Ellis v Kennards Hire Pty Limited

[2009] NSWDC 347

CITATION:	Ellis v Kennards Hire Pty Limited [2009] NSWDC 347
HEARING DATE(S):	2-3 September 2009
EX TEMPORE JUDGMENT DATE:	4 September 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) Leave granted to the plaintiff nunc pro tunc pursuant to s151D of the Workers Compensation Act 1987 to commence proceedings against the defendant 2) Verdict and judgment for the plaintiff in the sum of $601,985.00 3) The defendant is to pay the plaintiff’s costs of the proceedings. 4) I consider it appropriate that senior counsel be retained in this matter given the nature of the defence and the allegations of contributory negligence raised by the defendant together with the complexity and severity of the plaintiff’s injury. I certify pursuant to schedule 7 to the Workers Compensation Regulations 2003 that it was appropriate in this case to retain senior counsel. 5) The exhibits are returned.
CATCHWORDS:	INDUSTRIAL ACCIDENT - Employer's negligence in providing defective equipment - Whether contributory negligence by plaintiff in failing to notice the defect - Assessment of residual income earning capacity and prospects of recovery from complex regional pain syndrome
LEGISLATION CITED:	Workers Compensation Act 1987 Workers Compensation Regulations 2003
PARTIES:	Aaron David Ellis (Plaintiff) Kennards Hire Pty Limited (Defendant)
FILE NUMBER(S):	10/2009
COUNSEL:	I Roberts SC (For the Plaintiff) C A Goodman (For the Defendant)
SOLICITORS:	Walsh & Blair Lawyers (For the Plaintiff) Lucas & Staggs Lawyers (For the Defendant)

JUDGMENT

1 Aaron David Ellis was injured while at work on the 18 December 2002. He claimed his injury was a result of the negligence of Kennards Hire Pty Ltd, his employer.

2 His injury involved fractures to the tibia and fibula of the right leg close to his ankle from which he has developed a degree of osteo-arthritis and a more significant complex regional pain syndrome type one.

3 The plaintiff did not commence proceedings in this court for work injury damages until 9 March 2009. He therefore requires the leave of the court to proceed. It was agreed by the parties that this issue be determined at the time of the hearing of the substantive claim because of the common features of the evidence involved.

4 The motion seeking leave pursuant to s 151D(2) of the Workers Compensation Act 1987 was filed on the 17 August 2009 and supported by affidavits of the plaintiff’s solicitor. The affidavit evidence indicated that the plaintiff did not consult a solicitor until June 2004. He informed the court that he did not do so because he expected to recover.

5 In April 2004, he was advised that he could not expect his condition to improve. The plaintiff was not challenged on this evidence.

6 On receipt of instructions, his solicitors obtained medical assessments that in October 2004, suggested a whole person impairment below fifteen per cent and therefore that he had no right to claim work injury damages.

7 The plaintiff pursued his workers compensation rights. Unfortunately, his condition deteriorated and his workers compensation claims were deferred pending stabilisation of the injury.

8 The plaintiff continued with treatment without resolution of his condition and in November 2006, his whole person impairment was assessed at fifty per cent, revised in March 2007 to thirty three per cent.

9 Delay was experienced in finalising his workers compensation claim because of the lack of response from the insurer. His claim was finally resolved in August 2007.

10 In September 2007, the plaintiff’s solicitors were instructed to proceed with the claim for work injury damages. The claim was served in October 2007 and the parties have continued with the procedural requirements necessary under the workers compensation legislation.

11 The defendant called no evidence in response to the plaintiff’s application for leave to proceed. It conceded that it could point to no prejudice but resisted the application on the basis of the time that elapsed from the date of the plaintiff’s injury. It appeared to me that this was precisely the type of case that provisions such as s 151D of the Workers Compensation Act were designed to address.

