Eaves, Christopher Ronald v Huon Valley Council
[1998] TASSC 66
•22 May 1998
66/1998
PARTIES: EAVES, Christopher Ronald
v
HUON VALLEY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 398/1995
DELIVERED: 22 May 1998
HEARING DATE/S: 20, 23 - 27 February, 3 March 1998
JUDGMENT OF: Wright J
CATCHWORDS:
Employment Law - The contract of service - Rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Safe and adequate plant and appliances - Generally - Duty to provide and maintain - Standard of maintenance - Defect in seat in backhoe - Complaints to supervisor and mechanic - Failure to check or rectify - Employee injured as a result of seat sliding unexpectedly.
Chapman v Hearse (1961) 106 CLR 112; Cadbury Schweppes Pty Ltd v Belbin 25/1981, considered.
Aust Dig Employment Law [35]
Employment Law - The contract of service - Rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Contributory negligence - Actions for negligence against employer - Apportionment of damages - Failure to wear seatbelt - Contributory negligence of backhoe driver.
Smedley v Smedley (1984) Tas R 49; Smith v Tamar Park Pty Ltd 52/1998, followed.
Hannan v Maclean A24/1989; McLean v Tedman (1984) 155 CLR 306, considered.
Aust Dig Employment Law [32]
Damages - General principles - Measure and remoteness of damages in actions for tort - Personal injuries - Pain, suffering and loss of the amenities of life - Future economic loss - Contingency factors to be allowed - No residual earning capacity - Superannuation - Future cost of medical and health care consultants - Workers compensation payments.
Union & Steamship Company of New Zealand v Dixon [1966] Tas SR at 44; Leighton Contractors Pty Ltd v Cule A67/1993, followed.
Aust Dig Damages [31 - 54]
REPRESENTATION:
Counsel:
Plaintiff: D J Porter QC
Defendant: P L Jackson and G W Tremayne
Solicitors:
Plaintiff: Butler McIntyre & Butler
Defendant: Griffits & Jackson
Judgment category classification:
Court Computer Code:
Judgment ID Number: 66/1998
Number of pages: 23
Serial No 66/1998
File No 398/1995
CHRISTOPHER RONALD EAVES v HUON VALLEY COUNCIL
REASONS FOR JUDGMENT WRIGHT J
22 May 1998
Liability
The plaintiff is a 41 year old plant operator, employed by the defendant, who sustained injuries to his head and cervical spine whilst operating a Caterpillar 428 Series 2 backhoe loader during the course of his employment on the afternoon of 18 June 1992. At that time the plaintiff was driving the vehicle towards a Council sand pit about 100 metres off Agnes Street near Ranelagh.
The plaintiff was driving across an open section of ground, the surface of which was made rough and uneven by the presence of tree roots. He had his left hand on the steering wheel and his right arm was resting on the right hand side armrest of the adjustable driver's seat. Without warning the driver's seat moved backwards, and in attempting to maintain control of the vehicle, the plaintiff reached forward to take hold of the steering wheel with both hands. The plaintiff's next recollection is of being seated on the ground outside the stationary vehicle some short time later.
The hydraulically operated loading bucket at the front of the vehicle had been driven into the ground and had obviously caused the vehicle to come to a sudden and complete stop. The front window of the loader was crazed in a "spider web" pattern, and it is obvious from the description of damage given by witnesses, that the plaintiff's head had collided heavily with the screen as the vehicle came to a sudden halt. The plaintiff has no memory of touching the lever adjacent to the driving seat which operated the raising and lowering of the bucket, but I am invited to infer that he must have knocked this lever causing the bucket to drop as he lent forward in an attempt to take hold of the steering wheel with his right hand. I am satisfied that such an inference should be drawn.
The driving seat in the vehicle had a maximum fore and aft movement of fifteen centimetres. It was capable of being locked in varying positions along this distance, in much the same way as the seat of most family motor cars can be moved back and forth. If moved fully to the rear, the seat could then be rotated to face the rear by swinging in a 180º arc towards the operator's left hand side. When facing in such a rearward position, the backhoe function of the machine could be utilised for digging operations. When travelling along the road or using the loading bucket at the front of the machine, the driver's seat would be used in the forward position, ie, the position in which it was at the time of the plaintiff's accident. It was the plaintiff's practice to adjust the seat so that it was about five centimetres back from its foremost extremity when driving the machine from place to place, or operating the loading bucket.
The plaintiff has sued his employer for negligence. The plaintiff attributes the accident, and his resultant injuries, to the sudden rearward movement of the driving seat and his consequent inadvertent dropping of the bucket as he reached forward with his right hand to steady himself and retain control of the vehicle. The particulars of negligence allege that the defendant:
(a)failed to service or maintain the seat mechanism of the backhoe adequately or at all
(b)failed to inspect the seat mechanism to ensure that it was in safe and proper operating order
(c)failed to heed the plaintiff's complaints and/or concerns in relation to the operation and/or function and safety of the seat mechanism
(d)failed to remedy the seat mechanism malfunction
(e)failed to provide an alternative or replacement backhoe for the plaintiff to carry out his duties, and
(f)permitted the plaintiff to drive the backhoe when it knew or ought to have known that the seat mechanism was not in a safe and proper operating order.
There was also a claim based on the defendant's alleged breach of statutory duty but this was abandoned after the trial had concluded.
The allegations of negligence were based upon evidence given by the plaintiff and other past and present employees of the defendant Council, recounting a history of problems which had been experienced with the seat mechanism since the backhoe had been purchased by the defendant in December 1991. The machine, which was relatively new at the time of the plaintiff's accident, had undergone its 500 hour service a short time before the accident occurred. This was carried out at the defendant's depot by Mr Peter Raymond, the Council maintenance mechanic. Before this, on 31 March 1992, Mr Anthony Goodluck, a diesel fitter employed by William Adams Pty Ltd, the selling and servicing agents for Caterpillar machines, had carried out the 250 hour service. In the course of doing so he checked the adjustment and rotation of the driving seat without finding any defects in its operation. Mr Goodluck also said that he believed that he had lubricated the seat adjustment mechanism. To Mr Goodluck's knowledge there had been no operator complaint of seat malfunction before the 250 hour service.
The plaintiff was first employed by the defendant in June 1991 and in about February 1992, when the backhoe's original operator, Mr Thorpe, took ill, the plaintiff was offered the job of backhoe operator by the works supervisor, Mr Tyres. The plaintiff was initially instructed in the operation of the machine by Mr Derek Lovell over a period of about three or four weeks. The plaintiff had had some prior experience using a backhoe, and appears to have been generally competent in its operation at the time the accident occurred.
During the instruction period, supervised by Mr Lovell, the plaintiff experienced no malfunction of the driving seat, but after three or four weeks problems began to occur. These difficulties were of two different kinds. Sometimes the seat would move back suddenly for no apparent reason and on other occasions, when the plaintiff was attempting to move it backwards, it would stick or jam on its tracks, and considerable force and wriggling of the seat would be required before it could be moved from that position. Situations in which the seat moved back suddenly, were experienced by the plaintiff, on about six or eight occasions altogether before the accident.
The plaintiff said that he complained of these problems to Mr Gary Coombe, the assistant works supervisor, and also to Mr Peter Raymond. At the time he first mentioned the matter to Mr Coombe he had only experienced the sudden backward moving difficulty, but thereafter he had further occasion to speak to Mr Coombe about this problem as well as the jamming problem which had then manifested itself on three or four occasions. Mr Coombe suggested to the plaintiff that he should report these matters to Mr Raymond. The plaintiff says that he spoke to Mr Raymond on two occasions, the first being approximately two weeks prior to the accident. He said that he described both problems to Mr Raymond on that occasion. After experiencing continuing problems with the seat he spoke again to Mr Raymond on the day of the 500 hour service.
The plaintiff said "I asked him would he look at the problem or try and rectify the problem". On one occasion when the matter had been mentioned to Mr Coombe or Mr Raymond (the plaintiff cannot recall which), a comment was made by his interlocutor, that dirt or grit or something in the tracks of the seat may have been causing the problem. On the day of the 500 hour service the plaintiff spent about half the day at the depot and helped Mr Raymond from time to time as he performed the servicing procedures. He did not see Mr Raymond working on the seat and he did not ask him whether he had been able to locate the fault or faults in the seat mechanism. There was some dispute between the plaintiff and Mr Raymond as to when the 500 hour service occurred. The plaintiff said it was the day before his accident whereas Mr Raymond said it was two or three weeks before. No records were produced to substantiate either claim but I do not think that a resolution of this contentious issue is really necessary. Under cross-examination Mr Raymond seemed unsure of the date and the preponderance of the evidence favours the plaintiff's account.
On the day of the accident the plaintiff had been using the backhoe to excavate around a water main in Helen Street, Ranelagh. Two other council employees were present at the time namely, Mr Terry Paul and Mr Tony Matson. Mr Coombe came to the site during the day. Before this visit the plaintiff had experienced problems with the seat sticking or jamming during the course of his work. He had been unable to move the seat into the fully backward position, and thus was unable to rotate it to get it into the backhoe operating position. This problem had been observed by Mr Paul and Mr Matson.
