Husson v Keppel Prince Engineering Pty Ltd
[2006] VSC 412
•3 November 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 1366 of 2005
| HUSSON | Plaintiff |
| V | |
| KEPPEL PRINCE ENGINEERING PTY LTD | First Defendant |
| & | |
| ALCOA PORTLAND ALUMINIUM PTY LTD | Second Defendant |
---
JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 – 22, 26 – 29 September 2006 | |
DATE OF JUDGMENT: | 3 November 2006 | |
CASE MAY BE CITED AS: | Husson v Keppel Prince Engineering Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 412 | |
---
Negligence – plaintiff employee of subcontractor – injured to back resulting from work place hazard – pre-existing asymptomatic spinal condition - rejection of plaintiff’s evidence as to a belief as to origin of the hazard did not lead to reject the fact of the hazard - whether occupier breached duty of care – contribution between defendants – damages for pain and suffering – damages for economic loss
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin SC with Mr. J. Carmody | Stringer Clark |
| For the First Defendant | Mr D. Curtain QC with Mr. R. Middleton | Lander & Rogers |
| For the Second Defendant | Mr. P. Rose SC with Mr. G. Moloney | Hunt & Hunt |
HIS HONOUR:
The plaintiff is a 46 year old rigger who alleges he was injured on 26 April 2001 at the Portland Aluminium Smelter operated by the second defendant ("PA").
On that day the plaintiff was employed by the first defendant, Keppel Prince Engineering Pty Ltd ("KP") as part of a team carrying out maintenance upon the No. 2 caster within the ingot mill building at the smelter. The plaintiff's principal duties involved working with cranes and forklifts for the purpose of general maintenance, including using chain blocks and removing and installing items of machinery.
On this occasion as part of a series of works required to be done during a 12 hour shutdown, the plaintiff was required to participate in the removal of a hydraulic ram forming part of a centering device.
In the course of the ordinary operation of the mill, ingots were conveyed following casting, to a cooling cabinet within which they travelled up an ascending conveyer deluged with water. The cooling cabinet comprised a series of three attached enclosed sections increasing in height to accommodate the conveyer as it rose.
The ingots then moved from the cooling conveyer onto a layer conveyer which transferred them to a grab machine by which they were either stacked in bundles or rejected.
The centering device was located at the point where the ingots came out of the cooling cabinet and moved from the cooling conveyer on to the layer conveyer.
The purpose of the device was to realign ingots as necessary as they moved from the cooling conveyer to the layer conveyer.
In order to move the hydraulic ram which powered the centering device, the practice adopted by KP employees was to employ a team consisting of one or two workers above the conveyer (usually fitters) and one below.
The plaintiff was commonly asked to work below the conveyer because the space was confined and in particular head room was relatively low (approximately 4'6"). The plaintiff was of relatively short stature (5'7") and accordingly better able to work within the space than a number of his colleagues.
In order to remove the ram the workers above him unbolted it from its supporting brackets and lowered it (using a rope to assist in its handling) through an opening to the plaintiff immediately below. The precise weight of the ram is uncertain (its equivalent is no longer manufactured from cast iron but from a lighter alloy) but it was approximately 10 kilograms in weight and required handling in a vertical position initially.
The plaintiff received the ram when situated in an area under the conveyer where he could hear (subject to the effect of noise-protection ear muffs) but could not readily see his workmates above. They were in a like position in relation to the plaintiff.
The plaintiff took the ram in his hands and clasped it to his chest. He then backed "gingerly" back towards the cooling conveyer cabinet. He said in evidence that he had to move backwards in this way because he could not walk forwards in the constricted space available to him.
He further said that when he backed backwards he struck his mid back to the left side of his spine in the region of the belt line, upon a protrusion jutting out from one of the twin columns supporting the upper end of the cooling conveyer cabinet and forming part of a box section frame ("the end columns").
The plaintiff said the impact caused him sudden pain and he felt sick in the stomach. He cried out, put down the ram and clasped his back. He turned and looked at what he had struck, grasping the protrusion with his gloved hand.
"I had a quick look at it, it was a piece of steel hanging out of a beam."
The protrusion appeared to have been created by cutting with oxyacetylene welding equipment. The plaintiff said that it jutted out some 80 to 100 millimetres with a "jaggedy tooth honeycomb edge on it and it was a little bit pointy." He said further:
"… it wasn't cut square or anything. It was just cut off in a random cut."
"So it's not pointy and it's not jagged, it's just a mixture of a pointy jagged piece, it didn't go left or right or up or down, it just hung out of the column."
The plaintiff asserted that the protrusion was the remnant of one end of diagonal angle iron criss-cross bracing which had been removed between the end columns ("cross-bracing").
The incident occurred before morning smoko, and at smoko the plaintiff inspected his back in a mirror to ensure he had not pierced the skin of his back. He observed a red mark where he had struck it and kept on working.
Although he had a sore back the plaintiff did not report the incident to his employer on the day of its occurrence, because he says it did not cause him to bleed and he did not think he was badly hurt. Over the next few days he did, however, mention to workmates that he had hit or hurt his back.
He also spoke to his wife about the injury on the night after it occurred and she made observations of it.
Over the next few weeks the plaintiff's condition progressively worsened. On 16 May 2001 he advised his employer that he had injured his back at work and was going to see the doctor. The plaintiff did not believe he was badly injured.
In the event, medical investigation showed that the plaintiff had a pre-existing spondylolisthesis at the junction of the lumbar and sacral spines, causing the lower end of the lumbar spine to sit forward some 1.5 centimetres upon the vertebra below.
The impact rendered this condition symptomatic, and the plaintiff has since suffered recurrent pain and limitation of activity. He has also suffered consequent depression and psychological upset. In the first instance the plaintiff's back pain continued to deteriorate after he ceased work and he suffered some episodes of muscle spasm.
The defendants deny first that the plaintiff was injured in the manner alleged, and secondly that if he was so injured such injury was caused by any breach of duty on their respective parts. In the alternative, they allege contributory negligence by the plaintiff, although this allegation was not pursued at trial by KP. They seek contribution from each other in the event of judgment against either of them.[1] They further dispute the extent and consequences of the plaintiff's injury and the appropriate quantum of damages if liability is established.
[1]A claim by PA for contractual indemnity was not pursued at the hearing.
I shall seek to resolve these issues by reference to the following questions:
(1) Was the plaintiff injured while carrying out the work alleged?
(2) What caused the injury?
(3)Was such injury caused by reason of breach of the duties of care owed to the plaintiff by KP and/or PA respectively?
(4)If yes, what is the appropriate apportionment of contribution between the defendants?
(5)Was the plaintiff guilty of contributory negligence?
(6)What is the appropriate assessment of damages for pain and suffering and loss of enjoyment of life?
(7)What is the appropriate assessment of damages for economic loss?
Was the Plaintiff Injured?
The fact of injury at work on the day alleged was challenged by the defendants in cross-examination and submission on the following principal bases:
·There is no evidence the plaintiff's immediate workmates involved in work on the centering device with him were made aware by his reaction that he had hurt himself.
