Fullgrabe v The Terraces Pty Ltd
[2004] SADC 91
•16 June 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FULLGRABE v THE TERRACES PTY LTD
Judgment of His Honour Judge Bishop
16 June 2004
NEGLIGENCE - LIABILITY OF MASTER FOR INJURY TO SERVANT
Safe system of work - vineyard worker employed to prune grape vines - secateurs provided for that purpose, but loppers not available to cut out hard and thick or dead wood - whether defendant's duty of care and breach of that duty established - causation - injury to right hand and wrist - whether defendant's negligence also resulted in injury to right elbow.
DAMAGES
Female vineyard worker now aged 43 years old - right hand and wrist injuries resulting from repetitive use of secateurs - assessment of damages - award of $53,026.85 (inclusive of special damages).
Occupational Health, Safety & Welfare Act 1986, referred to.
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40; Venus v Peters Icecream [1976] 14 SASR 247; Birkholz v R J Gilberton Pty Ltd [1985] 38 SASR 121; Hole v Hocking [1962] SASR 128; Lancaster v Blackwell Colliery Co Ltd (1919) XII BWCC 400; Grant v Australian Knitting Mills Ltd [1936] AC 85 ; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; Ferres v Bungey Bros [1947] SASR 138; Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; Fishlock v Plummer [1950] SASR 176; Jones v Dunkel (1959) 101 CLR 298; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 75 ALJR 679; Blatch v Archer (1774) 1 Cowp 63; Vetter v Lake Macquarie City Council (2001) 75 ALJR 578; Fennell v S & E Services Holdings Pty Ltd [1988] 47 SASR 6; Medlin v The State Government Insurance Commission (1995) 182 CLR 1; Wade v Allsopp (1976) 10 ALR 353; Todorovic v Waller (1981) 150 CLR 403, considered.
FULLGRABE v THE TERRACES PTY LTD
[2004] SADC 91Judge Bishop
Civil
Judith Marie Fullgrabe (“the plaintiff”) claims damages against The Terraces Pty Ltd (“the defendant”) for personal injury and other loss and damage allegedly sustained in the circumstances alleged in paragraph 6 of the statement of claim:
“6.On 25 August 1999 the plaintiff was undertaking work for the defendant pruning vines which involved the cutting of heavy wood with secateurs. As a result of undertaking this work the plaintiff sustained injury to her right arm.”
(My emphasis.)
Upon the pleadings, there was no dispute that, at all material times, the plaintiff was employed by an employment agency named Select Staff Pty Ltd (“Select”); that the defendant carried on a business as a vineyard operator; that by an agreement made between the defendant and Select before August 1999, the plaintiff’s labour had been hired out by Select to the defendant; and that it was the duty of the defendant to take all reasonable precautions for the safety of the plaintiff while she was engaged in undertaking work for the defendant. Mr Coppola, counsel for the defendant, “conceded” (T506) that the relationship between the parties was covered by the Occupational Health, Safety and Welfare Act, 1986. However, both liability and damages were denied.
The pleadings
The plaintiff has alleged that the injury to her right arm was caused by the negligence and/or breach of statutory duty of the defendant, its servants or agents in inter alia:
“7.1Failing to take all reasonable precautions to ensure safety to the plaintiff contrary to the provisions of Section 19 of the Occupational Health, Safety and Welfare Act 1986 as amended;
7.2Causing and/or permitting and/or allowing the plaintiff to undertake pruning work with inappropriate equipment;
7.3Failing to provide the plaintiff with proper and suitable equipment in the form of loppers to undertake the pruning work the plaintiff was required to undertake;
7.4Causing and/or permitting and/or allowing the plaintiff to undertake pruning work involving the cutting of heavy wood with the use only of secateurs rather than loppers;
7.5Failing to provide proper equipment to the plaintiff;
7.6Failing to provide appropriate assistance to the plaintiff;
7.7Exposing the plaintiff to a risk of injury which they knew or ought to have known in failing to provide the plaintiff with appropriate equipment;
7.8Failing to take reasonable care for the safety of the plaintiff;
7.9Failing to warn or sufficiently warn the plaintiff of the risk of injury;
7.10Failing to provide a safe place to work;
7.11Failing to provide a safe system of work”.
(My emphasis.)
The defendant has admitted that the plaintiff was undertaking pruning work on 25 August 1999 but has denied that the work involved the cutting of heavy wood with secateurs, rather “the pruning work was pruning loose and straggling portions of growing vines which were hanging down under the main bushes”. In denying the allegations contained in paragraph 7 of the statement of claim, the defendant has pleaded that “it took all reasonable precautions and that there was no alternative open to the defendant in undertaking the work”. The defendant has specifically denied:
· that it allowed, permitted or caused the plaintiff to undertake pruning work with inappropriate equipment, rather the plaintiff and or Select supplied the secateurs which the plaintiff used in undertaking the work;
· that it was obliged to provide the plaintiff with loppers, which were inappropriate for the work;
· that the pruning work involved the cutting of heavy wood;
· that it failed to provide proper equipment to the plaintiff, rather the obligation to provide equipment to the plaintiff rested on the plaintiff and/or Select;
· that it failed to warn or sufficiently warn the plaintiff of the risk of injury rather, prior to the pruning season, the defendant retained a physiotherapist to advise workers such as the plaintiff on the proper ways to prune in order to minimise the risk of injuries, told the workers to take breaks as and when tiredness required and transferred to the alternate job of rod tying any workers who complained of sore hands or wrists.
(My emphasis.)
The defendant has also denied that, as a result of the incident referred to in paragraph 6 of the statement of claim, the plaintiff sustained personal injury to her right arm resulting in a permanent loss of function (and other losses alleged in paragraph 8 of the statement of claim) and has pleaded that, if the plaintiff has suffered those injuries, those injuries were not reasonably foreseeable and/or causally linked to the right arm injury.
The defendant has also pleaded that, if it were negligent (which is denied), then the plaintiff was contributorily negligent in that:
· she failed to use proper or appropriate secateurs or other tools;
· she failed to use secateurs that were sufficiently sharp to undertake the work required of her; and
· she failed to advise the defendant of sore hands or wrists at any time prior to 25 August 1999.
(My emphasis.)
The plaintiff’s evidence
The plaintiff began working through Challenge Recruitment (“Challenge”) as a vineyard hand for the defendant at McLaren Flat around November 1998. Her supervisor was Ms Chris Edwards, who was employed by the defendant. At Ms Edwards suggestion, the plaintiff purchased and paid for secateurs for use in the work, which involved placing guards around vines, inserting drippers into irrigation hoses, tying vines on to lines, picking grapes and pruning vines, depending on the time of the year. Although she kept time sheets for the defendant, she was paid by Challenge and then Select, which took over from Challenge early in 1999. When Select took over, the plaintiff chose (and Select paid for) new and better quality secateurs, one handle of which rotated for ease of use. (Those secateurs, named “Sandwik Prodines”, were made in France and became exhibit P6.)