Mr Paul gave evidence that on the day of the plaintiff's accident he was having difficulties with the seat about ten or fifteen minutes before he left to obtain a load of sand from the sandpit. He said he saw that the plaintiff was "pushing and pulling and trying to wriggle the seat into position" and "pulling on the levers trying to get it to move".
Mr Matson also gave evidence. He was a leading hand at the time and can remember directing the plaintiff to go to the sandpit for a load of sand. He had no actual recollection of seeing the plaintiff struggling with the seat but had a "vague" recollection "to do with the seat, about trying to get it to click in or move to the position he wanted". Mr Matson attended the scene of the accident after it had happened and noted that the bucket had been driven between 200 to 300 millimetres into the ground.
Before driving off towards the sand pit in Agnes Street the plaintiff said that he complained to Mr Coombe that he was still having problems with the seat, but Mr Coombe's only response was to say, "Sorry Chris I have to go", apparently because he was due to attend to some business in Hobart at the time. A short time later as the plaintiff drove from Helen Street to Agnes Street the vehicle behaved in a normal manner. The bucket was approximately 400 millimetres above the ground, which was the position in which it was normally placed when the vehicle was travelling from one point to another. The vehicle was travelling at about fifteen to twenty kilometres an hour in fourth gear. It had proceeded approximately thirty metres from Agnes Street along the track towards the sand pit when the seat suddenly shot backwards. The plaintiff said:
"When the seat went back it startled me and I basically pulled myself forward ¾ I was off balance ¾ I pulled myself forward grappling to grab hold of the steering wheel with both hands to keep myself in balance and the machine in hand.
...
The last thing I think I can remember is either my head or the noise of my head hitting the windscreen. That is the last recollection I have of being inside."
Asked if he had any recollection of striking the hydraulic bucket lever with any part of his body, he said "No".
Mr Matson described attending the scene after the plaintiff's accident. He noticed that the windscreen of the machine was crazed in a radial pattern and was marked with smudges that looked like saliva. Soon after he was instructed to return the machine to the depot and, for his own safety to wire the seat in position before doing so. He returned to the scene and found the seat too far back for him to operate the machine. He adjusted it and then wired it in such a way as to immobilise it from any sliding movement. He left it in the depot yard and did not unfasten the wire holding the seat. This evidence, which I accept, is a useful touchstone for assessing the relative credibility of the plaintiff on one hand and Mr Raymond on the other. In the first place, the instruction to Mr Matson to wire the seat and his subsequent activities and observations at the scene, are entirely consistent with the plaintiff's account of the accident. In the second place, Mr Matson's evidence is inconsistent with part of Mr Raymond's evidence. Mr Raymond said that he dismantled the seat from the vehicle that afternoon, but when he did so it was not fastened into a stationary position with wire.
The plaintiff was cross-examined as to the complaints which he claims to have made to Mr Raymond concerning the seating malfunction. He said that on the day of the 500 hour service, he had spent possibly half of that day in the workshop assisting Mr Raymond while he was working on the machine. And the plaintiff agreed that during the course of the day he made no inspection of the seat mechanism for himself to see if he could determine what was wrong with it. Nor did he test the mechanism to see if it was working properly or malfunctioning. He agreed further that he did not see Mr Raymond "go anywhere near the seat" during the day to work on it. Nor did he see Mr Raymond inspect the seat. He did not ask Mr Raymond at any time that day whether he had done anything to the seat, nor did he ask him a similar question the following day. He made no inquiry of Mr Raymond as to the cause of the problem of the seating malfunction.
It was urged upon me that this part of the plaintiff's evidence suggested, as Mr Raymond in his evidence claimed, that the plaintiff had not in fact ever complained to Mr Raymond about the seating problems ¾ particularly, as the plaintiff also conceded in cross-examination, that there had been no other specific difficulties with the machine that he found necessary to draw to Mr Raymond's attention. It was submitted that if the seat had been the only problem with this near new machine, it is something that would surely have been mentioned to Mr Raymond during the course of the 500 hour service.
There is a certain amount of persuasive force to this argument, but it must be remembered that the two problems described by the plaintiff were intermittent only. They constituted something of an annoyance to the plaintiff, but they did not prevent the efficient operation of the machine in performing the work for which it was designed. It is something that could easily have been overlooked. However, the defence point is that if the plaintiff had actually complained to Mr Raymond about the seat as he claimed, it is unlikely that he would have neglected to pursue the question in the circumstances described.
This is an important issue because the strength of the plaintiff's case depends, in my opinion, upon a finding that the appropriate officers of the defendant council, were or should have been aware of, the defective seat mechanism, which should have been rectified prior to the date of the plaintiff's accident. I did not understand counsel for the plaintiff to contend that the Council should have been aware of the seat malfunction in the absence of complaints about it to Mr Coombe or Mr Raymond by the plaintiff or other Council employees.
The plaintiff, of course, says that he complained to both of these gentlemen. Mr Coombe agrees that complaints were made to him, but Mr Raymond strenuously denied that any complaints concerning the seat mechanism had ever been conveyed to him until after the accident had occurred. I will examine their evidence shortly.
During the course of his evidence Mr Matson said that he "vaguely" remembered having trouble with the seat of the backhoe on rare occasions when he had operated it prior to the accident. He said that he had difficulty in sliding the seat into the position which he wanted on a couple of occasions. He did not speak of any problem with the seat suddenly sliding back without warning. Nor did he claim to have reported the problem to Mr Coombe, Mr Raymond or Mr Tyres.
Mr Lovell, the plaintiff's original instructor on the backhoe and Mr Thorp who had been its driver from January 1992 until the plaintiff took over were both called to give evidence. Mr Lovell drove the machine for some time after the plaintiff's accident before Mr Schreck took over as the regular operator. During this time Mr Lovell found that sometimes the seat would not slide as "it used to clog up with ... dust ... and grit and stuff in the seat". Mr Thorp said that he had never experienced problems with the sliding mechanism whilst driving the machine between January and April 1992 and again for a limited time in August 1992 after the plaintiff's accident.
Mr Ian Holloway was employed as Depot Clerk by the defendant Council at the time of the plaintiff's accident. He is still employed by the Council but now works as a recreation officer. He was advised by Mr Matson, by radio, of the plaintiff's accident and arranged for him to receive medical attention. Early the next morning he saw the seat from the backhoe on a table in the crib room. It was being inspected by Mr Raymond who was checking the operation of the fore and aft sliding mechanism on the base of the seat. Mr Holloway observed that the teeth of the slides were not engaging with the corresponding notches to hold it in a set position. The sliding mechanism itself appeared to be moving freely. Mr Holloway says that he saw a small area of rust in the channel of the mechanism and commented to Mr Raymond that such was a "bit strange" considering the age of the machine. Mr Raymond dismissed his concerns as to the rust saying it was of no importance. In his presence Mr Raymond used a pressure pack of CRC lubricant to spray that part of the mechanism which was failing to engage. He then retested the slide and it appeared to function correctly. To Mr Holloway's knowledge there was no system in operation whereby defects or problems were formally recorded. His recollection of the system accorded with that deposed to in the defendant's answers to interrogatories, viz, that the operator of the relevant machine should report any difficulties to the mechanic or his supervisor. This of course is what the plaintiff claims to have done.
The first part of Mr Holloway's evidence was also directly in conflict with evidence given by Mr Raymond. Mr Raymond said that he had dismantled the seat from the backhoe on the afternoon of the plaintiff's accident, after hearing that it was claimed that the mishap had occurred as a result of the seat sliding backwards unexpectedly. Before doing this, however, he had tested the seat in the cab of the vehicle and had been unable to find any abnormality in its operation. He took the seat to the crib room and separated the seat tracks from the seat itself. He checked the teeth on the locking mechanism but could find no fault whatsoever with their operation. The seat and tracks were not reassembled and were left in the crib room overnight. He started to reassemble the components the next morning at about 7.30am. He conceded that it was possible that Mr Holloway came in to watch what he was doing and spoke to him. However, he denied that there was any rust on the mechanism and he also emphatically denied spraying any lubricant onto the mechanism. He said that at no stage before replacing the seat in the machine could he find any defect with it and "it was functioning perfectly normally". Mr Raymond also denied that the plaintiff had ever complained to him that the seat was not operating properly, and he said that when he first saw the seat in the vehicle at the depot yard soon after the plaintiff's accident, the seat was not "wired up". He agreed that any complaint as to the seat malfunctioning was a serious matter which should be attended to promptly. He said he did not clean the tracks with wire, kerosene or petrol and did not flush them out with compressed air.
I thought that Mr Holloway was an impressive and careful witness, and relevant though it was to findings which can be made as to the operation of the seat mechanism soon after the plaintiff's injury, his evidence was even more significant in enabling me to assess the reliability and credibility of both Mr Raymond, on the one hand, and the plaintiff on the other. As I have already pointed out it is an indispensable part of the plaintiff's case to show that not only did the seat malfunction as described at the time of the accident, but that this problem was part of an ongoing intermittent fault which had manifested itself without warning from time to time. If the plaintiff can show that his employers were aware of the problem in the sense that he had reported it in accordance with the system then in operation to appropriate officers of the defendant Council, and that he was obliged to continue working on the machine without any or any effective investigation of his complaints having been undertaken before 18 June 1992, then he is entitled to succeed in these proceedings subject only to any appropriate reduction in damages for his contributory negligence.
