Haseldine v State of South Australia
[2006] SADC 76
•5 July 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HASELDINE v STATE OF SOUTH AUSTRALIA
[2006] SADC 76
Judgment of His Honour Judge Clayton
5 July 2006
NEGLIGENCE
Prisoner suffered back injury whilst using crowbar on Manual Outside Work Camp.
HELD: Prison authority owed duty to take reasonable care, but not the duty owed by an employer to an employee. The requirement that the plaintiff use a crowbar was not in breach of the duty of reasonable care. Nor was there a breach of section 29(4) of the Correctional Services Act 1982 which required the "manager" of the prison to have regard to the age, physical and mental health, skills and work experience of the prisoner.
Crown Proceedings Act 1992 s5; Correctional Services Act 1982 s29, s86A, referred to.
Halsbury's Laws of England 4th ed reissue, vol 36(2), par 565; New South Wales v Bujdoso [2005] HCA 76; New South Wales v Watzinger (2005) NSWCA 329; Helmers v Department of Corrective Services [1997] 14 NSWCCR 248; Tame v New South Wales (2002) 211 CLR 317 at 353; Quinn v Hill (1957) VR 439; Hall v Whatmore (1961) VR 225; Morgan v Attorney-General [1965] NZLR 134 at 137; R v Marshall [1985] 57 NR 308; McLean v The Queen (1972) 27 DLR 3rd, 365; McCoy v Engle 537 NE 2d 665 (Ohio App 1987); Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; Turner v State of South Australia (1982) 42 ALR 669; Wyong Shire Council v Shirt (1979) 146 CLR 40, considered.
DAMAGES
Green v Wardleworth (1996) 187 LSJS 247, considered.
HASELDINE v STATE OF SOUTH AUSTRALIA
[2006] SADC 76
The plaintiff claims damages for injuries alleged to have been suffered to his back in April 1999. He was a low security prisoner at the Port Augusta prison and was accepted to attend a MOW (“Manual Outside Work”) camp. Prisoners who are accepted for such camps travel to various places in the country where they carry out work under the direction of prison officers.
The camp on which the injury was alleged to have been suffered involved eight prisoners or “clients”, as they are described in the camp log, and two prison officers from the Port Augusta prison. The party left Port Augusta on Friday, 16 April 1999, travelled to the Danggali Conservation Park which is north of Renmark on the border of South Australia and New South Wales and returned to Port Augusta on Thursday, 29 April 1999.
On 9 February 1999 the plaintiff had been sentenced to imprisonment for six months as a consequence of breaches of the Fisheries Act. The plaintiff was a diver. The offences involved taking abalone without the required authorisation. After a period of time in the Yatala Labour Prison the plaintiff was transferred to Port Augusta Prison. He was given a low security classification. No medical problems were noted when he was assessed by the prison medical service on his admission in February 1999. The plaintiff was examined on his arrival at Port Augusta on 9 March 1999 and a nurse noted that he had no complaints and appeared fit and well. During March and April 1999, he was seen at the medical centre at the Port Augusta Prison for unrelated matters.
On 11 March 1999 the plaintiff successfully applied to work at the northern MOW camp.
On 14 April 1999 the plaintiff attended at the prison health service in Port Augusta and Mr D G Smith, a registered nurse, noted that ultrasound treatment was applied to his lower back. In evidence the plaintiff said he could not remember that attendance or a back problem at that time.
The plaintiff had served an earlier period of imprisonment in 1996. When he was examined on his admission to prison in 1996 a note was made that his general health was good and there were no medical problems. However, In May 1996 the plaintiff had suffered from back problems. A report of the plaintiff’s lumbosacral spine dated 6 May 1996 noted degenerative change.
There is no evidence that the plaintiff suffered from significant back problems between 1996 and 1999. He had the capacity to work as an abalone diver. The evidence suggests that the plaintiff was a person who took his fitness seriously and was a regular jogger.
The MOW camp party left the Port Augusta prison early in the morning of Friday, 16 April 1999. The supervisors were Mr Bornholm and Mr Coulthard. In addition to the plaintiff, the clients included Mr Sugar and Mr Blatchford. The party arrived at Danggali Conservation Park at about 3.30pm. After an evening meal they retired to bed.
On the morning of the next day, Saturday, 17 April 1999, the party did fencing work at a place called Birthday Hut. In accordance with the custom, the Saturday afternoon and all of Sunday was rest time. On Monday, 19 April 1999 six of the men worked at the Canopus Homestead. On Tuesday, 20 April 1999 six of the prisoners and the two officers travelled to Canopus for the purpose of erecting a windmill from a kit. The windmill was to be erected at a place known as the Olympic Dam which was a short distance from the Canopus Homestead. The group travelled to Olympic Dam in two vehicles which were driven by prison officers. Prisoners were not permitted to drive.
There is some uncertainty as to where the tools that the men were to work with had come from. However, when the party arrived at the site they had crowbars and shovels with them.
Photographs of Olympic Dam show an excavation about 50 metres by 50 metres square. The earth which was removed had been placed around the outside perimeter of the dame to form a mound. The site chosen for the construction of the windmill was on sloping ground between the mound and the wall of the dam.
The windmill was a Southern Cross windmill which came in kit form. The tower of the windmill had three legs which at the base formed an equilateral triangle. The purpose of the windmill was to pump water from the dam.
It was necessary to excavate a hole about one metre deep by 30 centimetres in diameter for each of the three legs of the windmill. The plaintiff was assigned to excavate one of the holes with Mr Blatchford. The plaintiff worked with the crowbar and Mr Blatchford used the shovel. The plaintiff said it was getting close to dinnertime, “maybe 11, half past it might have been too” when they started digging the hole. The break was taken between 12 noon and 1.00pm and work on the hole resumed after lunch. The plaintiff loosened the ground as best he could with the crowbar and Mr Blatchford took the loose soil out with the shovel.
The plaintiff said the soil was relatively loose for the first 8, 10 to 12 inches, after which it changed from “a pinky clayey soil” to a really dark soil which was “really hard soil.... rock hard”. The plaintiff said the effect of the harder soil on the crowbar was that he had to put the crowbar in maybe 20 or 30 times to get an edge on it.
