Gardner v. Haltuli Pty Ltd
[2007] QSC 149
•20 June 2007
SUPREME COURT OF QUEENSLAND
CITATION:
Gardner v. Haltuli Pty Ltd [2007] QSC 149
PARTIES:
MALCOLM WARREN GARDNER
(plaintiff)
v.
HALTULI PTY LIMITED
(defendant)FILE NO:
BS4190 of 2006
DIVISION:
Trial
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
20 June 2007
DELIVERED AT:
Brisbane
HEARING DATES:
22, 23, 26 March 2007
JUDGE:
Helman J.
CATCHWORDS:
TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – plaintiff alleged slip on puddle of liquid at service station –– conclusions as to evidence of witnesses – whether on balance of probabilities incident occurred as plaintiff alleged
COUNSEL:
Mr J.W. Lee for the plaintiff
Mr P.D. Lane for the defendantSOLICITORS:
Keith Scott & Associates for the plaintiff
Quinlan Miller & Treston for the defendant
This proceeding arises from an incident that the plaintiff alleges occurred over six years ago at the Mobil service station at Kingston, Queensland, a business then carried on by the defendant. The plaintiff claims damages for personal injuries he alleges he suffered when he fell on the forecourt. The defendant denies that it is liable to compensate the plaintiff.
Shortly before 6.30 a.m. on 6 March 2001 the plaintiff, a self-employed roof tiler, drove his utility truck onto the forecourt of the service station to a position between a pump that dispensed unleaded petrol and a pump that dispensed diesel fuel. The weather was fine. The plaintiff, who was alone in his truck as he drove into the service station, intended to buy petrol and to meet his then employee,
Mr Gregory Ziebell. It was the plaintiff’s practice to meet Mr Ziebell, who lived near the service station, on his way to work and then to drive on to the workplace. The plaintiff says he opened the door of his truck intending to fill its tank with petrol. He says he placed his right foot onto the forecourt and, as he tried to stand up, it went from under him causing him to fall onto his back and left side. His leg hit the bottom of the door and he found he had grazed his left elbow and wrist. His shin was sore, and he felt pain in his lower back. Mr Ziebell then appeared. The plaintiff says he saw a large puddle ‘about a metre round’ where he had fallen. It was, he said, petrol or diesel fuel or oil – he thought it was diesel fuel. He was wearing tennis shoes, which were admitted as exhibit 13, when he fell. The left side of his shirt and shorts were, he said, soaked in the puddle. There was no sign warning of the presence of the puddle, and he gave no evidence of having seen it before he fell. The plaintiff stood up, filled his truck’s petrol tank, and then walked to the service station’s shop to pay for the petrol.
As I have mentioned, the events in question occurred more than six years ago, and in consequence it is reasonable to conclude that some of the details of those events will have faded from the memories of those who gave evidence about them. One of those witnesses was Ms Colleen Lovett, who was the console operator at the service station on the morning of 6 March 2001. Ms Lovett completed a report following the incident, and I think it reasonable to give considerable weight to her record in preference to attempts by witnesses to remember the matters about which she made the report. Ms Lovett recorded that on 6 March 2001 the plaintiff came into the shop and waited in a queue to be served. When she went to serve him he told her he had fallen over. She asked him if he was all right. He replied to the effect that he was not. Ms Lovett asked him if he would like to report the incident and he replied to the effect that he would. He wrote something in an ‘incident report book’ and she handed him two forms. The plaintiff told Ms Lovett he would bring them back the next day as he was in a hurry. Ms Lovett saw then that he was parked between pump no. 5 and pump no. 7, the unleaded petrol and diesel pumps to which I have referred. A truck driver she refers to as ‘Shep’ was then at pump no. 7 filling up with diesel fuel. Shep came into the office before the plaintiff left and paid. (In her written report Ms Lovett wrote to the effect that Shep came in before the plaintiff, but it is clear from her oral evidence that she meant to write that Shep came before the plaintiff left.)