·The plaintiff understood he had an obligation to report any injury to his employer, but did not report such injury until 16 May at the earliest. He had previously reported a far less serious bump to his back on 15 October 2000.
·The plaintiff understood he had an obligation to report any danger at the workplace but did not report the protrusion.
·The plaintiff remained reasonably active in the intervening period. On one occasion he acted as a goal umpire at an under age football match.
·The plaintiff did not attend a doctor for medical treatment until 17 May 2001.
·The note made by Dr Freame (now retired), the General Practitioner whom the plaintiff first saw for treatment, records the plaintiff as complaining of injury to the thoracic spine. Albeit that as Mr Tobin points out this does not sit comfortably with the fact that the doctor ordered x-rays of the lumbar spine and Dr Das, whom the plaintiff saw at the same medical practice several days later, noted that the plaintiff had previously complained of pain in the lumbar spine.
·The plaintiff's credibility generally should be rejected because the weight of the evidence shows there was no cross-bracing in the cooling cabinet as repeatedly asserted by him during the course of his evidence.
A number of the above matters are capable of explanation. The plaintiff's workmates would not have had clear vision of him at the time of the alleged incident and were wearing protective ear muffs limiting their ability to hear him. The extent of background noise is unknown.
The evidence of both the plaintiff and other workers is that bumps were commonly experienced on the job when work was undertaken of the general type in issue. The fact that the plaintiff regarded a cut as requiring reporting but a bump as not necessarily requiring reporting is not inherently surprising, even given a history of a reported bump in October 2000. One of the plaintiff’s former supervisors gave evidence that it would be impracticable to report every bump given the nature of the job. The failure to report the injury speedily or to seek speedy medical attention is explained by the plaintiff on the basis that his condition did not initially seem serious but progressively worsened following the accident. The same explanation is given for the fact that he acted as a goal umpire during this period.
Insofar as the plaintiff's failure to subsequently report the danger of the protrusion, the plaintiff says it did not cross his mind. It should have but it did not.
Ultimately it seems to me that none of the individual matters relating to the plaintiff's post-accident behaviour noted above can be said to materially detract from the credibility of his evidence in themselves. Likewise, the attack on the plaintiff's credibility based on his account of the origin of the protrusion (which I shall address further below) does not lead me to the conclusion the plaintiff was necessarily untruthful or unreliable in asserting his back was injured. The ultimate task confronting the Court is to assess whether his account of injury is more probable than not having regard to the evidence as a whole.
I am satisfied that the plaintiff did injure his back while working on the No. 2 caster on 26 April 2001 for the following reasons:
·There is no dispute by KP that the plaintiff was required to undertake the task he describes.
·The plaintiff's account of backing backwards and striking his back is circumstantial. His evidence was consistent and believable as to the manner in which he undertook this manoeuvre.
·The plaintiff told his wife that he had "whacked his back that day" and that it was "very sore". She observed that there was a red mark located on it and that it was painful when she sought to massage it. Thereafter she observed bruising emerged after about one week. She also observed that the plaintiff's condition appeared to worsen.
·In the days after the alleged incident the plaintiff told several workmates that he had hit or hurt his back.
·The plaintiff had worked for KP for some 18 years as a rigger prior to the incident and his work record was good.
·KP investigated the plaintiff's claim of injury and spoke directly to workmates to confirm the fact of complaint by him. It also discussed the injury with the plaintiff itself.
· The plaintiff's site supervisor one Horst Bates visited the plaintiff at his home shortly after he made a claim in order to assess the plaintiff's situation. Bates was not called as a witness.
· KP accepted the plaintiff's workcover claim. This may be regarded as an admission by KP that a compensable injury occurred[2] but not of course as an admission by PA.
[2]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171.
· The medical evidence demonstrates a credible mechanism for the cause of the alleged injury namely a blow to that portion of the spine subject to the pre-existing spondylolisthesis.
· A series of witnesses comprising both treating doctors and medico-legal witnesses recorded acceptance of the genuineness of the plaintiff's history.
· For completeness I note the following with respect to the precise date of injury. Although the PA records show that the relevant work was originally scheduled for 25 April, there are a number of explanations as to why it may in fact have occurred on 26 April as claimed by the plaintiff. These include that put forward by one of PA's witnesses namely that on occasions the operations of PA delayed the implementation of maintenance work.
How was the Plaintiff Injured?
For like reasons to those set out above I accept that it is more likely than not that the plaintiff struck his back while moving backwards in the course of manoeuvring the ram from the centering device.
Further, I accept that it was reasonable for the plaintiff to move backwards because he could not proceed forward. In order to reach the centering device he was required to enter a caged area through a gate adjacent to the ingot stacker. He then had to move alongside the layer conveyer and in under it. At the point he took receipt of the ram he was standing in a semi-crouched position with head room estimated at some 4'6". He was immediately upstream[3] of a single steel column supporting the layer conveyer. Beyond and adjacent to that were a series of cables and pipes complicating the exit from the layer conveyer area.
[3]In terms of the direction of the conveyer.
Conversely, there was space for him to back into, being the doorway area leading into the cooling cabinet. The base of the cooling cabinet extended out just beyond the point at which he was standing outside this doorway. The base contained a shallow stainless steel bath used to collect deluge water sprayed onto the conveyer above. The bath was ordinarily drained during shutdown. Two wing walls protruded out from the cooling cabinet on each side of the conveyer and within them were two columns framing the doorway below the conveyer, usually closed with the rubber curtain. The curtain was customarily removed prior to maintenance operations. Beyond the doorway was the frame of the cooling cabinet itself, ending in two vertical steel columns with a box cross-section of 600 millimetres (i.e. the end columns). As originally designed these columns were fixed to the base frame of the cabinet by welding and joined at the top by a cross-member of the same cross-section. In addition, a piece of channel iron was welded between the two end columns forming a cross-member at a height some 1.25 metres above the floor of the deluge bath, and sitting below the cooling conveyer itself, which rose above it at an angle towards the layer conveyer ("the cross-member"). The cabinet was originally prefabricated with a steel frame and had been lifted into place by crane when it was installed.
The lower portion of the walls of each of the three box sections forming the cooling cabinet (and accommodating the ascending conveyer), was originally lined with steel panels. Above the panelling there were a series of open sections containing rubber curtains situated above the level of the conveyer as it rose within the housing of the cabinet. The panel walls were fixed to the cabinet sides within the line of the insides of the end columns described above.
The protrusion which the plaintiff describes as located upon one of the end columns, was not part of the original design of the cooling cabinet as depicted in design drawings tendered to the Court.
Further, the cooling cabinet was demolished and replaced in 2002, and no direct photographs exist of the internal area in issue.
The plaintiff gave evidence that the protrusion was a remnant left when diagonal cross-bracing was removed from between the end columns.
The weight of the evidence does not favour this scenario. No other witness gave evidence of such cross-bracing. Further, the design drawings do not depict such cross-bracing, but the plaintiff maintained it was present from the time of installation of the cabinet.
Witnesses called by PA gave evidence that no such bracing was ever observed by them, despite having worked on the machine over many years.