The plaintiff said that while using the crowbar he experienced pain. The plaintiff said “it could have been an hour after dinner”. At that time the hole was reaching completion. He said the hole was getting on to a metre deep or past a metre. The other prisoners were “cussing and swearing” about the hardness of the soil.
The log for the day recorded, “13.00 A Haseldine hurt back digging windmill holes (sprained muscle)”.
The plaintiff felt the pain at the belt line in the middle of his back. He told his co-worker, Mr Blatchford, that he had hurt his back. He also told Mr Coulthard or Mr Bornholm. He did not continue digging but sat in one of the vehicles.
The plaintiff described the way in which he had been using the crowbar. He said “I was using a fair bit of strength to try and break that soil up and I was driving in pretty hard”. He said he was standing on two feet and could only strike the bottom of the hole with the crowbar if he let the crowbar go. He said he might have let the crowbar go on some occasions but not others when he would have been in a bent position because he was trying to force the crowbar into the ground. He said that if you let the crowbar go it goes under its own weight but if you force it you can drive it as hard as you could into the ground.
The plaintiff said that neither Mr Bornholm nor Mr Coulthard had demonstrated the way in which the crowbar should be used.
The plaintiff said that while digging the hole with the crowbar was not easy he continued with the work because he was on a Correctional Service work order and did not wish to be reported. He preferred the MOW camp to being in the prison.
The plaintiff said that the whole crew knocked off at around the time when he hurt himself. The log does not substantiate that, but the discrepancy is inconsequential. In any event, the work party eventually packed up and returned to the camp. During the return trip the plaintiff was in pain and had to lie horizontally in one of the vehicles which was a troop carrier. Mr Sugar gave evidence of the plaintiff being bent over in pain. On arrival back at the camp the plaintiff was allowed to have the first shower and went to lie down. Mr Blatchford rubbed Deep Heat into his back. He got up for tea, but went straight back to lie down. He was asked whether he wanted to go to Renmark to see a doctor, but said he did not wish to jolt up and down on 100 kilometres of rough road, he just wanted to lie down.
On the following day the plaintiff did nothing except remain in his room. On the following days he and Mr Blatchford were assigned the positions of cook and slushy (cleaner/assistant) in the camp. The plaintiff did not return to hard work for the duration of that MOW camp. The log for 22 April 1999 noted that the plaintiff was cook “as back still sore (lighter duties) done excellent job”.
The party left the camp and returned to the Port Augusta Prison on Thursday, 29 April 1999. On arrival at Port Augusta the plaintiff made arrangements to see the prison doctor.
The progress record of the prison medical service records that Mr Smith, a nurse, saw the plaintiff at 1900 hours on 29 April 1999. Mr Smith noted:
Painful lower back. LSS. ? muscular. For U/S (ultrasound) treatment tomorrow. Booked in to see M.O. Monday.
The progress record shows that the plaintiff had ultrasound treatment to his lower back on 30 April and 2 May 1999 and was examined by Dr Tava on 3 May 1999. The following note was made:
Back pain 21.4.99 at mo camp persistent. Has had prev. back problems which were usually fixed by chiropractor.
It was suggested that the plaintiff should see a chiropractor, but chiropractic treatment was not available in the prison system and physiotherapy treatment was arranged.
On 14 May 1999 the plaintiff went on a second MOW camp. Again the responsible officers were Mr Bornholm and Mr Coulthard. While the log of the camp contains occasional references to the plaintiff there is no entry which is relevant to his fitness. The very fact that he was able to attend the second MOW camp indicates that the plaintiff was considered fit for work. The plaintiff’s evidence as to how he was feeling at that time was “I was feeling sore, but I was trying to get on with my life”. He said he was more sore in his left leg than his back. During the second camp the plaintiff was involved in dismantling old fences and rolling up wire. He was physically able to carry out the work but did experience pain in his groin. The second MOW camp party returned to the Port Augusta Prison on Thursday, 27 May 1999.
The plaintiff said that on his return to Port Augusta from the second MOW camp he was still running. He had been running between the first and second MOW camps but said he had quietened down a bit after he hurt himself. He also went running at Danggali during the second MOW camp.
The plaintiff said after returning from the second MOW camp the pain in his leg and groin started to hurt more every day and it seemed to be getting worse. Then one day four or five days after the return from the second MOW camp, there was a particular day when the pain, that is the pain in his left leg, got a lot worse. He said it was “like a knife pain going into halfway between my groin and my knee in the thigh area”. He had not experienced anything like that before. He reported the pain to a warder by the name of Joe at about 10.00pm. He said “I couldn’t sleep, it was just throbbing this day, it was getting worse and worse and worse”. At about 5.00am on the following morning he was taken to the Port Augusta Hospital and admitted.
The progress sheet for the medical centre confirms that the plaintiff complained of pain in his left lower back on 10 June 1999. It records that he had intended to leave on the following day to be a cook on a third MOW camp. He had been booked to see a medical officer on his return from the third camp. At the medical centre the symptoms were noted to “include pain down inside thigh, in groin and into calf” and anti-inflammatory medication was prescribed. There is a note that notwithstanding the pain he still wanted to attend the third MOW camp. There was also a note that he had received no relief from a chiropractor.
The plaintiff was taken to the Port Augusta Hospital at 5.00am on 11 June 1999 suffering from “back and groin pain”. He remained in hospital for more than two weeks. He was seen by a number of doctors and x-rays were taken. Scans of the lumbar spine and pelvis showed:
At the L3-4 level, there is soft tissue opacification in the left lateral recess separated from the thecal sac by a plane of fat.... The lateral recess here is widened suggesting that this is of long-standing. The appearances are suggestive of a conjoint nerve root. There is minor generalized disc bulge at this level. The flaval ligaments were a little prominent. No further abnormality could be demonstrated at this level.
At the L4-5 level, there is mild posterior disc bulge and there is some flaval ligamentus hypertrophy, these changes making for triangular deformity of the thecal and a mild canal stenosis here. No further abnormality could be demonstrated at this level.
At the L5-S1 level, there is a little degenerative change in the facet joints. No further abnormality could be demonstrated at this level.
No abnormality could be seen in the bones or joints of the pelvis. The pelvis and hip joints appeared normal.
