Ian Frederick Bradley v Sciberras Nominees Pty Limited and Inghams Enterprises Pty Limited
[2005] ACTSC 115
IAN FREDERICK BRADLEY v SCIBERRAS NOMINEES PTY LIMITED and INGHAMS ENTERPRISES PTY LIMITED
[2005] ACTSC 115 (2 December 2005)
PERSONAL INJURIES – workplace accident – faulty pallet – failure to provide safe system of work.
DAMAGES – assessment – disc prolapse.
O’Connor v Commissioner for Government Transport (1954) 100 CLR 225
Jones v Dunkel (1959) 101 CLR 298
RPS v The Queen (2000) 199 CLR 620
Burwood Council v Byrnes [2002] NSWCA 343
Davies v Adelaide Chemical and Fertilizer Company Limited (1946) 74 CLR 541
Griffiths v Kerkemeyer (1977) 139 CLR 161
Van Gervan v Fenton (1992) 175 CLR 327
Fox v Wood (1981) 148 CLR 438
No SC 788 of 2003
Judge: Connolly J
Supreme Court of the ACT
Date: 2 December 2005
IN THE SUPREME COURT OF THE )
) No SC 788 of 2003
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:IAN FREDERICK BRADLEY
Plaintiff
AND:SCIBERRAS NOMINEES PTY LIMITED
First Defendant
AND:INGHAMS ENTERPRISES PTY
LIMITED
Second Defendant
ORDER
Judge: Connolly J
Date: 2 December 2005
Place: Canberra
THE COURT ORDERS THAT:
There be judgment for the plaintiff against both defendants in the sum of $249,140.00.
The defendants pay the plaintiff’s costs.
This is a claim for damages for personal injuries arising from a workplace accident that occurred in the morning of 14 September 2002 during the course of the plaintiff’s employment as a storeman with the first defendant, a wholesale distributor of food products. It is not in dispute that the plaintiff was employed at the time as a storeman and that his duties involved unpacking crates of food products from pallets in a large cold storage facility, and repacking products for distribution to retailers in the Canberra district. The plaintiff alleges that he was injured as he was unpacking a pallet of chickens. The alleged mechanism of the injury is that there was a nail protruding from the base of a pallet of chicken product, and that this caused a crate to be jammed, causing the plaintiff to sustain a disc prolapse at the L5/S1 level of his back. It is not in dispute that he sustained such a frank injury on the day alleged.
He brings the claim against his employer, the first defendant, and against the second defendant who, he alleges, packed the chicken crate in an unsafe manner, knowing that it was subsequently going to be unloaded for retail distribution. Liability is in issue with both defendants. His claim is that the back injury has rendered him permanently unfit for his previous heavy manual labour, and there is no real dispute that this is so. He has retrained as a driving instructor and has established his own business, which has been trading only since mid-2004. The plaintiff’s claim is for a sizeable ongoing economic loss, whereas the defendants argue that the driving instructor business and the medical prognoses indicate that his ongoing economic loss will be minimal.
The mechanism of the injury
The only evidence as to the mechanism of the accident was the uncontradicted evidence of the plaintiff, who impressed as a generally honest witness. He was 30 years of age at the time of the accident and, since completing his secondary studies to the end of year 12, had been in continuous employment until the accident, initially as a car detailer for a period of about a year after leaving school, and then as a storeman in the food distribution industry. He commenced work with the first defendant in 1995. He said that he enjoyed the work, which involved working night shifts, and it is apparent that he was regarded as a valued employee. Indeed, despite his frank injury which precluded him from his normal work, his employer consciously retained him as a light duties employee until May 2003 so that he would qualify for long service leave entitlements.
I find on the plaintiff’s uncontradicted evidence that he was required in the course of his employment with the first defendant, with one or two other employees, to unload in the cold store warehouse chicken products received from the second defendant on large pallets. I find that the pallets from the second defendant comprised of crates and boxes stacked upon wooden pallets and wrapped in a clear plastic wrap. A photograph was tendered in the plaintiff’s case showing a pallet stacked and wrapped in a similar manner. I find that on the evening in question he was unloading such a pallet and, it seems to me, that it is open from this finding to infer that the pallet had been so stacked and wrapped by agents or employees of the second defendant.