It follows that the plaintiff's assertions as to the prior existence of such bracing should not be accepted and do not assist his credit. As Mr Rose emphasised, the plaintiff during the course of his cross-examination repeatedly affirmed the prior existence of cross bracing. In my view it is this aspect of the matter which casts the greatest doubt upon the reliability of the plaintiff's account of a protrusion.
Nevertheless, the plaintiff's evidence in this regard was evidence as to what was not there at the time of the alleged incident, rather than evidence as to what was there.[4] It was evidence purportedly explanatory of the protrusion he observed, given by a man who did not return to the scene again after the date of injury, until it was materially altered. The critical question with respect to causation is simply whether there was in fact any such protrusion.
[4]As the plaintiff said: "Well, the brace was gone, there was no brace in there, this was the only one piece of the brace left …"
The rejection of the plaintiff's belief as to the origin of the protrusion raises a very serious question as to the reliability of his evidence as to the fact of a protrusion, but it does not necessarily mean that his account of the protrusion itself should be rejected when weighed against the evidence as a whole. Nor does such rejection lead to the necessary inference that his asserted belief as to the prior existence of bracing, was dishonest as distinct from inaccurate.
The defendants submitted:
·There was no protrusion in the position alleged, shown on the drawings depicting the cooling cabinet as supplied and subsequently updated.
·The evidence of three of the second defendant's staff as to their observations of the machine supports the view there was no protrusion.
·The plaintiff's description of the protrusion in oral evidence should not be accepted because it was inextricably bound up with his assertions concerning diagonal cross-bracing.
·The plaintiff's description of the protrusion was not credible in that he referred to a jagged piece of metal, where no such description was made in his initial statements about the injury.
Counsel for the plaintiff contended the Court should accept the plaintiff did strike his back on a protrusion:
· The plaintiff has consistently made this allegation, stating to a number of independent listeners that he hit his back "on cut-off steel (jutting out)" (the phrase used in the worker's claim for compensation form dated 22 May 2001).
· The allegation was first made by the plaintiff when he was likely to have held the belief on reasonable grounds that the claim would be investigated by his employer.
· The claim was investigated by KP in May 2001 and accepted by it. (As I have stated this may be regarded as an admission of compensable injury by KP).
· Corroboration of the nature of the event is provided by complaint to the plaintiff's wife, the terms of statements made to KP's Workcare officer White, and the evidence of the plaintiff's fellow employees that he said he hurt or hit his back.
· The plaintiff suddenly developed a severe back injury after 18 years of heavy work as a rigger.
· The plaintiff's truthfulness was accepted by his workmates, and his employer's Workcare officer Mr White. The medical witnesses generally accepted that the plaintiff presented as giving a truthful history.
· The plaintiff was a person well known both to his employer and the employees of PA, who had a continuing opportunity to observe his behaviour in the relatively small community of Portland both before and after the incident.
It was further submitted that although the Court should be uncertain as to what caused the protrusion:
·The plans tendered by PA did not depict the machine in the condition in which it was in 2001.
·There was evidence of ongoing modification to the cooling conveyer cabinet.
·Such evidence included replacement of wall panels because of corrosion.
·Such evidence included patching of steel work generally on cooling cabinets because of corrosion.
·The photographs demonstrate substantial corrosion on the exterior of the end columns in the vicinity of the cross-beam.
·Such corrosion may have been significantly worse at the time of the alleged incident, which it appears occurred some six years after the taking of the photographs.
·The meeting of the cross-beam and an end column would be a point of corrosion.
·The cross-beam may itself have been removed and not replaced. In this regard I note the engineering witness called by PA said it would be unnecessary to replace the cross-beam if it were removed.[5] Whether replaced or not its removal may have resulted in consequential cutting and welding.
·The original design provided for a soft steel bath lining the base of the cabinet, but this was replaced with a stainless steel bath, to better accommodate corrosion on the inside of the cabinet.
·The cabinet was scrapped within one year of the incident for a range of reasons including maintenance problems.[6]
·The external photographs of the cabinet demonstrate an object possibly in the nature of a pipe or lever, not shown on the design drawings of the cabinet, and located at or about the level of the cross-beam, apparently penetrating the wall of the cabinet adjacent to an end column.
·The oral evidence called by PA did not satisfactorily exclude the possibility of a protrusion on one of the end columns at the time of the incident.
·No evidence was called from workers accustomed to working under the cabinet regularly, because of problems associated with fallen ingots. The evidence was there were some 40 long term workers potentially in this category.
·No evidence was called from Charlotte Scell the ingot mill manager at the relevant time.
[5]"The bracing there is to hold those – or to stabilise those columns when the lids are removed and the cooling conveyer itself is removed, but without that brace, the unit would probably stand up quite safely on its own … Q. If in fact you saw corrosion there which looked to be affecting the integrity when would you replace it? A. If I wasn't removing the cooling conveyer, I probably wouldn't worry about it."
[6]Mr Watt, one of PA's witnesses, said: "… Caster 2 was going to be done at an earlier date but for whatever reason it got delayed, so there wasn't a great deal of preservation work done in that area."
In my view it is clear that neither the evidence of the drawings of the cooling cabinet, nor the evidence of officers of PA satisfactorily excludes the possibility of a protrusion at the relevant date.
Insofar as the drawings are concerned they were not updated to the relevant date. Further, they were typical drawings in the sense that they generically described the form of three sets of conveyers associated with three casters. The evidence was that it is possible individual modifications were made to a particular machine. Lastly, the drawings do not accord entirely with the photographs as to the condition of the machine in or about 1995. They do not enable a full explanation of the components shown in the photographs.
Insofar as the witnesses as to the condition of the machine are concerned, their periods of observation of the machine were not such as to give rise to a high degree of confidence that they were able to describe the condition as at the relevant date. (Accepting as I do that their evidence taken with the drawings does demonstrate there was no cross-bracing of the type described by the plaintiff over the preceding years.)
On the other hand, the evidence demonstrated a real possibility that the process of addressing ongoing corrosion of the cooling cabinet did produce a protrusion:
·as the result of the removal of the cross-beam and associated patching; or
·as the result of cutting and/or welding associated with the replacement of side panels; or
·as the result of patching of the end column itself as the result of corrosion.[7]
[7]Mr Cowie, the equipment manager mechanical in 2001 said: "If there was any welding to be done, it would be potentially oxywelding to remove mounting bolts, to remove potentially the frame, or repair work."
I have not included in the above list of real possibilities as to what might have constituted a protrusion, the possibility that the plaintiff simply backed into the cross-beam. It seems to me that this is simply too inconsistent with his account of a protrusion on one of the end columns.[8]
[8]I leave to one side Mr Rose's assertions in final address as to the plaintiff's waist height, made by reference to a tape measure. If such assertions were to be relied on they should have been put to the plaintiff in cross-examination.
The evidence as a whole supports the conclusion that the cooling cabinet was at the relevant date in its last year of operation and had by that time suffered material corrosion to steel work, and undergone material patching.
This general context, taken with the specific possibilities I have identified, leads to the conclusion that the plaintiff's description of a protrusion is not inherently improbable.