12 The plaintiff’s condition progressed over a two year period from a whole person impairment of nine per cent to thirty three per cent. This was obviously a significant deterioration and not a situation that could be anticipated or in respect of which precautionary legal steps could have been taken. Therefore in the absence of evidence of prejudice or of inability to secure a fair trial, leave to proceed will be granted to the plaintiff, nunc pro tunc.

13 In dealing with the substantive claim, the evidence was that at the time of the injury, the plaintiff was employed by the defendant as a maintenance technician in Wagga Wagga. The defendant’s business involved the ownership and provision for hire of a large variety of plant and equipment. The plaintiff’s duties involved, amongst other things, maintenance, delivery and set up of equipment.

14 In December 2002, Wagga Wagga City Council hired trailer mounted light towers for the purposes of a carol service in the Botanic Gardens. They were not available at Wagga Wagga and the plaintiff was required to collect them from the defendant’s Fyshwick branch.

15 On 18 December 2002, the plaintiff collected two towers from Fyshwick and transported them to the Botanic Gardens in Wagga Wagga. There he met an officer of the council and together they travelled to sites where the light towers were to be set up. In the process of putting one in place, the plaintiff and the council’s officer were required to manoeuvre the tower into position manually. It was necessary to turn it so that the drawer bar of the tower on which the light tower was mounted did not protrude into the pathway to be used by members of the public.

16 In the course of turning the light tower, it began to roll towards the plaintiff who reached for the handle of the handbrake in order to apply the brake and halt its progress.

17 There was no handle on the brake.

18 For some reason, it had been removed from the trailer. The trailer and the light tower continued to roll knocking the plaintiff down so that his right leg became wedged against the jockey wheel of the trailer. The trailer continued to roll until the plaintiff’s lower right leg impacted with a small tree.

19 The defendant denied liability and alleged, alternatively, contributory negligence on the part of the plaintiff.

20 Little was said in submissions concerning liability. The manager of the defendant’s Fyshwick branch, Byron Kutch, gave evidence of the defendant’s practice of checking equipment on its return and tagging it as ready for hire. He said the inspection of the equipment included checking the braking systems because of the foreseeable potential hazard to persons using the equipment if the brakes were not operating.

21 He stated that the defendant’s policy was that it made no modifications to the equipment that it hired out. No explanation was offered of how the brake handle came to be missing except to suggest that the light tower and the trailer on which it was mounted were acquired through a takeover by the defendant of another company and its equipment. There was no explanation of how the light tower and the trailer were tagged as ready for hire when they were so obviously deficient.

22 I find in supplying the equipment and requiring the plaintiff to work with the light tower and trailer that was so clearly hazardous, the defendant was in breach of its duty of care to the plaintiff.

23 Three propositions were put by the defendant to the plaintiff in support of its allegation of contributory negligence. It was said that he should have noticed the missing handle, that he should have positioned the trailer and light tower away from a sloping site and that he should have applied the brake by grasping other components of the braking system.

24 It was put to the plaintiff that the missing brake handle was glaringly obvious. He was reminded that one of his functions as maintenance controller for the defendant’s Wagga Wagga branch was to carry out the checking and tagging of equipment returned to that branch.

25 The plaintiff’s response was that he, at no stage, considered the possibility that the defendant would supply equipment with such a significant deficiency. He did not inspect the trailer at Fyshwick because it was attached to his vehicle by an employee of the defendant at the Fyshwick branch. That employee, also apparently, overlooked the missing handle.

26 No evidence was called by the defendant to explain why if the deficiency was so obvious, it was not noticed when the light tower and trailer were tagged as ready for hire or when it was attached to the vehicle driven by the plaintiff.

27 I did not consider it reasonable that the defendant suggest that the plaintiff was negligent in failing to notice the defect when at least two others of its employees had failed to do so, in particular, the employee charged with the very responsibility for checking the equipment.

28 In dealing with the question of the positioning of the trailer, the plaintiff was shown photographs that he did not recognise as depicting the site at which he suffered his injury. They were therefore of no assistance in determining this issue.