After the grape-picking season ended around May 1999, for about a week the plaintiff did not work. Then she began rod-tying and pruning. Her time sheets (exhibit P5) indicated the location, nature and hours of work that she performed for the defendant between 18 May and 25 August 1999. For five days in May (18th and 24th to 27th, inclusive), she pruned vines on a property owned by persons named Jeisman. Ms Edwards was her supervisor, who told her what was required. In the plaintiff’s evidence (T73),
“We were to prune and if anything big came along, if anything was too big [for the secateurs] then she [Ms Edwards] would come along with the loppers, and she actually went along in front of us, but if there was anything that we thought was too big then she’d come back and cut it for us, with the loppers.”
(My emphasis.)Those vines, she explained, were heavy, thick, old bush vines which occasionally required the use by Ms Edwards (T78) of the loppers that she carried (T300). Loppers have long handles so that, instead of only using hands (as with secateurs), arms can also be used to prune heavy wood; that is, very thick, old wood about one and a half inches in diameter (T73 and T79). For branches no thicker than her thumb, the plaintiff used her secateurs, which she sharpened at the end of each row of vines with an oilstone which she had purchased for that purpose (T283).
After pruning on the Jeisman property for those five days in May 1999, the plaintiff was then almost entirely engaged in rod (or line) tying at properties, including Gem Tree, until near the end of June 1999. While at Gem Tree, Ms Sue Trott, a physiotherapist, demonstrated to the workers exercises that could be performed, if necessary, to assist them in preventing repetitive injuries (T289). Then, for three weeks in July, she did not work. Upon returning to work on 19 July, for five weeks she continued rod-tying and pruning at various properties.
On Monday 23 August 1999, the plaintiff resumed pruning on the Jeisman property, where she had previously pruned for the five days in May when loppers had been used by her then supervisor, Ms Edwards. On this occasion, her supervisor was Ms Wendy Gawley, who told her what was required. The vines were not bush vines; they were on wires; some had come off the wires; it appeared that they had not been pruned for some time. Her instructions were to put the vines back on to the wires and cut the rest back (T81). The vines were about the same thickness as on the previous occasion. There were no loppers available on this occasion. She did not see Ms Gawley with any loppers. Ms Gawley did not give her any instructions as to what was to be done with the heavier or thicker wood (T81).
The plaintiff found the work to be hard because the wood was old or mature and hard to cut. She struggled to cut the old wood with her secateurs. Sometimes she used both hands because the wood was too hard for one hand. In her evidence (T84-85),
“I don’t have really big hands, so it’s harder – the further my hand stretches, the harder it is to close it, if the wood is really hard, so in those instances, where my hand is right outstretched, you put two hands on it and push it together.”
(My emphasis.)
The plaintiff is of small stature. She did not ask Ms Gawley where the loppers were because, “they just weren’t there. It wasn’t an option” (T85). “I don’t know why I didn’t ask and I wish I had” (T326). She is right-handed and found it necessary to use both hands on her secateurs when the wood was too hard (T91). She thought that she had to use both hands “at least twice on one vine” out of about 30 to 40 cuts, most of which were not easy (T92).
At the end of the first day (23 August 1999), all of the workers were complaining of sore hands (T86). Working in pairs, they were able to prune between six and seven rows of vines each day. After she had finished work on the first two days, the plaintiff said that she had “no problems” with her hands (T89). At lunchtime on the third day (25 August 1999), her right hand was sore. That soreness did not subside at the end of the day, when she experienced aching in the wrist and side of her hand adjacent to the little finger, tingling in her middle and little fingers and muscle stiffness in the palm of her hand (T95). On the next day (26 August 1999), with those persisting symptoms she consulted her general medical practitioner, Dr Vanessa Mayne, who prescribed anti-inflammatory medication and gave her a sickness certificate for two weeks. (Dr Mayne was not called to give evidence.)
According to the plaintiff, when she returned to Dr Mayne two weeks later, she was referred to a physiotherapist, Ms Wendy Cleggett, for treatment. (Ms Cleggett was not called to give evidence.) She saw Ms Cleggett “for quite a while” (T98). (According to the schedule of special damages, exhibit P4, she consulted with Ms Cleggett on 12 occasions between 3 September and 15 October 1999.) She was also referred to and saw Dr R J Hall on three occasions between 29 October 1999 and 24 March 2000. (Dr Hall was not called to give evidence.) She was also referred to and saw Dr M H Wicks on four occasions between 8 December 1999 and 22 April 2000. (Dr Wicks was not called to give evidence). From the diagnostic reports attached to the medical reports (exhibit P1) of Dr Crowther, it appears that, on 5 April 2000 at the request of Dr Wicks, ultrasound examination of the plaintiff’s right elbow and wrist did not indicate any abnormality of either the median or ulnar nerve in those regions.) According to the plaintiff, Dr Wicks recommended that she wear, at night, a brace positioned from her wrist “into the elbow”, which held the elbow at an angle about 90 degrees. She persevered with wearing the brace for about five weeks, when her symptoms were no different from when she ceased work (T99).
At the suggestion of Ms Cleggett, she then began hydrotherapy ‘because the muscle in her arm was wasting away’ (T100). (According to the schedule, exhibit P4, the plaintiff consulted with the Muscular Development Fitness Unit on many occasions between 22 May 2000 and 30 November 2001. No one from that unit was called to give evidence.) At the suggestion of Ms Cleggett, she also received acupuncture from Ms Sue Trott at Southern Vales Physiotherapy. (Although Ms Trott gave evidence for the defendant, she was not cross-examined upon her treatment of the plaintiff, beyond establishing that she had seen her with “a repetitive strain injury with a non-specific diagnosis” (T400). According to exhibit 4, the plaintiff was there treated between 9 December 1999 and 8 January 2001.)
On 21 June 2000, Select requested that Dr Richard Crowley, an orthopaedic surgeon, supply a medical report upon the plaintiff (see report of Dr Crowley of 8 August 2000 in exhibit P3). According to the plaintiff, she was referred to Dr Crowley by her general medical practitioner (T101). (From exhibit P4, Dr Crowley first saw the plaintiff on 25 May 2000). Dr Crowley injected her right elbow with cortisone (T102). She thought that occurred around September 2000 (T219-220). He also recommended surgery, which was undertaken on 24 November 2000 but did not improve her symptoms. (While Dr Crowley’s reports, to which reference shall later be made, were tendered as exhibit P3, he was not called to give evidence.) Although Dr Crowley later (on 22 May 2001) referred the plaintiff to the Pain Clinic at Flinders Medical Centre, she did not there attend (T103). Instead, she saw Dr David Cullum, a consultant occupational physician, on 17 May 2001 at the request of Dr Mayne. (Dr Cullum’s reports, to which reference shall later be made, were tendered as exhibit P1 and he was called as a witness.) Dr Cullum recommended that the plaintiff see Ms Di Gramp, a physiotherapist, and Ms Sue Caragianis, a hand therapist, who also made a brace for her to wear. She wears that brace whenever she is doing something with her right arm, except in the kitchen (T105-106). (Neither Ms Gramp nor Ms Caragianis was called to give evidence.)