Further, I accept the submission made on behalf of the plaintiff that the weight of the evidence favours the view that he is an honest complainant. Accordingly, I accept on the balance of probabilities that he was in fact injured when he backed into a protrusion on one of the end columns.
I do not accept that either his assertion as to the prior existence of cross-bracing, nor his description of the protrusion as "jagged", compel the conclusion that he is untruthful as to the fact of the protrusion. It was apparent during the course of his cross-examination that the plaintiff felt he had to explain the existence of what he variously referred to as a "piece of steel", "cleat", and "knob". At one point the plaintiff said:
"Q.Evidence will be given by the people who assembled this machinery and smelter staff that there was no bracing, do you think you might be wrong about that, and you just backed into a piece of metal?---Well, if it wasn't bracing, it was a piece of metal sticking out from the bracing.
Q. That's not bracing though is it?---Well it's supporting something.
Q.You say there was a sharp piece of metal and that you turned and you felt it?---Yes.
Q. And you had never seen it before?---No.
Q.Therefore you assumed that a boilermaker must have cut it?---Yes."
At another point the plaintiff said:
"Q.If evidence is given that there was no cross metal ---?---Well it wasn't there. I assumed it was four bracing points because of the knob of steel hanging out which run like this ---" [Demonstrates]
The fact that the plaintiff gave evidence as to a belief as to the origin of the protrusion, which I do not accept as probable, does not lead me to reject the fact of the protrusion.
Likewise, although at some points the plaintiff's evidence may have over-emphasised (or alternatively been unclear as to) the jaggedness of the protrusion, I am not satisfied this should lead to rejection of his fundamental complaint of a protrusion which jutted out some 80 to 100 millimetres from an end column at the level of his lower back.
Breach of Duty of Care
Once it is accepted that the plaintiff backed into a protrusion upon an end column while undertaking a reasonably foreseeable manoeuvre in the course of removing the ram from the layer conveyer, then it follows that he was not provided with a safe system of work by KP in accordance with its non-delegable duty. In particular he was not warned or otherwise protected against the risk of injury. The facts that he was experienced and had undergone a confined space induction, were not sufficient to discharge this duty.
The position of PA requires more complex analysis. Mr Tobin contended that PA was in breach of its duty to provide a safe place of work for the plaintiff. Mr Curtain submitted that responsibility for the hazard constituted by the protrusion was principally that of PA. Mr Rose contended that PA was not in breach of any duty to the plaintiff.
I am satisfied that the probability is that the protrusion was caused by PA's servants or agents in the course of carrying out work on the cooling cabinet. It is plain that the ingot mill was strictly controlled by PA and that work on the plant within it was done either by or on behalf of PA.
I am not able to be satisfied, however, when the protrusion was so caused. In particular, I am not able to be satisfied whether it was present on any prior occasion upon which KP carried out work in the vicinity of it.
It is further apparent that in the ordinary course of ingot mill operations, KP did not have access to the conveyer cabinet.
Access was, however, available to PA ingot mill employees, to PA supervising staff, and potentially to a series of contractors employed by PA to undertake maintenance and repair work involving different trades.
In addition PA had in place a system of hot work permits which would have required it to authorise oxyacetylene welding upon the cooling cabinet frame.[9]
[9]A so-called "A" type hot work permit issued by PA would be required for work on structural steel in this location.
I am satisfied PA by its servants and agents knew or ought reasonably to have known of the protrusion prior to the plaintiff's injury:
·because such protrusion was on the balance of probabilities caused by PA's servants or agents;
·because of the continuing work of its employees in the vicinity of the cooling cabinet (including the periodic removal of fallen ingots from beneath the conveyer in the cooling cabinet);
·because of the improbability that a protrusion of the type in issue could be created without the undertaking of other work with the authority of supervising staff and/or a hot work permit.
KP was given access to the cooling cabinet area on the date in question for a limited period of hours only, during which KP was required to carry out a task forming a component of a list scheduled for completion during a 12 hour shutdown.
It was part of PA's system of work that before the plaintiff and his fellow workers commenced work, they would complete a hazard assessment form process. This process was triggered by the generation of a work order to a contractor such as KP. The hazard assessment process was either commenced with a proforma generated by PA and listing recognised risks for regular maintenance tasks, or with a blank proforma produced by PA, but completed by KP.
In either event the finalisation of the hazard assessment process involved joint discussion by KP employees prior to the job and a final visual inspection of the area in which work was to be carried out before the hazard form was finally signed off. The weight of the evidence favours the view that the plaintiff was required to participate in this process before the job commenced and his supervisor signed off. Further, he was expected to keep a look out for hazards as he did his job.
PA takes the position that it was entitled to delegate the provision of a safe system of work to KP within this hazard assessment framework.
PA points to the underlying framework of the contract between PA and KP which, among other things, required KP to adopt safe work practices and to report any hazard to PA. PA submits that:
(a)KP was a large organisation specialising in the provision of on-site and off-site mechanical maintenance and repair services to companies such as PA;
(b)KP had been engaged by PA for many years before the plaintiff's accident to perform on-site maintenance work on the number 2 casting machine including the replacement of the straightening ram;
(c)PA engaged KP by contract to perform the work that the plaintiff was doing when he was allegedly injured and in undertaking that work KP was required to undertake that work safely and in accordance with PA's site regulations.
(d)KP together with the plaintiff himself, had the ultimate responsibility to ensure that the work area where the plaintiff was working on 26 April 2006 was safe and free from protrusions before he commenced or ought to have been allowed to commence his work in that area;
(e)the plaintiff was an experienced and skilled tradesman who had himself performed the very task of the changing the straightening ram on no less than 50 times;
(f)the plaintiff well knew and was trained in the need to undertake a safety inspection of his work area which included the area where he claimed he injured himself before he commenced his task;
(g)before and during the time when the task of replacing the straightening device was carried out, the work area was under the control of KP and its supervisors;
(h)if a protrusion existed, KP and also the plaintiff had the opportunity to inspect and find that protrusion so that any risk of injury it may have presented was dealt with before the plaintiff commenced his task.
There are I think six interrelated factual difficulties with accepting this position ("the underlying factors"):
·First if it be accepted that there was a protrusion upon the end column, there was an unusual danger, in the sense that such protrusion was not designated on the drawings, incorporated into KP's contract to perform mechanical maintenance. In this sense the protrusion did not form part of the machinery KP contracted to maintain.
·Secondly, there is no evidence that the protrusion was present when KP carried out work in the area on previous occasions, nor that PA alerted KP to the protrusion. Further, as Mr Hastie, a fitter in a supervisory role with KP, at the relevant date agreed in evidence:
"You wouldn't expect anybody any supervisor such as [Hastie], to go under the conveyer before saying to Mr Husson, in you go, unless there was some information which led you to believe that the area might have changed."[10]
[10]At another point Hastie said: "If it's that low, we might just crouch down and have a look and see if we can see anything there that's going to cause a problem or use the people's experience."
Mr Rowe, a site supervisor with KP since 1996, who heard Mr Hastie's evidence, subsequently said as to Mr Hastie's evidence concerning hazard assessment: "… He was pretty well right."