I find that the nature of the enterprise of the first defendant was that pallets of products so delivered were unpacked by its employees, and then repacked on other pallets for distribution to retailers in the Canberra region, being either retail grocers or food outlets that used the second defendant’s products to provide fast food services.
The plaintiff gave evidence, which I accept, that the system used at the warehouse was that, when unloading a pallet, the upper layers of crates or boxes would be lifted from the pallet. The crates and boxes were so constructed that they locked into each other when stacked on top of each other. He said that the crates in the last two or three levels on the pallet would be slid from the pallet either onto the floor for reloading onto other pallets, or directly onto anther pallet.
I accept his evidence that he had seen other employees use this method of work, and that after his accident when he was asked to supervise and instruct his replacement, he used this method. He said that the cold store was a very busy workplace, and that this method of unloading the lower crates was used because it was quick and it was only by using this method that adequate time was available for meal breaks.
The plaintiff gave evidence, which I accept, that after pallets were unloaded they were inspected and placed either in piles for collection by the distributor for reuse, or, if damaged or unusable, placed in a separate pile at the back of the first defendant’s premises. The plaintiff said, and there was no evidence to the contrary, that the pallets from the second defendant were often of an inferior quality compared to pallets from other companies, and that the defects included broken boards and protruding nails, and that these defects caused occasional spillages and necessitated manual unloading from trucks.
I find that such defects could not be observed by a person unloading the pallet until the unloading had been completed, because the defect would have been covered by the crates. I find that such defects would be apparent to a person examining the pallet before it was loaded, save for any defects which were caused during the process of loading and transportation from the second defendant’s facility in Sydney to the premises of the first defendant.
I find that on the night of the accident the plaintiff was working in accordance with the usual conditions unloading crates of chicken from the second defendant’s pallet. He says and I accept that he observed that this pallet did not have a cardboard base on it between the wooden pallet and the crates of chicken. Most, but not all, of the second defendant’s pallets did have such a layer of cardboard. I find that there would have been no defect apparent to the plaintiff as he commenced unloading this crate.
I find that after unloading the upper level crates by lifting them across, the plaintiff attempted to slide two crates on top of each other and situated at the base of a corner of the pallet by using a pulling and twisting motion, with the intention of sliding the two crates off the second defendant’s pallet and towards another pallet. I find that this was the normal process of his work. I find that in so doing he experienced an unexpected resistance in that the crates would not move as they usually did. He used extra force to try and disengage the crate, and this caused him immediate sharp low back pain.
I accept the plaintiff’s evidence that he stopped work for a short time hoping and expecting that this would give him relief. I accept that when he resumed work and sought to continue to unload the pallet he kicked the bottom crate free after several attempts to move it. I accept his evidence that after he removed this bottom crate from the pallet he noticed a nail protruding some three or four centimetres from a board in the pallet and in the right rear quadrant of the area occupied by the crate. I accept his evidence that the nail was not in an area of the pallet where it would have been holding one of the boards forming the upper surface of the pallet to an underlying structural cross bearer. I accept that the nail was sharp at the protruding top as though it had no head.
I find that the protruding nail had been holding the crate in position either by perforating the crate or by sitting in a gap in the base of the crate. In either event, the nail would have prevented the crate from being slid across the pallet. By accepting the evidence that the nail was not situated above a cross piece of the pallet, it seems to me that I can safely draw the inference that the nail had not been worked loose from its normal position in transit as it was not in a position where a nail should have been.
I accept the plaintiff’s evidence that after he concluded unloading this pallet, and in accordance with the normal practice, he ensured that this pallet was not reused because of the presence of the nail, and that it went on the pile of damaged and not for reuse pallets.
Liability of the employer
The first defendant, as the plaintiff’s employer, has a specific and non-delegable duty to take appropriate care for the safety of its workers. The duty was well stated by the High Court in O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229 where the Court (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ) said:
The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.
