Jaspers v Prospect City Council - [2012] SADC 6

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JASPERS v PROSPECT CITY COUNCIL
[2012] SADC 6
Judgment of Her Honour Judge McIntyre
3 February 2012
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
DAMAGES - GENERAL PRINCIPLES - GENERAL AND SPECIAL DAMAGES
Plaintiff's claim for damages for personal injury - plaintiff performed work for the defendant under a labour hire contract at defendant's premises - plaintiff injured lifting compactor onto a truck - plaintiff brought action in negligence because s54(1) of the Workers Rehabilitation & Compensation Act did not apply - whether defendant negligent - whether plaintiff contributorily negligent - quantum of claim disputed. Held, defendant's negligence established, plaintiff not contributorily negligent - damages assessed as follows:
Non-Economic Loss: 15 points - $23,840; Past Economic Loss and Superannuation - $140,000; Future Economic Loss and Superannuation - $175,000; Special Damages - $12,500; Future Medical Expenses - $5,000; TOTAL - $356,340.
Workers' Rehabilitation and Compensation Act 1986 s54(1); Occupational Health Safety and Welfare Act 1986 s19; Occupational Health Safety and Welfare (Manual Handling) Regulations 1990 Regulations 5,6 and 7; Civil Liability Act 1936 s44, referred to.
Mason and Cox Pty Ltd v McCann (1999) 74 SASR 438; Wyong Shire Council v Shirt and Others (1980) 146 CLR 40; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Medlin v SGIC (1995) 182 CLR 1; Murray v Dawson [1996] 24 MVR 244, considered.

JASPERS v PROSPECT CITY COUNCIL
[2012] SADC 6

The Plaintiff, John Jaspers, was an employee of Maxima, a labour hire company. He was directed to work at the premises of the City of Prospect, the Defendant. Mr Jaspers says that, on the 8^th July 2004 as part of this work, he and another worker were required to lift a compactor onto the back of a truck and that during the course of this he sustained an injury to his back. He seeks damages for that injury on the basis that Prospect was negligent and in particular that it failed to provide him with a safe system of work.
Mr Jaspers is able to sue Prospect in negligence because the provisions of s54(1) of the Workers’ Rehabilitation and Compensation Act 1986 do not apply.[1]
[1] Mason and Cox Pty Ltd v McCann (1999) 74 SASR 438.
Prospect resists Mr Jaspers’ claim saying that the injury was not caused by the lift or, in the alternative that the system of work was safe but that Mr Jaspers failed to comply with it. If it is found to be negligent, Prospect contends that Mr Jaspers’ damages should be reduced by reason of his contributory negligence.
For the reasons that follow I find in favour of Mr Jaspers and I have assessed his damages in the sum of $ 356,340.
Issues
It is not in dispute that Mr Jaspers has a disc prolapse in the mid-back specifically at T12/L1. The issues to be determined are as follows:
1.How did Mr Jaspers injure his back?
2.Was the system of work unsafe?
a.What was the task?
b.Was the risk of injury foreseeable?
c.Was Prospect’s response reasonable?
3.Did Mr Jaspers contribute to his injury?
4.What is the proper assessment of Mr Jasper’s damages?
The Hearing
The hearing commenced on 11 July 2011. Mr Jaspers’ case concluded on 20 July 2011. Prospect’s case proceeded from 5 September until 6 September 2011.
Mr Jaspers gave evidence as did a co-worker Mr Stephen Thomas. In addition he called expert witnesses; Dr Magliaro his treating psychologist, Dr Davis a psychiatrist, Dr Morrison an orthopaedic surgeon and Mr Toshach an occupational health and safety expert. Prospect called Mr David Haddon, the works co-ordinator at the City of Prospect in 2004, and Dr Eriksen a general surgeon.
All of the expert medical witnesses, Dr Magliaro, Dr Davis, Dr Morrison and Dr Eriksen, were impressive. In general terms there was little dispute between the medical witnesses. I will deal with the contentious issues in context.
Mr Toshach is, I accept, an expert in occupational health and safety with a particular interest in manual handling. There were some aspects of his report that went beyond his field of expertise but these matters were not led by Mr Jaspers. I have not therefore taken those matters into account. My overall assessment of Mr Toshach was that he is a knowledgeable witness in his field of expertise whose evidence I accept.
