Evans v Materia Trading Pty Ltd
[2020] VCC 1028
•17 July 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-18-03582
| BRETT EVANS | Plaintiff |
| v | |
| MATERIA TRADING PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2020 | |
DATE OF JUDGMENT: | 17 July 2020 | |
CASE MAY BE CITED AS: | Evans v Materia Trading Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1028 | |
REASONS FOR JUDGMENT
---
Subject: INDUSTRIAL ACCIDENT
Catchwords: NEGLIGENCE – Work Injury – Unsafe System – Contributory
negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Damages
Cases Cited:Liftronic Pty Ltd v Unver (2001) 179 ALR 321; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Czafyrko v Edith Cowan University (2005) 214 ALR 349; Erickson v Bagley [2015] VSCA 220; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594; Aycicek v Flow Line [2019] VSCA 37; Jones v Dunkel (1959) 101 CLR 298; Vairy v Wyong Shire Council (2005) 223 CLR 422
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | T Tobin SC with R Stanley | Patrick Robinson & Co |
| For the Defendant | A Moulds QC with A Saunders | MinterEllison |
HIS HONOUR:
1 Brett Evans fell from the back of a Fiat Ducato van on 5 May 2015. At that time, he was engaged in employment with Materia Trading Pty Ltd (“Materia”) as a storeman and delivery driver. On Mr Evans’ version of events, his fall occurred because, while loading the van outside, his feet had become wet. As he walked out of the back of the van, his left foot slipped on the bumper bar, causing his fall. Mr Evans puts his case in negligence in two ways. First, he argues that he and other drivers had complained on numerous occasions about the difficulty of loading with wet shoes. He argues that, armed with this knowledge, Materia should have taken steps to cause loading to be done at the factory under cover, in the dry, and place non slip taping over the bumper bar to increase its slip-resistant properties.
2 Secondly and alternatively, he argues that even without any complaints being made about the hazards of loading in the wet, Materia should have, as a matter of common sense, perceived the risk of loading in the wet and taken the two steps set out above to reduce the risk posed, namely, loading of the vans at the factory under cover and applying non slip tape to the bumper bar.
3 The defendant denied both those arguments and argued essentially that there were no complaints made and the system it employed was as safe as reasonably practicable. As evidence of that, it noted no previous accidents at the site and called three warehouse workers who gave evidence of the safety of the system deployed.
4 The parties remained at loggerheads over issues of contributory negligence and quantum, but the primary focus of the viva voce evidence and submissions was liability – more particularly, the content of the duty and breach. An issue of causation relating to the effect of non slip taping arose as well.
5 Given those matters, the central issue for determination is whether Materia has breached the duty of care it owed to Mr Evans. In determining the central issue, the following sub-issues need to be identified and decided:
(i) were there complaints about loading in the wet made?
(ii)even if they were not, was loading in the wet a system of work which was a reasonable one to take care for the safety of its employees?[1] This is a question of fact to be judged prospectively from a point in time prior to the accident;
(iii) was any breach of duty a cause of Mr Evans’ injuries?
(iv)if there has been a breach of duty, was there contributory negligence on behalf of Mr Evans, given he was not wearing work-issued shoes but, rather, his own safety sneakers, which Materia was aware of?
(v)what physical and psychiatric injuries have been caused by the incident, noting Mr Evans’ extensive past physical injuries and the evidence of his past psychiatric injuries?
(vi)have the injuries rendered him totality incapacitated for work?
(vii)what is the quantum of damages, if any, for both general damages and loss of earnings (past and future)?
[1]Liftronic Pty Ltd v Unver (2001) 179 ALR 321
Facts
6 Before assessing each of these matters, something more must be said of the facts so that the circumstances of the injury and the system of work can be properly exposed to scrutiny. I will not deal in depth with Mr Evans’ past medical history at this juncture so as to instead focus more keenly on the major issue of breach of duty.
7 Mr Evans was born on 26 May 1972. He left school at Grade 9 level. He worked as a truck jockey, picker and in other odd jobs. He was an AFL football player, playing several professional seasons with Richmond Football Club up until the year 2000. He left professional sport in 2000 and joined the amateur ranks with the Narre Warren Football Club from 2000 to 2011. From 2000 to 2008, he worked as a cleaner, and also in a bottle shop.
8 In 2008, he joined Materia as a storeman and delivery driver. Initially he was part time, but shortly thereafter he became full time.
The system of work
9 Materia is a small family company. It occupies premises at 268 Boundary Road, Braeside, on the corner of Tarnard Crescent. The company is involved in the sale and delivery of cleaning products, such as disinfectant, soaps, brushes, mops and buffing machines. The premises consist of a warehouse on a corner allotment and next to it, joined via an open-air walkway, a showroom. The buildings are shown in the attached figures 9 and 10 from Defendant’s Court Book (“DCB”) 165 of Dr John Culvenor’s report. These are attached to the judgment. Materia trades as “Hannafords”, and it is that named building, shown in Attachments 9 and 10, that is the subject of this case. The building comprises a high-roofed rectangular warehouse. At the front is a small set of offices housed in a low-roofed brick building. Down the left-hand side of the warehouse runs a concrete driveway.[2] Near the end of that driveway is a roller door. It was the driver’s role, on commencing work, to reverse their van down the driveway. The company at that stage had three vans. Mr Evans drove a Fiat Ducato long-wheelbase van. That van is shown.[3] The van is backed alongside the roller door – not through it. The driver then loaded the van, with the assistance of one to two others on site, through the side door. When loading through the side door is complete, the van is driven slightly forward and the back doors are thrown open.[4] The van is then loaded from the rear. The tray of the van is steel. At the rear end of the tray is a bumper bar made of plastic. It has ribbing on it [5] That bumper bar has a rounded rear edge and is 135 millimetres in width.[6] A foot cannot be placed completely on the bumper bar,[7] as it is not wide enough.
