seen Dr Otuonye and Dr McConville at the Bairnsdale Medical Group.[30]
[30]T40
50 Mr Rehfisch injected cortisone into the plaintiff’s left shoulder, and that did not help the plaintiff as far as he was aware.[31] The plaintiff had also had ultrasound therapy.[32] If anything, his condition had got worse because of the physiotherapy.
[31]T40
[32]T40
51 The plaintiff thought he was prescribed medication several times, with Panadeine Forte being prescribed early on. The best thing he had found was Aspro Clear.[33]
[33]T41
52 The plaintiff is constantly aware of left shoulder pain.[34] It feels like someone is jabbing a pin right between his shoulder joint and rotator cuff at the very, very top of his left shoulder, deep inside it, from the top. The jabbing feeling is consistent. Some days it is worse, especially if the shoulder dislocates. It has dislocated a number of times since the incident.
[34]T41
53 The plaintiff thought his shoulder could dislocate possibly up to ten times a year on average. He has been to the doctor when this occurs. He last saw Dr McConville about a year ago for this problem.[35]
[35]T41
54 Before the incident, the plaintiff was always excellent at sport and almost anything he tried.[36] He described playing golf all around the local area and being on single figures. He was a member of the Lindenow South Golf Club for a year. Ever since his shoulder started dislocating, the plaintiff has not played golf, because he cannot, and his injury has totally destroyed his golf game.[37]
[36]T42
[37]T43
55 The plaintiff used to do a lot of water sports such as water skiing near Paynesville on his brother’s boat, possibly going more than a dozen times during the summer, but he has not been since he suffered injury.
56 Before the incident, the plaintiff had run almost anywhere and everywhere, and he had always been into fitness. He used to be into body-building and all kinds of other fitness activity. When he was eighteen he joined a gym for about a year. He has always had a home gym, but he has not used it since the incident.[38]
[38]T43
57 The plaintiff lives in a house on the same sheep property as his parents. He is not able to help out as much as he used to, previously having been able to do almost everything. These days he can hardly do anything. He used to be able to lift extremely heavy objects without any trouble, and now if he is going to lift anything it has to do so right through the right side of his body, and that becomes extremely dangerous because he risks injuring his right side.[39] He previously was expected to lift farm equipment and animals. Now his family and friends do these tasks.
[39]T44
58 Lately the plaintiff has been spending all day on his case, and he is just trying to survive.[40] Sometimes he does not get any sleep during the night because of his permanently injured shoulder rotator cuff. The pain will not let him sleep, so he has to lie on top of his shoulder and put all his weight on it so it sits in the right position, and it slightly relieves the pain.[41]
[40]T44
[41]T45
59 On a normal day, the plaintiff listens to the radio sometimes, and watches TV. He has not had a social life since the incident, because he has virtually no finances to travel anywhere. He used to do anything he felt like all the time, going to the pub, having a counter meal, going to friends’ places, playing golf. He would just go and help people, and go to work - just a general normal life.[42]
[42]T45
60 Had he not been injured, the plaintiff was going to continue to shear and eventually take over his family’s shearing contract business. He now cannot shear as he cannot control the sheep with his left arm, with the handpiece in his right. When his shoulder dislocates, the plaintiff screams out in pain most of the time. The sheep then usually jumps up and the plaintiff has to try to control it while he has got the running handpiece in his hand. His shoulder just suddenly dislocating had almost killed him and other people several times.[43]
[43]T46
61 When the plaintiff’s shoulder pops out, it feels like it is popping out of its socket, and like it is about to rip off or fall off.[44] To deal with the problem, sometimes he has a hot shower, and sometimes he puts icepacks on his shoulder and he takes Aspro Clear. The plaintiff’s shoulder can dislocate at any given moment, and it just keeps dislocating.[45] It hurts when he moves his shoulder in any direction.[46] The worst movement is possibly laterally, out to the side.
[44]T46
[45]T46
[46]T47
62 The injury has affected the plaintiff’s personality, social life and future earnings, his health, sleep and “all other kinds of stuff.”[47]
[47]T47
Cross-examination
63 The plaintiff confirmed that he was fit and healthy in body and mind before the incident. He then agreed he had been a psychiatric patient on and off.[48] He explained there was a misunderstanding involving a Dr Anderson and the plaintiff’s report of a previous sighting of a UFO.[49]
[48]T49
[49]T50
64 The plaintiff denied telling Dr Anderson he had seen a very large sea monster in the surf whilst body surfing. He agreed he had had a number of life ending experiences including being shot and being bitten by a brown snake.[50]
[50]T50
65 The plaintiff confirmed he had been trying to rectify mistakes in his file at the Latrobe Regional Hospital relating to the false diagnosis of schizophrenia.[51]
[51]T52
66 The plaintiff was not quite sure whether it was part of his job to unload the truck on the said date. He could not recall if anyone had asked him to unload it. There were seven people engaged in this task on the said date. If he had been asked to assist, he was not doing so because there were other people, “there were too many others unloading it at the time”.[52]
[52]T53
67 The plaintiff agreed his job was to put shirts into wool bales and compress them. That was his job on the said date and he was extremely quick at doing it – he had never really known anyone else quite as good.[53] He was close to the world record.[54]
[53]T55
[54]T55
68 The plaintiff confirmed he had a single figure gold handicap. He thought 74 approximately was par on his local course. He just played “normal” golf. He did not know about Ambrose, Stableford or four ball best ball.[55] The plaintiff was one of the best golfers he had ever known. He would be just guessing his best score. He agreed that possibly Tiger Woods was the second best golfer he had seen. He was not sure if Tiger Woods came after him.[56]
[55]T56
[56]T58
69 The plaintiff was cross-examined about his answer “No” to Interrogatory 27 whether on the said date or any other date he informed any servant or agent of the defendant that he had been involved in the incident.
70 The plaintiff confirmed he told Mr Morgan about injuring his shoulder the day after the incident. The plaintiff explained - “Like most people were aware of it, and most people witnessed it that day. Well, most people realised.”[57]
[57]T64
71 The plaintiff confirmed he did fill out a personal incident form which he got from Mr Morgan the day after the incident.