Both Mr Steven Thomas and Mr David Hadden were candid and helpful bearing in mind the considerable lapse of time since the date of the accident. In the event there was little conflict between the two. Similarly there was little difference between their evidence and that of Mr Jaspers. Such differences as there were I will discuss in the context of the discussion of the evidence. Overall I accept their evidence.
On the topic of Mr Thomas’ evidence I note that he and Mr Jaspers are not friends. They were work colleagues. Mr Thomas had not seen Mr Jaspers for many years after the accident. He was first asked to give a statement by Mr Jaspers’ lawyer about two weeks prior to the trial. Mr Jaspers brought the statement his lawyer took around to Mr Thomas to sign. They did not discuss the contents of the statement. Mr Thomas did not see Mr Jaspers read it. Prospect did not suggest that there was any collusion between the two as to their evidence nor did I detect any evidence of that.
Prospect, in submissions, put to me that I should not accept Mr Jaspers as a witness of credit. It is said that he was an unsatisfactory witness and that his evidence should not be accepted unless independently corroborated. Detailed submissions were made on this topic. My general impression of Mr Jaspers is that he is an unsophisticated man, with limited education and intelligence. He was very confused as to dates, the sequence of events and a number of matters. Some memory lapses were surprising – such as his complete inability to recall when his children were born or the time at which he commenced to live with his partner. On the whole however, I formed the view that Mr Jaspers gave his evidence genuinely and honestly within his limitations albeit on occasions he may have exaggerated or failed to fully inform the court on certain topics until pressed. I will deal with Prospect’s specific criticisms of Mr Jaspers’ evidence in context but whilst there is some force to some of the submissions, these relate in the main to minor matters not bearing on the central issues in this case. On key issues I accept Mr Jaspers’ evidence.
Background
Mr Jaspers was born on 16 September 1968. He left school in year 10 at age 16. He does not have any trade qualifications but has subsequently obtained certificates to drive fork lifts and earth moving equipment.
He worked with BHP in Adelaide for some 12 ½ years until his resignation on 24 February 1999. Mr Jaspers sustained two injuries at BHP during the mid-1990s. He injured his left knee and his left shoulder in separate incidents. He said that he was able to return to full duties following treatment and rehabilitation for each of these injuries and had no major problems other than some aching in the cold months. He said these injuries did not interfere with his work capacity. This is a contentious issue and I will deal with it later in these reasons. There is no evidence that Mr Jaspers had ever suffered a back injury and, in particular, a mid-back disc prolapse prior to 8 July 2004.
After leaving BHP this Mr Jaspers worked in a range of positions principally as a labourer and heavy machinery operator before gaining employment with Maxima Group Inc. Maxima is a labour hire company. Maxima sent Mr Jaspers to various organisations to work as a labourer including, on a number of occasions, local government organisations including the Unley Council, the Elizabeth City Council and Prospect Council.
Prospect was a party to an agreement with Maxima to hire labour including Mr Jaspers’ labour. Whilst Mr Jaspers attended at Prospect’s premises he was required to perform work for Prospect under its control, direction and supervision. He was also required to use Prospect’s plant and equipment.
The elements of a cause of action in negligence including the existence of a duty of care were considered in the decision of the High Court in Wyong Shire Council v Shirt and Others[2]. On the topic of duty of care his Honour Justice Mason said[3];
… Prima facie a duty of care arises on the part of a defendant to a plaintiff where there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff…
[2] (1980) 146 CLR 40
[3] At p44
There is no dispute that Prospect owed Mr Jaspers a duty of care. Mr Jaspers’ claims that Prospect was in breach of that duty for the reasons set out in paragraph 10 of his statement of claim as follows:
10.    The defendant, by its servants and agents was negligent and in breach of its statutory duty in that, the defendant:
(1)Failed to take all reasonable care for the safety, health and welfare of the plaintiff.
(2)Failed to provide a safe system of work to enable the compactor to be lifted     on the truck.
(3)Failed to provide the plaintiff with sufficient assistance to lift the compactor      onto the truck.
(4)Failed to provide the plaintiff with adequate plant and machinery with which to lift the compactor onto the truck and in particular failed to provide a mechanical hoist or other suitable lifting device to lift the compactor onto the truck.
(5)Failed to train or instruct the plaintiff and the worker assisting the plaintiff in safe lifting techniques.
(6)Failed to adequately supervise the plaintiff.
(7)Required the plaintiff to lift the compactor when it knew, or should have known, that the compactor was of such weight as to expose the plaintiff to risk of injury.