The plaintiff returned to the Port Augusta Prison from the Port Augusta Hospital at 12.20pm on 28 June 1999. There was a note that there was no clear diagnosis. The plaintiff was prescribed anti-inflammatory and painkilling medication.
Three days later, on 1 July 1999, the plaintiff was discharged from the Port Augusta Prison onto home detention.
When he was released the plaintiff’s girlfriend drove a 4-wheel drive vehicle with a bed in the back up to Port Augusta. The plaintiff lay on that bed and the girlfriend drove him back to Adelaide. Within a day or so he arranged to see Dr Lee at Sportsmed at Stepney. Dr Lee referred him to Dr Cindy Molloy a neurosurgeon. She requested an MRI scan on the plaintiff’s back. In addition to Doctors Lee and Molloy, the plaintiff consulted his normal general practitioner, Dr Cox.
At the time that he went to see Dr Molloy the plaintiff could hardly walk. He noticed that his upper thigh was wasting away. Dr Molloy recommended an operation which would have cost between $5,000 and $7,000, but the plaintiff was unable to afford the operation.
The plaintiff received massage from a clinic at Hindmarsh and consulted a chiropractor on Unley Road. He has continued to see Dr Cox and has had chiropractic treatment to the present. Dr Cox has prescribed various medications.
Since his release from prison in 1999 the only consistent work, which the plaintiff has carried out, has been noodling for opal at Coober Pedy. That involves sifting through loose material to recover any opal which has been left behind. He carries out that work once or twice a week for about an hour or so at a time in a seated position.
At times the plaintiff did other mining work which involved descending a mineshaft on a seat attached to a winch. He has done that on less than a dozen occasions. Whilst down the shaft he would look for seams of opal in the walls where tunnelling machines had been. On occasions he used a drill attached to a 2½-inch auger to drill into the sandstone. That work caused difficulties in his leg area and back. On occasions he had to stop. He has also carried out work with a pick and with a shovel. Precisely when he carried out the work is vague. He has not been diving since he was released from prison in July 1999. The only labouring work he has done since June or July 1999 has been around his own house except for one occasion when he assisted with cementing at his sister’s house. He said the work “nearly killed” him. He no longer runs. He continues to feel pain in his buttocks and a tingling down his thigh. He is in a relationship with a woman but his libido has reduced “probably from three times a day to about three times a week” and he makes “modifications” so that his back does not hurt.
The primary issue in this case is whether the defendant is liable for the injury alleged to have been suffered by the plaintiff. There is a secondary question as to the extent of the alleged injury.
At one time the plaintiff lodged a claim with the WorkCover Corporation. Presumably that was rejected because the plaintiff was not a worker. If he was a “worker” he would not be entitled to damages at common law.
Liability
The proceedings are brought pursuant to section 5 of the Crown Proceedings Act 1992.
The plaintiff relies on section 86A of the Correctional Services Act 1982 which provides that a liability which would lie against an employee of the department lies against the Crown. The relevant employees are Mr Bornholm and Mr Coulthard. The plaintiff asserts that he was directed to undertake the specific task of digging the holes for the windmill by the officers supervising the camp, in particular Mr Coulthard.
The particulars of negligence set out in paragraph 10 of the Amended Statement of Claim are as follows:
The defendant was negligent in that it by its servants and/or agents:-
10.1Failed to arrange and implement a safe system for performing the task, in particular by directing the plaintiff to undertake the particular task with a particular implement. This was negligent because:-
10.1.1The task involved the manual excavation of numerous holes in excess of 1 metre in depth. To do so, the plaintiff was required to stand on the ground and bend progressively lower as the depth of the hole increased. This was unsafe;
10.1.2The plaintiff was provided only with a crow bar to dig the hole. This was inadequate. The composition of the soil was hard. It comprised clay and contained rocks. It was unreasonable to expect the manual excavation of holes, by crow bar, in such material. Some mechanical means to break up the soil should have been made available to the plaintiff; and
10.1.3The plaintiff was over 45 years of age. It was unreasonable and negligent to direct and thereby require the plaintiff to excavate the number of holes in the particular soil, with only the use of a crow bar.
10.2Directed the plaintiff to perform the task when the defendant knew, or ought to have known that the system for performing the task was unsafe.
10.3Failed to warn the plaintiff adequately, or at all of the danger in using a crow bar at the depth that was required for the purpose of performing the task.
10.4Failed to provide the plaintiff with any mechanical means to assist in performing the task.
10.5Failed to provide the plaintiff with appropriate hydraulic equipment to assist in performing the task.
The plaintiff acknowledges that there was no employer/employee relationship between the plaintiff and the defendant.
Paragraph 11 of the Amended Statement of Claim alleges that in addition to the matters set out in paragraph 10 the plaintiff’s injuries were caused as a result of the defendant’s breach of statutory duty, in particular its breach of section 29 of the Correctional Services Act 1982 as amended. Particulars of the breach are set out in paragraph 12 where it is alleged that the defendant directed the plaintiff to perform work for which the plaintiff was unsuited given his age and physical health.
The plaintiff argued that the defendant ought to have provided him with a mechanical means to assist in performing the task. A jackhammer was suggested as a reasonable possibility to alleviate the physical exertion that was required. There was also a suggestion during evidence that an auger attached to the rear of a tractor might have been used to excavate the holes, but that suggestion was not followed up in the closing address. In any event, it has not been established that a tractor and auger was available at the relevant time or that the site was suitable for the use of a tractor. Photographs of the base of the windmill show that the land was on a slope.
At the time the plaintiff was 45 years of age and it is alleged that it was unreasonable to direct him to excavate the holes. It is claimed that it ought to have been obvious to Mr Coulthard and/or Mr Bornholm that any prisoner, let alone a person of the plaintiff’s age, may have been at risk of injuring their spine when required to perform the task in the manner directed and that it was foreseeable that the plaintiff may injure himself when performing the task.
It is clear that prison authorities do owe a duty of care to prisoners. Halsbury’s Laws of England[1] states:
The duty on those responsible for one of Her Majesty's prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff; or at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.
[1] 4th ed reissue, vol 36(2), par 565
In New South Wales v Bujdoso[2], the High Court of Australia approved that summary of the law. In that case the Court said that a prison authority was under no greater duty than to take reasonable care and held that because the respondent was a known likely target of other prisoners the appellant was under a duty to adopt measures to reduce the risk of harm to the respondent.