I accept the submission of Mr Tobin SC, for the plaintiff, that the first defendant knew that pallets would from time to time come into the storeroom in a damaged condition, and that these defective pallets constituted a danger to employees. I accept that pallets from the second defendant were particularly prone to defects, and that an employee unpacking a pallet would have no way of telling whether a defect under the crates of chicken would prevent the crates from sliding easily off the pallet. I accept that the system of work utilised by the plaintiff on this night by way of sliding the lower crates off the pallet was the system known and approved by the employer. It is Mr Tobin’s submission that it follows from this that it was foreseeable to the employer that the plaintiff may suffer injury because of the condition of the pallets when adopting an unloading system that involved sliding the crates, and that the first defendant should have required its employees to utilise a system of unloading the pallets that did not rely on sliding.
The plaintiff’s evidence as to the nature of the system of work and the longstanding difficulties with pallets arriving in poor condition was uncontested, and there was no evidence lead from either defendant to contradict this. Mr Tobin submitted that this would allow me to draw the appropriate inference in accordance with the principle of Jones v Dunkel (1959) 101 CLR 298. This principle, that where a party in a position to call evidence does not do so, it is appropriate to draw the inference that the evidence would not have assisted that party’s case, has been restated by the High Court in RPS v The Queen (2000) 199 CLR 620, Gaudron A-CJ, Gummow, Kirby and Hayne JJ state (at 632):
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that:
“Where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
It seems to me that on the uncontradicted evidence of the plaintiff I am entitled to find, and I so find, that the employer was negligent in allowing a method of unloading pallets to proceed in the manner it did, knowing that pallets may contain defects that would not be apparent to the workers unloading them. I find that it is foreseeable that should such a pallet contain a defect such as a protruding nail, an employee seeking to slide the boxes off the pallet (in order to complete the task more quickly) could suffer an injury if the box caught on the pallet. It seems to me that I would be able to make such a finding on the uncontradicted evidence of the plaintiff, and that I get more comfort in making such a finding by drawing the appropriate inferences from the failure of any person to give evidence going to liability from the first defendant’s camp. I therefore find that the first defendant was in breach of its duty of care to the plaintiff.
Liability of the second defendant
The plaintiff’s case against the second defendant, Inghams Enterprises, is that it was negligent in permitting defective pallets to be loaded by its employees or agents and to leave its premises stacked with products in such a manner that the defect would be concealed. Again, there was no evidence called by the second defendant in relation to liability. It seems to me that I am entitled to find as a fact that there was a nail protruding from this pallet, and that this pallet, being stacked full of products from the second defendant in boxes and cases, and being wrapped in the clear plastic wrap customarily used on incoming Inghams’ pallets, had been packed by agents or employees of the second defendant.
I find that the nail was protruding in the manner described by the plaintiff, and that it follows from this that I can find that, while a nail protruding in such a manner would not be apparent to a person seeking to unload the pallet, it should have been apparent to a person inspecting the pallet before commencing the loading operation. I accept that, while most of the second defendant’s pallets had a layer of cardboard between the wooden pallet and the crates of chicken product (apparently to soak up liquid seepages), the pallet in question did not, and it would follow that it would have been readily apparent to a person looking at the crate that there was a defect in the crate, and the decision could have been made, as it was on the plaintiff’s evidence after the unloading, that this was not a pallet that was fit for reuse.
It seems to me that, given that I accept the plaintiff’s evidence that the nail was not situated above a structural cross member of the pallet, I can draw the inference that it did not work itself free from a position where it had been properly used to build the pallet. From this inference, and from the inference that I can draw from the second defendant’s failure to give any evidence going to liability that the second defendant was in breach of a duty to properly inspect pallets before they were loaded with product, I find it is foreseeable that, where pallets are not inspected, persons unloading a pallet with a hidden defect may sustain injury. It follows that I find that the second defendant was in breach of a duty of care owed to persons such as the plaintiff who it could reasonably foresee would be unloading the pallet.
Contributory negligence
It was argued that, because the plaintiff on his own evidence was aware that pallets sometimes arrived with hidden defects, he was himself negligent in unloading them in such a manner that crates could become stuck on a protruding defect. It is no doubt correct that all plaintiffs have a responsibility to exercise a reasonable degree of care for themselves. Mr Whybrow, for the second defendant, put this submission both as to primary liability and contributory negligence. In the New South Wales Court of Appeal in Burwood Council v Byrnes [2002] NSWCA 343, Handley JA said at [33] that the standard of care owed by a council to pedestrians using council controlled thoroughfares was –
that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence.