Copies of the report forms handed to the plaintiff were before me. One was an Initial Injury Report in which the plaintiff wrote the following under the question ‘Where and how did the injury happen?’: ‘I PULLED UP TO THE PETROL PUMP OPENED MY DOOR STEPPED OUT ON MY RIGHT LEG AND LANDED FLAT ON MY SIDE WRIST ELBOW & TWISTED ON MY BACKSIDE AND LAY UNDER THE SIDE OF MY UTE’. The other report was a Queensland Government Incident Record/Report. Under the heading ‘Mechanism of injury/disease’ the plaintiff ticked boxes indicating ‘Falls, trips and slips’, ‘Body stressing’, and ‘Mental stress’. Under the heading ‘Agency of injury/disease’ he ticked ‘Chemicals and chemical products’. Under ‘Description of incident’ he wrote: ‘I PULLED UP TO THE PETROL PUMP OPENED MY DOOR STEPPED OUT ON MY RIGHT LEG AND LANDED FLAT ON MY SIDE WRIST ELBOW TWISTED ON MY BACKSIDE AND LAY UNDER THE SIDE OF MY UTE’.
On 7 March the plaintiff returned to the service station to purchase fuel for his
de facto wife and handed the forms to Ms Lovett who wrote her name, address and telephone number at the bottom of the Initial Injury Report under the heading ‘Employee Details recording injury’. The plaintiff took the forms back from
Ms Lovett and said he would be back in thirty minutes. He then consulted his solicitors. While he was at his solicitors’ office Ms Lovett telephoned him and asked him if he would bring the forms back. The plaintiff returned to the service station and walked in ‘normally’ as he had earlier, Ms Lovett said. She asked him if it hurt to walk and he told her he had sharp pains down his back and leg. He told Ms Lovett that he was ‘going for a third party claim’ and Ms Lovett asked him whether it was because he slipped over. He went to the door and when she said that again she observed he was not limping. He then leant ‘to the side’ as he walked the rest of the way to the car. On behalf of the defendant it was denied that there was a puddle on the forecourt at the relevant time. Mr Ziebell said he did not see the plaintiff fall, but saw him ‘on the ground’ and saw the puddle, which he estimated to be about two metres in diameter and, after sniffing it, he concluded it smelt like diesel fuel.
In advancing its case the defendant relied on the evidence of Ms Lovett,
Ms Lesley Clark, the site manager of the service station at the relevant time, and
Ms Susan Berndt, then the defendant’s workplace health and safety officer. Those witnesses gave evidence of inspecting the relevant area of the forecourt on
6 March 2001 and each said there was no evidence of the puddle. Ms Lovett inspected the forecourt after she served Shep, approximately five to ten minutes after the plaintiff left. Ms Clark inspected it at about 8.00 a.m., and Ms Berndt later in the day, possibly up to six hours after Ms Clark. Each was adamant that there was no sign of any puddle. It may be accepted that Ms Berndt’s evidence can have little weight on this matter, but in my view the evidence of Ms Lovett and Ms Clark has considerable weight. As between Ms Lovett and Ms Clark, Ms Lovett’s evidence is obviously the more cogent because she examined the area so soon after the alleged incident. I see no reason to doubt the accuracy of the evidence of
Ms Lovett, Ms Clark or Ms Berndt, or their honesty. None had any motive to give false evidence.
It was suggested on behalf of the defendant that there were features of the plaintiff’s evidence that cast doubt upon his account. In particular his account of the incident in the Incident Record/Report did not include a reference to his slipping on any substance but it should be noted that he ticked a box showing the ‘Agency of injury/disease’ as ‘Chemicals and chemical products’. Against the plaintiff it was also said, with some justification, that he showed himself to be over-anxious to take legal proceedings against the defendant, before the nature and extent of his injury had been revealed. On the morning of the incident he consulted his doctor,
Dr Albert Ting of the Loganlea Medical Centre, who did no more than prescribe an anti-inflammatory drug. Against Mr Ziebell, details of conversations he admitted to with a representative of the defendant’s insurer, Mr Chris Pobar, on the night before the trial began, and with Mr Justin Byrne, solicitor acting for the defendants on the morning of the trial were said to raise doubts upon his credibility. He told Mr Pobar he had information but it would cost about $2,000 to $3,000 and he wanted to ‘make a deal’. Mr Pobar rejected that advance. On the morning of the trial he told Mr Byrne if the insurer paid him a couple of thousand dollars it would save them money. It appeared from his evidence that Mr Ziebell was anxious to recover from the plaintiff wages that Mr Ziebell claimed the plaintiff owed him.