[2]Figure 16
[3]Figure 30
[4]Figure 33
[5]Figures 34 and 36
[6]Defendant’s Court Book (“DCB”) 146, report of Dr Culvenor
[7]Figure 39
10 Vans were loaded outside in all weather; rain, hail or shine.[8] The only time loading stopped was if it was raining heavily. The driver loaded the van to completion from the rear. At times, the driver was assisted by someone bringing goods on a trolley to the vehicle. In that case, the driver would stay inside the van and place goods in the correct order that they were to be delivered. At other times, the driver would have to walk from the van into the warehouse to collect goods and then walk back to and into the van by himself. Once stacked completely, the driver closed the back doors and had his paperwork completed.[9] He then drove his van away and the next van was brought up.
[8]Transcript (“T”) 398, Lines (“L”) 11
[9]T 60, L 3
11 The usual work crew comprised Mr Evans, the warehouse manager Daniel Brouwer, the forklift driver and storeman Ravi Kesh and Steve Pitman, a storeman and delivery driver. Frank Materia, the general manager, and the sales manager, Matt Materia, worked in the front office.
The incident
12 On 5 May 2015, Mr Evans arrived at work just before 7:00am. It had been raining and the driveway was wet. Though there was debate about how much rain there had been, it is not necessary to make a definitive finding about this because the defendant accepted that the driveway was sufficiently wet for Mr Evans’ shoe soles to become wet.[10]
[10]See defendant’s opening comments of Mr Moulds QC at T 18 L 18
13 Mr Evans gave evidence that he had completed stacking through the rear of the van. This involved him walking from the warehouse across the wet concrete driveway into the van numerous times. He then described how the incident occurred as he was exiting the rear of the van for the last time.[11]
Q: “And where was your left foot at the time it slipped?---
A:I went to put it on the bumper and then get down with the other foot but that foot slipped out from under me.”[12]
[11]T 61, L 27
[12]T 69, L 29-31
14 Mr Evans fell down to the concrete driveway. His evidence was he landed on his left side, hip and back, and hurt his left shoulder. His evidence was that his head ended up close to the bumper bar and his feet further away from the van.
15 Mr Brouwer was onsite. He saw only part of the fall,[13] being a second or so before Mr Evans struck the ground. Mr Brouwer’s evidence was, however, that Mr Evans’ head was furthest from the van.[14] Mr Kesh was onsite, but neither saw the fall, nor attended the scene on his evidence. Mr Pitman was onsite, but only saw the aftermath.[15] He was uncertain, but largely confirmed Mr Evans’ evidence that his head was near the bumper bar and his feet away from it.[16] In the end, not much turns on this discrepancy, but overall I accept Mr Evans’ version of how his left foot slipped and the position he came to be in on the ground. I do so because Mr Evans was so clear in his recounting. He has not given an inconsistent version since that time. Mr Brouwer did see at least part of the fall and did not give any evidence to suggest the fall occurred via a different mechanism. Dr Culvenor opines that if the fall occurred as Mr Evans gave evidence, then his head would have been away from the van and his feet closer to it.[17] However, this is inconsistent with the evidence of Mr Evans and Mr Pitman. Mr Materia was not asked about the body position despite being on scene almost immediately afterward. Mr Dimopoulos, the plaintiff’s expert engineer, had no difficulty in reconciling the body position with the described mechanism of the fall. For these reasons, I prefer and accept Mr Evans’ versions of events as to the occurrence of the slip and fall, and as to his ultimate body position on the concrete driveway.
[13]T 305, L 15
[14]T 305, L 21
[15]T 400, L 29
[16]T 407, L 9
[17]DCB 144
16 While I will return in some detail to the footwear Mr Evans was wearing at the time, I note simply, at this stage, that his shoes were Dunlop Volley steel-capped shoes.
A. Duty Owed
17 That Materia owed Mr Evans a duty to take reasonable care is not in doubt.[18] In an employment situation such as this, the duty could be defined in the following terms:
“If there is a real risk of injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”[19]
[18]Plaintiff’s Court Book (“PCB”) 9, at paragraph [5]
[19]Czafyrko v Edith Cowan University (2005) 214 ALR 349, at paragraph [12]
18 While that much could be agreed between the parties, the content of that duty is bound closely to the proper identification of the risk which materialised.[20] It is only with the correct identification of the risk, that it is possible to assess what a reasonable response to that risk would be.[21]
[20]Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, at paragraph [59]
[21]Ibid, Dederer at paragraph [59]
19 The formulation of the risk is that which focuses on the true source of potential injury.[22] Such a formulation cannot be confined to the precise set of circumstances in which the plaintiff was injured. Rather, what must be reasonably foreseen is the nature of the particular harm that occurred, or more specifically, the circumstances in which that harm occurred.[23] In this case, the defendant sought to identify the risk as one of a worker slipping on a wet steel tray in the back of the van. It was argued in closing by Mr Moulds QC that such a risk never came home in this case. The argument went that even if there had been complaints about the slippery nature of a wet steel tray in the van, that it was a foreseeable risk and that boards could be placed easily in the tray to ameliorate the risk, that was all unnecessary because Mr Evans’ injury occurred by slipping on the bumper bar. It was a neat way for the defendant to centrally, undermine Mr Evans’ case. However, the identification of the risk in the terms proposed by the defendant unduly confines the identification of the risk to the precise set of circumstances in which the plaintiff was injured.[24] Such an approach clouds the nature of the enquiry Materia had to make prospectively when assessing the reasonable response to a risk with a retrospective examination which focuses on how the injury occurred. Hence, in Vairy, Hayne J stated:
“There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk”.[25]
[22]Dederer at paragraph [60]
[23]Erickson v Bagley [2015] VSCA 220 at paragraph [33] as cited with approval in Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at paragraph [55]
[24]Bagley at paragraph [33]
[25]Vairy v Wyong Shire Council (2005) 223 CLR 422, at paragraph [125]
20 In this case, I find the risk is properly characterised as the risk of injury to workers while walking and climbing in and out of the Fiat Ducato van with wet shoes during the course of loading outside at the warehouse.