Although the plaintiff's evidence that he complained to Mr Raymond about the mechanism is not directly corroborated by the evidence of any other witness, there is some indirect support for these assertions in the evidence of Mr Gary Coombe. Mr Coombe is no longer employed by the defendant but there was no suggestion that he had reason for bias against the Council or partiality towards the plaintiff. He gave evidence that between 1991 and 1993 he was employed as Assistant Works Supervisor by the defendant. Between one and three months before 18 June 1992 he saw Mr Eaves in the cab of the backhoe having difficulties with the seat. He said:
"I didn't know that he addressed me particularly but he was you know, mumbling under his breath a bit, sort of cursing the seat a bit, I guess. He may have mentioned it specifically that he was having problems with the seat and would have to get it looked at but I can't positively recall that".
He said he had a vague recollection that the plaintiff had mentioned similar things to him on a couple of other occasions before the accident. Asked if there was any formal reporting system for mechanical problems at the time, Mr Coombe said:
"I am not aware of any formal procedure or system that was in place. What I did was encourage the individual operators to go straight to the mechanic with any problem that they had ... I encouraged them to deal with him so that I wouldn't have to act as a go between all the time".
Mr Coombe confirmed that he had seen the plaintiff on the day of the accident and that he was again having problems with the seat. The fault seemed much worse than it had been on previous occasions. He said he actually saw the plaintiff have difficulties on two or three separate occasions over a period of about half an hour that day, and, in his hearing, the plaintiff said that he would have to go back to the mechanic "again".
Mr Coombe's evidence was by no means detailed or precise but it was generally consistent with the plaintiff's evidence. Importantly it shows that the plaintiff's difficulties with the seat were known to Mr Coombe over a reasonably substantial period of time, and that the plaintiff was aware of Mr Coombe's preference that the matter be reported to Mr Raymond for attention. Even if the plaintiff omitted to report the matter to Mr Raymond, he may have an arguable case based upon his making Mr Coombe aware of the difficulties well before the accident happened.
As it is, I have no need to pursue this question because I am satisfied that Mr Raymond was notified by the plaintiff of the problems on at least two occasions prior to the accident, and that Mr Raymond failed to take appropriate steps to rectify the same. It would be unfair to be too critical of Mr Raymond in the circumstances. It seems that he had a substantial workload and that the reporting system in place was unsophisticated and haphazard. However, I am simply unable to accept the evidence of Mr Raymond where it is in conflict with other witnesses whom I have already mentioned. This assessment is also supported indirectly by the evidence of Mr Scott Schreck.
Mr Schreck is employed by the defendant Council as a truck driver. He drove the backhoe on which the plaintiff was injured on a few occasions after the plaintiff's accident. He was then appointed its full time operator in December 1992 for a period of about three months. During that time he found that the seat was prone to slide backwards a short distance if the handbrake was applied sharply, or if the machine was traversing rough ground. Mr Schreck said that he complained of this to Mr Raymond. He said:
"We decided to lubricate it and I actually lubricated the seat myself ... He was too busy and I would just ask him for the lubricant and do it myself ... The lubricant was CRC".
Mr Schreck said that this improved the function of the seat but he waited, apparently in vain, for Mr Raymond to make a decision about what should be done to cure it completely. This evidence was in conflict with Mr Raymond's evidence that the first time he was ever called upon to do anything by way of maintenance or repair to the seat, after the plaintiff's accident, was in August 1995 when the seat jammed and could be not be moved either backwards or forwards. On that occasion he said he ordered some new tracks and then went to inspect the machine where it was working in the Dover area. He found that there was dirt in the tracks so he washed them out with petrol and reinstalled them. After this the seat functioned correctly and the new tracks were not required.
Whilst I do not disbelieve Mr Raymond about the incident in August 1995, which is in substantial accordance with evidence given by Mr Lovell, I prefer the evidence of Mr Schreck where he and Mr Raymond are in disagreement. It was suggested to Mr Schreck that he was making up his evidence, but it was not suggested that he had any reason to untruthfully refute his employer's case or to dishonestly support that of the plaintiff.
The nett result is that I accept the evidence of the plaintiff as to his experiences with the seat mechanism and I also accept what he told me as to his complaints to Mr Coombe and Mr Raymond. It is fairly obvious that the plaintiff did not fully appreciate the dangers of continuing to operate the machine whilst the seat was in a defective condition so, in a sense it is not correct to say he was "obliged" to continue operating it. He was not coerced into doing so and there is no evidence to suggest that he told his employers that he was no longer prepared to use the backhoe.
These considerations do not relieve the defendant from liability of course. The Council's system of reporting and attending to complaints about plant and equipment was casual and inefficient. It allowed problems of this kind to go unchecked and uncorrected.
There is no guarantee that a proper and complete inspection of the mechanism prior to the accident would have identified the precise flaw or flaws in its mechanical operation. The evidence of Mr David Cooper, an automotive engineer, with considerable experience in matters of this kind, suggested a number of possible causes for the two problems experienced by the plaintiff and the others who had driven the backhoe. Mr Cooper said that the major cause of track jamming, indeed about 95 per cent of all cases, can be attributed to the presence of foreign objects such as coins, stones, dirt or other material lodging in the mechanism. The consequent problem is not necessarily present at all times as the foreign material may move about within the mechanism. If cleaning with wire probes, kerosene or compressed air is unable to overcome the problem, the only solution may be to replace the tracks, he said. The unexpected release and rearward movement of the driving seat was regarded as a serious problem by Mr Cooper. He said, "Seats moving inadvertently is a very nasty practice. There have been quite some injuries [caused] by that." He said an investigation should be carried out "with the utmost priority, we would certainly need to find the cause of the problem and rectify it before the vehicle was used again." He voiced the opinion that similar causes to those which may cause jamming of the tracks could be responsible in such a case. An alternative cause could be found in the poor meshing of the teeth with the slots in the locking mechanism or maladjustment of the rods and springs in the operating mechanism. However, both of these possible sources of trouble could be ascertained or discounted by close inspection.
Mr Cooper's evidence coupled with that of Mr Mark Dohrmann, a consulting engineer from Melbourne, leads me to conclude that the likely cause of both problems spoken of by the plaintiff, was the presence of some unascertained foreign object or objects in the track mechanism, which caused the track to jam or release intermittently as described.
Defence counsel submitted:
"In summary, on the plaintiff's best case, the employer had at most three to four weeks notice of a minor problem with the seat. There was no suggestion that it had caused anything other than frustration or annoyance to the operator. It was a problem that was intermittent and which did not appear to unduly affect the ordinary operation of the machine".
All of this is true but what it overlooks is that it was not the plaintiff's responsibility to assess the potentially serious consequences of the "minor" problem. This was the employer's responsibility. Had the matter been considered responsibly it should have been apparent that a sudden lack of seating stability could cause serious difficulties for an operator attempting to control such a machine even though the seat may only move a few inches during such an occurrence. Defence counsel also submitted that an employer could not reasonably have been expected to foresee that if the seat moved backwards unexpectedly, the plaintiff's right hand may strike the bucket control lever as he moved his hand forward attempting to grasp the steering wheel. This argument seems to me to be akin to one which was clearly rejected by the High Court in Chapman v Hearse (1961) 106 CLR 112. As Neasey J, said in Cadbury Schweppes Pty Ltd v Belbin 25/1981 at 14:
"... if harm of a reasonably foreseeable type or kind occurs by reason of the negligent act, it is not necessary that the precise way in which the harm was caused be foreseeable. ¾ Hughes v Lord Advocate [1963] AC 837; Chapman v Hearse (supra); Weisland v Cyril Land Carpets Ltd [1969] 3 All ER 1006; Draper v Hadder [1972] 2 QB 556."
In my opinion it is beyond argument that the sudden release and sharp backward movement of the seat, when the backhoe was travelling from one place to another, would be likely to cause a loss of control by the operator with consequent injury to the operator as well as other people who might be in the vicinity. Such a loss of control could result from the operator losing his grip on the steering wheel, his foot slipping off the brake or on to the accelerator pedal or in the very way it happened here, viz, by knocking the bucket control lever causing the bucket to fall and act as a sudden brake on the forward progress of the vehicle. In my opinion the accident was foreseeable and it was a consequence of the defendant's breach of duty to the plaintiff. That breach of duty plainly caused the plaintiff's injuries.
Contributory Negligence
Besides denying that any lack of care on its part was causative of the plaintiff's mishap and resultant injuries, the defendant says that the injuries were wholly caused or contributed to by the plaintiff's own negligence. The negligent acts or omissions alleged against the plaintiff were particularised as follows:
(a)failed to wear a seat belt fitted to the backhoe;
(b)failed to properly secure the seat in the backhoe using a mechanism provided for that purpose;
(c)failed to check the seat to ensure that it was properly secured before driving the backhoe;
(d)lowered the bucket of backhoe while the backhoe was in motion causing the bucket to strike the ground, thus bringing the backhoe to a sudden stop;
(e)drove the backhoe at an excessive speed having regard in particular to the fact that he was lowering the bucket of the backhoe while the backhoe was in motion.
