| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GREEN -v- SOTICO PTY LTD [2003] WADC 23 CORAM : COMMISSIONER GREAVES HEARD : 19-22 & 27 FEBRUARY, 17 OCTOBER 2002 DELIVERED : 12 FEBRUARY 2003 FILE NO/S : CIV 865 of 2001 BETWEEN : ANTHONY PAUL GREEN Plaintiff
AND
SOTICO PTY LTD
Defendant
Catchwords: Negligence - Employer - Safe system of work - Liability of defendant established on facts - Serious disability established - Non-pecuniary loss 15 per cent of most extreme case - Future loss of earning capacity discounted by 20 per cent for contingencies and retained earning capacity
Legislation: Workers' Compensation and Rehabilitation Act 1981, s 93D (repealed)
Result: Judgment for plaintiff
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Representation:
Counsel:
Plaintiff : Mr B G Bradley
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Bradley & Bayly
Defendant : Julian Lentzner
Case(s) referred to in judgment(s):
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Fox v Wood (1981) 148 CLR 438
Giorginis v Kastrati (1988) 49 SASR 371
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jongen v CSR Limited & Anor (1992) A Tort Rep 81-192
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483
Case(s) also cited:
Bowen v Tutte [1990] A Tort Rep 81-043
Jones v Dunkel & Anor (1959) 101 CLR 298
McLean v Tedman & Anor (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Thomas v O'Shea (1989) A Tort Rep 80-251
Wade v Allsopp (1976) 10 ALR 353
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1 COMMISSIONER GREAVES: In this action it is alleged and admitted the plaintiff was born on 15 September 1960 and was at all material times a timber worker at the defendant's timber mill at Deanmill, where the defendant employed the plaintiff as a head rig operator. By par 4 of the re-amended statement of claim, the application alleged:
"4. On 24 April 1998 at the mill: (a) the plaintiff in the course of his employment with the defendant was lifting and moving an extremely heavy bandsaw blade with the assistance of a fellow worker; (b) whilst the plaintiff was attempting to so lift the bandsaw blade its teeth snagged on an interior wooden surface within the sawdust box or on the top of the scraper conveyor at the bottom of the sawdust box; (c) by reason of the bandsaw blade snagging and/or the heavy weight thereof strain was imposed on the plaintiff's lumbar spine causing him to suffer pain and injury. PARTICULARS OF PLAINTIFF'S INJURIES: 2 To these allegations, the defendant pleads:
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assistance of two other men, and that three people are sufficient to change a bandsaw blade in a reasonably safe manner. 4. The Defendant denies that whilst moving a bandsaw blade in the course of his employment on 24 April 1998 the Plaintiff suffered the injuries alleged, or any injuries at all. 5. If the Plaintiff did suffer the injuries alleged (which is denied) then the Plaintiff has failed to make a genuine attempt to return to full time work with the Defendant and has thereby unreasonably failed to mitigate his loss. 6. Further and in any event, the Plaintiff has not suffered serious disability within the meaning of section 93D(1) of the Workers' Compensation & Rehabilitation Act." 3 It was common ground that on 24 April 1998 the plaintiff, one Rodney Lindsay and one Roman Stirus were engaged in the removal of a bandsaw blade from a large overhead pulley wheel to the top of a cradle which had been hoisted into position nearby. The removal of the blade was part of a regular routine at the end of each shift so that it could be re-sharpened. 4 In opening the plaintiff's case on the pleadings, counsel explained (T7) that the plaintiff says on 24 April 1998, as he was making the initial lift to take the pressure of the blade off the top wheel, the blade snagged and could not be lifted. He said the plaintiff's reaction was to pull harder to free the blade, at which time he felt back pain. He said the task of lifting the blade involved "a degree of risk, but if a snag occurred, which happened from time to time, the risk was significant …" Counsel described the snag as "the crux of the plaintiff's case." 5 Between pages 16 and 27 of the transcript, the plaintiff described the procedure he followed in carrying out this routine and what occurred on 24 April 1998. He referred to the photographs contained in Exhibit 13 and explained it was his task as head rig operator to lower the top wheel mechanically in order to loosen the bandsaw from the bottom wheel. He said the cradle is then winched into position to align it as close as possible to the edge of the top wheel. The plaintiff stood at the tail end, shown as "worker C" in photograph number 3. He continued (T24):
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"…We would usually shout to each other because quite often the mill was fairly noisy, so it wasn't something that we had close contact, and we would attempt to lift the saw and at the same time get it across under the cradle." 6 The plaintiff explained he then moved to the left and worker B, in photograph 3, moved to the right. The plaintiff explained the conditions in the mill were noisy and there was little communication between him and worker B, in this case Roman Stirus. The plaintiff said there were occasions when the bandsaw did not move across to the cradle (T27): "There was a number of occasions where it didn't get there. Sometimes the saw just wouldn't go, in which case I couldn't go across because the teeth would just – would catch on something and if the saw catches, say, anywhere in the sawdust box, I have got to try and tip it across which – it won't go and I would have to call out and we would stop and redo it again, we would make sure it was loose and restart again." 7 The plaintiff went on to describe the events of 24 April 1998 (T32): "I was about to lift. We got ready to lift. Just prior to the lift about – just before I grabbed the saw I looked around to make sure Roman was in position, stepped back, grabbed the saw, feet together and went to lift and then I just kept lifting. Nothing seemed to happen and then it sort of – it went and as went it was – my back sort of went ping and then - - - … I just keep putting pressure and pressure on it until it goes, until you actually get that lift until you feel it. … I can only assume that the saw was catching on something down the bottom. … I just kept putting more pressure on it until it did. It happened very quickly." 8 The plaintiff said he exerted a lot of pressure, he supposed 30 or 40 kilos. He explained once the bandsaw lifted he moved across to the left with it and the bandsaw went onto the cradle. 9 In cross-examination, the plaintiff said the bandsaw did not seem to move. He said he did not know why. He conceded he had made an assumption that a tooth caught on something. He agreed it was a routine
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he had carried out daily from 1994 to 1998. The plaintiff said he hurt himself lifting the saw, before he moved to the left. Counsel for the defendant referred the plaintiff to his statutory declaration of 8 December 1998, Exhibit 5. At par 8 et seq the plaintiff stated:
"8. I am employed on a full time basis and as such I work Monday to Friday on either day or night shift. Day shift runs from 0630 hrs until 1500 hrs and night shift from 1515 hrs until 0130 hrs. I have normal rest breaks during the shifts.