Until 14 August 2002, the plaintiff received weekly payments of workers compensation in the total amount of $37,911.91 (T390) because she was unable to work (T108). Four separate work placements were arranged but terminated because of increased pain, swelling and symptoms in the right arm, wrist and elbow (T108 - 111). She has not since worked, made any effort to return to the workforce (“I haven’t seen anything that I believe that I am capable of doing”) (T312)) or put her name down at Centrelink for work (T312). For a couple of years, she has been studying an $800 correspondence course in photography, with a view to becoming self-employed in freelance photography and journalism (T135). In her evidence, the real problem with her right arm is in doing anything repetitive (T116),
“Like even a cup of coffee, I don’t generally carry a cup of coffee in my right hand because I’ve dropped them, and I don’t have any control over that.”
Surprisingly, with her gymnasium equipment at home, the plaintiff exercises for about half an hour three times each week (T151, 221, 223) (bicep curls and tricep extensions) with three pound weights being held and lifted in each hand (T126 - 128). Although she ‘feels’ her injury when performing those exercises, she persists because they were part of the physiotherapeutic programme developed for her early in 2000 (T128, 220). She did not know why she does not drop the dumbbell held in her right hand (T225). She could not recall whether she had told Dr Charles Shembri, the psychiatrist to whom she had been referred for medico-legal purposes, about her exercise routine (T227).
When asked what problems were currently related to her work injury, the plaintiff indicated (T129) her right hand (“I can’t do anything repetitive. I get tingling of the little finger down the side of the hand into [the back of the wrists]. Between the thumb and the forefinger”), her right wrist (“aching”) and elbow (“my elbow gets that sensitive that you don’t have to even touch it and I can feel it”). Asked when she first suffered symptoms “higher up” than her wrist, she replied (T129),
“not when it actually happened, like not when I finished work that day, that was in the hand, but then it progressed to the wrist. I don’t know exactly when that happened, but when I went to the physiotherapist, that’s when she worked on my elbow, being Wendy Cleggett”.
(My emphasis.)
Pain in her elbow was first an issue, she said, when she went to the physiotherapist “within the first two weeks of the incident” (T130). Later in her evidence she said that she did not remember when she noticed the first symptoms in her elbow (T158), but she knew that Ms Cleggett worked on her elbow “right from the beginning” (T218). Problems in her shoulder and neck began probably a couple of years ago; maybe two and a half years ago (T130). For the past 18 months or two years, she has not received any treatment for her injuries. Still she takes medication to help her sleep and, in summer, for swelling in her hand and wrist.
Further evidence for the plaintiff
In addition to calling the plaintiff and medical evidence, there were two further witnesses for the plaintiff. Mr Brenton McClarty, a recruitment consultant, was previously employed with Select as manager of the Reynella office. He had met with Mr Andrew Buttery, the defendant’s general manager, and discussed safety issues concerning vineyard workers. He gave evidence about a wrist injury which had been suffered by a Mr Darren Anderson while pruning “dead wood” with secateurs for the defendant in June 1999. That matter had been investigated and reported upon for Select by Mr David Hylton of Kingswood Investigations Pty Ltd. The report of 2 July 1999 (exhibit P10) concluded that all workers pruning on the property were at risk of sustaining the same type of injury. The report recommended that the workers be required to possess both secateurs and loppers; and that Select liaise with the defendant to establish a practice that workers would not be allowed on site unless they were in possession of all the appropriate tools.
According to Mr McClarty, “pretty soon after” (T340) that report a meeting was held between him, Mr Buttery and other persons at the defendant’s premises when the issues were there discussed. The defendant undertook to supply loppers on vineyards where hard wood was identified and to purchase pneumatic snips for such wood (T341). The supply of secateurs and sharpening tools was the responsibility of the workers. He thought that minutes of that meeting were taken by the defendant, but he had been unable to find them and could not recall having received them (T341-342).
Mr McClarty also gave evidence concerning the plaintiff’s work injury sustained on 25 August 1999, in respect of which the report dated 8 September 1999 (exhibit P11) had been commissioned and received from Mr Hylton of Kingswood Investigations Pty Ltd. Following his receipt of that report, Mr McClarty again met with Mr Buttery and expressed concern that the control measures previously put in place for the cutting of heavy wood with appropriate tools had not been effected (T348-349). He did not agree with the suggestion that issues relating to repetitive use injuries were only raised by him with the defendant after his receipt of the report upon the plaintiff’s injury (T358).
Mr David Hylton gave evidence relating to the two reports (exhibits P10 and P11) that he had written for Select in 1999. In preparing his report about the plaintiff’s injury, the plaintiff had told him that, although she was cutting old vines, loppers were not there provided or used and that, about four days before ceasing work, she had experienced pain and cramping in her right arm which continued until 25 August 1999, when she could no longer continue cutting vines. In preparing that report, the plaintiff’s supervisor at the time, Ms Wendy Gawley, had told him that all of the workers had then experienced difficulty in cutting the heavy wood, which was done only with secateurs, and loppers were not used. In evidence, Mr Hylton said that Ms Gawley had also confirmed that loppers were not provided (T370), although later he could not recall who had said that to him (T383, 384).
The plaintiff’s medical evidence
By consent, three medical reports of Dr Richard Crowley, the orthopaedic surgeon, were received in evidence (exhibit P3) without him being called as a witness. From the schedule of special damages (exhibit P4), he apparently first saw the plaintiff on 25 May 2000, although for what purpose is not stated in his reports. On 8 August 2000, he reported to Select that the plaintiff had right ulnar nerve neuritis secondary to a week of vineyard pruning in August 1999; that the condition, “particularly affecting the right hand”, was directly related to her vineyard pruning experience; that her condition had markedly improved on his most recent review of 5 July 2000; that he would expect a complete recovery by the end of September 2000; that she was not capable of resuming vineyard pruning duties; that she should avoid repetitive type activities of a similar nature; that she was not likely to have any permanent residual disability as a result of her neuritis; and that her prognosis was excellent.
On 10 December 2000, Dr Crowley reported that the plaintiff underwent surgery on 24 November 2000:
“Through a lateral approach to her right lateral epicondyle I excised the degenerative origin of the extensor tendon mass from the right lateral epicondyle. I also removed the superficial layer of bone from the lateral epicondyle. I then transferred the extensor tendon origin more anteriorly and stitched it back down to a fresh bony base. I closed the wounds using absorbable sutures”.
He recommended that she not resume duties until 1 January 2001. On 22 May 2001, Dr Crowley reported that, upon review of the plaintiff on three occasions in 2001, she had complained of “ongoing global pain in the right arm” which was intermittently of a very severe nature. Clinical examination revealed no obvious pathological cause for her ongoing and markedly disabling pain. Her right arm remained dysfunctional. She was able to perform minor tasks with the right arm, such as writing and filing. He referred her to the Pain Clinic at Flinders Medical Centre (which she did not attend).
On 4 May 2004 (the second day of the trial), I expressed concern (T119-124) about my ability to comprehend, unassisted, the reports of Dr Crowley and any connection between the plaintiff’s initial wrist pain and the developed arm pain as having been caused by the incident at work, “which may become very important” (T120). I also drew attention to the medical reports then presented for the defendant, which indicated that this was a real issue, so that considered decision could be made as to the medical evidence to be presented for the plaintiff (T123). In response to my specific enquiry before the plaintiff’s case closed on 7 May 2004, I was told that neither the plaintiff’s general medical practitioner (Dr Mayne) nor Dr Crowley was to be called as a witness (T389). Surprisingly, I was later told, in relation to Dr Mayne, that “it is not generally a good idea to call a witness when you don’t know what they are going to say” (T501).