·Thirdly, the protrusion was not part of the machinery being serviced on the date in question. PA's work order required the servicing of the centering device located upon the layer conveyer. It did not require work on the cooling cabinet. It was in my view reasonably foreseeable that the hazard assessment process, including any visual inspection by the plaintiff, would focus upon the machinery forming the subject of the work order and not necessarily upon other machinery in its vicinity.
·Fourthly, the protrusion was located in a relatively concealed location. It was beneath the conveyer, which in turn had above it an additional rubber curtain across the top of the space between the end columns (depicted in the photographs tendered to the Court). It was located in a location below the conveyer and laterally shielded from light by the walls of the cooling cabinet itself and the wing walls protruding from it. The location was relatively dimly lit.[11] It was not directly within the area from which the ram was removed, although I accept that this area was customarily lit with a movable florescent light. The plaintiff gave evidence that a plug-in florescent light was available and may have been used on the day of the incident.[12] He also gave evidence, however, that the area of the end columns was poorly lit. I accept this evidence.[13]
· Fifthly, the ram was located in a confined space such that it was reasonably foreseeable a workman engaged in removing the ram, might back out of the confined space and into the entry area to the cooling cabinet.
· Sixthly, the established procedure of the plaintiff was to remove the ram in precisely this way. He gave evidence that he had undertaken the procedure in the order of 40 to 50 times.
[11]The extent of enclosure is illustrated, inter alia, by an overhead photograph of caster 4 taken from above and one side of the relevant section of plant in the 1980's.
[12]Mr Hastie also gave evidence the KP worker would take in his own lighting if it were required.
[13]Mr Cowie a PA supervisor said it would be "dim".
Taken together these underlying factors lead to the conclusion that it was reasonably foreseeable by PA that:
(a)the plaintiff might be injured by a protrusion on the end column in the course of removing the ram; and
(b)such a protrusion might be overlooked in the final hazard assessment inspection and not come to the plaintiff's attention before he was injured despite the exercise of reasonable care by him in carrying out the task he was required to do.
PA owed the plaintiff a duty of care as an occupier to the ingot mill to take reasonable care in accordance with s.14B of the Wrongs Act 1958.
"14B. Liability of occupiers
(1)The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers' Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them.
(2)Except as is provided by sub-section (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises.
(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4)Without restricting the generality of sub-section (3), in determining whether the duty of care under sub-section (3) has been discharged consideration shall be given to—
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(fa)whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb)whether the person entering the premises is engaged in an illegal activity;
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(5)Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract."
The understanding of this section is relevantly informed by the common law principles stated by Mason J in Wyong Shire Council v Shirt[14]:
"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, 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."
[14](1980) 146 CLR 40 at 47-48 (with whom Stephen and Aickin JJ agreed).
The general words of s.14B(3) are assisted by consideration of the factors specified in sub-section (4). I will deal with each of them in turn.
(a) The gravity and likelihood of the probable injury
The nature and location of the protrusion, coupled with the likelihood that the plaintiff might back into it without observing it, rendered it likely that the protrusion could cause serious injury to the plaintiff or other persons involved in a similar manoeuvre.
(b) The circumstances of entry into the premises
The plaintiff entered into the premises under instructions to carry out a particular job, within a secure area, during a confined time frame. All of these circumstances support the view that the occupier controlling the particular area in issue, should have taken reasonable steps to avoid the risk presented by the protrusion.
(c) The nature of the premises
PA conducted a highly organised industrial operation upon the premises.
(d)The knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises
PA knew that the plaintiff and/or his fellow workers would be present in the vicinity of the protrusion in order to carry out PA's work order.
(e) The age of the person entering the premises
The plaintiff was an adult and experienced rigger.
(f) The ability of the person entering the premises to appreciate the danger
The danger was partly concealed in that it was both customarily and in fact approached by the plaintiff moving backwards. Further, it was located in a dimly lit location, adjacent to but not forming part of the machine from which the centering device was removed and in circumstances where the centering device might reasonably have been expected to be the focus of attention of those doing the relevant job.
(fa)Whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication
The plaintiff was not intoxicated and there is nothing to suggest that he was other than usually alert.
(fb) Whether the person entering the premises is engaged in illegal activity
The plaintiff was engaged in precisely the activity he was requested by KP to carry out for and on behalf of PA.
(g)The burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person
The danger was relatively easily eliminated by PA, simply by cutting away or grinding away the protrusion. Either course involved minor work compared with the scale of the industrial operation at the smelter. Conversely, if the protrusion was not eliminated as a danger it represented a significant risk to persons carrying out work in the manner of the plaintiff and/or backing into the end column for some other reason.
Having regard to the above specific considerations and the six underlying factors to which I have previously referred, I am satisfied PA did not discharge its duty of care to the plaintiff. PA failed to take reasonable steps to see that the plaintiff would not be injured by reason of the state of the premises.
PA placed special emphasis in final address upon the principle that in certain circumstances it may not be unreasonable for an occupier to rely on an independent contractor to take responsibility for a class of risks which the contractor is engaged to deal with . In Papatonakis v Australian Telecommunications Commission[15] Brennan and Dawson JJ stated:
"… where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesman of that class are accustomed to meeting and safeguarding themselves against defects of that kind."
Subsequently their Honours stated:
"It is one thing to leave it to an independent contractor to decide for himself how to do his work; it is another thing to leave him in ignorance of a fact that is material to his decision if he, using reasonable care, might not discover that fact."
[15](1985) 156 CLR 7 at 30.
I do not accept that these principles assist PA in this particular case having regard to the matters I have already referred to, including the following specific matters:
·The machines which KP contracted to maintain, did not contain the protrusion. The protrusion is not shown on the drawings incorporated in the maintenance contract which KP entered into and which formed the basis of its obligations. This is not a case where the contractor was engaged to deal with the very hazard now complained of.
·The contractual arrangement between PA and KP envisaged that PA would retain overall operational control of the ingot mill including the cooling cabinet. KP was granted rights of entry to undertake specific works pursuant to work orders. It was not subject to any general obligation to maintain the plant.
·There is no evidence that servants or agents of KP knew of the hazard prior to the incident.
·The hazard assessment process jointly implemented by PA and KP was not such as to give rise to the reasonable expectation the contractor would necessarily identify the hazard constituted by the protrusion, before the plaintiff commenced the job or that the plaintiff would necessarily identify the hazard during the course of the job.
In terms of the principles stated by Brennan and Dawson JJ in Papatonakis above, this is a case where the defect in the premises went beyond the kind, which the plaintiff and other employees of KP were accustomed to meet and safeguard against. It was a case where the plaintiff was left in ignorance of the defect by PA in circumstances where he, using reasonable care, might not discover it. The case is not one where the defect was readily visible to the plaintiff[16] or which was a usual incident of the job.[17] It was rather akin to cases such as A.V. Jennings Ltd v Thomas[18] in which holes in steps were not visible until the worker stood directly over them. As in that case, this was a case in my view where it was obviously reasonably foreseeable that the defect in the premises created a risk of injury to entrants, and it would not be reasonable for the occupier to decide that the foreseeable risk to contractor entrants was adequately dealt with by leaving it to the contractors to solve the problem for themselves.