9. My duties as a Head Rig Operator are to operate the No 2 band saw. I stand at a consol and operate mechanically a log carriage which the log to the saw area and I also operate the band saw. 10. Each shift I also assist with the changing of the blades on No 1 and No 2 saws. 11. To change the blade a cradle is brought to the upper wheel and then the tension is taken off the blade. 12. At this point two persons position themselves on each side of the blade and together the blade is slightly lifted and then slid off the top wheel onto the cradle. 13. The bottom area of the blade which is underneath the ground by about 7 feet is removed by one person lifting the blade and pulling the person operating the cradle moves the cradle outwards and the other person on the other side of the blade pulls his side of the blade out and across. 14. I have been doing this same job for about eight years total with changing the blades on the saws. 15. On Friday the 24 April 1998 I was involved in changing the band saw blades on both saws at about 1245 hrs. I was assisted by 'HOOKY' and 'ROMAN STIRUS'. These persons assist me to change the blades while on day shift. 16. We changed the No 2 bandsaw first and we used the system of work that I have described above.
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17. We changed and replaced the band saw on No 2 without incident and then went to the No 1 saw. 18. We commenced changing the blade on No 1 in the normal way. 19. I was on one side of the saw and 'HOOKY' was in between myself and ROMAN who was on the other side of the saw. 'HOOKY' was probably just over a metre away from me. 20. ROMAN and myself were positioned on each side of the saw blade and we then went to move the blade onto the cradle. 21. I grasped the blade in both hands out in front of my body at about stomach height and moved the blade to the left about 400mm onto the cradle. 22. As I moved the blade in the above fashion I felt a 'sharp stabbing pain' in the right hand side of my lower back. 23. When moving the blade I did not have to twist the upper part of my body but I took a half step to the left by moving my left foot at the same time that I moved the blade to the left. 24. When I moved the blade to the left it was a clean movement and I did not notice that the saw caught on anything at all during the movement to the left." 10 The plaintiff agreed pars 21 and 22 of Exhibit 5 suggest he injured himself as he moved to the left. He said that is not what he told the investigator. The plaintiff confirmed his statement in par 24 of Exhibit 5. He did not notice the saw catch on anything as he moved to the left. 11 The plaintiff's evidence before me was he assumed the bandsaw caught on the sawdust box as he tried to lift the saw. In his report of the occurrence to the defendant dated 28 April 1998, four days after the event, (Exhibit 4) the plaintiff stated: "lifting saw from top wheel to carriage, the saw teeth caught on side of sawdust box, pain in lower back and hip." 12 It might be inferred from Exhibit 4 that at the time of making his report, the plaintiff knew the saw teeth caught on the side of the sawdust box, while in the course of his evidence before me he said he assumed the
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saw teeth caught on the side of the sawdust box. I am satisfied, however, there is no such distinction to be made between the statement of 28 April 1998 and the plaintiff's evidence in this regard and I conclude the plaintiff has at all material times believed and assumed the saw teeth caught on the side of the sawdust box. He conceded he could not say that was so. 13 Neither the plaintiff nor the defendant called Mr Roman Stirus, although the evidence (T283) was that Mr Stirus remained in the employ of the defendant. The defendant called Mr Rodney Lindsay, who occupied the position of worker A in photograph 3, Exhibit 13. Counsel for the defendant asked him whether he noticed "anything untoward in the changeover" of the bandsaw. He said he did not. He said he did not look down into the sawdust box. He said he had never known the bandsaw to catch on the sawdust box. 14 For the plaintiff, Mr Leon Beauglehole gave evidence he worked at Deanmill for five years until March 2001. He was familiar with the routine of removing and changing the bandsaws. He had carried out the role of all three workers involved, including that of the plaintiff on 24 April 1998. At p 142 of the transcript he described how he lifted the bandsaw. He said, "Most of the time" the lift went smoothly. He said sometimes the saw caught down the bottom depending on how sharp the saw was. He said this occurred about twice a week. He said you could look down and see where the saw was catching. He explained the course followed when the bandsaw caught on the sawdust box. 15 In cross-examination, Mr Buglehole expressed a different opinion about the frequency of the saw catching on the sawdust box. He said (T148) it occurred "twice a month or something like that". 16 Mr Cornelius Bader gave evidence for the plaintiff. He worked for the defendant at Deanmill for about six years until November 2000. He said (T324) he participated in the changeover of the bandsaw on occasions. He said (T326) if the chain conveyor below the sawdust box is not turned off the bandsaw may make contact with it. 17 Mr Philip Barker also worked for the defendant at Deanmill for seven years until 1999. He occupied the position of head rig operator for two years. He said (T337) once or twice the conveyor below the sawdust box was not turned off so that the bandsaw teeth came in contact with the conveyor belt.