The only one of these particulars which was pursued with any vigour, was that in which it is alleged that the plaintiff failed to wear a seat belt fitted to the backhoe.
The plaintiff gave evidence that he was aware that the backhoe was equipped with a lap type seat belt for the operator's seat. He said that that belt had always been fastened behind the seat, but neither he nor any other operator whom he had seen using the backhoe, had ever worn the seat belt for any purpose, whether driving it along the road or operating either the bucket or the backhoe.
One can appreciate that when using the machine in a stationary position for backhoe operations, an operator might reasonably consider that a seat belt was not required. However, at the time of the plaintiff's accident, he was travelling in the machine as a motor vehicle from one place to another. Immediately beforehand he had been travelling on public streets. When driving his own private motor vehicle he always used a seat belt, and as counsel for the defendant suggested to him, in the course of cross-examination, he really needed no instruction to use a seat belt when using a motor vehicle upon a public road.
Consequently, if it can be said with any degree of certainty or on the balance of probabilities, that the plaintiff's injuries could have been avoided or lessened by use of the seat belt, it would be proper to make a finding of contributory negligence against him in the circumstances.
The principles which should apply when an allegation of contributory negligence is raised on the basis of the injured plaintiff's failure to wear a seat belt, have been the subject of judicial discussion in many reported cases. The views expressed have not always been consistent, especially when dealing with the onus which lies upon a defendant to establish a causal relationship between the injury sustained and the failure to wear a seat belt.
After reviewing a number of cases in Hannan v Maclean A24/1989, I said at 13:
"It should be borne in mind, however, that as with all allegations of contributory negligence, the onus rests upon the defendant and it is necessary to show a causal connection between the conduct complained of and the injury sustained".
I know of no better exposition of the process involved in this type of assessment than that which was explained by Cosgrove J in Smedley v Smedley (1984) Tas R 49 at 51, where he said:
"When a defendant alleging contributory negligence is content to establish negligence causative of a collision, and then claim a contribution towards compensation for all the injurious consequences, it is not that he has forgotten that injury is the nub of the matter, but rather that he has acknowledged the impossibility, in the chaos consequent upon collision, of tracing from any specific breach of duty any specific consequence solely attributable to that breach. Occasionally it may be possible to do so. Then the cause and consequence may be treated in isolation. But that is not to say that the law will not reduce the damages payable to a negligent party unless specific consequences of his negligent acts can be isolated. It is commonplace that in two-vehicle collisions, one party may suffer fearful injuries which appear out of proportion to the behaviour of the drivers and their vehicles. But the courts do not indulge in speculative opinions as to whether such-and-such an injury might have been avoided if x or y had been just a little negligent. The courts concentrate on the causes of the collision, acknowledging the impossibility of sorting out the resulting convulsion of forces. It is sufficient that the negligence under review continued up to the point of no return, and was likely to have contributed to the injury. When the plaintiff is a pedestrian, his carelessness for his own safety is considered to the point where it is seen to be a probable cause of the impact between him and the vehicle. Thereafter, the question is one of comparisons of culpability, ie, the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10, at p16). When that reasoning is translated to the seat-belt enquiry, one is left with these questions. Was the failure of the plaintiff to wear a seat-belt a breach of her duty to care for her own safety? Did that negligence continue to the point of collision? Was it likely to have contributed to her injuries? Or, to put that another way, is it probable that, in some unspecified particular, the wearing of a seat-belt would have protected her from injury and so diminished the total of the injuries which she suffered? If all those questions are answered in the affirmative, it then remains to arrive at a 'just and equitable' reduction of her compensation. In doing so, it must of course be borne in mind that seat-belts are not bastions of safety, but rather useful safeguards which are likely to diminish injury.
A little illumination may be cast upon the problem by a consideration of those cases where a passenger accepts a lift from a drunken driver and an accident follows in which the plaintiff is injured. In times past, the plaintiff may have been denied recovery on the basis of contributory negligence as a defence, or the outworn maxim of volenti non fit injuria (see the discussion in The Insurance Commissioner v Joyce (1948) 77 CLR 39). The plaintiff's mere presence in the car coupled with his knowledge of the defendant's condition would have disentitled him to compensation, even though he played no part in the physical causation of the collision, and so of his injuries. But nowadays his lack of care for his own safety is weighed in the balance of his responsibility for his injuries, and a just and equitable reduction made in his compensation (see O'Neill v Chisholm (1972) 47 ALJR 1). True it is that, in such a case, no question can arise of connecting any isolated act of negligence with a specific consequence. The plaintiff's presence contributes to all the consequences. But, that presence is a direct causa sine qua non of his injury, and only indirectly a causa causans thereof. In no sense is it a cause of the collision. However, because he put himself in a position of known danger, his damages are reduced. So it should be, in my opinion, with the plaintiff who disregards the protection of an available seat-belt and accepts the danger involved in the failure to secure it. It is not to the point to demonstrate that there may be cases where a seat-belt affords no protection ¾ a plaintiff impaled on a log of timber protruding from a lorry, the complete collapse of the whole shell of the car and so on. Those may be cases where the failure to wear a seat-belt can be shown to have no bearing on the injuries sustained. The fact that such events do, or might, occur does not require that, in every case, each injury sustained must be shown to have resulted directly and specifically from the failure to wear the seat-belt and that it must be shown positively that it would not have occurred if the belt had been worn. In the ordinary case, if it is shown that the seat-belt was likely to or would probably have reduced the plaintiff's injury, then the absence of it must weigh against him."
These wise words provide a useful guide to the correct approach in cases of this kind. I therefore turn to consider that evidence which may have a bearing upon the nature of the plaintiff's injuries and how they may have resulted from the sudden stopping of the plaintiff's vehicle. The evidence suggests that the plaintiff's forehead hit the windscreen with considerable force. Both the inner and outer panes of the laminated screen were damaged. It is also likely that the plaintiff's left knee struck the dashboard as he was thrown forward. The plaintiff was heavily dazed by the impact and has no recollection how he left the cabin of the vehicle or how long he was immobilised beside it before coming to his senses. There was no specific opinion evidence by engineers or other specialists in the assessment of physical forces, but such evidence is not always conclusive and at best provides a guide for the Court. Today expert opinion is not required to inform the Court how a seat belt operates to restrain the occupant of a vehicle in a collision or other emergency situations such as a sudden and complete stop. The lap type of belt locates across the wearer's hips and is designed to prevent him moving forward in the seat. The lap-sash type of belt provides additional restraint to the upper body, the sash being designed to prevent the wearer's torso jack-knifing forward and striking the steering wheel and windscreen. In the backhoe being driven by the plaintiff only a lap type of belt was fitted. Presumably the tension on that belt could be adjusted to accommodate any back and forth movement in the seat itself and no doubt it could also be adjusted to suit a particular driver. Unlike a car seat, an adjustment and readjustment of the seat seems to have been necessary at fairly regular intervals, bearing in mind the descriptions which were given as to the method whereby access was obtained to the backhoe function. This is a point worth bearing in mind because it suggests to me that it may not be reasonable to expect the operator of such a machine to (a) wear the belt at all times or (b) to keep it in perfect tension across his hips if and when it was being worn.
These considerations do not detract from my conclusion that the plaintiff should have been wearing the belt at the time the collision occurred, but it does persuade me that some laxity in its fastened position could have been expected.
The evidence of Mr A W M Hunn, a consultant neurosurgeon, leads me to the conclusion that the impact between the plaintiff's head and the windscreen directly caused all of the plaintiff's injuries and resultant disabilities except those which are plainly attributable to the knee hitting the dashboard. A consideration of the dimensions of the cab (which were not given in detail, but which are apparent both from the photographs and from my recollection of the demonstration of an identical machine outside the Court on the first day of the trial), lead me to conclude that had the plaintiff been wearing the seat belt provided, even if fastened less snuggly than desirable, it is probable that his head injuries would have been less severe than they were. The same inference arises even more strongly in relation to the knee injury. Mr Hunn agreed that if the plaintiff had not sustained a direct blow to the head, it is unlikely that he would have sustained the closed head injury which he did, but he added the important rider that the cervical injury could have been experienced as a result of kinetic stresses without any such impact, although the pattern of the cervical injuries may have been different. When pressed by defence counsel as to this he agreed that he would put it "in about equal terms of probability that the cervical problems could have arisen from the head injury or from a whiplash type of force." However one looks at it, it seems to me that the plaintiff's failure to wear a seat belt contributed to a substantial degree to the injuries sustained, and that as a consequence it should be concluded that the plaintiff was contributorily negligent.