I find that the plaintiff probably did fall. To that extent I accept his evidence and that of Mr Ziebell, although both had some motive for giving false evidence. But, as I have mentioned, I accept as credible the evidence of Ms Lovett, Ms Clark, and Ms Berndt. In the result I am not satisfied that, on the balance of probabilities, the incident in question occurred as the plaintiff alleges, i.e., that he slipped on a puddle of a substance that was petrol, diesel fuel, or oil or a combination of those substances. Since that was the only basis of the plaintiff’s claim I conclude that it should fail. I should add that there was evidence that there had been video surveillance of the forecourt at the time of the incident, and it was contended on behalf of the plaintiff that the failure to produce the video tape would support an inference adverse to the defendant’s case. I am not satisfied that that is so: the defendant has ceased trading and its records were in the hands of receivers from April 2004. In the circumstances I draw no inference from the inability of those conducting the defendant’s case to produce the video tape.
Reports by four doctors were tendered: three orthopaedic surgeons (Drs Peter McCombe, Peter Boys and John Pentis) and Dr Ting. The earliest report was that of Dr McCombe dated 18 September 1999, the latest that of Dr Boys dated
25 February 2004.
The history of the plaintiff’s back condition is as follows. In 1995 he was manoeuvring an anode yoke on a crane when he suffered an injury that caused low back pain and right sciatica. He suffered an aggravation of his low back condition on 20 August 1999 when he was employed as a roof tiler and was loading roof tiles. Radiographs and a computerized tomography scan of his lumbar spine revealed a narrowed L4-5 disc and an associated L4-5 discal protrusion. On 4 December 1999 Dr McCombe performed a right L4-5 microendoscopic discectomy which was successful in relieving the right sciatica. The low back pain and discomfort persisted, however. In a report dated 26 January 2000 to WorkCover Queensland Dr McCombe referred to the results of the operation and observed:
Whilst he appears to have made a full recovery I do not believe that he would be suited to return to his job as a roof tiler and I would recommend that he look for alternative duties. In the meantime I have given him a certificate for total incapacity and would encourage WorkCover to assist him with some vocational guidance and fund a return to work program over the next month.
Dr McCombe gave the same advice about future employment to the plaintiff. The plaintiff did look for other work, with the assistance of an employment agency, but without success.
The plaintiff was examined on four occasions by doctors after his fall. Those doctors did not include Dr McCombe, to whom he was not referred for further treatment.
The plaintiff consulted Dr Ting on the day of the fall when he gave a history of having slipped at a petrol station on the way to work and landing on his right hand and elbow. He complained of lumbar back pain. Dr Ting examined him and found he had full movements of the lumbar back with some discomfort. There was no neurological deficit. Dr Ting diagnosed musculo-ligamentous strain of the lumbar region, and saw the plaintiff again on 9 March 2001 when he complained of persisting lumbar back pain. Dr Ting prescribed anti-inflammatory and analgesic drugs.
Dr Pentis examined the plaintiff on 26 February 2003 – nearly two years after the fall – when, in spite of Dr McCombe’s advice, he was still working as a roof tiler but for only four hours a day resting when he could. He was taking Panadol for his symptoms, which were a sore back, pain in his right leg radiating from the back to the calf through the buttock, and some paraesthesia in the calf on the right side.
Dr Pentis referred to the removal of a bulging L4-5 disc microscopically in 2001, which I take to be a reference to the procedure performed by Dr McCombe in December 1999. Dr Pentis’s final comment was as follows:
The gentleman appears to have aggravated the lower discs in the stated accident. He has had a previous laminectomy at L4/5 discectomy and it appears as though he is having similar problems now. It would be well worth having an MRI investigation performed to see if there is any scarring or recurrence of the disc at that level or a further disc occurring.
If such is the case treatment for him would be continuance of rest and analgesia, though if he deteriorates further operative discectomy is the alternative form of management.
I have given him a referral for an MRI. If you wish this to be performed please have it done and I will review this and then give a more definitive prognosis on his condition.
Hoping this will be of assistance.
The plaintiff did not have a magnetic resonance imaging investigation and he did not have physiotherapy.
Dr Boys examined the plaintiff on 25 February 2004 – nearly three years after the fall – and had had the advantage of examining him before the fall, on 24 May 2000.
In his report dated 24 May 2000 on his examination that day Dr Boys referred to the history of injury in 1995 and in 1999 and noted that that history ‘would suggest discal derangement in the course of this man’s work in 1995 with ongoing right sciatic pain subsequent to that time. The incident on 20.08.1999 would appear to have given rise to exacerbation of symptoms’. Dr Boys concluded that the plaintiff’s condition was then ‘stable and stationary’ and that he was suffering a ten per cent. impairment reflecting the combined effects of 1995 and 1999 injuries: 7.5 per cent. attributable to the 1995 injury and 2.5 per cent. to the later one.