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18 In cross-examination, he said (T341) sometimes the bandsaw snagged on the side just near the blocks as it was being pulled out. He said the bandsaw snagged on the head side but not on the tail side.
19 For the defendant, Mr Allan Kelly gave evidence he was involved in the installation of the bandsaw rigs in 1975. He also has participated in the bandsaw changeover procedure. He said (T289) he had not experienced the bandsaw catching on the sawdust box. He said (T359) he had not known the bandsaw to contact the conveyor belt below the sawdust box. He said (T359) "I never saw the proof of it on the saws when they come into the saw shed and we definitely would have seen it." 20 In cross-examination, he agreed he could not always know of such an occurrence, but he thought he would hear the sound of the blade coming in contact with the chain conveyor belt. 21 Counsel for the plaintiff submitted the crux of the plaintiff's case in negligence is that the bandsaw blade snagged as he was trying to lift it. As I have found, the plaintiff believed at all material times the blade snagged on the side of the sawdust box. There is no other direct evidence before the court that the blade snagged or that it did not snag on 24 April 1998. The only evidence is that on previous occasions the sawdust blade either had or had not snagged in the manner the plaintiff believes it did on 24 August 1998. That evidence is of little probative value in the determination of the issue whether it is more likely than not that the bandsaw blade snagged on the sawdust box on 24 April 1998. 22 The defendant called expert evidence to establish it was not possible for the bandsaw blade to snag as alleged. The consideration of this issue on the pleadings became somewhat protracted because it became apparent that after the events giving rise to this action, the defendant modified the sawdust box and the conveyor system below it. It was for this reason that I granted leave to the plaintiff to re-open its case and call expert evidence in rebuttal. For the defendant, the mechanical engineer Mr George Adams, gave evidence in Exhibit 17 at par 3.11: "It is difficult to envisage a bandsaw under the influence of natural forces, that tend to take it away from the outer side of the sawdust box, wanting to move towards the plywood side catching the teeth, unless it was actually pushed that way by either the LHS operator, the RHS operator or both." 23 Mr Adams considered two hypotheses, the first where the bandsaw was dropped three inches, the second where the bandsaw was dropped
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six inches from its normal cutting position. He concluded the clearance between the teeth and the surface of the sawdust box was 17 and 14 inches respectively. He continued at par 12 of Exhibit 19: "It should be further noted that at the point of minimum clearance between the bandsaw teeth and the inclined surface of the chute the teeth are pointing backwards (not upwards) and would have no tendency to dig into the plywood when the bandsaw was lifted. As the bandsaw comes around the wheel on the return side the teeth begin to point upwards and could dig in if they came in contact with inclined side of the sawdust box chute, but the clearance between the teeth and the inclined surface of the chute is increasing to the extent that there is no possibility that they could make contact when transferring the saw blade from the top wheel to the saw cradle." 24 The plaintiff called the chartered professional engineer, Mr Mark William Wilson whose evidence is contained in Exhibit 21. He was instructed to investigate the potential for the bandsaw blade to catch on an interior part of the sawdust box including the sawdust conveyor system. He explained at par 11 of Exhibit 21 how he was shown a sawdust conveyor system which was identical in design and size to that located beneath the bandsaw on 24 April 1998. Mr Wilson then stated at par 13 of Exhibit 21: "Whilst inspecting the sawdust box beneath the No. 1 band saw I noticed that there were two ledges in the vertical timber wall beneath the tail end of the band saw. These ledges ran horizontally along the length of that wall and could present as obstructions to the teeth of the band saw blade if an attempt was made to lift it upwards. In my opinion this would pose a risk that the teeth of the band saw blade could catch on one of these ledges during the course of such a lift particularly if there was any bowing of the band saw blade (as mentioned in paragraph 10(k) above) or if the band saw blade had been pushed into an angled position within the sawdust box (as mentioned in paragraph 10(n) above)." 25 Mr Wilson also compared the conveyor system in place on 24 April 1998 with that installed subsequently and concluded the top of the wooden edge boards of the earlier system was approximately eight inches higher than its replacement. He continued at par 23 et seq of Exhibit 21:
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"23. Accordingly the old sawdust conveyor system being higher than the new conveyor system it is probable that the sloping walls at the base of the sawdust box were in closer proximity to the vertical line beneath the lower wheel. In other words, in closer proximity to the teeth of the band saw blade when lowered. 24. Based on this information (paragraphs 17-23 inclusive) the drawing in Annexures 3 and 4 hereto in all probability closely resembles the state of affairs at the base of the sawdust box as at the time of the Plaintiff's accident compared with the current system. 25. In my opinion based on the above facts and adjusted measurements, the teeth of the bottom part of the band saw blade when lowered by about 8" (within the range of the regulator) could well have contacted and snagged upon the timber at or near the old sawdust conveyor system at the base of the sawdust box. There was also some risk that the teeth of the band saw blade could have snagged on one of the ledges on the vertical walls of the sawdust box in the event that sawdust clogging prevented free hang of the band saw thus inducing bowing in the blade previously referred to in paragraph 10(k)." 26 I accept the evidence of Mr Wilson there was potential for the bandsaw to snag on the sawdust box below the bandsaw when the plaintiff lifted it on 24 April 1998. I do not accept the evidence of Mr Adams such an occurrence was impossible. In reaching this conclusion, I also accept the evidence of Mr Ian Gibson for the plaintiff who stated at par 3 of Exhibit 13 that photograph 7 illustrates clearly that the tail end saw teeth point upwards at the location where the plaintiff stood on 24 April 1998. 27 Having reached this conclusion, and in the absence of evidence that the bandsaw did not snag on the sawdust box on 24 April 1998, I find on the balance of probabilities it is more likely than not that the plaintiff is correct in his belief that the bandsaw snagged as alleged. The evidence of the plaintiff himself is he suffered the alleged injuries as he tried to lift the bandsaw. The evidence of Mr Rodney Lindsay for the defendant is the plaintiff complained twice on 24 April 1998 that he had hurt his back, the first complaint Mr Lindsay said occurred while he and Mr Green were changing another bandsaw a few minutes earlier. The evidence of Mr Lindsay was put to the plaintiff and he insisted he made only one
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complaint to Mr Lindsay. It became apparent Mr Lindsay had formed his own opinion of the plaintiff's claim in these proceedings and I conclude his evidence on this issue was coloured by that opinion. The plaintiff's evidence that he suffered the alleged injuries in the way he described on 24 April 1998 is not materially shaken by the evidence of Mr Lindsay and I accept it. 28 In the light of the facts as I have found them, it is not necessary to consider the evidence of Dr Steven Chew in Exhibit 16, where he concludes the defendant's system of work was acceptable from an ergonomic perspective, because he does not take into account the forces generated when the bandsaw snagged. 29 In Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 at 300, the learned Chief Justice said: "In Wyong Shire Council Mason J (with whom Stephen and Aickin JJ agreed) held that the existence of a foreseeable risk of injury did not in itself dispose of a question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors. As his Honour said in Wyong Shire Council (at 47 – 48): 'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But,
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as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.' " 30 In Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 at 39 et seq Gleeson CJ said: "Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it. But, as Mason J pointed out in Wyong Shire Council v Shirt, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk. … Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes. I say 'may', because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case." 31 In Crombie v Uniting Church Property Trust (WA) (supra) the learned Chief Justice recited the duty of an employer to take reasonable care to avoid unnecessary risks of injury to an employee and referred to the decision of the High Court in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. At p 301 of the report, the learned Chief Justice continued: "It may be accepted that an employer's obligation is not merely to provide a safe system of work but also to maintain and enforce such a system: see McLean v Tedman (1984) 155 CLR
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32 In this case, the plaintiff alleges in par 5(xii) of the re-amended statement of claim that the defendant failed to regulate the extent to which the top wheel of the bandsaw could be lowered so as to prevent any risk that the teeth of the bandsaw could become snagged on the top of the scraper conveyor system or on the interior surfaces of the sawdust box. It is in this regard that the evidence of such earlier occurrences is relevant. I find on the evidence for the plaintiff the defendant knew or ought to have known of the potential for the bandsaw to snag on the sawdust box. It is not necessary for the plaintiff to establish that the defendant knew or ought to have known the precise manner in which the risk of such a snag might result in injury to the plaintiff. I find the defendant knew or ought to have known the risk of such a snag might result in injury to the plaintiff or another of the kind he experienced. The duty of the defendant to provide a safe system of work is not in issue. The issue is whether the defendant was in breach of its duty which requires the court to determine what a reasonable may would do by way of response to the risk. In this case, the answer is clear: modify the sawdust box and conveyor system, as the defendant did after 24 April 1998. There is no evidence in this case such a course was out of proportion to the magnitude of the risk and the degree of the probability of its occurrence. I find, therefore, the defendant was in breach of its duty to the plaintiff and I turn to consider the assessment of damages.