29 There was no evidence that the plaintiff was instructed not to place equipment such as this on a slope. Mr Wygold, the branch manager at Wagga Wagga, provided a statement in which he said it was a matter for the hiring party to direct the defendant’s employees where the equipment was to be set up. There was no procedure or policy of the defendant that directed against manually handling the equipment and drivers were encouraged to assist the hiring party to move the equipment into the desired position.

30 Further, it was stated by Mr Wygold that once in position, the equipment was secured by manually applying the handbrake and applying a locking mechanism and extending outriggers on four sides of the unit.

31 It was apparent that there could be no contributory negligence in placing equipment on a slope provided the braking system was functioning.

32 On the basis of this evidence, I find that there was no contributory negligence on the part of the plaintiff in the selection of the position of the light tower.

33 It was suggested to the plaintiff that he could have applied the handbrake by placing his hand in alternative positions on the braking mechanism. This suggestion was rejected by the plaintiff who said the very purpose for which the missing handle was designed was to provide the leverage necessary to operate a brake that would halt the progress of a 1.5 to 2 tonne item of equipment.

34 There was no evidence from the defendant to counter this part of the plaintiff’s evidence. There was no evidence from the defendant to establish that the application of the handbrake could have been achieved by the plaintiff placing his hand at either of the alternative positions nominated.

35 I reject therefore the suggestion that an alternative means of applying the brake was available to the plaintiff.

36 I find that the defendant’s claim of contributory negligence was not established.

37 In assessing the plaintiff’s claim, I noted that there was no dispute among the medical experts concerning the nature of his injury and the diagnoses of consequential osteo-arthritis and complex regional pain management.

38 The plaintiff returned to work after his injury in January 2003 on light duties and ultimately progressed to full-time pre-injury duties although with ongoing disability and discomfort. He resigned his position with the defendant in April 2004 and took up a position of maintenance controller with Burns Trailers also in Wagga Wagga. The progression of his condition was such that he ceased work with Burns Trailers in November 2004. He has not worked since that date.

39 The defendant took no issue with the plaintiff’s claim for past economic loss. The defendant, however, challenged the plaintiff’s claim that he has no prospect of ever returning to work and suggested that he retained some residual income earning capacity and that there were prospects that the symptoms of the complex regional pain syndrome will remit.

40 The plaintiff described his current condition as one in which he suffers from constant pain in his lower right leg, worse with activity and that his leg is exquisitely tender to touch. He is not able to bear weight on the right leg or to endure any covering over the lower part so that he wears shorts and no socks or shoes. He relies on crutches for mobility. The use of the crutches has caused him pain in his arms and shoulders. He takes medication that relieves the pain resulting from the use of the crutches but not the pain in his lower right leg.

41 He has sought assistance from the insurer in meeting the costs of attending a pain clinic to explore avenues to provide pain relief but that assistance has not been forthcoming. He stated that his concentration is affected by his pain and he suffers from sleep deprivation because he is woken by pain.

42 A psychiatrist and psychologist have provided treatment to assist him in overcoming his psychological reaction to his disabled condition but he continues to take anti-depressant medication and it was clear from the way in which he gave his evidence that he remains distressed by his condition.

43 The plaintiff had a strong work record prior to his injury. Although he was working in unskilled areas, he maintained a near full record of employment. He returned to work within a matter of weeks after suffering his severe injury. He made a determined effort to remain at work notwithstanding his discomfort and disabilities.

44 Mr Wygold set out in his statement his observations of the plaintiff’s increasing difficulties at work. The plaintiff demonstrated considerable distress when giving his evidence at his continued inability to return to work.