Foreseeability
21 Issues of foreseeability call for judgments informed by fact, circumstance and experience.[26] Whether a risk is foreseeable depends on whether it can be assessed as being far-fetched or fanciful.[27] That injury might arise from the risk categorised above was plainly foreseeable.[28] I make that finding primarily on the basis that Frank Materia gave evidence that water on the shoes of workers, while loading, increased their risk of slipping. Mr Materia gave this evidence as follows:
[26]Southern Colour v Parr & Anor [2017] VSCA 301, at paragraph [58]
[27]Wyong Shire Council v Shirt (1980) 146 CLR 40 at page [47] per Mason J
[28]WyongShire Council v Shirt (supra)
Q:“And wet shoes on painted steel floors can involve a risk of slipping?---
A: That's why we issue them with safety boots.
Q: And water on a rubber bumper bar and wet shoes can pose a safety risk; you agree?---
A: Yes.”[29]
[29]T 357, L 14-17
22 While those answers above delve into the issue of the response of the risk, they strongly imply knowledge and appreciation of the risk identified prior to the injury. There is no countervailing submission that the risk was not foreseeable.
B. Breach of Duty
23 Having made these findings, it is necessary to then consider what a reasonable person would do in response to that risk.[30] It is here that issues of the magnitude of the risk and probability of the risk eventuating must be assessed.[31] The magnitude of the risk is obviously great: being that associated with a worker slipping and falling either in the back of the van, or from it, at the warehouse and onto the concrete floor below. Even brief assessment of this prospective scenario leads inexorably to the conclusion that the injury may well be significant or even catastrophic. I need not dwell on this further. More attention, however, must be focused on the probability of the risk eventuating. At times, it is thought that an absence of prior occurrence of the risk happening determines the question of foreseeability of risk. It does not.[32] Rather, the absence of similar occurrences prior to the date of a plaintiff’s injury informs the reasonableness of the response of the defendant to the risk.
[30]Wyong at page [47]
[31]Wyong at page [47]
[32]Wyong at pages [47]-[48] as applied in Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at paragraph [56]
24 This was the real focus of the trial: the response of Materia to the risk posed. As set out above the case for Mr Evans was put on two bases. First, that prior to the accident there had been complaints that loading at the factory outdoors in the wet created a risk of the type identified. In response, Materia argued that no such complaints were made and there had been no prior incidents such as to require a response beyond the wearing of safety shoes.
25 Secondly, Mr Evans argued that even without prior incident or complaints the risk identified required a response more substantial than that of the requirement to wear safety shoes. Materia argues against this for the same reasons as for the primary argument.
26 For both arguments, Mr Evans argued that the reasonable response called for by Materia was:
(a) for loading to be done undercover; and
(b) non slip tape to be affixed to the bumper bar.
27 I will deal with each of Mr Evans’ arguments separately and then come to the reasonableness of the proposed responses separately.
(i) Were there complaints prior to the accident?
28 The evidence on this point was sharply divided. Mr Evans gave evidence that there were concerns by workers about loading in the wet.[33] Further, such concerns were relayed to Mr Brouwer, the warehouse manager,[34] and that there were formal meetings where the issue was discussed[35] and that at least one such meeting involved Mr Matt Materia[36]
[33]T 49 L 3-9
[34]T 304 L 1-4
[35]T 304 L 4-12
[36]T 47 L 24-28
29 All of the above assertions were denied by Mr Brouwer,[37] Mr Kesh,[38] Mr Pitman[39] and Mr Matt Materia.[40] Mr Frank Materia also denied being aware of the matters alleged by Mr Evans.
[37]T 332 L 9-10
[38]T 376 L 24-T 377 L 1
[39]T 401 L 25-31
[40]T 421-422
30 While it might loosely be suggested that Mr Brouwer, as a relative to Mr Matt Materia and Mr Frank Materia had a vested interest as family members of the family business, as a reason not to recall specific events allegedly detrimental to their business, as put by Mr Evans, this would do a disservice to their evidence. All of them gave evidence in a straightforward and honest manner. Mr Frank Materia was particularly candid.[41]
[41]T 371, L 27-T 372, L 4
31 While it could be said Mr Brouwer’s memory was not exact, for example, as to the position of Mr Evans’ body after the fall, which I have found was incorrect, he struck me as a witness trying his best, with imperfect recall. While I accept he probably was the one who called Mrs Evans after the event, he similarly had no memory of this. She does. This is consistent with the fact that Materia was a family company,[42] it valued its staff, Mr Evans had a good relationship with them and in this instance, no doubt Mr Brouwer called Mrs Evans to inform her of Mr Evans’ accident while Mr Frank Materia took him to hospital. That failure to recall the conversation does no harm to Mr Brouwer’s credit, as the fact of making the call is a matter that goes to his favour of being a responsible manager. The fact that he could not recall this does not taint my acceptance of his evidence that he received no complaints, did not attend any meetings nor had any concerns about loading in the wet.