Assessment of damages 33 This is a claim to which Part IV Division 2 of the Workers' Compensation and Rehabilitation Act 1981 applies, prior to the repeal of s 93D, s 93E and s 93F of that provision by the Workers' Compensation and Rehabilitation Act 1999 s 32(5). The plaintiff is entitled to an award of damages for pecuniary and non-pecuniary loss if, and only if the disability which he has suffered in consequence of the negligence of the defendant has resulted in a serious disability within the meaning of the
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Act, prior to its amendment. A disability is a serious disability if, and only if, the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount of $130,609. 34 The onus is upon the plaintiff to establish on the balance of probabilities that the negligence of the defendant has caused injury to him that has diminished his earning capacity and that diminution may be productive of pecuniary loss, in this case at least equal to the prescribed amount. The plaintiff must prove the extent of his pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his ability to exercise the pre-accident earning capacity: Giorginis v Kastrati (1988) 49 SASR 371. I consider first the nature and extent of the plaintiff's alleged injuries. The plaintiff gave evidence he reported to the mill manager on 24 April 1998 and thereafter attended a chiropractor for manipulation. He said he was off work for a week. He said the mill manager then told him to return to work or he would not be paid. He said he returned. He was asked to describe his symptoms in the early weeks after the accident. He said (T35): "Very, very sore buttock pain, deep or low buttock pain. … Mostly the right side, very, very sore, and at the top of the right hip extending down into the groin and down the inside of the right thigh. It was very sharp, and that would increase. Gradually during the day it would extend a little bit further and further down the leg." 35 The plaintiff saw the chiropractor twice and returned to him in September 1998. He said during the months in between he worked five or six hours as a head rig operator. He consulted Dr R J Kirk at Manjimup on 30 November 1998 to obtain pain relief tablets. The plaintiff said Dr Kirk put him on light duties for three months. He found standing or sitting in the bandsaw control box painful. He said he had "very bad low buttock pain and right hip, right groin down the inside and front of the right thigh." (T36 – 37) The plaintiff said he walked with "a pronounced limp" from 24 April 1998. He said he worked five to six hours a day in the bandsaw control box. He said he often walked around the mill to ease his pain. The defendant provided alternative light duties in early 1999. By the end of 1999, he said he was working a four hour day and on 6 September 2000, the defendant terminated the plaintiff's employment by the letter which became Exhibit 1.
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36 Counsel for the defendant cross-examined the plaintiff about the contents of his statutory declaration dated 8 December 1998 (Exhibit 5). The plaintiff denied he told the investigator that between April and November 1998 he regularly worked a full day. He agreed he did not attend the chiropractor between May and September 1998. The plaintiff was also cross-examined about the pain he has experienced since 24 April 1998 and the pain he experiences now. He said (T65):
"… the pain that I have now and that I have had pretty well constantly has been over the right hip and the right groin. … Pain in the lower buttock, lower right buttock, the bottom of the coccyx. … Extending around towards the anus area, the right hip into the right thigh and down into the right leg." 37 Again, at p 73 of the transcript, the plaintiff said: 38 The plaintiff repeated at p 86 of the transcript, "There is not a lot of back pain." He agreed he now has "close to" a full range of movement in the lumbar spine. 39 Counsel for the defendant asked the plaintiff about Mr Wong's opinion that the plaintiff is capable of undertaking full-time lighter duties which do not involve repeated bending and lifting. He asked the plaintiff whether the plaintiff believed he can work full-time, to which the plaintiff replied (T93): 40 The plaintiff agreed (T94) the duties of the head rig operator are "a relatively light job physically". The plaintiff agreed the defendant made a number of modifications to the bandsaw control box to make the working
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conditions better suited to the plaintiff's stature (T63). The plaintiff said nevertheless he could not work eight hours a day (T77). 41 The plaintiff called his general practitioner, Dr James Bowie whom he first consulted on 21 December 1998. He was asked to describe the plaintiff's symptoms then and said, "There was just a sort of backache." (T131) He saw him again on 25 February 1999 when the plaintiff appeared to be moving quite well and he could almost touch his toes. Straight leg raising, right and left, was 90 degrees. His knee jerks were perhaps a little depressed (T132). On 20 April 1999, the plaintiff complained of some low back pain passing down the inside of his left leg to mid-calf and also some pain in the right leg to his mid-calf. 42 Exhibit 11 contains the results of a CT scan of the plaintiff's lumbar spine dated 10 December 1998 as follows: "CT SCAN OF THE LUMBAR SPINE Axial images were made through the L1 to S1 vertebral bodies and disc spaces inclusive. L1-2 disc space: No abnormality at this site. L2-3 disc space: No abnormality at this site. L3-4 disc space: There is a large right sided lateral disc prolapse with significant impingement on 2 and displacement of the right L3 nerve root. L4-5 disc space: There is annular bulging with a predominance to the right side seen based on Image 12, where there is impingement onto the right L4 nerve root. There is slight extension to the left side, but the left L4 nerve root appears intact. L5-S1 disc space: There is a moderate sized central to right sided disc prolapse with inferior extension impinging onto the thecal sac and to the budding right S1 nerve root. COMMENT Large lateral disc prolapse on the right at L3-4, smaller lateral disc prolapse at the right on L4-5 and moderate to large central to right sided disc prolapse with inferior extension at L5-S1."