[2] [2005] HCA 76 (8 December 2005)
The existence of the duty had also been acknowledged a few months earlier in State of New South Wales v Watzinger[3] where the respondent was a plumber who had been sentenced to imprisonment for six months in a low security establishment for the possession of cannabis. He was assigned to plumbing work and directed to disconnect a large (1 tonne) industrial washing machine. Having disconnected the machine he commenced to move it single-handedly using a crowbar and six steel pipes as rollers. During the course of the operation the machine became stuck and whilst the respondent was attempting to free the machine he suffered an injury to his hand. The trial judge had proceeded on the basis that the position of a prisoner was more akin to that of an employee rather than someone who was an independent contractor.
[3] (2005) NSWCA 329
On appeal, senior counsel for the respondent submitted that the position of the respondent was analogous to that of an employee and that there was no effective difference in the duty owed to him by the appellant and that owed to an employee. Campbell AJA rejected that contention and referred to his own decision in Helmers v Department of Corrective Services[4] where he held that a prisoner working in the situation of the respondent was not working under a contract of service. While the existence of a duty of care was accepted, the issue was to define the ambit of the duty. Campbell AJA referred to the reasons of McHugh J in Tame v New South Wales[5] where His Honour said:
Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47-48 in a passage that is too often overlooked:
‘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’. (emphasis added)
[4] [1997] 14 NSWCCR 248
[5] (2002) 211 CLR 317 at 353
Campbell AJA said it would have been appropriate for the trial judge in Watzinger to consider the application of what he described at “the Shirt calculus”.
Campbell AJA referred to other cases involving prison authorities. He referred to Quinn v Hill[6], a decision of the Victorian Full Court, where Smith J, after observing that the problem was to determine the extent of the duty owed by a wardress to a prisoner who had injured herself working on a mechanical mangle in a laundry of which the wardress was in charge said:
In these circumstances the duty owed by the deceased to the respondent must, I think, be held to have extended at least this far, that it required the deceased to exercise reasonable care in making an allotment of work to the respondent so as to avoid exposing her to undue risk of physical injury.
[6] (1957) VR 439
Campbell AJA referred to Hall v Whatmore[7] which is referred to in Morgan v Attorney-General[8] where Tompkins J said at page 137:
The remainder of the particulars appear to have been framed on the footing that the duty owed by the servants and agents of the Crown to the plaintiff and the measure thereof are the same as that which would have been owed to the plaintiff had he been an employee of the Crown. This in my view is entirely wrong. The defendant, Whatmore and other employees of the Crown concerned with the imprisonment of the plaintiff owed a duty to take reasonable care not to order or direct him to work on a machine that was dangerous and from the operation of which the plaintiff was likely to come to harm. But this is a very different thing from a duty to cause the machine to be made safe whether by the placing of guards thereon or otherwise.
Tompkins J said at page 137 that the Prisons Department was not subject to the duties of an employer to provide safe equipment or a safe system of work. In attempting to determine the extent of the duty. , His Honour said at page 140:
I think, applying the above cases, that the Superintendent and each of his subordinate prison officers owed a duty to the plaintiff to take reasonable care for his safety during his detention. This duty, however, did not go so far as to put them under a duty to provide safe equipment or a safe system of work. Their duty is limited, so far as the employment of the prisoner is concerned, to using reasonable care not to allot the prisoner to work, and not to give him orders, which they could reasonably foresee would cause harm to him. They are not under a duty to warn the plaintiff of dangers in his work.
[7] (1961) VR 225
[8] [1965] NZLR 134 at 137
Campbell AJA referred to R v Marshall[9] where the Canadian Federal Court applied the decision of the Supreme Court of Canada in McLean v The Queen[10] which held that “the duty that the prison authority owes to the (prisoner) is to take reasonable care of his safety as a person in their custody” and McCoy v Engle[11], which was an appeal in respect of an injury to a prisoner working on a prison farm, where the court said that “in the context of the custodial relationship between the state and the prisoner, the state owes a duty of reasonable care and protection from unreasonable risks” and:
Having established that the state owed plaintiff a general duty of care, it should also be remembered that the duty does not exist in the abstract. Thus, where a prisoner also performs labor for the state, the duty owed by the state must be defined in the context of those additional factors which characterize the particular work performed. Accordingly, we hold that the state was under a duty to protect plaintiff against those unreasonable risks of physical harm associated with the performance of his duties as a ‘farm hand’.
[9] [1985] 57 NR 308
[10] (1972) 27 DLR 3rd, 365
[11] 537 NE 2d 665 (Ohio App 1987)
Counsel for the respondent in Watzinger had referred to Australian Safeway Stores Pty Ltd v Zaluzna[12] as an example of the departure from narrow categories of cases, such as the relationship with employer and employee, with distinct features in favour of a more general standard of care. After acknowledging remarks of Heydon J in Andar Transport Pty Ltd v Brambles Ltd[13] to the effect that “the relationship of employer and employee is one in which the law has for a long time been exceptionally solicitous for the employee’s interests because of the control which the employer has over the incidents of the relationship”, Campbell AJA said (at paragraph 123):
That, however, is a very different thing to saying that, because the prison authorities control the incidents of the relationship with the prisoner, a prisoner should be taken to have the same relationship as an employee. Such a proposition is, amongst things, contrary to the authorities to which I have referred.
[12] (1986-1987) 162 CLR 479
[13] (2004) 217 CLR 424
Campbell AJA concluded by acknowledging the existence of a duty to take reasonable care for the safety of a prisoner whilst in custody and said that if the prison authorities had expressly or impliedly directed the respondent to move the washing machine then a duty was owed to him to provide him with such mechanical or manual assistance, or both, as was necessary to allow that operation to be carried out with reasonable safety; but that the authorities to which he referred did not extend the duty to warning or supervising the respondent. It was relevant that the respondent was an experienced plumber.
The duty owed to an employee was articulated by the High Court of Australia in Turner v State of South Australia[14]. Gibbs CJ said at page 670:
The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. ‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment’: Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319.
Gibbs CJ also said:
Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.