[42]T 313, L 10
32 Mr Matt Materia’s evidence also has the ring of truth. He gave evidence in a straightforward manner. I accept him as a witness of truth. He was the sales manager. He spent 50 percent of his time on the road. He worked in the front office. He started well after loading and dispatch was done in the mornings. He had no experience in warehousing. He made it clear that while he, on occasion, went to the warehouse, he considered it improper to give any advice to the warehouse manager, as he had no experience in that side of the business. I accept this evidence and it sits comfortably with his evidence that he had never chaired a meeting where the issue of loading outside in the wet was discussed. I accept this evidence.
33 Mr Frank Materia’s evidence I also accept on this point. I found he was a credible, honest and straightforward witness. This acceptance of his evidence is buttressed by Mr Kesh, who is no longer with Materia, and also the evidence of Mr Pitman. I accept the evidence of Mr Kesh on this point. I am fortified in this view, having seen Mr Kesh give evidence. For example, the evidence of Mr Evans was that Mr Kesh was a safety steward at his job prior to his work with Materia, and also again while at Materia.[43] This was denied categorically by Mr Kesh. The way Mr Kesh denied the assertion that he was a safety steward brought a look of bemusement to his face. He was clearly surprised by the assertion made. I found it very useful to see him give his evidence. It reinforced my opinion that his evidence was given openly and honestly and was not rehearsed or tailored to any particular end, That he would give evidence in a case where he had no interest, also supports my acceptance of his evidence that he was not a safety steward, not concerned by loading in the wet, had not complained about it, nor participated in meetings or conversations about it.
[43]T 47, L 6-9
34 Mr Pitman’s evidence is corroborative of Mr Kesh’s and Mr Brouwer’s. I accept it. He was employed at the warehouse at the relevant time. There was no basis for his evidence to be undermined. While it could be said that he had misremembered the involvement of WorkSafe, I am satisfied that this arose from his confusion as to whether or not there had been an expert engineer commissioned by the defendant’s insurer who had attended. This misremembering on his behalf goes no way toward undermining the evidence he gave on this point.
35 In rejecting Mr Evans’ evidence on this point, I do not find that he has deliberately lied or obfuscated. Overall, I find that he was a witness of truth who tried his best to recall matters some 5 years ago. His wife’s evidence largely corroborated this. All his co-workers spoke of him in positive tones, his ex-employer was happy with his work and there was no suggestion from any of the medico legal reporters of lies being told to them. In short, his credit was not an issue.
36 Having made those findings, I conclude by formally rejecting Mr Evans’ first argument that there was active knowledge of concerns about loading in the wet.
(ii) Loading Outside was an Obvious Risk
37 Mr Evans case proceeded in the alternative that even if there were no complaints or active knowledge of concerns about loading in the wet, such posed an obvious risk to workers.
38 The failure to take measures to deal with the risk of slipping while loading and unloading with wet shoes undoubtedly arose from the failure on the part of Materia to properly assess the risk. While Frank Materia gave evidence that the use of safety shoes was the reasonable response prior to the accident, after the accident there was a “brainstorming session”, during which the ideas of (1) loading inside the warehouse and (2) the application of non slip tape to the bumper bar arose. This process of taking steps to identify the risk and reduce it was the same as the process required to be engaged in prior to the accident, yet it was not. Mr Materia admitted that prior to the accident, if no problem was brought to his attention, then no problem was identified as a risk.[44] He gave evidence that he was an approachable, open manager, and if staff had a problem, staff would come to him.[45] So much can be accepted, and was, by Mr Evans.[46] However, the duty of the employer is to be proactive and assess risk in a prospective fashion. Here, there were no formal safety meetings, no toolbox meetings and no safety training days.[47] It was a system purely reliant on employee complaints and Mr Frank Materia’s identification of risk. This, in sum, I find was a reactive system of risk assessment and response. It was, I find, a deficient system.[48]
[44]T 358, L 4
[45]T 357, L 24-27
[46]T 40, L 16
[47]T 357
[48]Report of Mr Dimopoulos, PCB 175 at paragraph [7.18]
(iii) Reasonableness of the Response to the Risk
39 I turn to Mr Evans’ argument that the risk identified required a response more substantial than that of the requirement to wear safety shoes: to change the loading method to indoors and the application of non slip tape. It was common ground that both steps were cheap and easy to achieve. [49]
[49]T 395, L 29-T 360, L 7 as to the loading indoors, grip take costing $6.95 a roll and also T 361, L 7-13
40 In fact, immediately after the accident both steps were taken. Taking each matter in turn and dealing with loading inside the warehouse first. Mr Frank Materia admitted that changing the system reduced the risk.[50] Dr Culvenor, Materia’s expert engineer, makes little definitive comment on this point.[51] Dr Culvenor states: “If it is raining and there is the opportunity to work under cover then it makes sense. That is the situation at the cleaning supplies warehouse.”[52] In context, though, he is specifically dealing with loading while it is actually raining, not the risk of it simply being wet underfoot.
[50]T 359, L 29, T 360, L 7
[51]Report of Dr Culvenor, DCB 150
[52]DCB 150
41 Mr Dimopoulos, Mr Evans’ expert engineer, was more forthright and opined that loading undercover would have reduced the risk of slipping when wet, though such risk remained when doing deliveries. It is clear that the test of reasonable care does not require the elimination of all risk or a standard of absolute perfection.[53] So while a reduction of risk during the loading at the warehouse did not solve the problem of unloading in the wet during deliveries, attention must remain on whether it was a reasonable response to the risk proposed. In these circumstances, a reasonable response must be taken, even if it is not a perfect response.