On 17 May 2001 (about 21 months after her work injury), the plaintiff was first seen by Dr David Cullum, the consultant occupational physician, at the request of Dr Mayne. Nine reports of Dr Cullum were here received as exhibit P1. He also gave oral evidence. In his first report of 30 May 2001, Dr Cullum described the plaintiff’s work injury:
“On this occasion however she was snipping very thick stems with just hand snippers, and after four to five days of this developed pain in both of her arms, particularly at the elbows and wrists.”
(My emphasis.)
(In evidence (T172-173), he accepted that in his hand written notes he had written “the elbow”. In the plaintiff’s evidence (T160), she said that she told him that initially the pain was only in her right wrist and hand, not the arm.) He explained that Dr Crowley had performed surgery “on the right elbow, at the lateral epicondylar area, as a release of the common extensor tendon.” At the first consultation with Dr Cullum, her main pain symptoms were “over the top of the right wrist with both radial and ulnar aspects equally.” She then completed the pain charts (at pages 7 and 7A of exhibit P1), which depicted the then current areas of pain (T173-176). (No pain was depicted in the right elbow.) He did not consider it necessary for her to attend the Flinders Pain Clinic “at this time”, rather her management could be undertaken through an occupational or rehabilitation physician specialist.
In his third report of 25 July 2001, Dr Cullum considered that the plaintiff had “a 20% impairment at the right upper extremity below elbow”. On 7 August 2001, he repeated that view and considered that her case should then be settled. On 13 March 2002, he reported upon diminution of grip strength on the right side, reduction in ability to lift between waist and shoulder level and restrictions on repetitive gripping. On 2 March 2004, not having seen the plaintiff for nearly two years, he reported:
“Overall the patient has not only an impairment of the upper extremity below elbow as previously described, but now has an impairment of the right upper extremity at and above elbow including shoulder. This I would address at 20% due to the deconditioning and stiffness affecting her right upper extremity, not only at the previous below elbow site, but now extending up towards and including the shoulder .... I do not consider after the length of this case that she is emotionally robust enough to return to full time work.”
(My emphasis.)
During evidence, Dr Cullum was asked whether the absence of elbow pain on the day that the work injury occurred was of any significance. He replied (T177),
“Not entirely. We do see patients who have developed repetitive injuries of their upper extremities present initially with areas of discomfort and within a week or two they can then noticeably complain of symptoms in the elbow. That period would need to be of that magnitude, rather than, for example, if somebody was coming in and saying ‘I’ve now got pain six weeks later’; then we would have to think the causation was something different.”
(My emphasis.)
In cross-examination, he accepted that the longer the period before the manifestation of pain, the more powerful that query (T196). If the period were to approach six months, then the connection would be less and less likely. “The person to ask is the doctor who saw her at the time.” “I would prefer to have a closer temporal association” (T197). However, he pointed out that patients may concentrate on a profound symptom and then, as that problem becomes less significant, notice other symptoms (T198).
When asked for explanation of the plaintiff’s symptoms at the time of the injury, Dr Cullum replied (T178),
“I think she had tendonitis of the tendons, causing pain, distal forearm, wrist and into the arm, irritation of the peripheral nerve, either the median nerve at the wrist, causing symptoms that would be like a carpal tunnel syndrome, or entrapment of the ulnar nerve, at the elbow, through the groove ... which would give symptoms in the fingers”.
(My emphasis.)
He explained (T179) that the condition which Dr Crowley described as “right ulnar nerve neuritis” was referable to inflammation of the ulnar nerve either at the wrist or the elbow. (Dr Crowley had referred to that condition as “particularly affecting the right hand”.) Dr Cullum also explained that the surgical procedure performed by Dr Crowley was not directed to the ulnar neuritis rather, as a further diagnosis, to the lateral epicondylar (or ‘tennis elbow’) area, which is situated on the other side of the arm (T179-180) and is “a quite separate disorder” or additional problem (T188).
Dr Cullum did not recall having been told of the plaintiff’s extensive post-injury exercise programme (T201). He considered that she was physically fit to work as a sales assistant (T203). He disagreed with the conclusions expressed in the medical reports (exhibits D2 and D3) of Dr Malcolm Begg (a rheumatologist) and Dr Edward Mah (an orthopaedic, hand and micro surgeon), who gave evidence for the defendant.
Dr Charles Schembri, a psychiatrist, examined and reported upon (in exhibit P2) the plaintiff in September 2002. In addition to her physical injury, Dr Schembri thought that she seemed to have developed an adjustment disorder with a depressed mood by June 2001, caused by her ongoing complains of pain, the lack of progress that she was making and the loss of independence occasioned by her physical problems. He did not anticipate that she would be left with any significant residual disability from a psychological perspective. Upon review on 15 March 2004, Dr Schembri found that both her physical and psychological condition had levelled. She remained troubled by pain in the right upper limb (with which she was trying to cope) and she was emotionally settled. She complained of an ache extending from the right shoulder down the right arm, with weakness of her grip and a tendency for the pain to be concentrated in her hand, elbow and shoulder. From a psychiatric perspective, the prognosis was reasonable, but was linked to that for her physical injuries. Her dysphoric affect was generating a further disability of around 5% over and above whatever the physical impairment from which she was suffering. In evidence, Dr Schembri said that the plaintiff did not tell him of her regular exercise routine. (T267-268).
Evidence for the defendant
In addition to the medical evidence of Dr Malcolm Begg and Dr Edward Mah (to which reference shall later be made), four witnesses gave evidence for the defendant. Ms Deborah Mather (who now works for the defendant) was a worker with Select at the time of this incident. She recalled working at the Jeisman property during the pruning season. Her work partner was then Ms Gawley, who was also the supervisor. Previously, when Ms Edwards had been the supervisor, she could not recall Ms Edwards using loppers (T446), although it was “very possible, because she used to carry some in the car, and she was the only one that had them” (T447). Where there was heavy wood which was hard to cut with secateurs, the system was that “the supervisors would use loppers to cut the heavy wood” (T448). Most workers would attempt to cut that wood but, if it were too hard or thick, it was left for Ms Edwards who was carrying the loppers with her (T448).
Later, when Ms Gawley was supervising at the Jeisman property, Ms Mather could not recall that Ms Gawley had any loppers available to cut the hard wood (T451); that is, Ms Gawley did not have any loppers (T455). Asked whether she (Ms Mather) asked for loppers, she replied (T455),
“No, we just knew that she [Ms Gawley] didn’t have them because Chris [Edwards] had them. They were her personal pair”.
(My emphasis.)
When Ms Edwards was not there and her loppers were not available, if hard wood requiring loppers was encountered, the practice was to trim as best as possible and leave that which was too hard (T455). Ms Mather continued (T457),
“Possibly we may have asked [Ms Gawley] to come over because she has got a very strong hand and give it a go and see if she could cut it, but if not we just left it.”