72 The plaintiff said he did not have to tell the defendant about the incident anyway, because they already knew about it - “There’s that many witnesses”.[58]
[58]T64
73 The plaintiff described how Mr Fitzgerald was standing right next to him or near him. He was in the crowd virtually in front of the plaintiff. They were all standing in a group. There were people in everywhere”[59]
[59]T64
74 The plaintiff was not aware that he had been required by the defendant to help unload the truck. The plaintiff was also not aware of having received any instructions from anyone to assist in the unloading of the truck.[60]
[60]T65
75 The plaintiff described how one of the workers had their hand underneath the mirror or there could have been a few hands under the mirror when it came off its hinges.[61]
[61]T65
76 The plaintiff agreed he was standing approximately five metres away at the back right hand corner of the truck.[62] There could have been one or two people holding the glass on the top of the tray and approximately four on the ground assisting.
[62]T66
77 When the glass moved it was pretty much on the tray of the truck, and it extended beyond the back of the truck once it started falling. It probably fell a distance of about two metres.[63]
[63]T66
78 The plaintiff confirmed it was absolutely correct, the mirror was falling about two metres, and he travelled five metres to catch it. He agreed he must have been travelling twice as fast as a piece of falling glass which weighed 100 kilograms.
79 When it was suggested to the plaintiff that situation was absolutely impossible, he confirmed - “That’s exactly what happened.”[64] He travelled that distance because he was extremely quick, and faster than a falling object that weighed 100 kilograms.
[64]T67
80 The plaintiff agreed he might have been a second or so slower than the world record for 100 metres of 9.69 seconds. [65] He explained he caught the mirror about 18 inches before it hit the ground, about possibly a metre before the ground.[66]
[65]T68
[66]T69
81 The plaintiff could catch a mirror weighing that amount from five metres away, if it was going to kill somebody.[67] He could do that now if he was not “permanently injured.”
[67]T70
82 The plaintiff was not quite sure whether he moved before the glass fell – “It was all in slow motion, the adrenaline just kicked in”.[68] He understood what speed he was travelling at because he was there and he did it. The plaintiff then went on to describe how he had run marathons at school.
[68]T71
83 The plaintiff was cross-examined about his water skiing, saying he used to use slalom, doubles and kneeboard skis.[69] He did not know what type of ski his slalom was. When asked whether it was concave or convex, he said “Probably concave”. It was then suggested to him there was no such thing.[70] He was not sure if he would jump start when he was skiing.[71] He described himself as an excellent water-skier.[72]
[69]T73
[70]T74
[71]T74
[72]T75
84 The plaintiff was asked about work prior to the incident. He had been paid for shearing since 2006.
85 After the incident, the plaintiff told Ms Gibson at TAFE he could not return to the Program because he had too much work on with shearing.[73] He was not sure whether he was being pressed to go back after the incident. It was possible that she would have asked him. That could have happened. He confirmed he had told her he had shearing on,[74] but then said he did not go back to light work with the defendant because his injury was persisting.[75]
[73]T76
[74]T76
[75]T76
86 The plaintiff tried to continue shearing in 2006. He had a lot on, as usual.
87 The plaintiff confirmed his net income was as follows for the financial years ending 30 June - 2004, $11,887, 2005, $6,545; 2006, $4,797; 2007, $649; 2008, $4,111; 2009, $4,292; 2010, $1,791and 2011, $0.
88 For most of the plaintiff’s life he has worked for his father. He has never been paid in cash by him or anyone else.
89 The plaintiff explained he stopped work in April 2007 because of his permanently injured left shoulder. [76] He was shown a 2007 Centrelink medical certificate in which Dr Reddi diagnosed schizophrenia. The plaintiff explained that was a misunderstanding and the diagnosis was completely false. The plaintiff agreed the Centrelink certificate at that stage put him off work.[77]
[76]T79
[77]T80
90 It was possible that the plaintiff had a Job Capacity Assessment report done by Centrelink on 16 May 2007 (“the 2007 report”). This document set out that the plaintiff would be off work as a result of delusional thoughts. The plaintiff explained he was off work because of his left permanently injured shoulder and related fatigue.[78] His lack of sleep prevented him from effectively engaging in job seeking activities.[79]
[78]T81
[79]T82
91 The plaintiff confirmed in 2007 he had plenty of work, but he was permanently injured, so he had to reduce his work, because he did not have the capacity to do it anymore “as good”.[80]
[80]T83
92 The author of the 2007 report noted that the plaintiff reported that he was working up to 60 hours a week in IT, said during his whole life he had always been a workaholic. The plaintiff said he had done an IT course in 2000 but had not said to anyone he had worked up to 60 hours a week, but he had always been a workaholic.[81] He had not received any money for IT work for friends or family.
[81]T83
93 The plaintiff could not work in computer data entry because he is extremely fatigued because of his permanent injury to his left shoulder, and he cannot concentrate fully, so there would be data errors.[82]
[82]T88
94 Since the incident, the plaintiff has been injured in a few different ways over the years.[83] He could remember dislocating his shoulder a fair bit. He told Mr Rehfisch about dislocating his shoulder, and he suggested physio and gave the plaintiff an injection.
[83]T89
95 The plaintiff’s shoulder had continued to dislocate for the last three years. The plaintiff confirmed he had a blood-clotting abnormality which would increase his risk if he underwent surgery.[84]
[84]T91
96 The plaintiff agreed that he had had a fall on a trampoline in early 2010, and explained it was because of lack of sleep, because he was fatigued and he was trying to wake himself up, because of his permanently injured left shoulder.[85] His knee just gave way because he was that fatigued.
[85]T91
97 When it was put to him that the hospital records at that time showed that he was non weight-bearing for 100 days after that injury, the plaintiff was not aware that it would have been for that long. The injury stopped him weight bearing for a week or two.[86]
[86]T93
98 The plaintiff thought that there was a problem with his rotator cuff which had been reported by Mr Rehfisch.
99 The plaintiff confirmed he was trained for a number of Olympic sports, namely weight-lifting and gymnastics. He was in a squad with Dean Lukin, who asked him if he would like to train for the Olympics. The plaintiff competed against the Victorian Institute of Sport.[87]
[87]T95
100 In terms of gymnastics, the plaintiff does balancing exercises at home daily, keeping his weight on his right so he does not injure his left shoulder any further.[88]
[88]T96
101 The plaintiff confirmed that when he went to the defendant’s premises he was to do all the jobs in the store. He was doing the compressing and doing everything in the two half days he worked. Quite possibly he did every aspect of the job at that time.[89] He did not collect money. He put tags on clothes. Apart from collecting money, he did everything as far as he knew. He confirmed that he did electrical work and compressing the shirts, every job.[90]
[89]T97
[90]T97
102 The plaintiff was not aware, or could not recall, that he was ever asked to unload the truck. He could not recall whether he was ever told to go and do it.[91]
[91]T97
103 The plaintiff was asked about the ute that was at the rear of the premises at the view. The plaintiff said there was a large truck involved in the incident, which did not have a hydraulic lifting device. The plaintiff agreed he was not asked to go and grab the mirror; he just made the decision himself on the spur of the moment.[92]
[92]T98
104 After the incident, the plaintiff did not get back to normal heavy shearing work, and his injury reduced his capacity to almost half, even less.