[14] (1982) 42 ALR 669
In the present case the defendant relies upon Wyong Shire Council v Shirt[15]. The full statement of Mason J which was set out by McHugh J in Tame is:
..... in deciding whether there has been a breach of a 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.
[15] (1979) 146 CLR 40
The particulars of negligence in the present case are wide ranging. They assert an unsafe system of work, failure to warn of the dangers of using a crowbar, failure to provide any mechanical means to assist in performing the task and failure to provide appropriate hydraulic equipment to assist in performing the task.
I proceed on the basis that the defendant owed a duty to take reasonable care, but the duty was less extensive than the duty owed by an employer to an employee. Accordingly, I find that the duty owed by the defendant did not extend to providing a safe system of work or providing mechanical equipment.
In evidence the plaintiff said that he had done a lot of digging and jack hammering and things like that and that he was familiar with the use of a crowbar by reason of his experience over many years. I find that the plaintiff was familiar with the use of a crowbar. I am not satisfied that a crowbar was such an unusual implement that the defendant was required to give the plaintiff special instruction in its use.
The evidence as to the plaintiff’s method of using the crowbar does not establish any reason for instruction or an appreciation that there was a risk of injury. There is no evidence that the injury was caused by the incorrect use of the crowbar by the plaintiff.
There is nothing inherently dangerous about a crowbar per se.
I find that the requirement that the plaintiff use a crowbar to excavate the hole was neither unreasonable nor negligent. That finding is reinforced by the circumstances in which the work was to be performed.
If there was an identifiable risk of injury it would have been reasonable to require the defendant to consider an alternative means of work. Special equipment could have been brought in if necessary. There is no evidence that the erection of the windmill had to be completed during that particular camp. There was other work that the men could have been directed to carry out instead of the erection of the windmill if there was an apprehension that the excavation of the holes by means of a crowbar and shovel involved a foreseeable risk of injury. However, as I have mentioned, there was no identifiable risk associated with the use of a crowbar which would have required an alternative system to be implemented.
When the work party left for the site of the windmill all that was known was that three holes measuring about 1 metre by 30 centimetres had to be excavated on the edge of the dam. There was nothing to suggest that the excavation of the three holes would present any unusual difficulty which would require the use of special equipment. The hardness of the soil was not known.
The plaintiff’s evidence was that he and Mr Blatchford started digging the subject hole when it was getting close to lunchtime “perhaps 11.00 or 11.30am”. The men stopped work for one hour from 12.00 until 1.00pm. The plaintiff said that the first 8 to 10 to 12 inches of the excavation was relatively loose. Thereafter it changed in colour to “a really dark soil” which was “really hard” or “rock hard”. He said he had to put the crowbar into the hole may be 20 or 30 times to get an edge on it. The hole had been excavated to a depth of a metre or more. The plaintiff said that reaching that stage had taken a fair while and that while he was digging he experienced pain. That was obviously the time at which he suffered the injury. He said that they were getting to the bottom of where they were going and “it was getting on to a metre or past a metre, it was getting deep”. By that time he was required to bend over to use the crowbar. He said he was using a fair bit of strength to try and break that soil up and was driving pretty hard.
Overall, that evidence indicates that notwithstanding the fact that the soil may have been hard, the men made reasonable progress with the hole. The plaintiff said that the time when he felt the pain could have been half an hour after lunch. If that is correct the plaintiff and Mr Blatchford had been working on the hole for a total of about one hour, that is from 11.30 to 12.00 and from 1.00 to 1.30pm. The camp diary records that the injury occurred at 1300 hours. If that time is correct then the total time occupied by the excavation may have been less than one hour. In any event, the plaintiff and Mr Blatchford had made reasonable progress with the excavation.
There is no reason to calculate the exact period of time that the plaintiff was working on the hole. What is significant is that it was not an impossible task and the men had made good progress and almost completed the hole at the time that the plaintiff felt the pain in his back. The fact that the hole was capable of being excavated in one to one and a half hours indicates that it was not unreasonable to require the men to excavate the hole with a crowbar and shovel.
There is no reason not to accept the evidence that the soil was firm and that the work was hard. However, that does not mean that it was unreasonable for the supervisors to persist with the work using a crowbar and shovel. The existence of the hard dark soil was not identified until the men had travelled to the site and excavated approximately one third of the required hole. Until that stage had been reached there was no reason to consider an alternative means of carrying out the excavation.
If I was to consider the application of the “Shirt calculus” in the way that Campbell AJA suggested the learned trial judge should have done in Watzinger, I would be required to weigh 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. In my opinion the magnitude of the risk was minimal as was the degree of the probability of its occurrence. On the other hand the expense and inconvenience of taking special equipment such as a pneumatic drill to Olympic Dam at Danggali Conservation Park would in the context of the MOW camp have been considerable. Whether a pneumatic or some other drill would have assisted is debatable, but even if it would have been that does not mean that the completion of the final two thirds of the hole with the use of a crowbar involved an unacceptable risk. The three holes were completed in a reasonable time with the use of crowbars.
In Exhibit P6, photograph 11; there is a yellow object in the shed which is said to be an air compressor. The photograph was taken last year, that is six years after the injury. The photograph does not establish the ready availability of a compressor in 1999. The plaintiff gave evidence that he did not see tractors at Danggali Conversation Park in April 1999. He could not remember other equipment at the site apart from the shovel and the crowbar.
If the magnitude of the risk and the degree of probability of its occurrence was significant then the prison officers should have made arrangements for the equipment to be made available, but as I have said that was not the case and there was no reason for an alternative to a crowbar and shovel to be made available.
At the time when the party left Port Augusta Prison there was no reason to foresee any undue risk of injury. Even after the harder soil had been encountered there was no reason to foresee any undue risk of injury. There was no reason why the two prison officers should have directed the plaintiff to stop working with the crowbar.
For these reasons I find that while the defendant did owe the plaintiff a duty to take reasonable care the defendant was not in breach of that duty.
Plaintiff’s counsel drew my attention to the evidence of Mr Coulthard. As to the planning of the excavation Mr Coulthard said “it’s one of the things that once we get ordered to do something we’ll just do it. They wanted the windmill there and we carried out our responsibilities”. Counsel relied in particular on the next question and answer which was as follows:
QMy learned friend put to you the situation of the use of a jackhammer. Obviously if you’ve gotten some way into the process, a couple of feet or more, would you consider if it was difficult stopping the process then and getting a jackhammer in to complete the process.