This remark was endorsed by McHugh and Kirby JJ during a special leave application in that matter ([2003] HCATran 462 (14 November 2003)). Kirby J there stated, in the course of oral argument -
... we cannot get too far away from notions of reasonableness. Courts have to conceive of duty in a social context. The social context is one of reasonable conduct on the part of putative tortfeasors and people who are injured and therefore, when you are looking at what is reasonable to expect of the duty, you cannot ignore at that stage the fact that the duty is owed in a social context in which people are being reasonably careful for their own safety. To divorce it and snip it up and scissor it around and say you can only think of that at the end when you are dealing with breach or when you are dealing with contributory negligence I think is a very unrealistic way to instruct judges and I do not think the Court of Appeal erred here.
With respect, I am inclined to agree with these observations, and in published remarks I have endorsed the view that the law of negligence may be moving in the direction that it can be said, generally, that the duty that the law of negligence imposes is a duty to take reasonable care for the safety of other persons who are themselves taking reasonable care for their own safety.
But even accepting that the remarks of Hanley JA in Burwood Council v Byrnes, which have apparently been endorsed by two Judges of the High Court on a special leave application, may point to a new formulation of the duty of care owed by a tortfeasor, it seems to me that it would be very difficult in the face of well established authority to say that a worker who is following a system of work endorsed and required by his or her employer is not exercising appropriate care for his or her own safety.
It is clearly settled law that where a system of work is complied with by a plaintiff, such compliance cannot be considered contributory negligence. So much was eloquently stated by Dixon J in Davies v Adelaide Chemical and Fertilizer Company Limited (1946) 74 CLR 541. His Honour there found that an injured worker was following an established and endorsed practice of lubricating a conveyor belt while it was in motion. Such a course of conduct can in retrospect be clearly seen as carrying with it a real risk that the worker would become trapped in the moving machine, which eventually happened. His Honour said (at 551) –
In fact, though the practice did involve some degree of risk, it was not highly dangerous and, as between stopping the belts or greasing them in motion, the inconvenience to the factory of stopping the belts might easily be regarded as outweighing the risk. At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and long-standing practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work.
This well describes the present plaintiff’s position, in that I have found that the practice of sliding the lower crates was an adopted and endorsed work practice, which enabled the task to be completed more quickly. Whatever may evolve from the acknowledgement that a tortfeasor’s duty of care may be limited to persons exercising proper care for their own safety, it seems to me that there is presently clear authority for the proposition that a worker following an accepted practice of work cannot be said not to be exercising proper care for his or her own safety, either in respect of primary liability or contributory negligence. A different position may be reached if a worker is alleged to have been engaged in horseplay, or modifying accepted work practices to suit his or her own convenience, but that is not so in this case.
It follows that I am satisfied that no contributory negligence has been established here.
Attributing liability between the two defendants
As is often the case where two defendants are both contesting primary liability, both Mr Parker and Mr Whybrow had no difficulty with the proposition that the other’s client could be found to be negligent, and that in the event of both defendants being found to be liable, that the other party should be found to be the more culpable.
It seems to me that, on all the evidence, the appropriate course is to attribute responsibility equally to the two defendants. The first defendant, as employer, has the higher standard of care and, as I have found, knew that defective pallets were delivered into their warehouse premises, yet acquiesced, if they did not actually encourage, a timesaving method of work which gave rise to a reasonably foreseeable injury when a crate jagged on a protruding nail in a pallet. On the other hand, there was no real way that the first defendant could inspect against such defects.
The second defendant did not owe to the plaintiff the same high level of care expected of an employer, but on the ordinary principles of negligence, it must be taken to know that if a defective pallet is loaded in its premises in such a way that the defect, apparent on an empty pallet but concealed when the pallet is loaded, it can give rise to an injury to persons subsequently handling the pallet. I have found that the employer had in place a longstanding system whereby employees inspected pallets as they were emptied and either arranged for them to be reused by the despatching organisation or, if they were defective or dangerous, placed them aside so that they would not be reused until repaired. Such a system, if adopted by the second defendant, would, I have found, have avoided this injury, and such a system would not have been difficult to introduce. It seems to me that the ease with which pallets could have been inspected before loading is a significant factor in attributing liability to the second defendant.