105 The plaintiff continues to take Aspro Clear, sometimes two or three a day, and tries not to take more than six.[93] If he had not been hurt, the plaintiff was the only one in line to take over the family business and shearing contract.[94]
[93]T100
[94]T101
106 In re‑examination, the plaintiff produced email confirmation that he was a member of the South Pines Golf Club in 2004, and he provided a score card with par at 72, and ladies’ par at 73.[95]
[95]Exhibit A
107 The plaintiff also tendered an email from Robyn Cosgrove, a nurse who had looked at the video he had taken of a UFO and confirmed it was the plaintiff’s voice on the recording of the UFO.[96]
[96]Exhibit B
108 There were a number of FOI requests made by the plaintiff of Latrobe Regional Hospital to correct his file. The plaintiff disagreed with the diagnosis of schizophrenia because it was based on him recording a UFO with a video camera.[97]
[97]T103
Lay evidence
109 Geoffrey Fitzgerald, a disability support pensioner, was working as a volunteer for the defendant at the premises on the said date. He worked mainly upstairs rebuilding donated computers.
110 Mr Fitzgerald no longer works with the defendant as a volunteer, last having done so a couple of years ago.[98] He did not know the plaintiff on the said date except he was aware the plaintiff was a volunteer in the shop area.
[98]T108
111 On the said date, Mr Fitzgerald was walking past something pretty heavy being unloaded from a truck, not a ute. He stopped and looked at what was happening.
112 There were a couple of guys trying to lift a heavy vanity unit off the truck and there was someone else trying to hold a fairly big looking mirror on top of it. The mirror sort of came off and started to topple. Pretty much everyone froze except for the plaintiff, who took off and jumped and tried it support it.
113 The truck was pointing away from the shop area, pretty much parked between where Mr Fitzgerald walked to the front of the premises from the little side entrance. The truck was pretty much on the left of the road, facing on Macleod Street. The nose of the truck was out of the premises.[99]
[99]T108
114 Mr Fitzgerald was standing between the end of the truck and almost diagonally opposite, just a little distance, possibly two and a half metres.[100] He saw the plaintiff literally rush up and hold the mirror up. He knew pretty well if the mirror had fallen “they would all have got hammered by it.”[101]
[100]T108
[101]T108
115 Mr Fitzgerald volunteered the truck did not have an automatic lift system that newer ones have.
116 All Mr Fitzgerald saw was a young man jump off and support the unit that was falling, and he recalled very clearly what the plaintiff physically did.
117 The plaintiff was somewhere either to the front of or to Mr Fitzgerald’s right, and he jumped up literally and grabbed hold of the mirror and tried to hold it, because the guys who were on the truck had literally lost control of it.[102]
[102]T109
118 There were maybe five or six people assisting in the unloading. The plaintiff was trying to hold the mirror up because it was falling.
119 Mr Fitzgerald repeated that it was not a utility, it was a tray truck.” The tray was about waist height from the ground.
120 The mirror started to come off the guys’ hands and topple, and the plaintiff jumped up and tried to hold it, literally.
121 Then the two guys or so who were trying to lift it up virtually lost control of it, so the whole thing virtually landed on top of the plaintiff, who was trying to stop it from toppling.
122 The plaintiff had to reach up really high, because he had the height of the tray then the height of the unit, and the height of the mirror on top, so he was trying to hold it virtually with both hands.
123 Then the other guys managed to grab the mirror as well, and it all came down fairly uneventfully. If the plaintiff had not done that, Mr Fitzgerald was pretty sure the mirror would have landed on someone.[103]
[103]T110
124 After the incident, Mr Fitzgerald probably just went back upstairs. He remembered the event, perhaps not as much the details, because it had been a long while ago.[104] He remembered it because he thought the mirror was going to fall on him, and if it had fallen the shards would have certainly injured him.
[104]T111
125 In cross-examination, Mr Fitzgerald confirmed that the truck was parked by the side of the roller door virtually. He explained the defendant does not park the truck really on Bailey Street itself, but more at a diagonal to unload it, because the items go in through the roller door.
126 When asked the truck’s location, Mr Fitzgerald said to be honest he really could not recall the exact location, because he was just walking past, and then he saw the thing fall.[105] His recollection was not very clear as to the exact position of the truck. He did not think it was backed in to the premises as such.
[105]T113
127 Mr Fitzgerald had not seen the plaintiff since the incident, and met him by pure chance in an Aldi shop a week or two before the hearing.[106] Mr Fitzgerald agreed it was the first time in seven years that he had been asked to recall or think about the incident.
[106]T113
128 Mr Fitzgerald knew it was the plaintiff who actually put his hands up on the glass, as he had a good memory for faces, and it was pretty much imprinted on his mind because it was a life-threatening situation.
129 Mr Fitzgerald was actually outside on Bailey Street itself, because he came around the front. He was not behind the truck specifically. He was more on a diagonal, because he walked around the truck where it was parked. He was walking around the right-hand side of the truck coming from behind it.[107]
[107]T114
130 Mr Fitzgerald had no idea where the plaintiff came from. He just saw the plaintiff jump up and hold the glass as it was coming off the back of the truck. The glass was taken off the truck later but when the plaintiff grabbed it with his hands up high the glass did not fall.[108]
[108]T115
131 Mr Fitzgerald confirmed the plaintiff put his left hand up high, and his right hand sort of a bit over his waist. The plaintiff supported the mirror for a short while, and then the other guys sort of grabbed it and put it down. Mr Fitzgerald was not sure whether they actually put it on the top of the truck or the ground.[109]
[109]T116
132 The mirror was awkward, diagonal, and toppling onto the plaintiff.[110] The plaintiff’s left hand was high up on the glass, and his right was underneath the mirror at about waist height. [111]
[110]T117
[111]T117
133 The plaintiff managed to hold the mirror long enough for someone else to grab it, and someone else did grab it underneath.[112] It could not have been the plaintiff grabbing the mirror very low with his left hand.