In assessing the extent to which it would be just to reduce his damages as a result, I have not left out of account the principles which should apply when assessing contribution on the part of a worker who is conscientiously getting on with his job. I had occasion to refer to these principles only a few days ago in Smith v Tamar Park Pty Ltd 52/1998, and need not repeat them here. Nor have I overlooked the fact that the defendant and its supervisors were, in all probability, aware of the practice that existed of operators not using the seat belt whilst driving the backhoe. I consider that this practice was established by the evidence. If a practice of this kind is condoned or tacitly approved by an employer it can amount to a breach of duty on his part towards his employees and it is therefore appropriate to weigh up their respective degrees of responsibility if and when an accident occurs with this consideration in mind (cf McLean v Tedman (1984) 155 CLR 306). This factor goes to division of responsibility between the two as a matter of fairness and justice. In my opinion, it is appropriate in the circumstances of this case, to assess contribution by the defendant at 85 per cent and by the plaintiff at 15 per cent.
Injuries
The plaintiff was dazed and disorientated following the accident. He had a very bad headache and there are gaps in his memory as to events which followed. After his return to the Council depot he was taken to Dr Blakney's surgery feeling very nauseous and aching from his shoulders up to the base of the skull. These symptoms continued the following day and he was taken back to Dr Blakney by his wife. Dr Blakney prescribed a course of physiotherapy and this treatment continued on a regular basis, three or four times a week, for a period of some months. He received light massage, manipulation, and hydrotherapy, but his neck pain has continued ever since. It has improved to some extent but has continued in one form or another since the accident. Pain radiates from the centre of the neck, down the left arm, and into the little and ring finger on that hand. Initially the neck pain was constant whilst the pain in the left arm was intermittent. There was no improvement in the neck condition for six or twelve months after the accident.
The plaintiff now experiences a dull pain in the neck, which is stiff and limited in its movement. Attempting to use his hands above shoulder level causes pain and swelling in the right side of the neck and the left shoulder blade area. Sitting in the one position for any appreciable period of time, for example when driving a car, makes the pain worse. Household chores such as gardening, hanging out the washing, and vacuuming all aggravate the condition. Bed rest appears to be one of the best means of alleviating the pain, although the plaintiff takes analgesic and still receives physiotherapy on a more or less regular basis. He also experiences muscle swelling down the lower part of the spine and from the shoulder blades to the upper lumbar area. This problem is also experienced in the left hip. The back pain is aggravated by a lot of bending or twisting.
The plaintiff takes Panadeine Forte but tries to limit his intake. He has headaches affecting the whole of the head. The intensity of this pain varies considerably, at best it is just a background ache and, if the plaintiff is doing something of interest to him, he may "not even notice it". On the other hand it can become bad enough to force him to go to bed to rest. It becomes bad on average about twice a month and is brought on by tiredness, trying to concentrate for long periods of time, driving a motor car, or excessive noise.
The plaintiff also experiences migraine headaches which are of a different kind. The pain is much greater than that which he experiences on other occasions, and he said, "It feels like my head's exploding". He first noticed migraine headaches a few months after the accident. These attacks are signalled by partial loss of vision, and intensify over a period of six to ten hours. He is unable to tolerate bright lights or noise when this condition is experienced. The pain is severe, the plaintiff feels nauseated and becomes vague and needs to seek bed rest. The symptoms last for anything up to twenty-four hours and are experienced once or twice in any six or eight week period. The plaintiff takes Sandomigran tablets and he has found that the symptoms are now less than when the problem was first experienced.
The plaintiff also suffers from anxiety and depression and has received neurological and psychiatric assistance. Medication has been prescribed and the plaintiff finds that anxiety attacks occur now less frequently than before. He experiences these fairly transitory problems about twice a month. He became depressed in the first six to twelve months after the accident when he found he could not come to terms with what was happening and the physical limitations which were being placed upon him. He experiences great irritability and feels a need to escape from existing situations. His symptoms of depression have improved over the years since the accident but are still present.
The plaintiff has also developed epilepsy as a consequence of his injuries. These are heralded by disorientation and sometimes by taste distortions. On such occasions the plaintiff says that he is very unsure of himself and very confused. His perceptions have a dreamlike quality. The plaintiff was neurologically examined and placed on medication and since that time the "turns" have lessened in frequency. The plaintiff now experiences an epileptic attack between ten and twenty times a year; a severe attack may occur two to four times a year. The plaintiff believes that he has lost consciousness on some occasions, and although the attacks are of fairly short duration, after they have occurred he feels, "Totally worn out, washed out, lethargic". He needs to go to bed to sleep and has slept on occasions for up to twenty-four hours.
Two or three weeks after the accident the plaintiff experienced pain in his left knee. It is a source of some pain but no great disability. There was no direct medical evidence establishing that this was caused by the accident but the circumstantial evidence persuades me that it was.
The plaintiff finds it difficult to get to sleep at night and has trouble staying asleep. It appears that his main problem is finding a comfortable position for his neck. To control his symptoms he takes a large quantity of medication. He has Tegretol and Lamictal for epilepsy, Sandomigran for headaches and Aropax for depression. Normison, a light sleeping sedative, is taken from time to time at night. The quantities of each medication consumed are as follows:
Lamictal ¾ five per day;
Tegretol ¾ three per day;
Sandomigran ¾ two or three at night;
Aropax ¾ twice per day; and
Normison on an irregular basis as needed.
The plaintiff has tried acupuncture and relaxation techniques which have assisted to some extent in alleviating his pain. Mr Hunn who has been reviewing the plaintiff's neck injury from time to time has discussed the possibility of surgery on the neck with the plaintiff. In view of Mr Hunn's somewhat guarded prognosis as to the success of surgical procedures, the plaintiff has, not unreasonably, decided not to undertake this course of action, at least for the time being.
On two separate occasions the plaintiff has attempted to return to work with the defendant Council. The first was a rehabilitative exercise undertaken with the cooperation of the Council and its insurers over a period of some months during which the plaintiff performed a number of general duties for limited periods of time. He was driving, performing fuel deliveries, washing cars and helping with survey work. Unfortunately a number of the tasks which he was doing were aggravating the condition of his neck and back and the work program had to cease. A second program was undertaken in about 1994 during which the main allocated duties were of a clerical nature. This involved a lot of filing of documents above head height and telephonist duties. The plaintiff described this latter task as a "nightmare". He found that he could not concentrate in the noisy office environment and, being compelled to sit for most of the day, he found that the pain in his back was quite severe. He needed to take time off from his scheduled attendances and again found that the work related duties were making his condition worse.
He has made no attempt to find other employment since the cessation of the second work trial. His reasons for doing so he summarised as follows:
"I am totally unreliable in that I don't know how I am going to be from day to day. The physical side of things I'm very, very limited in what I do. The way I basically describe it is that being a person that used to be in charge of twenty or thirty odd people I wouldn't employ this person."
This latter reference is to the plaintiff's prior employment as manager of a Tassal Marine Farm. The plaintiff left that employment due to a combination of his dissatisfaction with the way in which Tassal was being restructured, and with a desire on the part of the plaintiff and his wife to move somewhat closer to Hobart, as his children were being educated in Hobart at the time. They intended to live in Huonville and put their home at Dover and a weekend residence at Barnes Bay on Bruny Island, on the market to enable this move to take place. Before the accident the plaintiff was an experienced scuba diver, a skill which he utilised to some extent in his work with Tassal. He also enjoyed diving as a recreational activity with friends and his family. He was involved in indoor sport, such as volley ball and indoor cricket. In addition he played tennis and golf. His present disabilities now preclude his participation in all of these activities and I consider it unlikely that he will be able to participate in any of them in the future. Defence counsel made the valid point that it is likely some of these activities would cease or diminish with advancing age in any event. On occasions the plaintiff also used to picnic with his family and combine that activity with wood cutting. This occurred probably ten or a dozen times each year and it saved him the necessity to buy firewood. His inability to continue with this activity now means that he has to purchase firewood at a cost of approximately $800 per year.
The plaintiff's wife is in full time employment for thirty hours per week as a teacher's aide and has been since before the accident. The plaintiff now attends to the family's housework. This includes washing up, hanging washing on the line and gardening. From time to time the house is vacuumed, and to assist with this activity, the plaintiff has purchased an upright cleaner in place of the old barrel type vacuum cleaner that was used previously. I have already explained the difficulties that the plaintiff experiences with some of these activities. The plaintiff also does the family cooking, and on days when not suffering severe head and neck pain or recovering from an epileptic seizure, he takes regular exercise walking his dog. He does a little bit of painting and minor maintenance work around the house. At one stage he had a device which was prescribed for him to assist in coping with loud noise, but he unfortunately lost part of this device and has not as yet been able to replace it.
It is plain that the plaintiff has had difficulty adapting to his changed role within the family, and in many things he is now a spectator rather than a participant. He describes himself as feeling "a little bit worthless and frustrated". From time to time he has had suicidal ideation but such thoughts have not crossed his mind for a couple of years. Although his job with the Council had involved taking a reduction in income, the plaintiff says that he had envisaged staying as a full time Council employee, although perhaps at some later date if a suitable position were to be offered he would have considered moving on. The plaintiff was described by Mr Coombe as a very capable worker and it is obvious that he was well liked and impressed people with his temperament and attitude to work. It was submitted by his counsel that, but for the accident, he would probably have progressed to a higher grading within his job.