On balance, and in the circumstances of this case, it seems to me that it is appropriate to attribute responsibility equally to the two defendants.
Damages
It is common ground that as a consequence of this accident the plaintiff sustained a frank injury to his back by way of disc injury at L5/S1. The plaintiff’s pre-accident medical and employment records were available, and I am satisfied that, prior to the injury, he suffered no significant back pain giving rise to employment restrictions and he was coping well with quite heavy work.
The plaintiff gave evidence, which I accept, that he thought it was just a passing sprain, and although he was in pain as he left work and when he returned home for the weekend, he did not immediately consult a doctor. Indeed, he first presented to a doctor on 17 September 2002 in the context of having accompanied his wife and sick baby to the Canberra Hospital Emergency Department. They apparently provided him with Pandadine Forte and advised time off work and consultation with his general practitioner.
He consulted his family general practitioner, Dr Southi, on 19 September 2002. Dr Southi has been his family general practitioner since 1995, and reports that this was the plaintiff’s first complaint of low back pain. Dr Southi took a history of severe low back pain and intermittent numbness to the left foot, causing trouble walking or standing, and sent the plaintiff to physiotherapy with more time off work. He commenced a graduated return to work on light duties, but the pain continued, and Dr Southi sent him for an MRI examination in October 2002, which revealed -
At the L5/S1 level, there is a moderate sized to large left posterior paracentral disc extrusion with resultant impingement and posterior displacement of the left S1 nerve root. There is also mild impingement of the thecal sac. It is associated with a large annular tear. Minimal degenerative change is seen in the facet joints.
Mr Bradley says that although his employer helped with a graduated return to work on lighter duties, the pain persisted. In early 2003 he obtained a drivers licence for a heavy rigid vehicle and completed a certificate in transport and distribution, with a view to working as a driver or distribution supervisor.
He was seen by Dr White in March 2003 who recommended that he continue with conservative treatment in the hope that his symptoms would resolve, but who cautioned that he may require surgery. In May his employment was terminated when it became apparent that he could not return to full duties, and he assisted in training his replacement.
In June 2003 he was seen by Dr Pik, a neurosurgeon, who recommended further investigations. A lumbar discogram was performed in August to the affected level, and Dr Pik recommended a microdiscectomy procedure to seek to relieve the radiating pain in his left leg. This procedure was performed on 23 October 2003, and Dr Pik reported in December 2003 that this had largely resolved the leg pain. He recommended the help of a physiotherapist for back strengthening exercises, and a swimming program.
The plaintiff gave evidence that he remains satisfied with the result of the operation in so far as he has achieved lasting relief from the previously disabling radiating leg pain, but continues to suffer from ongoing back pain. In September 2004 Dr Corry, consultant physician in rehabilitation medicine, reported that his persistent low back pain meant that he was permanently prevented from engaging in heavy lifting. Dr Corry noted that the plaintiff sustained an unrelated injury to his left knee in about February 2003 when squatting. He noted that this continued to cause him pain and limitation of movement, and as a consequence his capacity for exercise, which was strongly recommended to strengthen his back, was compromised. Dr Corry noted that the plaintiff’s weight had increased from 80 kilos before the accident to 105 kilos on examination. Dr Corry’s conclusion in September 2004 was that:
Although Mr Bradley has had surgical intervention and the neurological involvement affecting the left leg has been successfully treated, he has made poor recovery from the back injury. Spinal rehabilitation and treatment has been impeded by the development of disability in his left knee and, as a consequence of this, he is now doing very little physical activity and no formal exercise. The result of this is that he is at risk of chronic low back disability and recurrent low back injury risk is increased. With treatment and further spinal rehabilitation these risks can almost certainly be minimised or even resolved.
Dr Corry recommended arthroscopic examination of the knee, and a period of intensive back rehabilitation exercises under appropriate supervision.