[16]cf Felk Industries Pty Ltd v Mallet [2005] NSWCA 111.
[17]cf Davis v Nolras Pty Ltd [2005] NSWCA 379.
[18][2004] NSWCA 309.
Further, the relationship between PA and KP was one ultimately controlled by PA to an extent that rendered the plaintiff vulnerable to injury by reason of defects not obvious at the place of work provided by PA.[19] The plaintiff was required to conform to a system of work established by the occupier within premises controlled by the occupier.
[19]cf Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19 and Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132.
For the above reasons I reject the submission that in the circumstances of this case PA was entitled to discharge its obligations to the plaintiff simply by contracting KP upon the terms and in the manner in which it did.
It is not necessary for me to further address the arguments which were put to me on behalf of the plaintiff and the Victoria Workcover Authority by reference to the principles stated in Burnie Port Authority v General Jones Pty Ltd[20], and other authority.
[20](1994) 179 CLR 520.
Contribution Between Defendants
The better view is that the principal cause of the plaintiff's injury was the breach by PA of its duty towards the plaintiff. Accordingly, as between defendants, I find PA 80% liable and KP 20% liable for the plaintiff's injury pursuant to ss.23B and 24(2) of the Wrongs Act 1958.
Contributory Negligence
In my view, having regard to the facts as I have found them, no contributory negligence has been established on the part of the plaintiff.
General Damages – Pain and Suffering
The plaintiff was born on 6 April 1960 and has lived almost all his life in Portland. He attended the local Catholic primary school and then attended the local technical school up to year 10. He then had a series of labouring jobs until April 1983 when he commenced work for KP.
Thereafter he has had stable employment and a stable personal history. He has lived with his de facto wife for 22 years and has two children.[21]
[21]I found the evidence of the Plaintiff’s wife generally to be credible and to corroborate and amplify the plaintiff's own evidence.
The plaintiff was initially employed in the construction of the Portland Aluminium Smelter as a crane maintenance rigger and then, after an eight month break following the completion of the construction, returned as a maintenance rigger. During the course of his employment he obtained a range of certificates from the Department of Labour and Industry, as a rigger (six certificates), mobile crane operator, dogman, forklift licence and articulated vehicle licence.
The plaintiff's work was approximately 95% at the Portland Smelter, but over the years he also worked on a series of construction sites for KP.
Save for some recurrent gout, his health was good and he suffered no significant injury, save that in 1995 he fell and fractured a rib which required him to take six weeks off work.
Prior to the accident he was well able to undertake heavy physical work on an ongoing basis. One of his supervisors, Mr Hastie, and other witnesses endorsed his physical capabilities and exemplified the very heavy work which he did from time to time. It is clear from the evidence as a whole that the plaintiff had a good reputation as a worker.
Following the accident in April 2001 the plaintiff sought to continue working because he was accustomed to some aches and pains as a result of heavy work and did not believe the bump to his back had caused him serious injury. He sought to relieve his soreness initially by requesting his wife to massage his back but this proved to be painfully tender. His condition continued to worsen over the period of the next three weeks. He saw a local general practitioner on 17 May 2001 who put him off work and arranged for an x-ray of his lumbar spine. The x-ray recorded that at L5/S1 there was a significant forward displacement of L5 on S1 greater than 1 centimetre and appeared to be long standing spondylolisthesis.[22] In addition the disc at the L5/S1 level was very narrow and there was some sclerosis in the opposing end plates.
[22]Mr Kierce stated spondylolisthesis refers to slipping forwards of one vertebra on another and in this man's case the fifth lumbar vertebra has slipped forwards on the first sacral vertebra due to pre-existing stress fractures in his fifth lumbar vertebra, whereby probably while he was growing, the supportive structures at the back of the fifth lumbar vertebra, which normally prevent forward slipping, there was a fracture through those on each side to allow this bone to slip forward. About 4% of the population has this stress fracture, many people go through life being completely asymptomatic, but people with this disorder are more vulnerable to injuring their back.
On 19 May 2001 the plaintiff returned to see Mr Das, who practised at the same local clinic as the general practitioner who first saw him. Mr Das has qualifications as a surgeon in addition to qualifications as a general practitioner. Mr Das obtained a CT lumbar spine scan on 21 May 2001 which confirmed spondylolisthesis at L5/S1.
The plaintiff was advised as to his condition, prescribed Voltaren and referred to physiotherapy with a local physiotherapist. He was then referred to Mr Kierce, an orthopaedic surgeon. Mr Kierce first saw the plaintiff on 12 July 2001 and found a palpable step in the spine. After reviewing the x-rays taken at the Portland Hospital which showed a grade 2 spondylolisthesis, Mr Kierce formed the opinion that the plaintiff was no longer fit for any occupation which involved prolonged or frequent bending, the lifting of weights greater than 15 kilograms, the use of heavy jarring implements such as picks, shovels and crow bars, and the driving of machinery which gave rise to vibrations.
Mr Kierce encouraged the plaintiff to walk, swim and ride a bicycle in order to get fit and believed that he would be helped by a lumbar brace if he was doing anything that would put stress on his back. He certified the plaintiff as unfit for work at that point in time. Mr Kierce saw the plaintiff again in August and September 2001. By September 2001 Mr Kierce noted the plaintiff had improved significantly. The plaintiff still had some significant spasm in the left lower back muscles and the left buttock. Mr Kierce felt, however, that the plaintiff's condition was good enough to return to half time duties at work and in addition to the restrictions he had previously recommended, advised that the plaintiff should not be involved in sweeping. In October 2001 Mr Kierce felt that the plaintiff had responded to treatment and discharged him and referred him back to Mr Das. Mr Kierce felt the plaintiff should still have access to physiotherapy as required and that the work restrictions he had previously stipulated were permanent.
Following return to his care Mr Das has certified the plaintiff fit for alternative duties, save for a period when the plaintiff was totally incapacitated by depression. Mr Das agrees with Mr Kierce as to the relevant restrictions on the plaintiff's capacity to work. In answer to cross-examination, Mr Das said the plaintiff could commence on part time duties for, say, 20 hours a week and that there were a number of occupations he could undertake physically.
The plaintiff was also referred to Mr Maling, a general surgeon, for medico-legal purposes in August 2001. He obtained a further CT scan carried out in September 2001 which showed spondylolisthesis at L5/S1 with approximately 12 millimetres forward slipping of L5 on S1. The associated disc showed quite marked degenerative change with loss of disc height and signal intensity. There was some bulging of the disc posteriorly but no disc herniation was seen. There appeared to be some compression of both exiting L5 nerve routes within the neural foramina.
Mr Maling's opinion was that the only satisfactory treatment would be fusion at the lumbosacral level, but because of the degeneration in the discs above this may not be thought possible. In his view this represented the only hope of the plaintiff returning to light manual labour.