[53]Wyong at pages [47-48]
42 That analysis leads to my conclusion that the reasonable response to the risk identified was to change the system of work so that loading occurred in the warehouse. This is not only because of Mr Frank Materia’s evidence but because of my view of the site. That showed clearly that the warehouse had a large roller door on the Tarnard Street side that allowed for very easy access for a van the size of the Fiat Ducato. It bears out the evidence that the system of loading could be done easily from within the warehouse, and out of the rain and off the wet concrete driveway, the source of the drivers’ tracking water into the vans.
43 Mr Evans’ further argued that a breach of duty occurred by reason that non slip tape was not applied to the bumper bar. This is supported to some degree by Mr Dimopoulos,[54] where he opined that such a step “would likely be more beneficial in reducing the likely hood (sic) of a slip occurring”. Dr Culvenor makes no comment as to the efficacy of such a step. Solely on the issue of breach, and specifically disregarding issues of causation, it seems a reasonable step to take given the ease of its installation and modest price.
[54]PCB 174 at paragraph [7.13]
44 The application of non slip tape was cheap and easy to achieve. However, whether it was a reasonable step depends on its ability to ameliorate the risk of injury. This necessarily involves an assessment of its efficacy. I have dealt with this below under the heading of ‘Causation’.
C. Causation
45 To establish that the breach of duty caused injury, Mr Evans must establish that the failure to have loading carried out inside the warehouse so as to avoid wet conditions in the driveway was a cause of his injuries. In addition, or alternatively, he argues that the failure to have non slip tape on the bumper bar was a cause of his injuries. Taking each of these matters in turn and addressing the issue of loading outside first. It was Dr Culvenor’s opinion that loading inside the warehouse on this particular day of the incident would have made no difference.[55] Mr Dimopoulos was of a slightly different view, that loading in the warehouse would have “reduced the risk of slipping”.[56]
[55]DCB 150 at Q.4
[56]PCB 175 at [7.17]
46 While this is not a definitive statement, that the failure to load in the warehouse was a cause of the accident, I find that in context this is the effect of Mr Dimopoulos’s evidence. First, he identifies that the loading in the wet poses a risk. Second, that risk is reduced by loading indoors. Third, the failure to move the loading inside resulted in an unacceptable risk of injury. That seems to imply that injury was on the cards if nothing was done to mitigate the risk. On the balance of probabilities, the risk came home to Mr Evans because of the continued creation of this unacceptable risk. Even if I were wrong about that, I would rely on the principles of Dahl v Grice,[57] and as a finder of fact, consider that the circumstances lead to the conclusion that loading in the wet was a cause of the accident and subsequent injury.
[57][1981] VR 513
47 While Mr Dimopoulos did opine that the design of the bumper bar itself played a role in Mr Evans’ fall, that does not detract from my finding. The breach of duty of Materia does not have to be the sole or only cause of the accident, rather a cause.
48 Turning to the second step Mr Evans argued Materia ought to have taken, being the application of non slip tape. Dr Culvenor does not consider it to be a step that would ameliorate the risk. In Mr Dimopoulos’s opinion “the application of abrasive tape or similar may have reduced the risk”. It is a lukewarm embrace of Mr Evans’ argument. I do not accept the submission of Mr Stanley on this point. I find that it is uncertain what the effect of the non slip tape would have been. There is no proper evidence to satisfy me to the relevant standard that the failure to apply non slip tape was a cause of the accident.
49 Pausing there to summarise my findings on liability, I find that Materia was negligent in identifying the risk of injury posed to workers required to load vans at the warehouse in wet conditions. Particularly, I find that an employer in Materia’s position, acting prospectively, would have implemented a system of loading indoors on wet days. I find that the failure identified was a cause of Mr Evans’ accident and consequent injury.
D. Assessment of damages
(i) The injuries
50 The starting point is the identification of the injuries caused by the accident. These were claimed to be both physical and psychiatric.
51 The physical injury Mr Evans is alleged to have sustained is a frank injury, or aggravation injury, to the lumbar spine involving pathology at the L5/S1 level, impacting on the L5 nerve root with left-sided sciatic symptoms.[58] Prior to dealing with the claimed injury, something must be said about Mr Evans’ past history of physical injury. This evidence was admitted via tender of certain parts of Mr Evans’ affidavit sworn in support of his serious injury application. That was a highly efficient way for this evidence to be adduced.[59] This was essentially uncontested save for one matter regarding right-sided lower back pain in 2012. I will come to that, but the past medical history set out in the tendered paragraphs can be summarised broadly in the following terms. Mr Evans had some sporadic episodes of lower back pain for which he saw his doctor from time to time during his work life. He was treated with medications and, on occasion, referred for scanning. None of those radiological investigations showed frank disc prolapse or pathology. Specifically, in 2012, while he complained of right-sided lower back pain and pain into his right calf, his CT scan showed no prolapse. During this period, and particularly from 2008 when he started with Materia, he worked a full-time physical job and played competitive football with Narre Warren Football Club. He occasionally had a day off for his lower back pain, but not much more than this.