In his report of July 2005, Dr Corry noted that the plaintiff had been seen by an orthopaedic surgeon, Dr Aubin, who performed an arthroscopic repair of his torn meniscal in the left knee in December 2004. Dr Corry reports that the plaintiff was required to wear a knee brace for six weeks and then undergo physiotherapy to restore movement to the knee, which was improved but still showed persisting weakness. Dr Corry noted that the non-accident related knee injury had caused him ongoing limitations in his ability to exercise, and that he had had no further treatment or rehabilitation for his lower back. He again recommended an intensive physical rehabilitation program under close medical supervision for his lower back.
Dr White, a consultant neurologist, examined the plaintiff and reported to his solicitors in June 2005. He noted the plaintiff’s significant weight gain, without reference to the knee injury, and recommended that he undertake “an exercise program and intermittent use of analgesic or massage as required”.
His treating general practitioner in a report of September 2005 stated –
Mr Bradley’s prognosis is good. He will continue to have intermittent pain and stiffness as described above for the rest of his life. In my opinion he will need to lose weight and need to take his health seriously and to continue strengthening program.
The plaintiff acknowledged that he had not undertaken the intensive reconditioning exercise and strengthening program under medical supervision as recommended by all his doctors, although he was trying with some exercises at home.
The plaintiff was examined by Dr Bookallil, consultant neurosurgeon, for the first defendant in February 2005. Dr Bookallil accepted that the plaintiff had sustained the frank disc injury as a consequence of the accident at work, and that his ongoing back pain is attributable to the injury. He accepted that this ongoing low back pain resulted in a permanent disability, in that he is unable to engage in heavy work, and should avoid lifting and carrying. He said that the prognosis was good, with ongoing conservative treatment.
Counsel for the second defendant in his submissions on damages noted that, despite frequent recommendations for an intensive supervised rehabilitation program to strengthen his back, the plaintiff has not undertaken a supervised exercise and strengthening regime. While I accept that his unrelated knee injury did present difficulties for walking to keep his weight down, it seems to me that the medical advice tendered in the plaintiff’s case is consistent in the recommendation that he undertake a supervised exercise regime, and in the prognosis that this will greatly improve his condition and reduce his risk of further ongoing difficulties. He will always be a man with an injured and vulnerable back, but this does, it seems to me, make it crucial that he follow his doctor’s advice in relation to rehabilitation.
On all the medical evidence I accept that his back injury was initially significantly disabling, with back pain and associated radiating pain to the leg. I find that this resulted in a need for surgical intervention, which has successfully resolved the radiating leg pain, significantly improving his mobility and capacity, but leaving him with ongoing back pain and a permanent impairment in that he is unable to lift and carry heavy objects.
I also find on all the medical evidence that the prognosis for his back is generally good, provided he takes steps to undertake a supervised exercise and strengthening program for his back, which he has so far not undertaken, despite medical advice.
I propose to provide for the cost of a fully supervised exercise program by awarding the full sum claimed by way of future out-of-pocket expenses of $5,000. It follows from this, however, that I should assess him into the future on the basis of reducing weight and increasing strength to his back, which all his doctors agree will improve his long-term prognosis.
In relation to general damages, I assess him on the basis of, to adopt Dr Corry’s description of September 2004, “persistent low grade back pain” consequent on a frank disc injury, with resolved radiating leg pain following successful surgery. I find that his back strength and mobility will improve, but that he will be permanently restricted in repetitive bending or twisting or lifting activities involving more than 10 kilos at any one time.
Taking all of this into account, I assess general damages in the sum of $60,000, with half of this attributable to the past, recognising the initial higher level of pain and radiating leg pain, and the invasive nature of the discogram and surgery to his back, generating interest of $1,930. I note that the range of damages suggested by counsel for the plaintiff falls, in my view, beyond the range of damages awarded in this jurisdiction for this type of injury.
Out-of-pocket expenses were agreed at $40,346 for the past, which I award. The plaintiff claimed a buffer sum of $5,000 for the future, primarily based on costings annexed to Dr Corry’s September 2004 report, and going to rehabilitation costs. As I have indicated, I accept that the intensive supervised rehabilitation is necessary and will have the positive impact all doctors report, and award this sum in full.