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43 Dr Bowie refers to the CT scan results in his report of 6 June 2001, Exhibit 12. Dr Bowie describes the plaintiff's signs during 1999 and, interestingly, states in the last paragraph on p 1 of Exhibit 12 that the plaintiff continued to wear his brace. He records at p 2 of Exhibit 12 that on 5 October 1999 the plaintiff said he was going to return to a graduated increasing work programme. On 13 December 1999, the plaintiff said he was doing three hours light duties and two hours on the head rig. He was wearing his lumbar spine support but could touch his ankles. On 14 January 2000, the plaintiff complained of more pain in his right groin and down the back of his right leg but could flex to his mid-tibia. The plaintiff continued to complain of pain in his hips, back, groin and feet. On 16 June 2000, the plaintiff complained he was sore between his coccyx and his anus and in both groins and down the inside of both thighs. He was moving easily and could touch his ankles. He requested a new brace. Dr Bowie refers to the opinion of the neurologist, Dr W M Carroll. Dr Carroll gave evidence on behalf of the plaintiff and also referred to the CT scan results. Dr Carroll first saw the plaintiff on 7 September 1999. Dr Bowie notes the plaintiff recounted how he felt a "ping" in the right back with a sharp pain into the right hip and inner thigh and down to the medial right knee on 24 April 1998. He records the plaintiff's symptoms as "painful feet and knees, hot pains in the medial right thigh, testicular numbness, coccygeal discomfort, low back pain and micturition. At p 2 – 3 of his report, Dr Carroll concludes:
"He has signs of a right L4 radiculopathy which is being caused by the L3/4 disc protrusion. I believe his low back pain emanates from this region but also from the L4/5 and L5/S1 degenerative disc changes and protrusions. The right inguinal and anterior thigh discomfort experienced at the onset represents the disc protrusion impinging on the right L3 nerve root. His other symptoms, particularly in the lower limbs, represent the effects of heightened awareness and protracted nature of the complaint in this man and is quite understandable on this basis. His bladder function is not neurological but may be contributed to by anxiety." 44 Dr Carroll expressed the opinion that the right L3 radiculopathy is causing back discomfort and intermittent radiation of pain and a thermal sensation into the right medial thigh. He did not believe the L5/S1 disc protrusion was causing symptoms other than discomfort in the back. He considered the MR scan of 17 July 1999 did not demonstrate a significant L4/5 lateral disc prolapse and did not believe it was causing any symptoms other than those related to general back discomfort.
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45 On 7 June 2000, Dr Carroll reported the plaintiff has evidence of a subtle persisting right L3 radiculopathy manifesting mainly as hyporeflexia of the knee. There was no functional weakness or impairment as a result of this. Dr Carroll thought the plaintiff may be experiencing some diffuse non-specific lumbar spine discomfort from the L4/5 disc degeneration. Dr Carroll was asked to express an opinion whether the plaintiff continued to experience symptoms attributable to the disc herniation at L3/4 and the protrusion at L5/S1. Dr Carroll said few if any of the plaintiff's symptoms related to the L3/4 disc protrusion but he may be experiencing minor low lumbar region discomfort attributable to disc degeneration at those levels. He said there was no evidence of radiculopathy or neuropathic involvement and neurological impairment. Dr Carroll reviewed the plaintiff on 2 November 2000 following a subsequent MR scan on 21 September 2000. His report of 2 November 2000 records the MR scan showed some low lumbar disc degeneration with disc protrusions particularly at the L3/4 level where there was a far lateral right sided protrusion displacing the right L3 nerve root. An EMG and nerve conduction study identified a minimal chronic axonopathy centred on the right L3 myotome consistent with previous or very chronic L3 radiculopathy.
46 Dr Carroll expressed the opinion in his report of 4 December 2000 that his current symptoms were most likely caused by the L3/4 disc protrusion, as were some of those in the right leg at the time of his initial review. 47 In his final report of 9 October 2001, Dr Carroll records the plaintiff continued to experience pain in the sacrum and coccyx radiating into the perineum and genitalia, which occurred bilaterally and seemed to be worsened when jarring himself. On these occasions he experienced pain mainly in the left leg and occasionally into the right hip. He also described pain radiating into the medial aspect of both thighs and posteriorly to both knees. Other complaints included lumps and tingling in the soles of both feet, urgency of micturition and he also recounted some abdominal symptoms, which he would alleviate by vomiting. Dr Carroll found no neurogenic abnormality to clinical examination. He considered the L3 changes were probably better than when he had seen him originally in September 1999. 48 In evidence before me, Dr Carroll explained his opinion (T111): "When people have instability at any one of these levels the back muscles become tight to try and stabilise the situation.