[58]PCB 6 at paragraph [4]
[59]PCB 55, paragraphs [4]-[8] inclusive of the affidavit sworn 31 May 2017
52 The accident left Mr Evans complaining of lower back pain, particularly on the left side, and radiating to the left buttock and down the left side in a sciatic distribution. MRI scanning performed shortly afterward showed a small disc protrusion on the right side at the L5/S1 level, and an annular tear with displacement of the right S1 nerve root. Facet joint degeneration at L4/5 and L5/S1 was noted.[60] Dr Barmare, a medico-legal orthopaedic surgeon, was called to give evidence. He opined in cross-examination that the radiology did not provide an explanation as to why Mr Evans had pain on the left side when the scan showed a right-sided protrusion.[61] For the first time in cross-examination, he volunteered the proposition that the annular tear had released chemicals which caused a reaction on the left-sided nerves causing and explaining Mr Evans’ pain. I do not accept that thesis. It was not raised at all in any of his reports. It was not raised as a cause of Mr Evans’ symptoms by Associate Professor Bittar, the treating neurosurgeon, nor any of the other medico-legal orthopaedic specialists. Rather, I prefer the almost unanimous view that Mr Evans has sustained an aggravation of lumbar spondylosis with symptoms emanating from the facet joints and an L5/S1 disc prolapse on the right-hand side, as a result of the accident.[62]
[60]PCB 76
[61]PCB 81
[62]Associate Professor Bittar at PCB 120, Dr Barmare at PCB 118, Dr Dooley at DCB 72, who note the disc prolapse aggravated the underlying disease
53 The consequences of that physical injury are that he cannot return to work in his previous occupation. He has attempted such returns to work but could not manage and was let go completely in 2016.
54 Mr Evans has attended two pain management programs in 2016 and 2017, with limited success. He has had facet joint injections, but with no improvement. While his evidence was that the programs were helpful, he continues taking paracetamol, ibuprofen and Targin, as needed.[63] He told Dr Barmare his pain intensity had improved slightly, but that it had spread to the right hand side[64] in February 2020. He learned some alternative strategies to cope with his pain at his courses and has turned to religion to assist him. He walks 1-2 kilometres per day, but struggles with bending, lifting and twisting. He admitted in evidence to being able to lift 2-5 kilograms at some stage since leaving work but was unable to say when or why his doctors had revoked that restriction.[65] Essentially, he seemed to be suggesting his lifting capacity was 2-5 kilograms. He gave evidence that he could do very little about the home by way of domestic tasks – struggling to even fill the lower tray of the dishwasher.[66] He gave evidence that even putting socks on was difficult.[67]
[63]PCB 115 – See also T 84, L 10
[64]PCB 115
[65]T 175, L 7-31
[66]T 168, L 18
[67]T 193, L 23
55 Film was shown of about 20 minutes. It was largely consistent with Mr Evans’ evidence. It was admitted that 29 hours of surveillance was undertaken over seven days, yet only 20 minutes was shown. It was also admitted that other video of 7 to 10 minutes was exchanged and not shown. I accept the video as being confirmatory of the general restrictions Mr Evans claims, however he was shown bending freely under a low bar surrounding a park reasonably easily and doing a short football kicking interaction with his children. He also admitted in cross-examination that he was shown lifting cages containing pigeons and that they might weigh between 3 and 5 kilograms.[68]
[68]T 160, L 10-11
56 This all does lend some support to the notion that his physical capacity is slightly greater than he has stated, though the small amount of film shown significantly dilutes the weight that I place on this evidence. This is consistent with Dr Slesenger’s opinion.
57 As to physical capacity at work, the evidence on behalf of Mr Evans is in a difficult state. This is because the last report of his treating doctor, Dr Cao Phan, is dated 4 July 2017. Dr Phan is said to be Mr Evans’ treating doctor and to see him regularly, yet no updated report has been provided from him. No explanation was given as to why this was so. In his last report, Dr Phan has stated that he expected Mr Evans to be able to return to work in light duties in about 18 to 24 months. That would have been sometime in July 2019 at worst.
58 Mr Bittar, the treating neurosurgeon, reviewed Mr Evans on only two occasions, on 17 July 2017 and again on 11 October 2017. He opined that in “practical terms” he is totally incapacitated for work, “such being a permanent condition”.[69] Dr Barmare offers a different opinion: that the hinderance to his return to work are his mental health issues.[70] While he opines that Mr Evans cannot return to work in his pre-injury duties, he notes that Mr Evans wants to get some gainful employment.[71] I find this significant given it indicates a motivation of Mr Evans that he wants to perform some meaningful work[72] Mr Dooley is of a similar view,[73] and has maintained that over his two reports. Most importantly, however, Dr Slesenger, the only occupational physician in this case, is of the opinion that there is a capacity for alternative work.[74] He has provided detailed reporting based on examinations in four separate reports which report yearly from 2017. I find it compelling when faced with a lack of updated opinion from Mr Evans’ treaters or a corresponding alternate opinion from an occupational physician. I accept the opinion of Dr Slesenger and find that Mr Evans has a capacity, on a physical basis, to return to work in alternative duties. I find that such capacity most likely developed from the beginning of 2019 and was fulminant by July 2019, consistent with Dr Phan’s opinion. In coming to this conclusion, I reject the argument that Mr Evans is as restricted as he asserted in evidence. In combination, the evidence of Mr Dooley, Dr Slesenger, the film, and the last reporting of Dr Phan indicate substantially greater ranges of movement, flexibility and capacity than the evidence of Mr and Mrs Evans suggests. The absence of updated reporting from Dr Phan, I find, results in the inference his evidence would not have assisted Mr Evans. I accept this body of evidence as to a physical capacity for work.
[69]T 122
[70]PCB 117
[71]PCB 119
[72]T 79, L 21-25
[73]DCB 73
[74]DCB 68
59 Turning to consider Mr Evans’ psychiatric condition. Mr Evans undoubtedly suffered from pre-existing mental health issues prior to the incident. He was, since, at least, late December 2007, taking Zoloft at 100 milligrams.[75] This continued until the time of the accident. During this time, he worked full-time, played football regularly – being captain of the club – met and married his wife, and had children. No evidence suggested his depression worsened during this time. It supports the general consensus amongst the medico‑legal practitioners that he had a mild psychiatric condition prior to the accident.