[112]T118
134 Mr Fitzgerald explained that what normally happens is that the truck comes at to the back of the premises and parks at an angle. The front of the truck was not inside the premises. He was not 100 per cent sure that no part of the truck was actually inside the premises at the time of the incident.[113]
[113]T120
135 Mr Fitzgerald was concerned about the thing falling.[114] He was not in the premises. A part of the truck might have been in the premises, because the truck was turned, and it was virtually at the corner of where the roller door started. He could not tell for sure whether any part of the truck was in the premises.[115]
[114]T120
[115]T120
136 In re examination, the plaintiff suggested that Mr Scanlon was misleading the witness about the position of the plaintiff’s hands during the incident.
137 Mr Fitzgerald said that if the plaintiff had not been there, the mirror would have crashed to the ground and smashed. It was a very heavy mirror. It would have fallen onto the concrete at the back of the shop, right back at the roller door.
138 When the workers lifted the unit out, they would have lifted it maybe a third into the roller door area.[116]
[116]T122
139 I asked Mr Fitzgerald to do draw a diagram of the position of the truck in relation to the premises and show where the tray was located. In that drawing, he indicated that the truck was not in the premises and was on a diagonal at the rear of the premises near a roller door. Mr Fitzgerald did not place the truck or the roller door in Bailey Street.
140 Mr Fitzgerald confirmed he saw the plaintiff jump up and support the mirror.[117] The plaintiff jumped in a very fast manner and reacted. He saw the plaintiff grab the top of the mirror and the bottom. If the plaintiff had been the sole person left handling the mirror, he would have been dragged to the ground or the mirror landed on top of him, so somebody must have helped him, but Mr Fitzgerald could not recall who or what happened at that stage.[118]
[117]T123
[118]T124
141 It was definitely the plaintiff involved in the incident and Mr Fitzgerald owed him a debt of gratitude, because the mirror would have quite possibly fallen on him, and the plaintiff in effect he saved him from injury.
142 Gerard Greenaway is presently employed in aged care. He met the plaintiff long ago when they were both doing an art course at Moorabbin.
143 Their social life involves a couple of beers and watching a video or something like that, and they might visit each other’s homes. They probably see each other about once a month now. Before the incident, they had weekly contact.
144 The plaintiff is not as busy or as physical as he used to be. He used to do a lot of roustabouting and farm work, and Mr Greenaway believed he also did some computer work[119] and dabbled in the stock market for little while.
[119]T128
145 In the last year they have seen each other four or five times, just to have a couple of beers and a chat. The plaintiff is no longer as active as he used to be. He has put on a bit of weight.
146 The plaintiff is a man of integrity and honesty, and a good friend.[120] His family are lovely people. The plaintiff was very hardworking before the incident. Years ago the plaintiff had saved Mr Greenaway a hospital trip when the plaintiff dragged him from a fire into which he had fallen.[121]
[120]T128
[121]T129
The Plaintiff’s exhibits
147 Exhibit A was an email from Jan Hobson from South Pines Golf Club dated 3 June 2013 confirming the plaintiff joined the club in 2004 for a period of not more than 12 months.
148 A South Pines score card set out par of 72 and 73 on the ladies’ course.
149 Exhibit B was a letter from nurse, Robyn Cosgrove, dated 1 June 2013 confirming that she viewed video footage of an UFO recorded from the front of the plaintiff’s residence. She confirmed it was the plaintiff’s voice on the recording. The recording was approximately 50 minutes long, and the plaintiff told her he filmed it in 2003. She was unable to identify the object.
150 An FOI request was made to Latrobe Regional Hospital by the plaintiff in 2011. This year the plaintiff has contacted the Hospital requesting mistakes be corrected on his clinical file and requesting a correction of his personal records.
151 The plaintiff advised he needed the exact legitimate reasons why and how the entry “2005 psychosis” got into his file officially.
152 The plaintiff tendered an advertisement for concave skis which rebutted matters put to him in cross examination.
153 The plaintiff prepared his own court book, which included various court documents together with-
(a) a series of testimonials, with a Nagle College sports award in 1991 for weights, a certificate of merit in 1991 for schoolboys clean and jerk, a Nagle College certificate of excellence in sports December 1991, a very good effort for term 4 volleyball in 1991, and a newspaper article in 1991 detailing the plaintiff finished second at the Victorian Schoolboys Weightlifting Championships;
(b) Membership card from the Australian Taekwondo;
(c) St John’s Ambulance certificate dated 19 June 1999;
(d) Dr Worboys initial medical certificate of 28 March 2006 relating to the left shoulder;
(e) Personal Accident Form signed by the plaintiff on 29 March 2006 setting out that on 8 March 2006 he was “watching moving dressing table when the mirror became detached from unit reached and stopped mirror from falling to the ground.” The injury was described as “left shoulder strain to rotator cuff”;
(f) Work for the Dole documentation from Bridget Gibson, and a Memorandum of Understanding relating to the Program dated 1 March 2006;
(g) Receipts for physiotherapy treatment from Bairnsdale Regional Health Service in June 2010, August 2010, September 2010, April 2011, May 2011, June 2011;
(h) Medicare history statement;
(i) Profit and loss statements for the plaintiff’s parents’ business, “Joseph F and Iris J Duffy” detailing the following- 2003- profit $3,430, 2004 – loss $1,148, 2005 – profit $1,414, 2006 –loss $2,434, 2007 – profit $856, 2008 - loss $6,290, and in 2009 there was a loss of $2,079.
(k) Shearing Rates- Federal Pastoral Award as of December 2012.
Medical evidence
154 On 13 April 2006, Dr Worboys arranged an x‑ray and ultrasound of the left shoulder. “?Capsulitis after wrenching injury mid-March.”
155 On 27 May 2006, Dr Worboys noted:
“Left shoulder has improved somewhat. Still quite symptomatic, though at night mostly – encourage physio, and if no improvement then to consider?”