In August 2001 the plaintiff attempted to return to KP for work in accordance with a work plan which attempted to address his condition. He was given work in a store but he and his wife say he was only able to work for several days. KP's wage records record him as having worked some hours over a period between a Thursday and the next Thursday. There is dispute as to the extent to which the plaintiff experienced actual as distinct from apprehended difficulty as a result of his ongoing disability, but I accept that whatever period he worked for in August 2001, he ceased work as a result of the effects of his injuries. In particular I accept that he experienced difficulties with sweeping as specifically noted by Mr Kierce.
After having been told by Mr Kierce that he would not be able to return to his former employment, the plaintiff developed increasingly severe depression. In evidence he described his condition 12 months after the accident:
"Useless, worthless, hopeless, felt no good, couldn't feed the family, pain, loss of weight, depressed."
He sought to meet this situation in part by using marijuana. Although the plaintiff expressed a general preference for smoking joints (ie cigarettes containing a mixture of tobacco and marijuana) over a period while depressed he was smoking 6 “cones” of marijuana per day. I do not accept the suggestion made on behalf of KP that such drug use was demonstrably excessive. I prefer the evidence of the psychologist and the plaintiff that it was not. I also do not accept it was a material factor affecting his capacity to work.
He was referred to Noni Kirkby, a psychologist practising at Mount Gambier. She treated him over the next six months and it seems that ultimately he achieved a less depressed state of mind. Nevertheless she gave forceful evidence confirming a diagnosis of depression and expressed the view that his prognosis remained guarded at the time he ceased to see her in 2002. She recommended ongoing medication. The plaintiff remains on medication for back pain and for depression, Tramal and Zoloft which he takes as necessary on a regular basis.
Over the 12 months following the accident the plaintiff also lost a significant amount of weight. His current condition is one of markedly changed appearance from that prior to his injury. His evidence is that he has lost some 20 kilograms in weight and has gone from being a heavily muscled and bulky man to a much reduced physique. Those of his workmates who gave evidence confirmed a dramatic change in his appearance: "He's like a little old man now."
The plaintiff has attempted to control and cope with his symptoms by undertaking physiotherapy, exercise, and counselling in conjunction with taking prescribed medication. He is currently undertaking Bowen therapy at the suggestion of his treating doctor Mr Das.
The plaintiff saw Mr Brownbill, a neurosurgeon, for medico-legal purposes first in February 2004 and thereafter in March 2005 and July 2006. Mr Brownbill's opinion is that the injury suffered by the plaintiff at work resulted in soft tissue damage to structures about the lumbar spine with aggravation of spondylolisthesis and contribution to the demonstrated spondylolisthesis. In his view, ongoing pain may be anticipated to occur in a fluctuating manner indefinitely. The only effective treatment available for such spondylolisthesis is spinal fusion, however such a procedure is precluded by the widespread degenerative changes of the plaintiff's lumbar spine. The plaintiff will need to avoid activities involving lifting, twisting, bending or prolonged standing or sitting. He will not be capable of manual labour in the future. The probability is he will not be capable of suitable employment.
The plaintiff was also seen by Mr O'Brien, an orthopaedic surgeon, for medico-legal purposes in March 2005 and July 2006. In his view the plaintiff continues to experience symptomatic lumbar spondylolisthesis at the L5/S1 motion segment. His condition is stabilised. The pathology has not responded to conservative treatment and ongoing management has been directed towards pain control. The prognosis is poor, as there is no doubt the plaintiff will continue to experience incapacitating pain. There are no indications for surgical intervention. The plaintiff suffers from a continuing marked restriction of physical activity. There is no possibility he could return to his pre-injury occupation. In Mr O'Brien's view the plaintiff would find it extremely difficult to obtain suitable employment and would not cope with full time duties. He regards the plaintiff as in truth unemployable on a permanent basis.
Mr Brierley, an orthopaedic surgeon, saw the plaintiff for medico-legal purposes on 8 March 2005 and 5 July 2006. He is likewise of the view that long standing spondylolisthesis of L5 on S1, which was previously asymptomatic, was rendered symptomatic by the injury to the plaintiff's back in April 2001. In his view the plaintiff is unfit to undertake manual labour but could do some suitably selected light work whereby he could avoid lifting beyond five kilograms and repeated lifting and also much bending and stooping. He will need to avoid prolonged sitting, standing and walking.
Mr Dooley, an orthopaedic surgeon, who saw the plaintiff for medico-legal purposes on behalf of the first defendant in February 2005 and June 2006 formed the view that the plaintiff suffers from an underlying structural defect of the lumbar spine. He has a grade 2 spondylolisthesis at the lumbosacral level. He believes that the episode of April 26, 2001 aggravated the plaintiff's underlying condition and rendered lumbosacral disc degeneration symptomatic. He states symptomatic lumbosacral disc degeneration is associated with lumbar, buttock and thigh pain. In general treatment of it includes a low impact exercise and fitness program and sensible modification of activity. Given the widespread natural occurring lumbar disc degeneration noted on MRI scanning, surgical intervention would not be appropriate.
In Mr Dooley's view the plaintiff is capable of performing light physical work and clerical duties as long as repetitive bending and occupying the one posture for a prolonged period of time are avoided. It is probable the plaintiff will continue to note either constant low back pain or regular intermittent low back pain. In association with this there will be some pain in the buttocks and thighs. Mr Dooley specifically recorded that the plaintiff presented as a sensible and genuine historian.
The plaintiff was also seen by Mr Elsner, an orthopaedic surgeon, for medico-legal purposes on behalf of the first defendant. Mr Elsner takes a more optimistic view of the plaintiff's condition. He considers that the injury described to him would have caused no more than some temporary deep bruising over the lower lumbar region, and he is unable to explain on a physiological basis, the plaintiff's alleged ongoing symptoms in the back and thighs more than five years after the incident.
In my view Mr Elsner's opinion should be rejected. It is against the weight of the medical evidence and I accept the evidence advanced on behalf of the plaintiff that it is probable the injury to his back rendered symptomatic a previously asymptomatic condition associated with spondylolisthesis at L5/S1. Mr Kierce said and I accept:
"… There is no question that this man has anything else than established degenerative disease in his lumbar spine associated with spondylolisthesis and therefore ... he has every reason to have ongoing back pain."
Mr O'Brien said and I accept:
"… If you have a direct injury to an unstable spine the stress must go on some of the soft tissue with that unstable spine. This is a prime candidate. It probably is more of a prime candidate if it is already somewhat degenerate. So, therefore, here is a man who has been totally asymptomatic with his degenerate disc at the spondylolisthesis, has a direct significant injury to his lower back and ends up with symptomatic discogenic pain, that's the explanation."
I further accept that the plaintiff’s prognosis is poor and that it is likely he will continue to suffer from restriction of movement and ongoing recurrent pain in and about the lower back area. He will require ongoing medication.