There is a claim for past and future domestic assistance provided by his wife pursuant to the principles of Griffiths v Kerkemeyer (1977) 139 CLR 161. The plaintiff claims this for the past on the basis of evidence from him and his wife that domestic activities have been rearranged to the extent that she undertakes about four hours additional work. I accept that, particularly in the period of his higher levels of disability before the surgical resolution of his leg pain, his wife would have been required to provide some domestic assistance. However, the only doctor to specifically address the need for domestic assistance is Dr Bookallil, who states that “he does not really require domestic assistance”. Mr Parker, who made submissions for both defendants on the question of damages, made the submissions that much of the activity now done by Mrs Bradley but formerly done by the plaintiff can be explained by the fact that, whereas he previously worked night shift, and so was able to spend some time collecting the children and generally assisting in the home, he is now working during daylight hours as a driving instructor. While the plaintiff’s medical evidence supports the proposition that there is a permanent restriction to heavier lifting, which would have an impact around the house, I am unable to accept the submissions that this sounds in four hours of domestic assistance for the past, and an ongoing amount based on about three hours into the future. Moreover, the non-accident related knee difficulty has clearly, on the medical evidence, had some impact on his mobility and general capacity about the home and garden.
Nevertheless, there is, it seems to me, some accident related need going beyond the normal give and take of rearrangement of domestic affairs (Van Gervan v Fenton (1992) 175 CLR 327). While this primarily goes to past care, particularly up to the period of convalescence following the successful surgery, I accept that there will be some restrictions in relation to heavier household tasks, although, as I have found, the undertaking of the recommended exercise and strengthening programs will significantly improve his general mobility and capacity around the house and garden. Taking all of this into account, I would award the sum of $10,000 as a global award for past and future gratuitous care, inclusive of interest for past care.
The plaintiff’s economic loss claim was particularised as at 19 May 2005 as follows:
The plaintiff claims a past economic loss:
(a)At the time of the accident the Plaintiff was employed full-time as a Storeman by the first defendant at a rate of $596.75 net per week.
(b)From the date of the accident for 1 week the Plaintiff was totally incapacitated and unable to work. I week at $596.75.
(c)After this initial period the Plaintiff was employed full time on modified duties for a period of 25 weeks.
(d)After this period of 25 weeks the Plaintiff was terminated and continued to receive workers compensation payments at the statutory rate.
(e)Since the initial 26 week period, after the injury, the Plaintiff has been unemployed for a period of 108 weeks (until 11 May 2005). Plaintiff’s total loss for this period calculated at $596.75 net per week throughout the period (108 weeks) - $64,449.00.
(f)The plaintiff has been employed as a driving instructor intermittently and during his period of termination he has drawn $1991.00 by way of wages from this activity.
(g)Total past economic loss- $63,054.75 (to 18 May 2005).
Mr Parker, for the defendants, indicated that the defendants would accept this approach to past loss. It is the fact, and I find, that since his termination the plaintiff has set about establishing himself as a driving instructor. He has obtained his ACT licence, and at the date of the hearing expected soon to receive a New South Wales licence. He has established a company and obtained an appropriately modified vehicle, and is operating as a contractor to Pinnacle Driving School. The primary financial documents of this enterprise have been tendered in the plaintiff’s case.
It is apparent that in the early period this venture was, as one would expect, not remunerative. In the first quarter of trading (from May to September 2004), his average billed hours were only 2.88 per week, with gross receipts (after commission and GST but before tax) of only $107.38. In the second quarter of operation, from September 2004 to December 2004 the hours were 1.85 and the receipts $70.32.
In the December 2004 to March 2005 quarter, his hours increased to 16.15 and his receipts to $595.75. In the March to June 2005 quarter his hours were 26.93, and receipts $1,024.07. Figures for weeks up to the week ending 21 September 2005 indicated that this was steady at about these hours and earnings.
Mr Parker, reasonably in my view, conceded that it was appropriate for the plaintiff to retrain himself into this field, and that as a consequence the defendants, if liability be established, should bear the cost of his retraining up until the enterprise becomes viable. It is clear from the medical reports that, save for a limitation on heavy activities, all doctors accept that the plaintiff has been fit for full-time work in a range of light duty occupations. Dr Corry in September 2004 expressed reservations as to whether driving instruction was the most appropriate activity, and concluded that the plaintiff -
has limited knowledge of alternative work options in the light industrial category where he might be suitably employed. With more intensive back rehabilitation it is possible that Mr Bradley could successfully be employed in jobs requiring the lifting and handling of weights up to 20 kg (medium work categories), which would increase the work options available to him.