156 Dr McConville’s note of 26 May 2009 set out:
“March 2006 working at Salvoes unloading vanity mirror (weighing less than 50 kilograms), unloading off tray of truck – mirror detached from vanity unit and was airborne, and you lunged forward to grab it before hitting the ground. Left arm lower than right arm. Left took most of the impact. Pain over the top of the shoulder. No allied healthcare, analgesia, alcohol and aspirin. Pain if abducting shoulder less than 90 degrees, especially if shoulder clicks. Gets pain at night. Good rotation. Moderately tender over the AC joint. Used to be a shearer. Panadol Osteo and Somac tablets.”
157 Dr McConville reported on 15 July 2009, having seen the plaintiff only once, on 26 May 2009.
158 Dr McConville could not tell the exact diagnosis except to say it is a chronic left shoulder injury and he was awaiting an MRI scan. Looking through the history, it appeared the shoulder injury did occur whilst the plaintiff was working.
159 At that stage Dr McConville was unable to say how much work the plaintiff was able to do, as he had only seen him once, and his symptoms were largely related to that of pain, and a definitive diagnosis had not been made.
160 Dr McConville noted that Mr Rehfisch had commented that even if there were not a lot of significant objective findings on MRI, the plaintiff’s symptoms may well persist well into the future, as it has been three years since the initial injury.
161 Dr McConville noted that the plaintiff presented to Dr Worboys on 28 March 2006 with left shoulder pain that occurred two weeks after an incident whilst working with the Salvation Army. The plaintiff was unloading a vanity unit from the tray of the truck when the mirror detached from the vanity unit and was airborne. The plaintiff lunged forward to grab it before hitting the ground, injury his left arm and shoulder. This happened in about mid-March 2006.
162 Dr Worboys reported the plaintiff had a full range of movement, but felt like his shoulder was falling off. The plaintiff was not keen to have a steroid injection, and was prescribed anti-inflammatories.
163 The plaintiff was seen two weeks later with further discomfort, and an ultrasound and x‑ray was ordered. Both investigations were reported as normal with no evidence of a tear, calcification, or fluid collection.
164 The plaintiff was seen again by Dr Worboys on 17 May 2006. His left shoulder had improved somewhat but was still symptomatic, mostly at night. The plaintiff was encouraged to do physiotherapy treatment and consider hydrodilatation and steroid injection.
165 The plaintiff’s shoulder was not mentioned again by him until 20 February 2009 when he saw Dr Grabinsky, who noted the plaintiff injured his shoulder three years ago, and had shoulder pain with restriction on movement. Dr Grabinsky organised a referral to Warwick Wright, orthopaedic surgeon, who unfortunately did not do WorkCover.
166 Bairnsdale Regional Health physiotherapists wrote to Dr McConville in June 2010, noting that Mr Rehfisch had referred the plaintiff for treatment for mobilising and strengthening his left shoulder due to a chronic problem which began in 2006 when he caught a large mirror which was falling off a truck.
167 There had been six sessions over the previous three months, with minimal improvement. Invoices for these and a number of other visits for unspecified treatment in July, August, and December 2010 and April – June 2011 were tendered.
168 Treatment had included a home exercise program. It was noted the plaintiff’s symptoms were a bit vague at times, and that he should have improved with his range of movement at least a small amount. The plaintiff reported if exercises were pushed into soreness it would take weeks for his shoulder to recover.
169 The physiotherapist noted Mr Rehfisch had suggested a hydrodilatation if? physiotherapy was of minimal benefit. The physiotherapist was unsure as to whether that would help, because if the plaintiff had a frozen shoulder it would not be able to externally rotate fully in 90 degrees abduction.
170 The physiotherapist advised that the practice was having a look at the plaintiff’s knee, and then would be discharging him from treatment.
171 Mr Rehfisch reported to the plaintiff’s solicitors on 10 November 2009. He confirmed the plaintiff first presented on 17 June 2009 after having been referred by Dr McConville.
172 The story the plaintiff gave was that he injured his left shoulder when he had been working with the Salvation Army unloading furniture from a truck in March 2006. The plaintiff told Mr Rehfisch he had tried to grab a piece of furniture that was falling, and he injured his shoulder in the process of trying to stop it hit the ground. Initial investigations were normal, but the plaintiff’s shoulder problems continued.
173 The plaintiff described a constant pain around the left shoulder, with decreased strength and range of movement in the joint. He had not had any treatment on his shoulder by the time he saw Mr Rehfisch. He was otherwise in good health.
174 On examination, the plaintiff’s shoulder appeared normal with no evidence of any wasting, swelling or redness. There was slight tenderness to palpation over the tip of the acromion. There was limited flexion and abduction, and it appeared to be patient reluctance that stopped the range of movement going any further.
175 Mr Rehfisch advised he was not sure of the cause of the plaintiff’s shoulder pain, and discussed the problem with him. He felt it reasonable to get an MRI, and gave the patient a request to have that organised. The plaintiff had not returned to see him at that stage.
176 Mr Rehfisch thought the plaintiff had a non-specific injury to his left shoulder while working with the Salvation Army loading furniture in 2006 and had continuing shoulder pain since then. Apart from a mildly restricted range of movement in the shoulder when he examined the plaintiff, there was little else to find, but Mr Rehfisch noted a diagnosis? that any further treatment would require further investigation.
177 At the present time, Mr Rehfisch was unable to make any firm diagnosis apart from the fact that the plaintiff had a painful and slightly stiff shoulder, and the injuries could have been caused by the stated cause.
178 Mr Rehfisch wrote to Dr McConville in March 2010, the plaintiff having returned to see him with his recent MRI which showed no abnormality in the shoulder.
179 Mr Rehfisch noted there was a suggestion from the scan that the plaintiff may have had a previous dislocation of the shoulder, but as his shoulder was not dislocating in the last six months, the plaintiff required no treatment for it.
180 Mr Rehfisch noted the plaintiff still had a mildly restricted range of shoulder movement but he believed there was no evidence on scan to suggest there was a major abnormality in the shoulder that would require surgery.
181 Mr Rehfisch believed the plaintiff may have a mild frozen shoulder, and he gave him a subacromial cortisone injection and arranged for him to have some physiotherapy to see if that could help. The next step would be a hydrodilatation if no improvement.