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That can then result in diffuse pain at a number of other levels and then radiation into the legs, into the hips, and what have you, so it's not clear in my mind that there was an added injury to the other levels at that time, but certainly the symptoms may have been unmasked subsequent to that L3/4 injury." 49 Dr Carroll said he was talking about instability in the lumbar spine because of degenerative disc disease. He said the prognosis was that the plaintiff's injuries will settle down with time. He said the nerve root injury had already settled down and there was no longer ongoing injury to the nerve root. He said he was surprised that the plaintiff's diffuse back pain had persisted so long because he anticipated it would have gradually settled by then. 50 In cross-examination, Dr Carroll was asked to comment on the fact that the plaintiff continued to work between April and September 1998. He said the partial disc protrusion may have exuded further during the ensuing months and the plaintiff may well have sustained a further injury in the course of that time or further disc protrusion (T116). Dr Carroll thought it reasonable to say from the subsequent MRI scan the plaintiff may continue to experience occasional back pain extending into the legs. In relation to the plaintiff's physical capacity, Dr Carroll expressed the opinion (T127): "He certainly shouldn't be looking for things to lift and he certainly should be able to sit frequently because that's the nature of back discomfort. Those people who can say their backs are better, if you watch them, are often sitting rather than standing the whole time." 51 Dr Carroll considered the plaintiff should be able to return to full-time light duties with some form of graduated and supervised rehabilitation programme, as long as he avoided repeated bending and heavy lifting (T129). 52 In Exhibit 7, Mr George Wong expressed the opinion on 29 December 1998 that the L3/4 disc herniation accounted for the plaintiff's right buttock, groin and right anterior thigh pain. On 22 June 1999, Mr Wong said the L3/4 disc herniation could not account for the plaintiff's bilateral symptoms and diffuse symptoms. On 3 August 1999, Mr Wong expressed the opinion the plaintiff's presentation was somewhat atypical and unusual and did not believe it related to any particular nerve root involvement. He considered the plaintiff should be able to perform a
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graduated return to work involving lighter duties and eventually graduate to full-time employment. On 6 June 2000, Mr Wong reported the plaintiff's pain was generalised and diffuse and not due to radicular involvement. He considered it to be mechanical or soft tissue in nature. The disc herniation at L3/4 previously caused right L3 radiculopathy in the form of anterior thigh pain. This had subsided. He considered it was difficult to know exactly where the plaintiff's pain was coming from. He suggested it was related to mechanical or degenerative problems in his low back with referred pain as described by the plaintiff. Before me, he said (T215) the honest answer was he did not know where the plaintiff's pain was coming from but it was not from a pinched nerve. 53 In re-examination, Dr Wong expressed the opinion it was a little unusual for the plaintiff not to complain of back pain but to complain about a lot of pain elsewhere. Finally, the defendant called the occupational physician, Dr Stephen Dennis, whose evidence is contained in Exhibit 6. 54 As I have explained, the plaintiff alleges the negligence of the defendant caused the injuries pleaded in par 4(c) of the re-amended statement of claim. The defendant denies the plaintiff suffered those injuries or any injuries at all. I find the evidence of Dr Carroll and Dr Wong together with the CT scan (Exhibit 11) establishes on the balance of probabilities that on 24 April 1998 the plaintiff sustained a large lateral disc prolapse on the right at L3/4 and a consequent L4 radiculopathy. At that time, the plaintiff had degenerative disc changes and protrusions at L4/5 and L5/S1. The evidence also establishes the L4 radiculopathy has now subsided. I find this evidence establishes the nature and extent of the plaintiff's injuries caused by the negligence of the defendant. 55 It is then necessary in this case to consider the extent to which the plaintiff's injuries have diminished the plaintiff's ability to exercise his pre-accident earning capacity since 24 April 1998 and in the future. 56 Dr Bowie first reviewed the plaintiff's injuries on 21 December 1998. By the time he reported on 6 June 2001, he had the benefit of Dr Carroll's opinion and the reports of Mr Wong. Dr Carroll first saw the plaintiff on 7 September 1999. As I have recited, both Dr Bowie and Dr Carroll were of the opinion the plaintiff suffered the large right-sided lateral disc prolapse with significant impingement of L2 and displacement of the right L3 nerve root, as disclosed by the CT scan, Exhibit 11. Dr Carroll expressed the opinion the plaintiff's low back pain emanated from that
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protrusion and the right L3 radiculopathy, but also from what he described as the L4/5 and L5/S1 degenerative disc changes and protrusions. He was of the opinion the MR scan of 7 July 1999 did not demonstrate a significant L4/5 lateral disc prolapse. It was aggravated by the L3/4 protrusion. 57 The L3 radiculopathy slowly subsided so that there was no ongoing injury to the nerve root. The plaintiff's doctors reviewed the plaintiff's history of complaints in the course of their evidence. They considered the plaintiff's complaints about his feet, coccyx, bladder and groin were not related to his lumbar injury. For the defendant, Mr Wong considered the plaintiff's diffuse pain inexplicable. 58 The expert medical evidence for the plaintiff and the defendant is that given the nature of the plaintiff's injury on 24 April 1998 and its subsequent history over the ensuing two years, it had not diminished the plaintiff's ability to work in his pre-accident employment as a head rig operator, provided the defendant allowed the plaintiff to vary his posture and avoid heavy or repetitive lifting. 59 I find on the evidence of Dr Bowie and Dr Carroll that by the second anniversary of the accident, at the very latest, the plaintiff was capable of undertaking his pre-accident employment in the varied conditions provided by the defendant and recommended by the doctors.