The plaintiff claims that he has totally lost his earning capacity as a result of the injuries sustained, but this proposition is strenuously opposed by the defence. The defence submits that there is little significance in the fact that the plaintiff was unsuccessful in his rehabilitation work trials, as it seems that in the first place he over exerted himself and in any event he did not see the work program as being a "real" job. It was also pointed out that the plaintiff's psychological adviser, Mr Fourez, thinks that it would be therapeutically beneficial for the plaintiff to return to work, as this would have a positive impact upon the plaintiff's psychological problems. I was also reminded that Mr Hunn had expressed the view that with suitable skills the plaintiff may be able to undertake clerical work. It was submitted that on the basis of the plaintiff's background he would be well able to cope intellectually with employment of this kind.
The plaintiff, despite his epilepsy, is still capable of driving a motor vehicle and the State licensing authority which has been advised of his medical condition has not seen fit to cancel his licence. It was also suggested that in view of the plaintiff's apparent capacity to remember in some detail relevant incidents and events during the course of giving evidence, that his claimed inability to concentrate and remember relevant matters, was not as significant as he claimed it to be. These are all valid considerations, but in the overall picture, I am quite satisfied that the combination of the plaintiff's injuries has rendered him unemployable for all practical purposes.
He is approaching middle age and work of the kind which he was performing at the time of the accident is now obviously beyond him. The other tasks for which his experience and intelligence may equip him would have to be sought in competition with younger and fitter applicants in a highly competitive market. He would need a sympathetic and understanding employer who would tolerate frequent absences and mistakes or inefficiencies in the plaintiff's work pattern. Most importantly of all, the plaintiff perceives himself, correctly in my opinion, as substantially disabled. I am satisfied that the plaintiff experiences chronic pain and discomfort, coupled with the debilitating affects of anxiety and depression, and insipient epilepsy. Realistically I think that the plaintiff will not work again.
Defence counsel also submitted that the plaintiff had little apparent need to work until he was sixty or sixty-five years of age. At the time of the accident he was in a sound financial position and had a mortgage free home. In addition I was reminded that his wife was working and that she had been doing so well before the accident. With all respect I regard these arguments as completely unconvincing. The plaintiff was a man who took pride in his income earning capacities and his role within the family. Whilst the family finances were soundly managed, the plaintiff's income was not of generous proportions, and I find that in all probability he would have continued working until the normal retirement age of sixty-five years. I reject the defence submission that the plaintiff cannot be regarded as somebody whose earning capacity has been totally destroyed, notwithstanding his proven occupational versatility and the limited improvement in his physical and mental condition over recent years.
A considerable body of expert opinion was given in evidence by medical practitioners and others who have examined and treated the plaintiff from time to time since April 1992. Almost without exception that evidence was detailed and consistent so that a clear picture emerged of the plaintiff's injuries and their long term physical and psychological consequences. Some of the symptoms described were not immediately apparent following the accident, but I am satisfied that they all resulted directly from the trauma sustained by the plaintiff in the accident. The reports provided and the supplementary oral evidence given also consistently assessed the plaintiff as genuine in his complaints, and indeed portrayed him as a previously hard working and vital individual, who is distressed and confused by his present condition, and who has been anxious to return to employment if able to do so. Those practitioners who were in a position to do so, assessed him as conscientious and cooperative during the trial periods when unsuccessful attempts were made to reintegrate him in the work force. Although some of his symptoms have been controlled by medication and the plaintiff's adoption of coping mechanisms, the underlying conditions have changed little over the years. Whilst it is possible that further improvement may occur this appears to be unlikely, and the general consensus of those who have been involved with the plaintiff's treatment or attempted rehabilitation, is that it is unlikely that he will ever become employable.
Dr Andrew Blakney, a general medical practitioner from Huonville, who saw the plaintiff on the day of his accident and has continued to manage his treatment as well as counselling and encouraging him during the last six years, provided a particularly useful report dated 14 February 1996 (exhibit P6), in which he compendiously but accurately summarised the plaintiff's problems. It is worth reproducing the greater part of what Dr Blakney said:
"As a consequence of his concussional injury Mr Eaves currently suffers from a complex set of symptoms and difficulties which can be basically divided into the following groups.
1 Simple partial epilepsy.
This causes episodes of acute onset characterised by altered olfactory sensations, a feeling of disorientation in relation to his environment and cold sensations within his body. He had one episode of collapse in September 1995 with clonic/tonic type activity but there have been no other generalised type seizures. EEG (November 1992) showed a mild (R) temporal focal slowing but no clear cut epileptic discharges. MRI Scan showed no abnormality at this time also. Currently he takes Tegretol and Lamictal in an effort to control these partial seizures. Despite taking medication regularly he still occasionally has brief partial seizures as previously described. Following these episodes he has variable periods of extreme tiredness and lethargy.
2 Migraine headaches.
These attacks are characterised by acute onset of visual fortification spectra and scotoma with diplopia on occasions. Nausea with severe headache, which is generally predominantly localised to the (R) tempero-parietal region accompany these visual symptoms. Currently he uses Andomigran for control of these and it has been of some benefit in ameliorating the severity and frequency of the migraines.
3 Depression and anxiety related problems.
Mr Eaves has been seen on a fairly regular basis by John Fourez, Clinician Neuropsychologist at Douglas Parker Rehabilitation Centre who has provided a detailed neuropsychologist assessment. His main difficulties can be summarised by the following symptoms of memory lapses, poor concentration, irritability, lability of mood and emotions and recurrent depressive thoughts. He also tends to have a poor sleep pattern and from time to time has used mild hypnotic medication to deal with this. Currently he takes Aurorix an antidepressant medication for his continuing depressive component. Full assessment revealed no significant deterioration of his intellectual abilities. His assessment results were believed to be consistent with a post concussional injury syndrome. Mr Eaves continues to require regular counselling to minimise the impact of these difficulties on himself and his family.
4 Recurrent neck pain.
Activity particularly tends to precipitate neck pain with an associated feeling of weakness and generalised headache. This is consistent with his cervical kinetic injury and typified by significant cervical spasm. Various modalities of treatment (eg physiotherapy) have been of minimal benefit. MRI Scan of the cervical spine (January 1995) showed at the C6/7 level a small central disc protrusion impinging slightly on the cervical theca and producing central canal stenosis. There was no evidence of nerve root compression. Repeat cervical spine Xray (DEC 1995) showed some narrowing of the C6/7 disc which had obviously developed since his accident in 1992. Repeat cranial MRI at this time was reported as normal. In light of his cervical spine symptomatology and the MRI Scan of the cervical spine findings Mr Eaves was assessed by Mr A Hunn, neurosurgeon who felt that a conservative approach was appropriate at this time.
However, if there was any deterioration in his symptoms then the possible role of surgery would need to be reviewed.
5 Intolerance to noise.
This has been assessed on several occasions by audiology. His hearing levels are adequate but he has consistently demonstrated a pool loudness tolerance the right ear being worse than the left. Prior to his accident he had no apparent difficulties with noise tolerance.
6 Left Knee Injury.
Since the accident Mr Eaves has been troubled by recurrent discomfort affecting his left knee and associated symptoms of instability. X-ray left knee (August 1994) revealed no abnormality. As a consequence of his continuing symptoms he was referred to Mr P Clements, orthopaedic surgeon who felt he may have sustained a medial meniscus injury and has suggested that an arthroscopy would be appropriate. This is to be arranged at a future date.
In conclusion it can be seen that as a consequence of his significant concussional injury Mr Eaves has a spectrum of medical problems resulting in significant disability. Various forms of medical treatment has provided only partial relief and control of his symptomatology.
Previous attempts at a graduated return to work and retraining have been unsuccessful despite Mr Eaves' being willing and enthusiastic in his approach regarding this.
Presently there are no other significant options for treatment and it is hoped that the development of his coping mechanism over a period of time will help lessen the significant impact of disabilities on himself and his family.
The prospect of him returning to full time employment in the future must be regarded as being unlikely."
Mr Hunn confirmed the cervical injury at C6/7 spoken of by Dr Blakney and expressed the view that the plaintiff's physical injuries resulting from the accident, included a closed head injury resulting from his striking his forehead against the windscreen and a disc injury at C6/7.
Mr Hunn has discussed possible surgical intervention to stabilise the neck but the plaintiff is currently disinclined to undergoing such procedures. As the odds in favour of a successful outcome are not high and some risks of enhancing the disability exist, Mr Hunn agreed it was reasonable for the plaintiff to reject such an option. I agree with this view. Mr Hunn was also of the opinion that it is unlikely that the plaintiff's symptoms attributable to the neck injury will become worse so long as he restricts physical activity of a kind which may aggravate the injury. Mr Hunn also thought that it was possible, albeit unlikely that the plaintiff's neck, arm and shoulder symptoms could improve.
Mr John Fourez, a clinical neuropsychologist, became involved with the plaintiff in November 1992 at the request of Miss Ruth Feiger, a rehabilitation provider who was organising re-employment trials for the plaintiff with the defendant Council. At the time Mr Fourez was employed at Rehabilitation Tasmania. Notwithstanding the failure of the work trials, Mr Fourez has continued to see the plaintiff on a more or less regular basis over the years to counsel and advise him. Mr Fourez has also seen the plaintiff for the same purpose at times of personal or family crisis.