45 In November 2005, Dr Nicholls considered the plaintiff fit for the duties that he was then undertaking. The defendant relied on that report and also the report of Dr Assam of November 2007 in which he stated that the plaintiff was fit for suitable duties four hours a day for four days upgrading to full-time over six weeks depending upon his progress. Suitable duties meant that he could not perform work involving the negotiation of steps or ladders, working at heights, walking on uneven ground, placing weight on the right leg or lifting more than five kilograms.

46 A vocational assessment was undertaken in December 2007 and identified a number of positions that were said to be suitable on the basis that they would allow the plaintiff to stand or sit at will and did not involve significant walking. It was noted that he would require re-training programmes. This assessment appeared to be looking purely at the plaintiff’s functional capacity and did not take into account his complaints of sleep deprivation, poor concentration and psychological distress, constant pain, extreme if the right lower leg were touched.

47 As time progressed and particularly following the diagnosis of the complex regional pain syndrome, medical assessments of the plaintiff’s fitness for work have been increasingly dismal. Dr McNeil in July 2008, after describing the plaintiff’s symptoms and his findings on examination said that he was not fit for his pre-injury work and that the plaintiff would find it impossible to obtain work on the open labour market.

48 Dr Voss also, in July 2008, said that the plaintiff was unfit for any occupation including a light or sedentary one.

49 Dr Wallace, in October 2008, said the plaintiff was unfit for employment in any capacity and that he was unlikely to return to the workforce in the long term.

50 As far as the potential for remission of the plaintiff’s symptoms of complex regional pain syndrome was concerned, the defendant drew my attention to a statement in Dr Assam’s report to the effect that most patients with complex regional pain syndrome eventually go into remission. Dr Assam did not elaborate on the period of time over which this was likely to occur. However, he stated that given the duration of the plaintiff’s complaints, the lack of progress and the reported deterioration, his prognosis remained guarded. He suggested that a graded increase in physical activity would result in the gradual desensitisation of the affected area. Dr Assam was the only medical expert to take this view.

51 Dr Preston suggested that there were prospects of alleviating the plaintiff’s condition if he were provided with pain management in a clinic that treated him with intensive physiotherapy and rehabilitation. That opinion was given in November 2006.

52 In March 2007, she said that the plaintiff had not been adequately treated and that the delay and failure to obtain the intensive treatment that she previously recommended was such that it was unlikely that treatment at that stage would dramatically change his condition and she was of the opinion that the plaintiff would be left with significant difficulties.

53 Dr Voss also offered a poor prognosis noting the period of five years from the time of the plaintiff’s injury. He pointed out that not all cases of regional pain syndrome resolved and said that re-training into a sedentary occupation would only be possible when, and if, the extreme sensitivity in the plaintiff’s lower right leg settled.

54 Dr Wallace was of a similar view that, nearly six years after the accident, there was a very poor prognosis for further recovery of function in the lower right leg.

55 This preponderance of the medical evidence led me to reject the defendant’s contentions concerning the extent of the plaintiff’s residual income earning capacity. Having regard to that medical evidence and to the evidence of the plaintiff who presented as honest and genuinely distressed that he cannot return to work, I find that the prospects, at nearly seven years since the injury, of remission of the complex regional pain syndrome are too limited to be taken into account other than through the standard 15% reduction for contingencies.

56 I find that the plaintiff’s condition is such that he has no prospect of securing income earning capacity. I have assessed the plaintiff’s loss of income earning capacity at $601,985 as calculated in the plaintiff’s schedule marked as Exhibit O.

57 The orders that I make are as follows:

1. Leave is granted to the plaintiff nunc pro tunc to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987.

2. Verdict and judgment for the plaintiff in the sum of $601,985.

3. The defendant is to pay the plaintiff’s costs of the proceedings.

4. I consider it appropriate that senior counsel be retained in this matter given the nature of the defence and the allegations of contributory negligence raised by the defendant together with the complexity and severity of the plaintiff’s injury. I certify pursuant to schedule 7 to the Workers Compensation Regulations 2003 that it was appropriate in this case to retain senior counsel.

5. The exhibits are returned.

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