Future loss of earning capacity 60 The issue for determination, however, is whether and to what extent the compensable injuries have diminished the plaintiff's ability to exercise his pre-accident earning capacity in the future. The issue is not whether the plaintiff has or will suffer a loss of earnings. The fact the plaintiff is able to work for the defendant in a modified position as offered by the defendant and recommended by the doctors does not establish the plaintiff has suffered no loss of his pre-accident earning capacity as a head rig operator. That fact is indeed part of the measure of the loss of the plaintiff's pre-accident earning capacity. Should his proposed continued employment by the defendant have ceased at some time in the future, the plaintiff could not and cannot offer his pre-accident skills to a potential employer. The plaintiff is incapacitated for the normal work of a head rig operator and his injuries are a material cause of that incapacity. The plaintiff retains a capacity for suitable light work with a sympathetic employer but has been unable to obtain such work since the defendant dismissed him.
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61 The plaintiff was born on 15 September 1960 and is therefore presently aged 42. The plaintiff's net weekly wage on termination was $466. The 6 per cent multiplier for 23.5 years to age 65 is 667: $466 x 667 = $310,822. I deduct 25 per cent discount for retained capacity and contingencies and assess the plaintiff's future loss of earning capacity in the sum of $248,657. The plaintiff has, therefore, established his future pecuniary loss resulting from his disability is at least equal to the prescribed amount of $130,609. I proceed, therefore, to assess damages for future pecuniary and non-pecuniary loss.
Non-pecuniary loss 62 In relation to general damages for pain and suffering and loss of amenities, the assessment is to be made as a percentage of a most extreme case. The plaintiff has experienced some lower back pain and the diffuse pain which I have described since 24 April 1998. He is not able to sit or stand for long periods of time. He accepted he has been able to ride his motorcycle, as long as he breaks the journey. On the medical evidence, I find the plaintiff's symptoms will likely continue thereby affecting his daily life and, as I have found, particularly his work prospects. In my opinion, damages under this head should be assessed at 15 per cent of a most extreme case or 15 per cent of $274,278 or $42,141.70. I make no deduction for contingencies.
Past loss of earning capacity 63 The plaintiff's evidence in relation to his past loss of earning capacity, to which I have referred, at pp 65 and 73 of the transcript together with the evidence of Dr Carroll establish on the balance of probabilities the plaintiff suffered the symptoms of the L3/4 disc protrusion and L3 radiculopathy from 23 April 1998. The plaintiff persevered for some six months in his position as a head rig operator undertaking the predominantly lighter duties of that position. The plaintiff continued, however, to experience diffuse pain due to the instability at the L3 level and the L4/5 disc degeneration. As I have already observed, the evidence of Mr Wong was not markedly different from that of Dr Carroll. I accept the L3/4 disc herniation does not of itself account for the plaintiff's bilateral symptoms and diffuse symptoms. Those symptoms are not now due to radicular involvement. I accept, however, the evidence of Dr Carroll that when instability occurred at the L3/4 level, the plaintiff's back muscles became tight to try and stabilise the situation. I accept the evidence of Dr Carroll that diffuse pain at a
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number of other levels and radiation into the legs and hips occurred, given the degenerative condition of the plaintiff's lower spine. I accept the evidence of Dr Carroll that the partial disc protrusion may have exuded further during the ensuing months. Both Dr Carroll and Mr Wong thought it unusual the plaintiff's diffuse symptoms seemed more predominant than lower back pain. There is a suggestion underlying the defendant's case that the court should infer either that the plaintiff has from the outset exaggerated his symptoms or that they were not caused by the disc protrusion. As I have observed, the evidence establishes the disc protrusion was a material cause of the diffuse symptoms the plaintiff has continued to suffer. 64 The plaintiff worked limited hours from 24 September 1998 until his dismissal on 6 September 2000 and claims the sum of $8,736 past loss of earnings for this period. The calculation of this amount was not in issue before me and I accept it. From 7 September 2000 to 19 February 2002 (76 weeks at $466 net per week) the plaintiff claims $35,416 which I also accept. The plaintiff claims income tax paid on weekly compensation (the Fox v Wood (1981) 148 CLR 438component) in the sum of $2,185 which I accept. The plaintiff is therefore entitled to past loss of earnings in the sum of $46,337. He is liable to repay workers' compensation received. The plaintiff is entitled to interest on his "uncompensation" past loss of earnings at 3 per cent x $35,416 x 1.5 years or $1,593.
Future loss of superannuation benefits 65 The plaintiff is entitled to future loss of superannuation benefits calculated in accordance with Jongen v CSR Limited & Anor (1992) A Tort Rep 81-192 as 8 per cent x $580 gross per week x 667 x 80 per cent (20 per cent discount for contingencies and retained capacity) x 70 per cent or $17,331.
Future expenses 66 I make a global award in the sum of $2,000 for future medical expenses and pharmaceuticals.
Gratuitous services and past expenses 67 In my opinion, there is no sufficient evidence to support the plaintiff's claim for an award of damages in respect of gratuitous services. The plaintiff claims $14,439.80 for past medical expenses, $16,436 for
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past rehabilitation expenses and $1,029 for past pharmaceutical expenses. I shall hear counsel whether the quantum of these amounts is agreed.
Conclusion 68 Subject to the calculation of past expenses the plaintiff is entitled to judgment as follows: Non-pecuniary loss $41,141.70 Past loss of earning capacity $46,337.00 Interest on past loss $1,593.00 Future loss of earning capacity $248,657.00 Future loss of superannuation $17,331.00 Future medical expenses $2,000.00 $357,059.70
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