AIf it was up to me I would have but, like I said, I was only a MOW camp supervisor and the Department for Environment and Heritage were the sponsors and we had to meet their time-frame as well as ours.
While Mr Coulthard said that with the size hole that they were digging a jackhammer would have been more useful, his evidence does not establish that the continued use of a crowbar was in breach of any duty of care. A jackhammer may have made the task easier, but that is not the test.
Because of my finding that the defendant was not negligent the question of contributory negligence does not arise.
In the alternative, the plaintiff alleges that the defendant was in breach of its statutory duty in particular section 29 of the Correctional Services Act 1982 in that it directed the plaintiff to perform work for which the plaintiff was unsuited given his age and physical health.
When he applied to go on the MOW camp the plaintiff advised the person who interviewed him that he was fit to participate as a labourer on a camp and that he had skills as a labourer. The prison authorities had no reason to suspect that the plaintiff was not fit to use a crowbar.
The plaintiff said that he had done a lot of digging and jack hammering and things like that and that he was familiar with and had used a crowbar in performing the task at hand previously. He acknowledged experience over many years and said that he had “dug a lot of holes”. He said he was familiar with the use of a crowbar in these situations. It did not surprise him when he saw shovels and crowbars being taken from the vehicle for the job at hand.
The plaintiff said he did not need any training because being 45 or 46 he had probably done most things anyway. The question of training was not discussed. He agreed that there was not much to the use of a crowbar and said “crowbar’s a crowbar, you just you know, you use it for the purpose”. He agreed that he was very familiar with the use of a crowbar and shovel. The plaintiff had a choice as to whether he or Mr Blatchford used the shovel as against the crowbar. The plaintiff thought that he was a bit thicker set than Mr Blatchford and that he could operate the crowbar better. It did not bother him whether he did the shovelling or the crowbar.
I find that there was no breach of subsection 29(4) of the Correctional Services Act 1982. It is unnecessary to consider whether the relevant direction was the general decision by the person in charge of the Port Augusta Prison to allow the plaintiff to attend the MOW camp or whether Mr Coulthard or Mr Bornholm was a “manager” for the purpose of section 24(4). There was no reason why the plaintiff should not have been directed to carry out the work.
The alleged injury/causation
There is evidence that the plaintiff had suffered from back problems since 1996. The entry made in the Port Augusta prison medical centre on 3 May 1999 indicates that the plaintiff did have back problems prior to 20 April 1999. I interpret the note to refer to problems additional to those which the plaintiff suffered from in 1996.
Despite the plaintiff’s denial I find that ultrasound treatment was applied to his lower back in the Port Augusta Prison on 14 April 1999. It follows that the plaintiff was experiencing back problems shortly prior to attending on the MOW camp in April 1999.
The evidence does not enable the problems from which the plaintiff was suffering with his lower back immediately prior to his attendance on the MOW camp to be identified. That gives rise to a difficulty in determining the extent of the injury caused by the alleged incident on 20 April 1999.
I do accept that the plaintiff sustained a back injury on 20April 1999. That is established by the plaintiff’s evidence that he felt pain and had to sit down and the evidence of others as to their observations of him on 20 April 1999 and the following days. There is also the camp log for 20 April 1999. Overall the evidence does establish a worsening of his condition on 20 April 1999.
The entries in the progress sheet for 29 April, 30 April, 2 May and 3 May 1999 establish that back pain had persisted from 20 April up until 3 May 1999.
The plaintiff described the pain following 20April 1999 as a “persistent niggling” that “was generally always there, sometimes a bit lesser and sometimes a bit worse”. If he tried to do too much there would be aggravating pain and he would have to “steady down a bit”, but he “could go along steady”. When he did “steady down a bit” his back “was just generally sore”.
The plaintiff resumed running about ten days after 20 April 1999. Sometimes he would run 15 kilometres a day. He experienced the “persistent niggling” when he ran. The plaintiff cannot recall whether he took any medication. He could not recall whether he requested to go on the second MOW camp but must have done so. The plaintiff said “I just naturally thought that I’d probably get better”
The evidence is vague as to the position between 3 May and 10 June 1999.
On the second MOW camp the plaintiff and the other men used chainsaws to cut trees and picked up stumps. The plaintiff did not complain of pain in his back. He said “it was just niggling me a lot or all the time, but I just thought it will probably go away”. He said “I was still in a bit of pain but I wasn’t complaining much about it because I wanted to be free anyway, I didn’t want to be locked up in the prison”. On one day he walked from the camp to Olympic Dam and back. The dam was a kilometre or more away. At that time he “felt all right”. He was able to work on fences rolling up wire. He could not recall whether he experienced any difficulties in relation to his lower back whilst working at Birthday Hut, although he said whilst working at Birthday Hut on the second occasion rolling up wire “I was getting niggly pains all the time but I mean who’s going to complain...”. Mr Blatchford applied Deep Heat to his back on most days.
The second MOW camp lasted from 14 to 27 May 1999. During that time the plaintiff made no “official complaints” in relation to his back.
In cross-examination it was put to the plaintiff that when he attended the second MOW camp he was in a position to undertake work and that is why he put himself forward as a normal worker. He replied “I’d had probably a fortnight of massages by then and that may have helped me feel better”. During the second camp he went for a run of up to 10 kilometres on most days. He said that while his work was mostly rolling up wire he did try to get light duties. His reason for going on the runs was “I thought they would assist with the blood flow and everything like that to get me better”.
After the second camp the position of the plaintiff was such that he felt able to volunteer for the third MOW camp scheduled to begin on 11 June 1999. The plaintiff volunteered for the third camp because he thought anything was better than sitting inside the prison walls and wasting away.
It was on the night of 10 June 1999 that the plaintiff experienced excruciating pain in his back and thigh which prevented him from sleeping. He was hospitalised at 5.00am on 11 June 1999.
The plaintiff said that the last time he pulled a muscle in his back he ran and the problem went away. When asked when the last time was that he actually pulled a muscle in his back he said “in ’96 some time, I think it was”. He did not mention a problem on 14 April 1999 and his answer does not accommodate the note made on 3 May 1999 that he had had previous back problems which were usually fixed by a chiropractor. In fact, the plaintiff said:
I didn’t experience any pain before while I was in prison. Outside of prison I did, yes, but that’s a couple of years, three years before something but not – while I was in prison I didn’t until that 20th.