(My emphasis.)
In her evidence, “it is a personal decision whether you want to try and cut it or not” (T457).
Ms Wendy Gawley has been employed with the defendant for about ten years. She has been a vineyard supervisor for about ten years. Physically she is a large person. She recalled working on the Jeisman property with the plaintiff and other workers in August 1999, when she was acting supervisor. They were cleaning up old vines, cutting out bits of dead or hard to cut wood and trimming (T473, 476). Some of the wood might have been “an inch to less” in diameter. Initially, she could not recall whether she had told Mr Hylton that all of the workers experienced difficulty in cutting heavy wood with secateurs (T482), but later she confirmed that that was her advice (T497). Some of the workers did have difficulty (T483). They told her that they were having trouble with their hands on the second or third day (T483). She could not recall whether the plaintiff was one of those persons.
Ms Gawley said that she did not own or have a pair of loppers with her at the time (T483). When complaints were made, she directed those workers to carry out rod-tying of vines, which was work classified as pruning (T484). She thought that when she worked with Ms Edwards as supervisor, loppers were available to cut the hard wood (T488). Ms Edwards had a pair of loppers. When asked why loppers were not later available for such pruning, Ms Gawley replied (T490),
“Well, literally the loppers that we used [previously], they were actually owned by those people that were using them. I myself and the rest of the girls there never had any loppers and [the defendant] hadn’t made any available.”
(My emphasis.)
She said that, as a supervisor, she did not have any loppers because she had not bought any at that stage (T490). If supervisors wanted loppers, they were responsible for purchasing their own loppers which, at that stage, were not supplied by the defendant (T491). (That changed about three or four years ago.) In 1999, Ms Gawley was not aware that, as a supervisor, she was responsible for making an assessment of whether there was hard wood to cut and, if necessary, to arrange for loppers to be available (T494). (That system was introduced after the plaintiff’s injury.)
Mr Andrew Buttery, a director the defendant, gave evidence that the defendant managed vineyards on behalf of investors in the McLaren Vale area. Select provided vineyard workers for the defendant, which then paid Select for their work, and Select paid the workers (T411). In 1998 and 1999, he engaged Ms Sue Trott, the physiotherapist, to assist in advising staff and workers how to prune and minimise injuries to their hands and wrists.
Mr Buttery recalled being at an occupational health, safety and welfare meeting in the defendant’s office on 6 October 1999 with other persons, including two from Select, Ms Narelle Paton and Mr David Raymond. The minutes of that meeting (in exhibit D7) recorded that Ms Paton was the guest speaker, who spoke of carpal tunnel and “experiences at Riverland vineyards”. He could not recall any specific instances of carpal tunnel injury having come to his attention before that meeting, but he did have “some recollection” of a Darren Anderson (T419). He could not recall having spoken to Mr McClarty following an injury to a Darren Anderson (T463); he might have, but he could not remember it (T464); nor could he remember if it was agreed with Mr McClarty that loppers would be on site to cut heavy wood (T465). (The minutes of the defendant’s meetings made no reference to Mr Anderson.)
According to Mr Buttery, the defendant did address how hard and thick vines should be pruned. Supervisors and workers were instructed to use loppers to cut wood thicker than a certain diameter, “probably, you know, an inch, an inch and above, that sort of diameter” (T422). In his evidence (T422),
“I rely on my managers who are qualified viticulturists to determine the appropriate thickness that loppers would be used.”
The viticulturist involved then gave instructions to the workers’ supervisor (T423). However, he then said (after a weekend adjournment) that, in relation to the Jeisman property, the Jeismans gave instructions to the supervisor directly and the supervisor then “made that call” (T425).
Mr Buttery said that loppers would sometimes be provided by the defendant and sometimes workers chose to have loppers themselves, although that was not a requirement (T426). His evidence continued (T427):
"Q“So in the case where loppers were required, you had loppers available to workers to use.
AI can’t recollect specifically but certainly we have loppers available. The way we operate as a business now is we have loppers available. I can’t confirm whether we definitely had loppers available to all people at that time.
QWhether there were enough loppers for all people, did the supervisors have loppers.
AYes.
QSo, in a case where a supervisor identified that there was hard wood, a supervisor would have loppers available to cut the hard wood, even if the workers didn’t.
AThat’s correct, yes.”
(My emphasis.)
He said that the defendant did have a procedure whereby supervisors were required to report when an injury was sustained by an employee or a worker (T429). He could not recall seeing a report relating to the plaintiff’s injury. (Upon call (without notice) for reports relating to both Mr Anderson and the plaintiff, there was no production (T430). On subsequent search for such reports, none could be located (T458).) Mr Buttery could not recall that he had instructed Ms Gawley, as a supervisor, to have loppers with her for use (T466); nor could he recall whether anyone else would have given her that instruction (T466). In his evidence (T467),
“It would be at the supervisor’s discretion to determine if loppers were required and if they were then the supervisor would obtain loppers from our store or from another location in the business.”
(My emphasis.)
Ms Sue Trott, the physiotherapist, gave evidence of having spoken to workers for the defendant in 1998 and 1999, to instruct them in pruning, make them aware of repetitive strain injuries and suggest alleviating exercises. She also left written information (exhibits D3, D4 and D5) for them in the defendant’s office. (As previously related, Ms Trott was not cross-examined upon her treatment of the plaintiff, beyond establishing that she had seen her for a repetitive strain injury with a non-specific diagnosis (T400).)
Medical evidence for the defendant
Dr Malcolm Begg, the rheumatologist, medically examined the plaintiff on 5 March 2001. He reported (exhibit D1) to Select on 27 March 2001. To him, the plaintiff related that in August 1999 she was pruning vines which were old, stiff and up to four centimetres thick. Both hands were needed on her secateurs. After five days, her right wrist was aching and pins and needles were felt in fingers of her right hand. Her wrist continued to ache at night. She saw her local doctor who diagnosed carpal tunnel syndrome. The symptoms did not reduce with rest from work for about two months. It took about ten months before the wrist no longer ached.
The plaintiff told Dr Begg that a pain had also developed in the upper outer forearm “close to the elbow” (T241), at an unknown stage, not at the outset of the wrist and hand symptoms. As the carpal tunnel symptoms gradually settled down, she became aware of right elbow pain in mid 2000. (In her evidence (T169), the plaintiff said, “If that’s what it says there then I possibly did [tell Dr Begg that] but I do not remember precisely what I said.”) Both before and after then she had been receiving physiotherapeutic treatment, hydrotherapy and acupuncture from three different therapists. In September 2000, she began working at a call centre for three hours daily, four days a week, with increasing elbow and wrist pain. Dr Crowley operated on her right elbow in November 2000. Until the time of that operation she had been driving a heavy four wheel drive vehicle without power steering. She did not think that she had improved since the operation.