182 The plaintiff told Mr Rehfisch he had injured his knee on a trampoline four weeks ago, and apart from a slight effusion in the joint there was no other abnormality when examining him that day. Mr Rehfisch hoped the plaintiff’s knee would settle without further problem.
183 On 12 October 2011, Mr Rehfisch wrote to Maurice Blackburn, having seen the plaintiff on two further occasions.
184 On 12 March 2010, the plaintiff attended following the knee injury on the trampoline.
185 Mr Rehfisch encouraged the plaintiff to continue on with gentle mobilising exercises for his knee, and was hopeful it would settle.
186 Mr Rehfisch discussed the recent MRI of the shoulder, and noted there was a suggestion from the scan that the plaintiff may have had a previous dislocation of his shoulder, but, as his shoulder had not been dislocated in the last six months, he felt it did not require any treatment. He noted the plaintiff had a mildly restricted range of shoulder movement, but, as there was no evidence on the scan to suggest an abnormality requiring surgery, he encouraged the plaintiff to continue with further mobilising exercises.
187 On attendance on 12 September 2011, the plaintiff advised that a cortisone injection he had had in the past, and further physiotherapy, had not improved him. He had been describing significant discomfort in his shoulder, particularly at night, to the point where he felt he was getting so little sleep that he thought he might die as a result thereof.
188 The plaintiff told Mr Rehfisch that the knee he had injured had been very bad for a while, but in September on that examination it was improving, and Mr Rehfisch could find no evidence of an abnormality on clinical examination.
189 Although the plaintiff appeared to be quite well, he told Mr Rehfisch he felt his general health was quite poor. He also told him of a blood clotting abnormality which would increase the risk of clotting slightly if he had surgery, although Mr Rehfisch thought medication could reduce that risk. However, if the plaintiff had significant reasons to wish to avoid surgery, and as his previous shoulder investigation had been normal, Mr Rehfisch was happy for him to continue with further exercise and he would arrange a further review.
The Defendant’s evidence
190 The defendant called no viva voce evidence.
191 Exhibit 1 was a Centrelink medical certificate from Dr Reddi dated 23 April 2007, following an examination that day, setting out the plaintiff’s presenting problem was schizophrenia and that he was currently unfit for work.
192 Exhibit 2 was a Job Capacity Assessment report for Centrelink relating to a referral of the plaintiff to that service on 16 May 2007.
193 It was noted the plaintiff had an assessed current work capacity of less than eight hours a week. The limitation to current work capacity noted was due to permanent and ongoing functional restrictions associated with the medical conditions, impaired concentration and delusional thoughts. No work was deemed suitable.
194 It was noted that the plaintiff had been linked into job network; however, his condition was preventing him from effectively engaging in job seeking activities. Delusional thoughts were indicated throughout the assessment with rapid thought changes.
195 The plaintiff reported that he had been working shearing sheep on the family property but had run out of work. He then indicated he was working in IT and completed computer modules at TAFE. He stated that he worked for up to 60 hours a week but when asked whether this was paid employment he was evasive and became agitated.
196 Exhibit 3 was a diagram drawn by Mr Fitzgerald of the incident scene. Mr Fitzgerald placed the truck on a diagonal at the rear of the premises indicating there was a roller door on the back wall of the premises. The truck was not in the premises at all nor was it in Bailey Street.
197 Exhibit 4 was an MRI of the plaintiff’s left shoulder organised by Mr Rehfisch on 18 November 2009. It was reported concluded there was “no rotator cuff disruption. Query old loose body post-dislocation?”
198 Exhibit 5 was a Latrobe Regional Hospital Gippsland Psychiatric Services Comprehensive Assessment and Service Plan dated 31 January 2006.
199 It was noted the plaintiff had been referred on 19 March 2005 by his general practitioner, Dr Anderson, for an assessment of his mental state due to self reports of supernatural experiences and sighting a UFO. The closure diagnosis was “?query schizotypal disorder? Schizophrenic illness”.
200 On mental state examination, it was noted the plaintiff believed he had seen a sea monster in the surf when body surfing and once saw and took video evidence of a UFO sighting. It was noted the video was never offered for “viewing? Illusions.”
201 Further, the plaintiff indicated he had had many near life experiences, e.g. a brown snakebite, shooting accident, jumping off a cliff into a damned water area. The plaintiff was discharged from the program because he was no longer engaging with secondary mental health services and Case Manager saw no reason to maintain contact. It was noted the plaintiff’s parents recognised this reason and would contact LRHMHS if the plaintiff’s clinical presentation was to deteriorate.
202 Exhibit 6 was a letter from Dr Iyyadurai, consultant psychiatrist, Bairnsdale Community Mental Health Service, to Dr Anderson, dated 20 September 2005.
203 Dr Iyyadurai advised Dr Anderson since the referral of the plaintiff, in January that year, he had been accepted for case management review twice, the first on 4 April.
204 Dr Iyyadurai noted the plaintiff presented at the first meeting neatly dressed and cooperative and initially confused about the reasons for referral. He felt nobody understood him. He described seeing a thirty foot monster on a beach and his experience meeting aliens.
205 Dr Iyyadurai noted there were multiple oddities in the plaintiff’s speech with thoughts of grandiose content. There were no clear cut affective symptoms and he denied any hallucinations. There were no active suicidal self-harm or aggressive thoughts planned or intents.
206 A trial of anti-psychotic medication was discussed; however, the plaintiff felt he needed more information before commencing anything. He agreed to remain in contact with the service, however insight was limited.
207 Dr Iyyadurai diagnosed schizotypal disorder and schizophrenic illness.
208 On review on 15 August the plaintiff presented well. There was a mild thought disorder, positive content of speech and vague superficial answers. There were no active delusions or hallucinations. The plaintiff was argumentative about medication wanting to know whether the treating team had taken anti-psychotics before.
209 There were no suicidal or aggressive thoughts or plans. There was poor insight. The plan remained the same with a further review in six to eight weeks.
Submissions on behalf of the Defendant
210 Counsel for the defendant submitted that there is not a scintilla of evidence that would establish any negligence on the part of the defendant, and the claim as a matter of law should be dismissed.[122]
[122]T142
211 Counsel admitted a duty to the plaintiff as employer and also occupier.
212 Reference was made to the principles emanating from Stevens v Brodribb Sawmilling Co Pty Ltd[123] and cases that follow, that having regard to control over employment, the plaintiff could be deemed to be a common law employee.