In Dr Boys’s report dated 25 February 2004 on his examination that day he referred to reports concerning plain radiographs of the lumbar spine performed on 26 August 1999 that there was a grade spondylolisthesis of L5 anteroirly on S1 with a possible pars defect in L5 on the right side and that there was a little degenerative change in the apophyseal joints at L4-5 and L5-S1 bilaterally. Dr Boys also referred to a computerized tomography scan of the lumbosacral area on 2 September 1999 that showed that there was a disc protrusion extending to the right side at the L4-5 level with compression to the right lateral recess and early degenerative changes in the facet joints. Dr Boys’s opinion was as follows:
It is my opinion that Mr Gardner experiences chronic lower back and right thigh pain as a consequence of degenerative changes in the lower lumbar spine. I note this gentleman’s past history of L4/5 disc degeneration and discal protrusion requiring decompressive surgery. I note a pre-existing L5 S1 spondylolisthesis and documented degenerative changes in the facet joints in the lower back.
Mr Gardner describes an exacerbation of symptoms following the fall in the service station on 6/3/2001. He would not appear to have suffered any injury of note to the region of the right arm, elbow or foot. He does describe symptoms referable to the lower back then requiring the usual treatment of simple analgesia and stretches.
I note no specific work incapacity subsequently other than some restriction on this man’s duties as a roof tiler. She [sic] continued to work following the fall and I note has had no investigation or treatment since.
It is my opinion that Mr Gardner does suffer disability referable to the lumbar spine. He manifests a 10 percent impairment of bodily function referable to the lumbar spine. I believe the assessable impairment reflects the effects of conditions pre-existing the fall of the 6/3/2001. I do not believe the fall of the 6/3/2001 has given rise to any assessable impairment or disability which would not have been present in any event.
I note that this gentleman has soldiered on and continues to work, albeit with symptoms, in his chosen trade as a roof tiler. Ongoing symptomatology might be expected in the course of such work in the light of the degenerative condition evident in the lower back.
No deterioration of function would be anticipated as a result of the fall of 6/3/2001. This fall has not given rise to any specific requirement for ongoing care which would not have been present in any event.
When questioned by Dr Boys on 25 February 2004 the plaintiff said that his lower back was then ‘not much different to the time when [Dr Boys] examined him on 24/5/2000’. Asked at the trial about that account given by the plaintiff, Dr Boys agreed that his view could possibly change adding, ‘It would depend on the question and the answer’.
The plaintiff is unemployed. He lives at Caboolture and he is now forty years old having been born on 18 October 1966. He lives with his de facto wife and five children, the youngest of whom are twin boys aged two years.
The plaintiff completed year 8 at school and left in year 9 when he turned fifteen years. He began work immediately after leaving school. He worked for approximately three years removing garden waste, then for approximately four years as a storeman in a warehouse, for five or six years as a roof tiler, then as a crane operator for a few months and then he returned to work as a roof tiler. After the back operation performed by Dr McCombe on 4 December 1999 he was off work for approximately nine months. For no more than twelve months before March 2001 he had been working on his own account as a roof tiler and before that had been employed by others. He says he ceased to work on his own account about the end of 2003, although he agreed he may have told Dr Ting on 13 July 2004 that he had pulled his back at work.
The plaintiff says he was sore for a couple of months after the fall and now suffers from severe lower back pain and pain behind his right knee and his right calf throbs occasionally. The sciatic condition is relieved by sitting and stretching and the back pain is also partly relieved by the same means. The plaintiff spends approximately $6 per week on Panadol and takes it as required.
The plaintiff says that before he fell he played ‘social’ darts at a darts club, but since has not been able to do so because he cannot stand for long periods. He says he used to like to water ski but he is probably no longer able to do it. But he told
Dr Boys on 24 May 2000 that he played no sport and had no active hobbies. His current condition has adversely affected his intimate relationship with his de facto wife and he is irritable ‘all the time’.
The plaintiff’s de facto wife helped him for some time after his fall by mowing the lawn and doing household chores with which he previously helped her. When cross-examined on this subject he was unable to say how long the extra care continued.