[75]DCB 225
60 After the accident, his treating doctor referred him to a psychologist, Ms Cranston, in May 2016. She diagnosed an adjustment disorder with mixed anxiety and depressed mood.[76] She took a history that prior to the incident, he had a mild to moderate depression, but he denied to her that he had been on Zoloft “for some time prior” to the date of injury. This was incorrect given the ongoing Zoloft scripts in the time immediately preceding the injury.[77] She is thus in a limited position to draw conclusions about his pre-existing mental state. At that early stage, and before his attempts at the courses at Victoria Rehabilitation, she opined on 6 July 2017 that he had no capacity for work.[78] There is no further report from Ms Cranston, though she appears to have treated Mr Evans for a considerable period (22 sessions from May 2016 to July 2017, at least) and thereafter no further report from her has been made available to the Court. That opinion is now nearly three years old.
[76]PCB 70
[77]DCB 226
[78]PCB 72
61 Further, and even more problematically, Mr Evans began to see another psychologist, Ms McQuillan, at some point in time.[79] Ms McQuillan has been the treating psychologist for about three years. It appears that she began treating Mr Evans on referral from Associate Professor Bittar. Noting the time when Associate Professor Bittar saw Mr Evans, that is, in mid-2017, it can be assumed that referral was made around this time to Ms McQuillan and she began consulting with Mr Evans, perhaps in late 2017 or 2018, depending on availability. In any event, Ms McQuillan has seen Mr Evans for about three years. No report or evidence has been received by the Court from her at all. I am urged to draw the inference that the evidence of Ms McQuillan would not have assisted Mr Evans, and I do so on the basis of Jones v Dunkel.[80] Rather, Mr Evans urges the Court to accept the evidence of his medico-legal psychiatrists, Dr Strauss, Dr Takyar and Dr Kornan. Dr Kornan’s report can be put to one side. It is over four years old and not appraised of the treatment of Ms McQuillan. Dr Takyar saw Mr Evans only once, in May 2019. He did not have an accurate history of the pre-existing Zoloft and depressive episodes, believing they ended in 2013, some two years prior to the accident. He had no knowledge of the involvement of Ms McQuillan after that of Ms Cranston. He diagnosed a major depressive disorder and a generalised anxiety disorder. He found that Mr Evans had no capacity for work at that time. [81]
[79]T 83, L 24 – I infer this was late 2017.
[80](1959) 101 CLR 298
[81]PCB 137
62 Dr Strauss saw Mr Evans on one occasion. He accepted in cross-examination[82] that with further appointments, a better, more detailed picture of Mr Evans’ state might have been ascertained. To some extent, he deferred to the opinion of Dr Entwisle, who the defendant had examine Mr Evans on three occasions from 2017 onward.
[82]T 257, L 5
63 Dr Entwisle formed the opinion that there had been a pre-existing condition of depression and, since that time, and as a result of the incident, Mr Evans had developed an adjustment disorder with depressed mood.[83] On mental state examination, he found intact memory and concentration. While Dr Entwisle agreed that there may have been suicidal thoughts in the past over the course of his continued assessments, such risk had decreased significantly. He opined that over the course of his consultations, he had noticed an improvement in Mr Evans’ condition as he came to realise the importance of his family and children, and his need to engage in rehabilitation.
[83]DCB 7
64 Overall, I prefer Dr Entwisle’s opinion. It gathers together significantly more detail than that of Dr Strauss or Dr Takyar. This is primarily because he has seen him over three years at three separate consultations. This provides a much more rounded appreciation of Mr Evans’ state. Dr Takyar had limited material and/or knowledge of the involvement of Ms McQuillan. His opinion was further compromised by seeing Mr Evans only once. As noted, Dr Strauss seemed to defer to Dr Entwisle.
65 As to the capacity for work, Dr Entwisle was of the opinion that there is a capacity for suitable duties. I accept that evidence and prefer it to that of Dr Takyar and Dr Strauss for the reasons above.
66 To summarise my findings specifically on capacity for employment, I find that Mr Evans does have a capacity to return to work in suitable employment on both a physical and psychiatric basis. I find that this capacity probably commenced in accordance with his treating doctor’s reporting of 7 July 2017 in about mid-2019. Thereafter, I find Mr Evans has an ongoing capacity for work in roles such as light assembly or picker, as identified by Dr Slesenger, Nabenet and Recovre.
67 In assessing Mr Evans’ loss in monetary terms, I allow the following amounts:
Past loss
68 From 5 May 2015 to 1 July 2019, I accept that there has been a total loss. This equates to four years and seven weeks. This is 215 weeks at a loss of $792 net per week. This equals a past loss of $170,280.[84]
[84]The weekly figure for loss across the four years is derived for the year 2015/2017 as $37,023 pa. plus $4,165 pa. for super as at page 2 of the Revised Agreed Statement of Economic Loss.
69 The Fox v Wood amount was agreed between the parties as $6,855 for this period.[85] The weekly payments of compensation ceased on 27 October 2017.
[85]Ibid
70 From 1 July 2019 to the date of judgment, I find Mr Evans had a capacity for full-time work. I consider this to be in the roles of light picker, packer and assembler. I do not consider the other roles identified would be suitable and it is not necessary to go to them in detail given this finding. Mr Evans had limited education, almost no experience outside physical jobs and no occupational computer skills. Roles such as radio dispatcher and clerk, or even retail assistant, are beyond his reach at this stage in life.