Mr Fourez assessed the plaintiff initially as suffering from post concussional syndrome, but due to the chronicity of his symptoms he believes that he now has a severe adjustment disorder. In a report dated 17 December 1992 (exhibit P11), Mr Fourez said:
"Christopher's self report of symptoms, and his performance on neuropsychological assessment is consistent with the so called post-concussion syndrome which is often observed following mild head injuries. Namely, he displays concentration difficulties, irritability, day-to-day memory dysfunction, lowered frustration tolerance, dizziness, headache and increased susceptibility to noise.
Thus although the results of this assessment did not indicate significant intellectual or primary memory impairment, the subtle deficits of memory and complex attention observed, coupled with Christopher's emotional changes and lability of mood are apt to cause him a significant amount of stress in his day-to-day life.
He is a highly physical individual who is well used to being in control of his life. His current situation has significantly affected his usual lifestyle and forced him to question his identity, his worth, and his future. Currently he feels quite aimless, guilt at his unemployed status, and he is not coping very well with the ambiguity of his future. Accordingly he displays reactive emotional changes including significant anxiety, loss of self confidence, and some mild depressive tendencies. In my opinion, these emotions are compounding his primary post concussional syndrome and stand to prolong his disability.
Post concussional symptoms usually subside within 3 months, although in a few instances they may persist up to a year or more. In Christopher's case this is complicated by the presence of focal epilepsy, but his symptomatology is likely to continue to improve over the next few months. As previously stated, the extent and rate of his recovery will to a significant extent depend on his ability to deal with his emotional difficulties."
In a subsequent report dated 2 October 1995 (exhibit P8) the following views were expressed:
"As mentioned in previous reports, Mr Eaves has been well accustomed to being in control of his life, and the consequences of his accident have been extremely difficult for him to accept. He engaged in psychological denial for a long time and as a consequence would push his activity levels past his physical capacity thereby reinforcing his pain and disability. When this occurred Mr Eaves became more frustrated and responded with increased anxiety and depression. Thus, although I have always encouraged him to push his pain and activity level threshold in a gradual and systematic manner, his basic personality and low frustration tolerance together with his denial have meant that he has been unable to regulate himself at times.
He remains very angry re the accident which he feels should never have happened had the alleged deficiencies in the end loader's seat been rectified. His self esteem was largely based on his physical prowess and his capacity to engage in his role as provider for his family. The loss of these roles has had a very damaging effect on his self esteem, and as a consequence he has experienced much guilt and a sense of being a burden on his family and society.
Premorbidly, Mr Eaves appears to have been a driven individual with a great need for control. He indicates that he habitually worked very long hours, often seven days a week and that he hardly ever took holidays. When he was not working, he tended to 'play hard' and indulged in a variety of purely physical activities including scuba diving, playing sports, etc. He imposed exacting standards on his work and that of others working under him while was manager at TASSAL, and felt the need to personally control and supervise most of the activities there. He was very heavily invested in his physical activities, and between this and long working hours it does not appear that he had much time for relaxation. Indeed, it is likely that his physical pursuits acted as a channel for his emotional energy.
He has a great need for achievement, and has been particularly sensitive to any hint of criticism regarding his motivation. He is very concerned that people might not understand why an outwardly health individual such as he is not working and he is highly anxious that others might see him as a malingerer.
Mr Eaves continues to harbour very high levels of anxiety, and some of the recurrent 'turns' which he describes are likely to be panic attacks. That having been said, his description of his atypical seizures do certainly have an organic flavour and have been positively influenced by the prescription of anti-convulsant medication.
He continues to display severe symptoms of anxiety which include disturbed sleep patterns, high levels of subjective anxiety sometimes occurring in the absence of any precipitating factors, tachycardia, and 'night sweats' which are so severe as to saturate his bedding. He frequently suffers nightmares, most of which concern different types of accidents or threats to his life. He describes that these nightmares at times are so disturbing that, upon waking, he is unable to move or speak for a while. His endorsement of the State Trait Anxiety Inventory corroborated his high levels of anxiety, scoring at the 100th percentile.
He continues to harbour a great deal of anger with regards to the accident, and at times he fears that he may not be able to control his temper in some situations. His wife corroborates a marked increase in Mr Eaves' irritability, although this has not lead to physical violence. Customarily, Mr Eaves copes with his irritability by taking himself out of the situation whenever he can. However he reacts very negatively when pushed into a corner, a situation which breaks his avoidance defence mechanisms, and he genuinely is concerned that the medico-legal process may cause him to 'break'.
My opinion of Mr Eaves is that of a genuine individual who has developed a moderate to severe anxiety state as a result of his accident in 1992. He has not adopted the sick role and if anything he has stubbornly refused to accept his limitations and pushed himself beyond his limits. The recurrent stress and pain which this has caused has on occasion caused him to become depressed and suicidal on several occasions.
In my opinion, Mr Eaves is suffering from a severe adjustment disorder. It is now three years since Mr Eaves' initial accident, and I doubt that he will ever be free of symptoms."
Mr Fourez agreed that a return to work would be the only means whereby the plaintiff may resolve his emotional turmoil and overcome his psychological difficulties, but in view of the complex constellation of symptoms which he exhibits he sees such a prospect as highly unlikely.
Dr Joseph Frasca, a consultant neurologist, confirmed that in his view the plaintiff's migraine attacks resulted from the head injury sustained on 18 June 1992. As to the partial epilepsy he had this to say in a report dated 16 February 1998 (exhibit P13):
"Mr Eaves has had a number of episodes characterised by partial loss of awareness and strange olfactory sensations (ie: detection of abnormal smells that are not present) as well as periods of disorientation and cold sensations running down his body and a feeling of detachment with his environment occasionally with feeling that his mind is racing and noticing a bad taste in his mouth. Occasionally, he has noticed to have episodes characterised by widespread jerking movements of his limbs that last up to a minute in his sleep where he has no memory of the events. These have been witnessed by his wife. These events were occurring on average, every few weeks. He was investigated with video EEG monitoring to try and capture these episodes to confirm whether they were due to seizure activity. He was admitted for a total of 5 days and he had three minor episodes at that time. All three episodes occurred during sleep. He woke up and was briefly confused. He was not seen to have any involuntary movements of his limbs. There was no definite epileptiform activity in his EEG during these periods. Unfortunately, he did not have any of his other typical episodes during the monitoring session. He has also had other investigations including an MRI scan of his brain which was normal.
It is difficult to be totally certain whether these recurrent episodes characterised with partial loss of awareness, involuntary activity, olfactory and gustatory phenomena and confusion are seizures. Clinically, they would be consistent with simple partial and complex partial seizures. Some of the episodes are not totally sterotyped and there is some variability in the symptoms he has. The tests that were performed did not confirm the diagnosis of epilepsy. However, this is not uncommon for tests such as EEGs, video EEG monitoring and MRI scans to be normal yet the patient has epilepsy. One would then base the diagnosis purely on clinical history and my impression is that these episodes are most probably simple and complex partial seizures. He has been treated with anti convulsant medication. He is currently on a combination of Tegretol 300mgs twice a day and Lamictal 150mgs twice a day and this has significantly improved the frequency of these events but he continues to have further brief events occurring on average every eight weeks."
Mrs Raeline Eaves, the plaintiff's wife, is employed at Prince's Street Primary School in Hobart. Her evidence confirmed the pre-accident history of work and activity described by the plaintiff. Generally speaking his health was good and he had an outgoing personality. He enjoyed sport, involvement with the family and social occasions. After the accident a substantial personality change occurred. She described his reaction to neck and back pain, headaches, migraine attacks, petit mal epileptic episodes and the other outward indicia of pain, frustration, noise intolerance, forgetfulness, anxiety and depression as described in the medical reports. He is "very moody, very irritable and ... very gloomy about our future", she said. Plainly enough the marriage and family relationships have been under considerable strain but there was no suggestion of separation, divorce or irreparable alienation of the children.
Damages
Pain suffering and loss of the amenities of life
The plaintiff is substantially disabled as a direct result of the injuries which he sustained in this accident. He is in more or less constant pain of varying intensity and duration in the head, neck, shoulder and lower spine. Every six to eight weeks he experiences one or two severe migraine headaches. Mild epileptic seizures occur approximately twice a month and between two and three times a year attacks of considerably greater intensity occur. All of these symptoms are plainly of a very debilitating nature. He continues to have a severe adjustment disorder with associated depression and anxiety. Although he would benefit emotionally and psychologically from working he is unable to do so by reason of his physical limitations. He finds this very frustrating. Before the accident he was a hard working, fit and active man with a fulfilling family and social life. Most of those recreational activities which he enjoyed before the accident can no longer be undertaken. However, it is true to say that over the years since the accident there has been a slow improvement in the plaintiff's symptoms. He has learnt to adopt coping mechanisms and is now less reliant on others to assist him.