At the time Dr Corry felt he was restricted to light work categories, but this seems to be on a full-time basis.
All the medical material supports the conclusion that the plaintiff is fit for full-time light duties work.
It seems to me that the approach urged on me by counsel for the plaintiff, to compare the plaintiff’s prior income with his income from driving instruction as the basis for past and future wage loss, is artificial and not supported by the medical evidence. His driving enterprise is a company, and there have been loans by him to the company for equipment purchases. His accountant, in a letter of 6 June 2005, provides what is said to be a projection for the earnings of the enterprise in the June tax quarter of 2005, which shows income of $18,382.50, but a loss after wages and depreciation for tax purposes of some $8,000. While entirely legitimate for taxation purposes, this does not, it seems to me, give a true picture of what I must assess, which is the plaintiff’s after injury earning capacity. In a further report of 15 September 2005, his accountant projects an income of $13,095 for the quarter to end September 2005, with a taxable profit for that period of $8,510.
It seems to me that it is appropriate to award the claimed loss of income as particularised to about May 2005, but that after this point the records from the driving enterprise show that the venture is bringing in significant sums of money. Moreover, the medical evidence supports the view that the plaintiff is capable of a full range of light duty activities on a full-time basis. He has chosen to be self-employed as a driving instructor and as at the date of the trial had still not obtained his New South Wales licence, which he acknowledged would improve the range of jobs open to him as an instructor in the Canberra/Queanbeyan area.
It seems to me that from about May of this year, it is no longer appropriate to adopt an arithmetic approach to wage loss, as from that time his business is demonstrating significant earnings, and the medical evidence is that he can work full hours in a range of light duties. Moreover, his own specialist, Dr Corry, provides a prognosis that if he follows advice on exercise and strengthening, which he has failed to do over the last two years, his capacity will further improve. Nevertheless, I do not accept the submission that there is no real ongoing loss, as he will be permanently prevented from the type of heavy work that he previously enjoyed, and which, with its unusual hours, attracted high rates of pay for the skill levels involved.
It seems to me that it is appropriate to award the sum of $70,000 for past wage loss, based on the particularised claim up to May 2005 and inclusive of interest, and a modest buffer for the months to trial.
He was in receipt of workers compensation payments on which he paid tax, and which he will have to repay in full, and so an award pursuant to the principle of Fox v Wood (1981) 148 CLR 438 is appropriate, which counsel agreed should be in the sum of $11,864, which I award.
For the future, I am not satisfied that the claim as particularised is made out, being an arithmetic claim based on the difference between his pre-injury earnings and the notional wages drawn by him from the driving enterprise. These wages, it seems to me, do not represent his real economic capacity, which on the medical evidence is for full-time light to moderate labour, across a range of occupations, but with a permanent restriction from heavy repetitive lifting. It seems to me that a buffer of $50,000 for future economic loss is appropriate, and I award this sum.
This amounts to an award of damages of $249,140.00 made up as follows:
General damages $ 60,000.00
Interest on general damages $ 1,930.00
Past out-of-pocket expenses $ 40,346.00
Future out-of-pocket expenses $ 5,000.00
Domestic assistance $ 10,000.00
Past economic loss $ 70,000.00
Future economic loss $ 50,000.00
Fox v Wood $ 11,864.00
Total: $249,140.00
I order that there be judgment for the plaintiff against both defendants in the sum of $249,140.00, and the defendants pay the plaintiff’s costs. I attribute responsibility
equally, but as liability is joint and severable, it is appropriate to allow the plaintiff to enter judgment as he sees fit.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 2 December 2005
Counsel for the plaintiff: Mr TP Tobin SC with Mr S Hausfeld
Solicitor for the plaintiff: Pamela Coward & Associates
Counsel for the 1st and 2nd defendants: Mr S Whybrow
Solicitor for the 1st defendant: Dibbs Barker Gosling
Solicitor for the 2nd defendant: Sparke Helmore
Dates of hearing: 22 and 23 September and 27 October 2005
Date of judgment: 2 December 2005
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