For some years after his fall the plaintiff attempted to continue working. To make it easier for himself he employed more people, but the business ceased to be profitable and he was unable to continue. The only work he has done since has been intermittent work assisting his brother-in-law without pay in a fencing business. He is unable to undertake work that involves heavy lifting. He would be able to work delivering building materials such as bricks to building sites, with mechanical assistance such as a pallet truck with a crane on it. He has no computer skills.
Had the plaintiff not been unable to continue working as a roof tiler he intended working in that trade until he was sixty-five years old.
As I have explained, the plaintiff has failed to establish the defendant’s liability to compensate him. I should however record my findings on two other issues in the case: the defendant’s system for dealing with spills and rubbish on the forecourt, and the quantum of the plaintiff’s damages had he established the defendant’s liability.
There was a good deal of evidence concerning instructions concerning spills and rubbish given to employees, but in the end the important evidence was as to how the defendant’s employees dealt with spills and rubbish in practice at the relevant time. The latter evidence came from Ms Lovett whom I find to reliable on this subject. She recounted her routine during her shift, which was from 5.00 a.m. to 2.00 p.m., from the time she arrived at the service station at 4.45 a.m. on 6 March 2001. She inspected the forecourt on arrival, and, after, opening the door to the office and shop and attending to other necessary matters within, took oil bottles for sale, rubbish bins, and water outside, and checked and washed pumps. Her practice was to inspect the forecourt five or six times during her shift. To deal with spilt liquids a spill kit and warning signs reading ‘Caution’ and ‘Wet Floor’ were available for her use. The forecourt was concrete which was not slippery when wet with rain. I should add that Ms Lovett had had considerable experience in the service station business. She had been employed at the Kingston service station from 1996, and before that had owned and managed her own station. There had been no instances of people slipping and falling over at the service station prior to 6 March 2001 in Ms Lovett’s time there.
My conclusion is that the defendant had taken the necessary and reasonable precautions to guard against slipping injuries to people walking on the forecourt. Had there been an attendant patrolling the forecourt at all times the precautions would of course have been even more effective, but in the circumstances the practice adopted on 6 March 2001 was adequate to discharge the duty of care resting on the defendant.
It remains for me to assess the plaintiff’s damages. On behalf of the plaintiff damages for pain and suffering and loss of amenities of $40,000 were contended for, and, on behalf of the defendant, $15,000. The expert medical evidence goes no further than establishing a brief aggravation of the plaintiff’s then existing condition brought on by the effect of the fall on the degeneration in the plaintiff’s lower spine. His present disabilities are attributable to the progression of the condition of his spine manifested before 6 March 2001 and caused by his continuing to work as a roof tiler in spite of Dr McCombe’s advice. In my view $15,000 would be a proper award for past pain and suffering and loss of amenities and the plaintiff would be entitled to nothing for the future. It was not in issue at the trial that the interest on any sum awarded for general damages for past pain and suffering and loss of amenities should be at the rate of two per cent. per annum.
On behalf of the plaintiff $228,150 was contended for as an award for impairment of earning capacity to trial and $219,555 for impairment of earning capacity after that. On behalf of the defendant it was submitted that an award of only $38,136 for impairment of earning capacity, all for the period up to the trial, would be the appropriate award. The figures contended on behalf of both plaintiff and defendant were derived from a report by Mr Onus Maynes, chartered accountant, who provided an assessment of financial loss as at 31 July 2003 in a report dated
8 August 2003. The figure contended for on behalf of the defendant was derived from a figure of $44,866 for the period to 31 July 2003 referred to in Mr Maynes’s report, discounted by 15 per cent. for contingencies. Since the effect of any injury suffered by the plaintiff on 6 March 2001 was only a short-lived aggravation of his pre-existing condition, I conclude that the figure contended for on behalf of the defendant is the more accurate one, if somewhat generous because of the brevity of the aggravation attributable to the fall. It is based upon a calculation of impairment of the plaintiff’s earning capacity brought about by the need to employ extra staff for a short period after the incident. It was not in issue that the appropriate interest rate for such an award would be five per cent. per annum. There should not have been any award for future impairment of earning capacity.
It was not in issue that the sum claimed for voluntary assistance and services should be assessed at $326 on the principles explained in Griffiths v Kerkemeyer (1997) 139 C.L.R. 161.
There will be judgment for the defendant. I shall invite further submissions on costs.
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