Upon examination, Dr Begg found that the plaintiff’s right elbow had a full range of movement. Tenderness was elicited over a three centimetre diameter area around the lateral epicondyle. The right wrist demonstrated normal, pain free movement with no swelling or crepitus. Right hand grip strength was less than the left and right forearm muscle mass was less than the left, indicating an absence of right-hand dominance with daily activities. In Dr Begg’s reported conclusion,
“The history suggests that as a result of the heavy pruning work she could have produced a contusion of the ulnar nerve at the wrist (“bruising of the nerve at the wrist” (T247)) by the application of forceful pressure from the handle of the snips. The clinical findings suggest that she could have some ongoing pathology in this regard. Her history also suggests that at the time of the original forceful use of the snips a tenosynovitis was generated in the right carpal tunnel causing an aching wrist and paraesthesiae in the middle finger. This aspect of the trauma would appear now to have subsided. She may have developed a right lateral epicondylitis at some stage, for which she has had subsequent surgery, but at the time of this examination there were no signs of any persisting pathology in this regard. Such a lesion could conceivably develop while pruning although the history given was that this pain was not present at that particular time. Possibly driving her 4 wheel drive vehicle was the more likely stress factor for the elbow.”
(My emphasis.)
In his opinion, the plaintiff should be capable of resuming normal duties (if further nerve conductor tests were normal) but not heavy pruning. He thought that the prognosis should be excellent.
In evidence, Dr Begg accepted as a reasonable possibility that persons who have significant symptoms in one area will sometimes overlook symptoms in other areas (T242). To him, however, the plaintiff’s statement that pain in her outer upper forearm developed at an unknown time and she did not have it originally, implied that, if that pain had been there originally, she would have noticed it (T243). The expression, in his report, that “she became aware of right elbow pain” implied that she was not aware of any event that brought on the pain (T243).
When it was put to Dr Begg, in cross-examination, that a physiotherapist had ‘worked on’ the plaintiff’s elbow, or right upper forearm, within a couple of weeks of the onset of the original symptoms in the right wrist and hand, he replied (T244),
“Well, that is somewhat inconsistent to the history I have been given. My records show that she became aware of the pain in mid 2000, which is about nine or ten months after her wrist started to hurt”.
(My emphasis.)
He also said that physiotherapists often work on areas which are remote from the site of an injury (T244). (As previously remarked, that physiotherapist, Ms Cleggett, was not called as a witness.) He did not accept that pruning would cause the elbow problem, “because of the length of time she reportedly had pain in the elbow ... it is unusual that when one does an injury to oneself of that nature only one part gets damaged, not two at the same time” (T246).
Helpfully (and importantly), Dr Begg explained that, from just under the armpit, the ulnar nerve descends through the forearm to the ulnar or medial side of the hand, where the little finger is positioned. That nerve is vulnerable at the back of the elbow, on “the funny bone” (T248). The lateral epicondyle is the most prominent bone that can be felt on the outer aspect of the elbow where the forearm muscles attach. Contusion (or bruising) of the ulnar nerve and lateral epicondylitis are “ two totally separate conditions” (T248). The presence of a contusion of the ulnar nerve at the wrist and the development of a lateral epicondylitis cannot be anatomically connected, unless by the occurrence of simultaneous injuries, such as a blow to the elbow and falling on to the wrist at the same time. One condition cannot progress to the other (T249).
Dr Edward Mah, the orthopaedic, hand and micro surgeon, medically assessed the plaintiff on 5 September 2000 (about two and a half months before Dr Crowley operated in the lateral epicondylar area of her elbow). He reported (exhibit D2) to Select on 6 September 2000. To him, the plaintiff spoke of having experienced paraesthesia in the right hand, especially in the middle finger, and pain at the right wrist. Later she experienced pain in her right elbow and “tightness” of the right common flexor mass (“the muscles in the forearm” (T274)). Her hand numbness gradually improved during a six month period. She then occasionally used a wrist brace and elbow strap for pain, about four days each week.
Upon medical examination, the plaintiff demonstrated normal shoulder, elbow and hand movement. There was no local tenderness at the right elbow. Her grip strength measured 34 kilograms in both hands and pinch grip measured eight kilograms in the right hand and 8.5 kilograms in the left hand. In Dr Mah’s view, she had non-specific right elbow pain and common flexor mass pain “of uncertain aetiology.” He did not have a diagnosis for her elbow and forearm pain. He could not detect any clinical abnormality and could not find any organic cause for her symptoms.
In evidence, Dr Mah said that, from his notes, his recollection was that the reference in his report to the plaintiff having told him of “Later” having experienced pain in her right elbow was “probably around about within 12 months or so, it is that 12 month period” (T274), but he did not exactly know when (T275).
Findings
Having considered all of the evidence presented, I am satisfied and find, on the balance of probabilities, that the following position has here been established:
1.Between 23 and 25 August 1999, the plaintiff was engaged in the pruning of vines for the defendant on the Jeisman property. For that purpose, she was equipped with a pair of secateurs and a sharpening stone.
2.Some of that pruning involved the cutting-out of hard and thick or dead wood from the vines. Such pruning required the use of loppers.
3.About three months earlier, when the plaintiff had been pruning on the Jeisman property, loppers were available to and used by the supervisor (Ms Edwards, who owned her own loppers) to cut-out hard and thick or dead wood from the vines.
4.In July 1999, the defendant became aware, through a conversation between Mr Buttery (a director of the defendant) and Mr McClarty (the Reynella manager of Select), that a vineyard worker (Mr Darren Anderson) had sustained a wrist injury while pruning dead wood with secateurs for the defendant in June 1999. Through Mr Buttery, the defendant then undertook to supply loppers for use in vineyards where hard wood was identified. (In that regard, I accept the evidence of Mr McClarty in preference to that of Mr Buttery.)
5.On 25 August 1999, in consequence of having cut-out hard and thick or dead wood with secateurs for the defendant from vines on the Jeisman property, the plaintiff sustained an injury to her right wrist and hand.
6.Between 23 and 25 August 1999, there were no loppers available on the Jeisman property for cutting-out hard and thick or dead wood, contrary to the position indicated by Mr Buttery in evidence (at T427) that, where a supervisor identified hard wood, the supervisor would have loppers available. The supervisor (Ms Gawley) did not own any loppers. She was then aware that the workers were experiencing trouble with their hands in cutting-out heavy wood with secateurs.
Legal Considerations
The common law duty of an employer is “to take reasonable care to avoid exposing the employee to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case” (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, at 25, per Dixon CJ and Kitto J). In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, the following basic statements were made by Mason, Wilson and Dawson JJ:
· what is a reasonable standard of care for an employee’s safety is ‘not a low one’” (at 308);
· whether or not reasonable care had been taken “is always a question of fact to be determined in the light of the circumstances of each case” (at 308);
· “what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community .... What is considered to be reasonable in the circumstances of the case must be influenced by current community standards” (at 308-309); and
· in deciding whether reasonable care has been taken, the approach of the reasonable person’s response to a risk is that outlined by Mason J in his well known statement in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, at 47-48; that is, to consider the magnitude of the risk, the degree of the probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
In every tort of negligence, there is a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant and consequential damage suffered by the plaintiff. In application of the established legal principles to this case, I am satisfied and find, on the balance of probabilities, that a reasonable employer in the defendant’s position would have foreseen that carelessness on his part in the provision of a safe system of work to a vineyard worker in the position of the plaintiff might be likely to cause injury to the plaintiff. I am also satisfied and find that the risk of injury to a person in the plaintiff’s position, from failing to provide loppers with which to cut-out hard and thick or dead wood from vines which were being or to be pruned, was neither remote, extremely unlikely to occur, far-fetched nor fanciful but real and foreseeable and, therefore, gave rise to a duty of care on the part of the defendant to the plaintiff.