He said he did not recall receiving ultrasound treatment prior to 20 April 1999 in relation to his lower back. When it was suggested that he may have been mistaken he said “I don’t think so because I wasn’t having any pain prior to that because I was running then. I was running 10, 15 ks a day then. I wasn’t experiencing anything.....”.
The fact that the plaintiff had had ultrasound treatment less than one week prior to the alleged injury on 20 April 1999 is not the sort of thing that he would be likely to forget. The need for ultrasound treatment on 14 April 1999 is highly relevant to the claim of an injury on 20 April 1999. The failure of the plaintiff to acknowledge the problem on 14 April 1999 is a reason to doubt his credibility. Otherwise I found him to be a truthful and reliable witness.
I think the evidence does establish that there was an injury on 20 April 1999. The difficulty is to identify the extent of the injury. That difficulty is made greater by the apparent improvement after 20 April 1999 up until 10 June 1999 when the ultimate problem arose.
Dr G A J McCulloch, a neurosurgeon, examined the plaintiff on 23 March 2000. As with the other medical practitioners the history which he was given was incomplete. In the case of Dr McCulloch he was told that the plaintiff was due to return to another work camp on 9 May 1999 but then developed left anterior thigh pain of a very great severity and was unable to work. As I have mentioned, the plaintiff did attend the May camp and it was not until 10 June 1999 that the pain became incapacitating. In addition, Dr McCulloch was not told that the plaintiff had been running between 20 April and 10 June 1999.
Dr McCulloch said that an MRI scan taken 12 July 1999 establishes that there is probably no fragmented disc at L3-4 but that at L4-5 there is a left lateral disc protrusion which exerts mass effect upon the L4 nerve root within the left L4 foramen. He said that was the real cause of the problem and that there is no question at all that it is the disc protrusion which is responsible. He said:
I think putting this altogether there is no question, the cause of his symptoms at that stage was this L4/5 disc protrusion with this pressure on to the left L4 nerve root, with displacement of the left L4 nerve root.
When asked whether that abnormality was something which might have been caused by the use of a crowbar, he said:
If you look at the total overall history, yes, that is so. It is the sort of situation where an injury such as he describes could have caused a disc tear with a fragment to squeeze out and trap the nerve root, yes, as a general answer that is so.
He said it could be that the incident of 20 April 1999 led to a partial tear but from looking at the x-ray alone you simply do not know and:
All you can say is that there is a significant degree of disc protrusion compressing the nerve root and whether that has come from a partial tear on 20 April 1999, worsened over a period of time by other factors or by the lapse of time, just looking at the x-ray you really can’t say.
He agreed that some other incident, other than the use of the crowbar, could be responsible for the tear and the bulge. He said a person with a grade 1 tear of the annulus, not necessarily with a bulge, would suffer from a painful condition. In such a case a person could struggle on and do lighter activities but heavy physical work would be difficult.
If the use of the crowbar had caused a tear on 20 April 1999 the plaintiff would only have been able to undertake a run of 10 to 15 kilometres in distance if the fragmented disc had moved back inside. Dr McCulloch said:
In other words there would have been a partial recovery or healing in the sense of reduction of the disc. It still would have been possible – let us say he just simply had a partial tear of the disc, there was no disc tissue protruding out, then yes, I think he would have been able to do that some three or so weeks later, yes, that would be possible with some pain, but it would have possible.
While a disc is protruding against a nerve root there is a weakness in the leg and running would be difficult and painful to the extent that a person simply would not do it. He said that if the plaintiff was running “you could say fairly categorically that as of 10 May or 12 May there was not a fragment of disc pressing on the nerve”.
On the basis of that evidence I find that the L4-5 disc protrusion, if it existed, during the period from 20 April to 10 June 1999 was not causing a displacement of the left L4 nerve root. The evidence suggests that the plaintiff’s condition had improved between 20 April and 10 June 1999, perhaps because the fragmented disc had, to use the expression of Mr McCulloch, moved back inside.
The symptoms described by the plaintiff suggest that some event occurred on 10 June 1999 which gave rise to the increase in pain and incapacity which led to the hospitalisation on 11 June 1999. No aggravating event has been identified. It could have been running or it could have been something else. The plaintiff’s evidence does not describe the event which caused the excruciating pain on 10 June 1999.
If on 20 April 1999, the plaintiff had suffered a tear of the L4-5 disc which at that time was free of symptoms and that tear was subsequently exacerbated over a period by the plaintiff’s normal activities such as running, so that the protrusion eventually produced pressure on the left L4 nerve root with the displacement of the left L4 nerve root, then the plaintiff’s ultimate condition on 11 June 1999 could be attributed to the injury on 20 April 1999. A difficulty is that the evidence can not resolve the question of whether the underlying weakness in the L4-5 disc was caused by the use of the crowbar on 20 April 1999 or whether the underlying weakness preceded 20 April 1999 and was responsible for the low back pain which the plaintiff complained of on 14 April 1999.
Dr McCulloch said that if there were symptoms involving the plaintiff’s lower back, left thigh and groin following an incident on 20 April 1999, but there was a significant increase in those symptoms on or about 10 or 11 June 1999, that was consistent with there being some migration of disc material between April 1999 and June 1999 to the extent that by June 1999 the material was impinging on a nerve root. He said that would account for the fact that the plaintiff had been able to do some running after 20 April 1999 even if he had suffered a partial disc bulge at the L4-5 level on 20 April 1999. He said the movement of disc material is a common phenomenon and:
Once there is an actual breach in the outer rim of the disc, the possible consequences may be gradual healing without migration of the disc, or it may be migration of a fragment of the disc out through the hole and into the spinal canal to compress the nerve, and that migration may occur as a consequence of a number of factors such as further injury, for example by running or bending or lifting; they also occur spontaneously without any of those activities. I cannot say which it was from the radiological findings.
Dr McCulloch said that the history given suggested some migration and a significant increase in the plaintiff’s symptoms.