The plaintiff and his wife say that he has suffered from significant restrictions in his day to day activities. He can walk and ride a bike for short distances. He does limited household activities where previously he was very actively involved in house maintenance and gardening. He undertakes limited activities with his two children (aged 10 and 16) whereas previously he was able to play vigorously with them. He is still affected by pain and to some extent by depression. He wears a back brace from time to time but this is uncomfortable. He said at one point in evidence:
"Well the pain's there most of the time, if I don't aggravate myself I can keep it at a tolerable sort of level, if not I've got to take tablets and the tablets make me drowsy, I'm probably at four or five [out of 10] most of the time and you learn to live with it a little bit. I'm aching now, I've got my harness on and I feel sore."
He further described his daily life in terms consistent with his wife's evidence:
"I just potter around most days and wait for the kids to get home."
The plaintiff's sex life has been affected. His capacity to engage in recreational activity such as driving or fishing is materially reduced. His prospects of employment have also been materially reduced and in particular he will not be able to return to the sort of heavy work by which he had made his living up until the accident.
The relative severity of the impact of the plaintiff's injuries on his way of life is in part reflected by the depression which he has suffered following his injury and in particular during the period of 2001 to 2002.
The plaintiff now faces a life of probable ongoing pain and restrictions which will materially affect his quality of life.
In all the circumstances I assess the plaintiff's damages for pain and suffering at $160,000.
Economic Loss
The plaintiff says that he wishes to return to work but has not been able to. He attempted to work for KP within a store in August 2001. He undertook a food handling course at the suggestion of CRS but this did not lead anywhere. In December 2001 he was offered a "peggy's" job by KP which he rejected because of the bending movements required in activities such as sweeping.
He has made inquiries seeking jobs and distributed a number of résumés. He has kept his eye on the local paper and has not found a job in the Portland area which he thinks he could do.
He has not only lost the capacity to do heavy work but is unable to sit or stand for protracted periods of time and this is particularly problematic in terms of finding work. A report dated 25 March 2005 from Mr Radley, a psychologist, lists the following barriers to the plaintiff's return to work:
·His low level of general education (year 10);
·His residential location in Portland in the western district;
·His limited general work skills all of which have been in unskilled, semi-skilled and skilled non-trade manual/practical occupations over the past 26 years;
·The nature, extent and physical limitations of his back injury;
·His poor adaptation to his injury and chronic pain and that he has never been referred to a multi-disciplinary pain management program;
·His limited aptitude and capacity for higher education occupational retraining;
·His limited aptitude for alternative employment of a more sedentary nature;
·His poor medical prognosis;
·The inability of rehabilitation assistance to improve Mr Husson's prospects of returning to any type of work;
·Uncertainty surrounding current injury litigation.
Although the relative significance of individual factors listed might be debatable, I accept that the effect of the plaintiff's injuries upon his ongoing capacity to work will ultimately be determined by a complex range of factors including those listed above.
Such factors are in part psychological. Ms Kirkby stated of the situation in 2003:
"I did form an opinion about his motivation for work on the basis of the consultations we had. I observed that he was in fact quite anxious about injuring his back further than he had already, but [he was] also very uncertain and anxious about his future capacity for a range of activities including work."
Nevertheless, the plaintiff's capacity to work has, in my view, improved. More particularly it is apparent that he has substantially reduced the level of depression that affected him in the first 18 months after the accident and appears to be better able to contain and control his physical symptoms than he was in the initial period during which he suffered episodes of muscle spasm and uncontrolled pain. The plaintiff's wife described his mood as now "quite good".
I also accept the evidence of Mr White of KP that it is difficult to obtain work within Portland, with the restrictions from which the plaintiff suffers. As a result of his injuries the plaintiff has not to date been able to find any lasting employment (apart from an abortive attempt to return to work for KP). During this period he has either been totally incapacitated or suffered from a residual capacity such that he has not been able to find employment. Accordingly, he should be compensated for his past economic loss on this basis.
At the date he ceased work following the injury the plaintiff was a 42 year old rigger earning $726.80 per week. As a result of his injury he claims in respect of past economic loss:
(a)in accordance with Fox v Wood[23] a sum equivalent to his obligation to repay that part of the gross amount of workers' compensation received by him in respect of which he has already paid income tax, being $37,426 as at 29 September 2006;
(b)net earnings being $227,601 as at 29 September 2006;
(c)superannuation in the sum of $26,932.
[23](1981) 148 CLR 438 at 441-2 per Gibbs CJ with whom Aickin and Wilson JJ agreed
In respect of future economic loss he claims on the basis that he would, but for the injury, have worked to 65 and applying a multiplier of 580 to a weekly wage of $941 discounted by 15% for vicissitudes, claims $463,913.
He further claims in respect of future superannuation on the basis of 9% of gross income applying the same multiplier, and discounted for vicissitudes to a figure of $116 per week resulting in a claim of $57,188.
In my view the claim for past economic loss should be discounted for vicissitudes by 10%. The plaintiff's risk with respect to injury both at and away from work was higher than usual because of his pre-existing spinal condition.
In summary the plaintiff should receive Fox v Wood damages, past loss of earnings and superannuation now totalling approximately $295,000 which should be discounted to $265,500.
The plaintiff claims for future loss on the basis that he will be totally unable to work. I do not accept this. The evidence of his treating doctors is that he is and will be fit for light work subject to restrictions. That view is supported by the weight of the medical evidence which I have summarised above and I accept it.
It seems to me, moreover, that the resolution of this proceeding will materially enhance his ability to obtain income in a self-employed capacity and/or to move from Portland if he so desires and obtain light work.
In all the circumstances I accept Mr Curtain's submission that the plaintiff's future economic loss should be calculated on the basis that it is probable he will suffer a further year of total loss of earnings and thereafter a 50% loss of earning capacity.
I accept Mr. Tobin’s submission that the damages should be calculated on the basis that the plaintiff would have worked to 65 but for his injury. He gave evidence to this effect and his intention was not challenged in cross-examination. There was no other evidence as to the usual age of retirement of riggers in KP's employment.
As against this, it seems to me that the evidence as to the plaintiff's pre-existing degenerative condition must be regarded as rendering him more susceptible in future to the vicissitudes of life by reason of the ongoing risk of injuries to his back both at and away from work. In my view the appropriate discount is 20%.
Moreover, I do not accept that the evidence demonstrates a satisfactory basis for finding that the plaintiff has a retained earning capacity to the age of 60 years only as the plaintiff's counsel have submitted.
Accepting that the plaintiff's earning capacity but for the incident in which he was injured was approximately $520,000, I would allow in excess of $200,000 for future economic loss. But I will give the parties the opportunity to submit revised calculations giving effect to the findings I have made above.
Accordingly I answer the questions identified at [24] above, as follows:
(1) Yes, the plaintiff was injured while carrying out the work alleged.
(2)The injury was caused by the plaintiff backing into protrusion on an end column of the cooling cabinet
(3)Yes, the injury was caused by reason of breach of the duties of care owed to the plaintiff by KP and PA respectively.
(4)The appropriate apportionment of contribution between the defendants is 80% PA and 20% KP respectively.
(5)The plaintiff was not guilty of contributory negligence.
(6)The appropriate assessment of damages for pain and suffering and loss of enjoyment of life is $160,000.
(7)The appropriate assessment of damages for economic loss is to be assessed as above.
---
4
6
0