Upon the more contentious question that then arises – whether a breach of the defendant’s duty of care has here been established – it is necessary to balance all of the relevant considerations, including the magnitude of the risk, the degree of the probability of its occurrence and the degree of injury likely to result, along with the nature and extent of the remedial response that should be ascribed to a reasonable employer in the defendant’s position. In this regard it is relevant, I think, to bear in mind the knowledge or awareness that the defendant actually had, or ought reasonably to have had, of the occurrence of that risk. In balancing all of the relevant considerations, I am satisfied that, when the plaintiff was injured on 25 August 1999, the magnitude of the risk of injury by failing to provide loppers to cut-out hard and thick or dead wood from vines which were being or to be pruned, the degree of the probability of its occurrence and the degree of injury likely to result were such that that response should be ascribed to a reasonable employer in the defendant’s position and with the defendant’s knowledge or awareness (actual or reasonably to be implied) on 25 August 1999. For these reasons, in my judgment, there has been established a breach of the defendant’s duty of care to the plaintiff.
Upon what may be regarded as the most contentious question that then arises in this case – whether damages consequential upon the established breach of the defendant’s duty to the plaintiff have been established – the onus rests upon the plaintiff (the employee) to establish, on the balance of probabilities, not only that the defendant’s failure to safeguard her was unreasonable (per King J, in Venus v Peters Icecream [1976] 14 SASR 247, at 254) (as I am satisfied that it was) but also that the defendant’s failure to take proper precautions for the safety of the plaintiff resulted in, was causally connected with or materially contributed to the injury that was suffered (per King CJ in Birkholz v R J Gilberton Pty Ltd [1985] 38 SASR 121, at 130).
Consequential damage
Upon the findings that have been made, in consequence of the defendant’s failure to have provided loppers for the purpose of cutting-out hard and thick or dead wood, on 25 August 1999 the plaintiff sustained an injury to her right wrist and hand for which she is to be compensated. Of major contention is whether injury to her right elbow was also a consequence of that failure.
According to the plaintiff, pain in her elbow was first an issue when she went to Mr Cleggett, the physiotherapist, within two weeks of the incident which occurred on 25 August 1999 (T130) and Ms Cleggett ‘worked on’ her elbow “right from the beginning” (T218). Although the schedule of special damages (exhibit P4) indicated that the plaintiff consulted with Ms Cleggett on 12 occasions between 3 September and 15 October 1999, it did not indicate which part or parts of her body was or were being treated. Ms Cleggett was not called to give evidence. The plaintiff’s general medical practitioner, Dr Mayne, who saw her on many occasions between 26 August 1999 and July 2002, was not called to give evidence; nor were Dr Hall (who saw her on three occasions between 29 October 1999 and 24 March 2000), Dr Wicks (who saw her on four occasions between 8 December 1999 and 22 April 2000), Ms Gramp (the physiotherapist who saw her on ten occasions between 23 May and 22 November 2001 and Ms Caragianis (the hand therapist who saw her on two occasions on 25 June 2001 and 6 July 2001).
On 5 April 2000, the ultrasound examination of the plaintiff’s right elbow and wrist, at the request of Dr Wicks, did not indicate any abnormality of either the median or ulnar nerve in those regions. Dr Crowley, who saw her on nine occasions between 25 May 2000 and 8 May 2001, at some time injected cortisone into her elbow and performed the operation near her right elbow on 24 November 2000, was not called. (In his first report of 8 August 2000, he referred to the ulnar nerve neuritis as “particularly affecting the right hand” and did not make any reference to her elbow.) Dr Cullum first saw the plaintiff on 17 May 2001 (21 months after her injury at work) and then obtained from her the pain charts (in exhibit P1) which indicated pain in the right hand and wrist, but not the elbow. Ms Trott, who physiotherapeutically participated in treatment of the plaintiff between 9 December 1999 and 8 January 2001, was not questioned in cross-examination upon that treatment.
According to Dr Begg, the plaintiff told him on 5 March 2001 that her elbow pain developed after the onset of the wrist and hand symptoms (T241) and she became aware of right elbow pain in mid 2000, about nine or ten months after her wrist began to hurt (T244). (In evidence, she accepted that she possibly did tell that to him (T169).) Because of that long period of delay, he did not accept that pruning would have caused her elbow problem. He explained that, anatomically, contusion of the ulnar nerve at the wrist could not be related to the development of a lateral epicondylitis in the elbow. Dr Mah’s recollection, from his notes, was that the plaintiff told him that she had experienced right elbow pain probably within a period of about 12 months from when the work injury was sustained (T274). Dr Cullum accepted that the longer the period of time between an injury and manifestation of pain, the less likely that the pain was related to the injury (T196). If the period of delay were to approach six months, then the “less and less likely” that there was a connection (T197).
In accepting the legal burden of establishing for the plaintiff that her elbow injury was caused by the defendant’s negligence, Mr Harms referred to Hole v Hocking [1962] SASR 128, where Sir Mellis Napier felt constrained by medical evidence to apply the post hoc ergo propter hoc hypothesis (according to the principle stated by Lord Birkenhead in Lancaster v Blackwell Colliery Co Ltd (1919) XII BWCC 400, at 406) to a sub-arachnoid haemorrhage and brain injury which occurred 24 hours after a motor vehicle accident in which a passenger sustained a blow to the forehead. Upon the evidence, I do not consider that hypothesis or principle is applicable to the plaintiff’s elbow injury. (See, also, Grant v Australian Knitting Mills Ltd [1936] AC 85, at 96; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, at 563 to 564; and Ferres v Bungey Bros [1947] SASR 138, at 140 to 141, which were referred to by Napier CJ in Hole’s case (supra, at 133); Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; and Fishlock v Plummer [1950] SASR 176, at 180.)
Furthermore, in my view, the statement of principle enunciated in Jones v Dunkel (1959) 101 CLR 298 is here applicable. As Callinan J remarked in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 75 ALJR 679, at 732, that statement,
“is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970) and cited recently by this Court in Vetter v Lake Macquarie City Council (2001) 75 ALJR 578, that evidence has to be weighed according to the circumstances of, as well as the capacity of a party to adduce it.”
Menzies J stated the principle in Jones v Dunkel (supra, at 308),
“where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the [party] disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
In weighing the evidence which bears upon the issue of whether the plaintiff’s elbow injury was caused by the defendant’s negligence, in my view it would be proper to conclude that, if those persons who treated the plaintiff had been called as witnesses, their evidence would not have assisted the plaintiff in establishing that her elbow injury was caused by the defendant’s negligence in relation to her work injury, where the evidence does not provide sufficient explanation for their absence (see Kitto J in Jones v Dunkel (supra, at 308)).