As already mentioned, defence counsel submits that it may reasonably be inferred that his ability to engage in strenuous activities would have declined as the plaintiff became older. In a general sense this is true, but there is no reason to suppose that the plaintiff could not have enjoyed the activities which he described for many years to come.
Most of the plaintiff's symptoms, such as severe headache, anxiety attacks, depression and partial epilepsy have diminished in frequency and intensity since they first became manifest. The family relationship which was placed under considerable strain initially has improved to some extent.
Whilst Mr Fourez conceded that logically speaking it may be anticipated that resolution of this case will remove some of the stress upon the plaintiff, he also pointed out that the plaintiff's prosecution of his claim had provided a focus for him, which would be removed once judgment has been given. I therefore see no real prospect that judgment substantially in his favour will be instrumental in further alleviating the plaintiff's condition. Overall the plaintiff is left with a constellation of very serious debilitating and depressing symptoms. Under this heading I award the sum of $40,000.
Loss of earning capacity
(a) Past loss ¾ The plaintiff was in receipt of a weekly wage of $362.03 at the time of the accident. He intended to stay with the defendant Council. As already mentioned he was regarded as a capable and efficient worker and there is no reason to suppose that his employment would not have continued until the present time. It has been submitted on behalf of the plaintiff that, but for the accident, he would have progressed from grade 3C level to grade 4B level of remuneration by the present time. That is certainly a possibility but I see no firm basis for making such an inference. Immediately following the accident he was paid workers compensation weekly payments. These continued until 18 March 1996. The gross amount paid was $87,216.51 and the nett amount received by the plaintiff was $68,852.40. At the time that his weekly compensation payments ceased, a grade 3C level employee with the Council was receiving $374.61 nett per week. Assuming that he would have continued on at this level his past loss to 18 May 1998 is $45,624.42. That is the sum which I propose to allow for past loss of earning capacity.
(b) Future loss ¾ The present nett weekly wage applicable to the plaintiff's position at the time of the accident is $409.26. Defence counsel in his closing submissions reminded me that the plaintiff had relinquished his employment as manager at Tassal so that he could live closer to Hobart whilst the children were being educated, and further, that the plaintiff wanted to work more regular hours than he had been able to at Tassal. It was submitted on this basis that the plaintiff had plainly decided to put lifestyle ahead of income and to a certain extent I can agree with this. But this does not mean that the plaintiff would not seek employment with a better remuneration in future years. Indeed having regard to his past industrial history I think it quite likely that he would. Defence counsel also submitted that the plaintiff "is in a sound financial position and would appear to have little need to work until he was say, sixty or sixty-five. The plaintiff is in the fortunate position of not having a mortgage on his home, nor on the land at Dover which he uses for weekend recreational pursuits. It should also be noted that the plaintiff's wife was working long before the accident and there is no suggestion that her continuing to work is due to the accident." Whilst the point made in the final sentence is perfectly valid I see absolutely no reason for concluding that the plaintiff would have sought early retirement or redundancy before reaching the age of sixty-five years, given his drive and versatility and in particular his need to control his own destiny, as demonstrated by his personality before the accident. I think it considerably more likely than not that he would have continued in paid employment until his sixty-fifth birthday. Counsel for the plaintiff calculated, using the 7 per cent discount tables, that the loss of $409.26 per week to age sixty-five, amounts to $253,413.79. If the plaintiff were to be employed at the grade 4B level for which the current weekly wage is $423.40 nett, that loss would be $262,169.28. These calculations which were not disputed were made at the time of the trial in early March 1998. Against the prospect of future promotion or more highly remunerated employment in another job must be balanced the so called vicissitudes of life. The plaintiff was an active man and engaged in some activities which were not free from danger, eg scuba diving. In this case I think the favourable and unfavourable contingency factors virtually cancel each other out. I propose to allow the sum of $255,000 under this heading. In doing so I have not forgotten that the delay between trial and judgment has resulted in an increment of some $5,300 nett to the amount claimed by the plaintiff in respect of past loss of earning capacity.
Superannuation
The plaintiff has also claimed that as a result of the accident he has lost the value of potential superannuation benefit entitlements which would arise from the contributions that his employers would have been obliged to make on his behalf under the terms of current legislation. This issue was considered in a report by Bendzulla Tasmania Pty Ltd in a report tendered by consent, exhibit P19. This report was supplemented by counsel with a list of agreed additional matters. Once tendered in evidence this report received little attention at the trial and only brief submissions were made in respect of its contents during closing addresses. The method of calculation employed by Mr Bendzulla was obviously complex, but thorough. As I have taken the view that the plaintiff would, in all probability, have continued in employment until aged sixty-five, I think it appropriate to assess this loss essentially in accordance with that report. Mr Bendzulla's calculations were made as at 30 January 1998 and I have taken this into account. Under this heading I propose to allow the sum of $37,000.
Future cost of medical and health care consultations
Counsel for the parties have very helpfully agreed the present unit cost of medical and other health care consultations required by the plaintiff. They have also agreed the cost to the plaintiff of travelling to and from these consultations. Notwithstanding this agreement however, there is some imprecision necessarily involved in calculating the future cost of these attendances, because at least in some instances the number of visits which will be required each year may vary quite substantially from time to time.
The plaintiff's claims were particularised in his counsel's written closing submissions. Those calculations were formulated on the basis of the 7 per cent discount tables to the assumed date of the plaintiff's death. This method of calculation is obviously generally appropriate but at best it gives only an approximate value in circumstances such as the present. I propose to allow the following sums:
| (a) | Consultations with general practitioner | $ 5,800 |
| (b) | Physiotherapy | $20,000 |
| (c) | Consultations with psychologists | $20,000 |
| (d) | Neurosurgical and neurological consultations | $ 5,000 |
| (e) | Hearing aids to assist with noise intolerance | $ 5,000 |
| TOTAL | $55,800 |
It was also claimed that there is a very real possibility of the plaintiff requiring future surgery to the neck. Again counsel were able to agree the cost of the necessary procedures at $17,274.45. However, I am completely unpersuaded that there is any real prospect that the plaintiff will undertake surgery of this kind. He has been resistant to it until the present time and there is little likelihood that his symptoms from this source will become worse. I am unable to allow anything under this part of the claim.
In respect to future costs of this kind, which have been claimed to the date of death, it is appropriate that some discount should be allowed for contingencies. I therefore propose to reduce the sum allowed by 10 per cent, ie $5,580, so that a nett figure of $50,220 will be allowed under this heading.
Future cost of medication
Counsel have been able to agree the levels and rates at which allowance should be made for the future cost of the plaintiff's medication. Discounted at 7 per cent to the assumed date of the plaintiff's death the sum produced is $21,395.82. As with the last item it is appropriate that a discount factor of 10 per cent should be applied, I therefore allow $19,256.00.
Provision of wood fuel
Before being injured the plaintiff was in the habit of cutting his own wood for household use. This practice has now ceased and obviously he is physically unable to continue. According to the evidence he expends approximately $680 per year on purchasing firewood at the present time. Calculated at a discounted rate of 7 per cent until death, this claim translates to $8,578.46. Allowing for the imprecision of the claim and a 10 per cent contingency, I propose to reduce this sum to $7,500.
Workers compensation payments
It was agreed that weekly compensation had been paid on behalf of the plaintiff up to 18 March 1996. The total gross amount paid by the defendant was $87,216.51. The amount actually paid to the plaintiff after tax was a nett sum of $68,852.40. In addition medical and other expenses of a like kind amounting to $70,617 were also paid. In accordance with the principles stated by the Full Court in Union & Steamship Company of New Zealand v Dixon [1966] Tas SR at 44, these amounts must be added to the plaintiff's damages prior to a calculation of the appropriate reduction by reason of his contributory negligence. To the final figure then calculated as due to the plaintiff must be added what is commonly termed a Fox v Wood component. The way in which this is taken into account was explained by me in my judgment in Leighton Contractors Pty Ltd v Cule A67/1993 at 15. Viz, 15 per cent of the difference between the nett and gross sums paid by the defendant in respect of weekly compensation. That difference is $18,364.31, 15 per cent of which is $2,754.64.
Summary
Damages will be allowed as follows ¾
| 1 | Pain, suffering and loss of amenities of life | $ 40,000.00 |
| 2 | Loss of net income ¾ 18 March 1996 to 18 May 1998 | $ 45,624.42 |
| 3 | Loss of future earning capacity | $255,000.00 |
| 4 | Loss of future superannuation entitlement | $ 37,000.00 |
| 5 | Cost of future consultations associated with healthcare and treatment | $ 50,220.00 |
| 6 | Future cost of medication | $ 19,256.00 |
| 7 | Cost of firewood | $ 7,500.00 |
| 8 | Workers compensation payments | $157,833.51 |
| TOTAL | $612,433.93 | |
| Less 15 per cent contributory negligence | $ 91,865.09 | |
| TOTAL | $520,568.84 | |
| Less workers compensation payments | $157,833.51 | |
| TOTAL | $362,735.33 | |
| Plus Fox v Wood component | $ 2,754.64 | |
| TOTAL | $364,489.97 |
There will be judgment for the plaintiff for $365,489.97.
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