I find that is what happened. However, the difficulty is to determine whether the initial tear of the disc occurred on 20 April 1999 or whether it was pre-existing and was the cause of the pain which the plaintiff complained of on 14 April 1999.
The evidence of Dr Molloy is of little assistance in determining the issue of causation. She was retained to treat the back pain and was not required to form an opinion as to the cause of the pain. The history which she had obtained was simply that the plaintiff had complained of low back pain whilst at the MOW camp. She had no reason to explore the detail referred to by Dr McCulloch and did not know of the complaint of pain on 14 April 1999 or the events between 20 April and 10 June 1999. She did say that the injury which the plaintiff experienced was consistent with the use of a crowbar, but because of the incomplete information provided her evidence is not determinative of the issue of causation. Dr Molloy was unaware that the plaintiff had attended the second camp and carried out normal duties. Dr Molloy also said that a disc injury normally takes at least eight weeks before it starts to improve and some people who do not realise they have injured themselves keep working through the pain.
The history taken by Mr Haseldine’s general practitioner, Dr W W Cox, takes the question of causation no further. Dr Cox reported that he saw the plaintiff on 16 July 1999 when he admitted injuring his lower back while digging footings for a windmill. He did not address the question of causation.
On balance, I am satisfied that the plaintiff did suffer an injury to his back on 20 April 1999 because there was a noticeable worsening of his condition on that day. On the basis of the evidence of Dr McCulloch, I find that on 20 April 1999 the work with the crowbar caused an L4-5 disc protrusion which over the period between 20 April and 10 June 1999 ultimately resulted in pressure on the left L4 nerve root with displacement of the left L4 nerve root.
I find, on the balance of probabilities, that notwithstanding the earlier problems, the substantial cause of the plaintiff’s back pain was a tear in the disc at L4-5 which was caused on 20 April 1999 and progressed over the following weeks to the extent that pressure was applied to the L4 nerve root. The progression of the injury may have been aggravated by activities such as running, but the potential for deterioration was created by the injury sustained on 20 April 1999.
Damages
I proceed to assess damages in case my determination on liability is held to be erroneous.
The plaintiff is to be compensated for a period of severe pain and a period of hospitalisation. Over time the severe pain settled and the plaintiff is left with a permanent residual disability. Dr Molloy has assessed that as a 35% impairment of the lumbar spine and a 20% impairment of the left lower limb due to motor weakness and loss of function of the left lower limb. She considers the condition stable and is not aware of any non-organic features. His capacity for work has been severely affected. He is not able to carry out any lifting activities.
Placing a percentage on the disability is rather artificial. It is more appropriate to look at the way in which the disability affects the plaintiff’s day to day activities and his capacity for work.
The plaintiff’s inability to engage in hard work must be considered in the context of his age, the deterioration of his spine which was identified in 1996 and the other unidentified problem which caused lower back pain on 14 April 1999.
In 1999 surgical intervention was recommended but the time for that has now passed by and the condition has settled.
I assess damages in respect of past non-economic loss at $30,000 and damages in respect of future non-economic loss at $30,000.
So far as the plaintiff’s past loss of earnings are concerned I am not satisfied that he has suffered a fixed weekly loss over the period. There is a possibility that he may have obtained a grant from ATSIC to operate a courier business. There is also the possibility that he may have worked in partnership with Mr Paul Kelty operating a retail shop selling furniture, but I think the likelihood of that happening was remote. If the plaintiff wanted to work as a salesperson now he probably has the capacity to do that or similar work.
In the past the plaintiff had the capacity to work as a diver, but that involved the “poaching of abalone” and the work was not legal. Nevertheless he did have the capacity to carry out the work.
The most significant fact is that the plaintiff did not have a record of constant employment prior to the injury in April 1999. His background suggests that he is not the type of person who would ever settle down and be confined to a regular job.
I think the better approach to the economic loss is to award a global figure. In fact counsel for the plaintiff suggested that and referred to Green v Wardleworth[16]. I would have adopted that approach in any event.
[16] (1996) 187 LSJS 247
For past loss of earnings the plaintiff is to be compensated for the period from July 1999 when he was released from the Port Augusta Prison to the present. That is approximately seven years. For loss of earnings including the loss of the superannuation benefit I would have awarded a global figure of $75,000.
The plaintiff is now aged 52½ years. There are therefore 7½ years before he will attain the age of 60 and 12½ years before he will attain the age of 65. One does not know whether he would have worked to the age of 60 or the age of 65. He still has some capacity for work. Whether he could in fact find employment if he wanted to is uncertain. He is able to carry out noodling work in an opal mine. There is no reason why he could not carry out other tasks in an opal mine. Whilst he has some incapacity for work he is not totally incapacitated.
For future loss of earnings including loss of a superannuation benefit I would have fixed a further lump sum of $75,000. In arriving at that sum I have taken into account both positive and negative contingencies.
The special damages have been agreed at $4,688.30. I would have allowed that amount.
I disallow the cost of travelling to Adelaide to consult with Dr Cox. A sum in excess of $800 is claimed for travelling for each consultation with a general practitioner. There are general practitioners in Coober Pedy and it is not reasonable for the defendant to be required to pay $800 per visit so that the plaintiff can consult the doctor of his choice. However, the cost of the consultations themselves should be allowed.
So far as future medical expenses are concerned I make no allowance for future surgery. The time for surgery has passed.
The plaintiff will need to see a general practitioner for a prescription for the drugs that he takes. Doctors do provide repeat prescriptions and monthly are not necessary. The evidence does not establish that all of the plaintiff’s consultations with Dr Cox were a consequence of his back injury. Exhibit D10 shows that Dr Cox is treating the plaintiff for conditions other than the back condition. For future medical expenses I allow six visits per year at $35 per visit, that is $210 per annum. I allow $250 per annum for future physiotherapy or chiropractic treatment. That is a total of $460 per annum. The present value of a loss of $460 per annum to a person aged 52½ years is $8,460. I would have allowed the sum of $8,460 for future medical expenses.
A claim for the cost of gratuitous services has been abandoned.
I make no allowance for interest. That would need to be considered at the time judgment was entered in the plaintiff’s favour.
It is unnecessary for me to total the various items of damage because the plaintiff’s claim should, in my opinion, be dismissed.
There will be judgment in favour of the defendant against the plaintiff.
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