Upon consideration of all of the evidence, I am not satisfied that the plaintiff has established that her elbow injury was caused by the defendant’s negligence. Accordingly, that aspect of her claim is dismissed.
Contributory Negligence
I am not satisfied that the defendant has discharged the onus of establishing that the plaintiff was contributorily negligent and that her damages should be reduced having regard to her share in responsibility for those damages. I am not persuaded that the evidence demonstrated that the plaintiff was guilty of a blameworthy want of care for her own safety. The real cause of the plaintiff’s work injury was the deficiencies in the system of work in not having loppers available for when required. Respectfully, I agree with the following passage from the judgment of von Doussa J in Fennell v S & E Services Holdings Pty Ltd [1988] 47 SASR 6, at 17,
“The court should be ever careful not to transfer the blame from an employer or party responsible for ensuring a safe system of work for the protection of the worker to the worker himself by finding that his adoption of an inadequate system amounts to contributory negligence unless the risk of injury arising from that system was clear, and it can truly be said that the worker was foolhardy in attempting to achieve his assigned task in the manner which the inadequate system required.”
The plaintiff was attempting to make the best of the system, such as it was, to enable the pruning to be completed on time. In my judgment, the defendant is solely responsible for the work injury to the plaintiff’s right wrist and hand.
Damages
The plaintiff was born on 27 July 1960 and is now 43 years old. When this work injury occurred she was 39 years old. She left school in Year 10 and became a nurse’s assistant for a couple of years. She married when she was 18 years old, after her first son was born in 1978. Eventually, after having two more children and living in various places around Australia, she and her husband separated. She did telemarketing work and also worked as a shop assistant. In 1996, she began working with the Adelaide Bank and received telephone applications for loans. Working with a personal computer, she became computer literate after an eight week training course. She left the Bank in September 1998 because of the time involved in travelling from Port Willunga to Adelaide. In 1993, she formed a new relationship. Because she “didn’t really need to have a large income” (T41), she applied for work as a vineyard hand with Challenge in the McLaren Vale area. Although she had enjoyed working at the Bank, she disliked working inside and enjoyed gardening. She began working for the defendant, through Challenge, around November 1998. Early in 1999, Select took over and she continued working for the defendant. She enjoyed the work – 7.30am to 3.30pm, five days a week. For short periods of time, between seasons, there was no work available. When her work injury occurred on 25 August 1999, she was engaged in pruning grape vines on the Jeisman property.
The plaintiff has not since worked or made any effort to return to the workforce. For a couple of years, she has been studying a correspondence course in photography, with a view to becoming self-employed in freelance photography and journalism (T135). Her present work-related problems include her right hand (with which she cannot do anything repetitive and experiences tingling of the little finger down the side of the hand into the back of the wrist between the thumb and forefinger) and aching in the wrist (T129). In his report of 8 August 2000, Dr Crowley said that her right ulnar nerve neuritis, “particularly affecting the right hand”, was directly related to the vineyard pruning experience; that it had markedly improved on 5 July 2000; that he would expect a complete recovery by the end of September 2000; that she was not capable of resuming vineyard pruning duties; that she should avoid repetitive type activities of a similar nature; that she was not likely to have any permanent residual disability as a result of her neuritis; and that her prognosis was excellent.
Dr Cullum did not see the plaintiff until 17 May 2001, about 21 months after her work injury and nearly six months after Dr Crowley operated for right lateral epicondylitis. (His reports and evidence have previously been related.) To Dr Begg, the plaintiff said on 5 March 2001 that it took about ten months before her wrist no longer ached with use of the hand (see exhibit D2). On 27 March 2001, he reported that the aching wrist and paraesthesiae in the middle finger “would appear now to have subsided” and she should be capable of resuming normal duties, if nerve conduction tests were normal (exhibit D2).
Assessment of the plaintiff’s evidence was made difficult by the absence of evidence from persons who could have corroborated her evidence. In some respects (which have been referred to), her evidence was also inconsistent with other evidence. I did not find her to be a persuasive or reliable witness. I had difficulty in understanding, in the absence of medical or other evidence, why she is unable to hold a cup of coffee in her right hand and yet is able to lift and hold comparatively heavy weights in her quite strenuous exercise routine, about which she had not been completely frank with the medical witnesses who were called. I had difficulty also in understanding why she has still not made any attempt to seek any employment.
With regard to special damages, the problem has been to identify and separate those amounts relating to the plaintiff’s right hand and wrist from the total special damages of $22,426.45 in the schedule (exhibit P4), which is inclusive of amounts relating to her right elbow and associated psychiatric disorder. Having considered the supplementary written submissions of counsel and adopting a broad axe approach, the following special damages are allowed:
· special damages incurred before 24 March 2000 $2,926.85
· special damages after 24 March 2000 not relating to elbow
$2,000.00
· special damages after 24 March not severable $1,500.00
$6,426.85
With regard to the plaintiff’s non-economic loss, in my judgment her physical pain and suffering attributable to the injury to her right hand and wrist were not significant and ceased within 12 months of that injury. That loss did not include any psychiatric component later attributable to the unrelated injury to her elbow. I assess her past non-economic loss at $8,000 (inclusive of interest).
With regard to the assessment of past economic loss, upon the report dated 8 August 2000 of Dr Crowley, in my judgment, were it not for her unrelated elbow injury the plaintiff would have completely recovered within 12 months from her right hand and wrist injury and would then have been able to resume work, but not involving repetitive-type activities similar to the pruning of grape vines. In her income tax return for 2000 (in exhibit P8), the plaintiff’s gross income (inclusive of worker’s compensation payments, which were paid on average weekly earnings) was $16,323. Allowing for contingencies and interest, her past economic loss is assessed at $18,600.
With regard to the plaintiff’s future economic loss, what ultimately has to be assessed is her loss of earning capacity, to the extent that such loss is or may be productive of financial loss, in all the jobs and careers which otherwise would have been open to her. Upon the medical evidence, I am persuaded that, in consequence of the injury to her right hand and wrist, she has been rendered less capable of earning income and the diminution of that capacity may be productive of financial loss (see Medlin v The State Government Insurance Commission (1995) 182 CLR 1, at 17, per McHugh J). She has been deprived of the opportunity, or has lost the chance, to earn unimpaired by her work-related injury as a physically fit person in repetitive-type activities with her right hand throughout the remainder of her working life (see Wade v Allsopp (1976) 10 ALR 353, at 358, per Stephens J). Necessarily a broad axe approach must be adopted and the award should be moderate. Taking everything before me into account, allowing for contingencies (both favourable and unfavourable) and discounting 3% for the effect of inflation (Todorovic v Waller (1981) 150 CLR 403), the present value of the plaintiff’s future economic loss is assessed at $20,000.
In summary, the plaintiff’s damages are assessed as follows:
Special damages $6,426.85
Non-economic loss
Past (inclusive of interest)$8,000.00
Economic loss
Past (inclusive of interest)
Future
$18,600.00
$20,000.00
$53,026.85
For these reasons, judgment will be entered for the plaintiff against the defendant in the amount of $53,026.85. Upon the question of costs, counsel shall be heard.
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