71 Mr Evans’ pre-injury net average weekly earnings are agreed, at $743 net per week plus $86.11 net per week for superannuation. This equals an amount of $829.87 net per week or $43,153 net per annum.
72 If he were employed as a packer, this equates to a wage in excess of his earnings in his previous position.[86] In a position as a light picker or assembler the loss per week would be up to $22 per week. In these circumstances I do find there is ongoing economic loss sustained by Mr Evans after 1 July 2019. I therefore allow past economic loss from 1 July 2019 to date at $22 per week. This equates to a loss of $1,188 from 1 July 2019 to 17 July 2020. I consider that during this time Mr Evans will recover his earning capacity in full. I make this finding on the basis that since leaving AFL ranks, he has a good work history. He worked and played football (for which he was also paid) for many years. He was well liked by Materia. He enjoyed work. Added to that, is the motivation he described from wanting to provide for his young family and to set a good work example for his children. This leads me to find that he would progress from a wage equivalent to what he earned at Materia to a wage in excess of $43,153 net per annum. In making this finding I acknowledge the difficulties in assessing such matters having regard to the employment market for a 48-year-old man with a back injury off work for almost 5 years. However, given his work history, obvious motivation, the reports of Dr Slesenger and Entwisle, on which I rely, I consider he has full capacity for work into the future.
[86]The parties provided figures in an agreed Statement of Economic Loss. On review they were gross figures and unsuitable for comparison. On 15 June 2020, the parties provided more specific net figures, though still not specifying the superannuation component. Relevant net weekly wages are, Packer=$1034, Light packer=$730, Light Assembler=$721.
Future loss
73 Given my finding above, I do not allow a determined loss per week for the future period to age sixty-seven. Rather, I allow an amount pursuant to the principles in Farlow v Victorian Stevedoring[87] in the sum of $70,000. This is to account for the vulnerable state of his back and psychiatric condition for a man who predominantly has worked physical jobs.
[87][1963] VR 594
74 I have had consideration of Mr Evans’ evidence, and that of his wife, that he had limited to no capacity for employment, and that is reflected in the fact that he failed at his attempts to return to work on light duties with his employer.[88] He further gave evidence that he had worsened physically since these attempts.[89] He has had no other attempts at return to work or obtained other jobs. He was hopeful of working however.[90] I accept this evidence, but it must be balanced with the medical and occupational expert opinion of Dr Slesenger and that of Nabenet and Recovre. Account must also be taken of the failure to have up-to-date treating material from those intimately involved in his care, being Dr Phan and Ms McQuillan. This matter troubles me significantly and has made the assessment difficult. On this point, I note Mr Evans’ Court Book Index notes Mr Phan’s clinical notes being available to tender during the course of trial, for example, these could have been Certificates of Incapacity. None were tendered. It reinforces my decision that an inference ought be drawn that the evidence of Dr Phan and Ms McQuillan would not have assisted Mr Evans.[91] Balancing those factors, I accept the preponderance of evidence as to the capacity of Mr Evans to return to work. That evidence, I consider, is more up to date, expert and focused on his occupational capacity than that presented by Mr Evans.
[88]T 195, L 22 and T 313, L 23
[89]T 196, L 15
[90]T 196, L 28
[91]Jones v Dunkel (1959) 101 CLR 298
General damages
75 I allow the sum of $190,000 for general damages on account of the physical and psychiatric injuries set out above.
76 Mr Evans’ evidence was, and I accept, that these injuries have had a very significant impact on him. He was proud of his physical prowess and the respect that went with holding down a job and providing for his family. While he has maintained his interest in pigeon racing, his wife has had to pick up the physical load of this hobby and all domestic tasks. The loss of work and his physical capabilities has had a significant psychological effect. His medications have increased, and he has been undergoing constant therapy. His life has been robbed of its vitality in that he can’t participate with his family or in his hobbies as he would like. He remains isolated at home and feels he has let his wife and children down. These are significant matters for a man in the prime of his life with a young family.
Contributory Negligence
77 An argument was made that Mr Evans had been contributorily negligent in the occurrence of the accident. The argument was put on two bases. First, that Mr Evans was wearing non-work-issued shoes, which were inappropriate. Second, that he did not pay attention when walking out of the van, and as a result stepped onto the bumper bar and not the steel tray. I reject both those arguments. First, Mr Evans gave evidence that he bought and used at work Dunlop Volley steel-capped safety shoes. The only requirement that his employer had was that his shoes were to be steel capped.[92] Those shoes were to the relevant Australian standard according to Mrs Evans, though what that standard involved remains uncertain. It certainly speaks of a well-designed shoe at least.
[92]T 326 L 14-16
78 It was also apparent that his employer, both Mr Brouwer and Mr Frank Materia, allowed him to use the shoes both before and after the accident. There is nothing in the argument his shoes were defective. I reject the notion that inadequate footwear played a role in his fall. No expert opined on this point. It was argued that he complained about his shoes immediately after the fall. I find it unlikely that he did so given he kept wearing those same shoes after the injury.
79 Secondly, it could not be said that Mr Evans did any more than follow the system of work established by the employer when the incident occurred. The placement of his left foot occurred due to no more than mere inadvertence.[93] In those circumstances, I find no ground to uphold the contributory negligence argument.
[93]Aycicek v Flow Line [2019] VSCA 37 at paragraph [61]
80 In summary then I will find for the plaintiff and allow the following sums:
Past loss $170,280 plus $1,188. Total of $171,468
Fox v Wood $6,855
Future loss $70,000
General damages $190,000.
Total $438,323
---
0
10
0