[123](1986) 160 CLR 16
213 Counsel for the defendant also relied on the decision of Beach J in Hopgood v Wodonga Regional Health Service,[124] Young CJ in Coca-Cola Amatil (NSW) Pty Ltd v Pareezer[125] and the decision in Swain v Waverley Municipal Council[126] in support of the submission that the plaintiff was required to establish that there was some alternative system that was practicable and reasonable and that it would have prevented the injury.[127]
[124][2012] VSC 169 at paragraph 23
[125][2006] NSWCA 45
[126][2005] HCA 4
[127]T144
214 It was submitted there was no evidence of an alternative system in the present case.
215 It was submitted there is not one scintilla of evidence that seven men unloading the unit in the circumstances was inappropriate, negligent, or in breach of duty. It was submitted it was a case which was without legal merit.
216 The plaintiff himself mentioned seven people in the immediate vicinity of the incident scene involved in the unloading. Any allegation of failing to warn or instruct is not made out. There is no evidence of a failure to properly train or instruct, with the plaintiff’s evidence of what he was told by Mr Morgan as to the clothes and electrical.[128]
[128]T144
217 It has never been suggested there was an inappropriate system.
218 Mr Fitzgerald’s evidence is diametrically opposed to the plaintiff’s version of the incident.
219 It is wholly improbable, wholly unlikely, and an impossibility for the accident to occur in the manner described by the plaintiff.[129] Even if that is what happened, there is no evidence of any system of work that breaches the common law duty. There is no statutory breach.
[129]T148
220 The plaintiff said he could not recall, or not that he was aware, was he asked or instructed to help unload. When asked if he has been asked to, why was he not, he said because there were too many others unloading.
221 It was submitted that it does not matter whether it was a truck or ute involved in the incident, because there are seven people involved in the unloading. Even if I accepted the plaintiff’s evidence, it was totally at odds with that given by Mr Fitzgerald.[130]
[130]T150
222 Counsel for the defendant posed the question - where is the evidence of a breach by the defendant engaging in some conduct that in all of the circumstances was unreasonable?[131] It is a duty to take reasonable care, not a duty to guarantee the safety of an employee.
[131]T150
223 Further, how can it be said that seven men removing a vanity from a truck is itself negligent? How could it be said there was any negligence in failing to take reasonable care for the plaintiff in the circumstances where he was nearby an incident where he himself put himself into a position where he was injured.[132]
[132]T151
224 If there was any negligence on the defendant’s part, which was denied, it was submitted the plaintiff was solely responsible for his injury in terms of contributory negligence.
225 As to damages, in summary, counsel for the defendant put the following matters.
226 The figures the plaintiff has put exceed that for a brain damaged quadriplegic. There is not much medical evidence.[133] Even the treating orthopaedic surgeon says the incident “could” have caused the plaintiff’s current situation.
[133]T152
227 Not much has been found on clinical examinations. There is no confirmation by treating doctors of the recurring dislocations the plaintiff described. There is no suggestion of any rotator cuff damage, despite the assertion the plaintiff said Mr Rehfisch told him this was the case.
228 The economic loss claim is hopeless, with pre-injury earnings at most $200 a week. Further the plaintiff agreed that he told Ms Gibson from TAFE after the incident that he could not go back to work with the defendant because he had too much shearing on, although he later said it had something to do with his shoulder.
229 It was submitted in the future, the plaintiff’s knee problem and schizophrenia would severely restrict his employment capacity in any event. Future economic loss should be determined by the principles in Farlow.[134] The medical expenses claimed are an absurdity and not exceed $1,000.
[134]T158; (1963) VR 594
Submissions on behalf of the Plaintiff
230 The plaintiff described his pre-accident excellent health and a promising future. Having to save people in this incident had destroyed his life. His life had almost been absolutely devastated by this occurrence.[135]
[135]T160
231 The plaintiff had suffered physical pain for the last seven years and psychological pain from his injury and lack of sleep, extreme fatigue and just general bodily deterioration.
232 In terms of negligence, the plaintiff suggested the defendant could have had some kind of proper unloading procedure. There could have been better communication and the defendant should have observed the potential danger.[136]
[136]T161
233 The incident took place in a fairly confined space. As the floor was concrete, the giant mirror shattered from a height of about 3.5 metres. There were no visible lines to indicate the truck was parked exactly on a square angle.
234 It was just a hazardous area by all accounts.[137]
[137]T165
235 The plaintiff submitted counsel for the defendant interrupted and misled Mr Fitzgerald in cross examination.
236 The plaintiff’s shearing career and sheep work career and farming career has been absolutely destroyed by his injury.[138] His parents’ business was profitable before the incident with income reaching approximately $60,000. A good shearer could easily earn up to $2,500 per week. The plaintiff’s father is still shearing at eighty.
[138]T165
237 The plaintiff relied on Mr Rehfisch saying there was a suggestion of a previous shoulder dislocation.
238 The plaintiff wanted to tell the Court about corruption and other unrelated matters.
239 The plaintiff rebutted what was put to him in cross examination that there was no such thing as concave skis providing a diagram of that type of ski.
Issues for determination
240 The following issues require determination:
(a) Was there negligence on the part of the defendant that was a cause of the plaintiff’s injury, loss and damage?
(b) Was there a breach of statutory duty pursuant to the Occupiers’ Liability Act 1985 that was the cause of such damage?
The law
241 As counsel for the defendant submitted pursuant to the principles emanating from Stevens v Brodribb Sawmilling Co Pty Ltd[139] and subsequent cases, the plaintiff is deemed to be a common law employee in circumstances where the defendant has control and power over what the plaintiff does at work.
[139](1986) 160 CLR 16
242 The defendant acknowledged it owed a duty to the plaintiff as its common law employee.
243 As the employer, the duty owed by the defendant to the plaintiff is set out in the joint judgment of the High Court in Czatyrko v Edith Cowan University:[140]
“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”
[140][2005] HCA 14 at paragraph 12
244 Further, counsel for the defendant acknowledged there was a duty to the plaintiff pursuant to s14B of the Wrongs Act which required it as the occupier of the premises to ensure, in so far as is reasonably practicable, that the premises are in a state that will, in so far as is reasonably practicable, protect those persons upon the premises, and what is required is to ensure that the premises are in a fit state for that relevant purpose.
245 The plaintiff consistently throughout his evidence expressed the view that he excelled in all he did whether it be sporting activities or pressing clothing into wool bales.
246 It was clear from the plaintiff’s evidence that he considered he had no choice but to stop the mirror falling as to do otherwise would involve lives being lost.
247 Whilst the plaintiff confirmed his version of the incident on a number of occasions, I do not accept the incident could have occurred in the manner he described.
248 It is not possible for the plaintiff to have moved five metres from where he was standing at the rear of the tray in time to have caught the falling 100 kg mirror and then safely manoeuvre it to the ground.
249 I accept the submission by counsel for the defendant that it is wholly improbable, wholly unlikely, and an impossibility for the incident to occur in the manner described by the plaintiff.[141]
[141]T148
250 Whilst Mr Fitzgerald confirmed the plaintiff caught the mirror, his version of the incident differed significantly from the plaintiff’s. Although his evidence at times was a bit confusing, in his diagram, Mr Fitzgerald placed the truck outside the rear of the premises, not in Bailey Street as the plaintiff described. He also located the roller door at a different location to that described by the plaintiff. Further, his evidence about the position of the plaintiff’s hands is totally inconsistent with the plaintiff’s evidence, and also how the plaintiff said the mirror ultimately came to the ground.
251 Even if the incident occurred in the manner described by the plaintiff, I am not satisfied there was any negligence on the part of the defendant that was a cause of the plaintiff’s injury.
252 It is not disputed that there were about six or seven people assisting in the removal of the unit and mirror from the rear of the truck with about three on the tray itself and the remainder standing at the rear of the tray.
253 The plaintiff had not been instructed or requested to assist in the unloading and that had not been part of his duties on 1 March or the said date. He was given general instructions about his main tasks of wool baling clothing and labelling electrical goods.
254 When asked why he was not assisting in the unloading if he in fact been asked to do so, the plaintiff replied - “because there were other people, there was too many others unloading it at the time.”[142].
[142]T53
255 In closing submissions, the plaintiff suggested that the defendant could have had some proper unloading procedure. There could have been a better system of communication and the defendant should have observed the potential danger.[143]
[143]T161
256 The plaintiff maintained – “It was just a hazardous area by all accounts.[144]
[144]T165
257 In my view, the provision by the defendant of seven people to undertake this task was more than a reasonable system. It does not matter in these circumstances whether a truck or a ute with a hydraulic lifting system was used in the unloading.
258 I accept the submission by counsel for the defendant that there is not one scintilla of evidence that seven men unloading a vanity unit in the circumstances was inappropriate, negligent, or in breach of duty. The duty of the defendant is take reasonable care, not a duty to guarantee the safety of an employee.
259 There is no evidence of any failure to train or instruct the plaintiff being a cause of his injury. Unloading the truck was not the plaintiff’s job and he was not aware that he had been asked or instructed to assist in the unloading.
260 The plaintiff had been instructed as to how to do the jobs he was to undertake having been told by Mr Morgan and Mr Guyatt what he was required to do with clothing and electrical goods.[145]
[145]T144
261 Further, the plaintiff has not established that an alternative system could have reasonably been imposed by the defendant
262 Counsel for the defendant relied on the judgment of Beach J at paragraph 23 of Hopgood v Wodonga Regional Health Service,[146] where His Honour referred to the judgment of Young CJ in Coca-Cola Amatil (NSW) Pty Ltd v Pareezer.[147] In that case, his Honour said:
“The main problem for the plaintiff in the present case is that he bears the onus to show that there are precautions which the defendant could and therefore, should have reasonably taken to protect him from the risk. Unless the plaintiff discharges this onus, he does not establish that there was a breach of duty.
[146][2012] VSC 169
[147][2006] NSWCA 45
263 Then there was reference in paragraph 85 to a quote from Trindade and Cane’s Law of Torts, as follows:
“Perhaps the most difficult problem that arises in actions in which failure to provide a safe system of work is alleged is that of proving some alternative was practicable and reasonable and that it would have prevented the injury. The onus, of course, rests on the plaintiff, and in some cases courts have been particularly harsh on plaintiffs in requiring a high standard of probative material on this issue.
There is an element of risk in most industrial operations, even the simplest, and it is not enough for the plaintiff to show the existence of the risk. The plaintiff must also show that it was capable of reduction or elimination by some practicable precaution or safeguard without unduly impeding the employer’s business.”
See also Swain v Waverley Municipal Council.[148]
[148][2005] HCA 4
264 The only suggestion of a breach of Section 14B 3 of the Occupiers Liability arose in closing addresses when the plaintiff submitted there could have been plainly visible lines on the ground to indicate the truck was parked exactly on a square angle. Further he submitted the incident took place in a fairly confined space with a concrete floor upon which the giant mirror could have shattered from about 3.5 metres falling down.
265 I do not accept that any of these matters relied upon by the plaintiff constitute a breach of the defendant’s duty as occupier to take reasonable care for the safety of persons on the premises.
266 As I do not accept the incident happened in the manner the plaintiff has claimed, there is no negligence or breach of duty, and there is no suggestion of an alternative system, the plaintiff’s claim must fail.
267 Having made this finding, I am not required to consider the issue of contributory negligence.
Damages
268 I have not assessed damages in this case as I do not find the defendant liable for the plaintiff’s claim. However, by way of completeness, the plaintiff submitted that the pain and suffering damages would be $42,000,000, $4,000,000 for past loss of earnings and $18,000,000 for the future. He also put the figure of $100,000 for future medicals.
269 Counsel for the defendant suggested $17,500 to $25,000 was an appropriate figure for pain and suffering, nil for the past loss of earnings, a Farlow[149] for the future and $1,000 for medical expenses.[150]
[149]supra
[150]T156
Conclusion
270 Taking into account all the evidence, I am not satisfied there was negligence on the part of the defendant that was a cause of the plaintiff’s injury, loss and damage.
271 I do not accept that the defendant breached its duty of care to the plaintiff in the course of his employment or as occupier.
272 Further, there was no breach of the Occupational Health and Safety Act
273 Accordingly, the plaintiff’s claim is dismissed and there will be judgment for the defendant.
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