Failed to comply with s19 of the Occupational Health Safety and Welfare Act 1986.
(9)Failed to comply with Regulations 5, 6 and 7 of the Occupational Health Safety and Welfare (Manual Handling) Regulations 1990.
Prospect denies each allegation of negligence outlined in paragraph 10 and says further that:
...
2.2.1the defendant’s systems of work were reasonable in the circumstances having regard to the resources available to it.
2.2.2the plaintiff received adequate training and instruction from the Defendant in relation to the tasks he was required to undertake.
2.2.3the defendant had an adequate Occupational Health. Safety & Welfare policy in place at the relevant time.
…
Prospect further denies that Mr Jaspers suffered injury as alleged or at all but says that if Mr Jaspers did sustain an injury on 8 July 2004 then it was in the course of shovelling not in the course of lifting the compactor from the ground.
In the alternative Prospect contends that, if it is found that Mr Jaspers was injured as he alleged and that this was due to the negligence of Prospect, then Mr Jaspers was guilty of contributory negligence in that he:
…
2.5.1    Failed to undertake the lifting task in accordance with the instructions he had received from either his employer (Maxima Group Inc) or the Defendant.
2.5.2    Failed to take any or any adequate care for his own safety.
2.5.3    Failed to use appropriate team lifting techniques as directed by the Defendant.
…
In Wyong Shire Council[4] His Honour Mr Justice Mason set out the manner in which a tribunal of fact ought to consider whether there has been a breach of a duty of care as follows:[5]
In deciding whether there has been a breach of 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 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 probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflict in 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.
[4] See note 2 above
[5] At p47
Prospect referred me to the 10^th edition of Fleming The Law of Torts at page 319 and following. Contributory negligence is defined at common law as:
…a failure by the plaintiff to take reasonable care for his or her own safety that contributes to his or her injury.[6]
[6] Law of Torts, 10^th Edition p319
The learned authors also state that contributory negligence does not require the plaintiff’s conduct to be fraught with danger to others. It is a failure on the part of the plaintiff to take reasonable care of his or her own safety. There is no necessity for the plaintiff to be under a duty to take care before a finding of contributory negligence can be made. Further it is not necessary for the plaintiff’s conduct to cause the accident it simply needs to contribute to his or her injury.[7]
[7] Ibid at p319.
I was also referred to s44 of the Civil Liability Act 1936 that states that the principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent.
Counsel for Mr Jaspers contended that the issue of contributory negligence must be seen in the context that this was a work place injury. He referred to the principles outlined in the majority of the decision of the High Court in Bankstown Foundry Pty Ltd v Braistina[8] where their Honours Mason, Wilson and Dawson, JJ said:[9]
A worker will be guilty of contributory negligence if he ought to reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of the finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he is required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering responsible in part for the damage; See Podrebersek v Australian Iron and Steel Pty Ltd...[10]
[8] (1986) 160 CLR 301
[9] At p310
[10] (1985) 59 ALJR 492
How did Mr Jaspers injure his back?
I will deal first with Prospect’s contention that Mr Jaspers did not injure himself on 8 July 2004 and that if he did it was in the course of shovelling.
On 8 July 2004 Mr Jaspers said that he was fit and well. He had been working at Prospect for the preceding few weeks undertaking a range of labouring duties. There is no evidence that he was experiencing any difficulties with his duties. This was the second time Maxima had placed him with Prospect. Mr Jaspers said that Prospect specifically requested Maxima to send him. This was confirmed by Mr Haddon.
Mr Jaspers was working in a team of two. His co-worker was Stephen Thomas. There were a number of teams responsible for repair and maintenance jobs within the Prospect Council area including repair and maintenance of roads. Mr Jaspers and Mr Thomas gave evidence that on 8 July 2004 they were directed to fill potholes in a number of roads in the Prospect area. This was routine work that they had both performed before.
They had a truck loaded with equipment, crushed rock and dolomite. It is uncontentious that the truck was a two tonne truck with a tray and drop down sides. After a pothole had been filled with crushed rock and dolomite it was necessary to use a compactor to compact the filler material in the holes. Subsequently the hole would be patched with bitumen.
Mr Thomas and Mr Jaspers gave slightly different evidence about the work performed prior to the placing of the compactor on the back of the truck. Mr Jaspers said that they had taken the truck out loaded with dolomite and crushed rock, filled in a number of potholes and then returned to the depot for the compactor.[11] Mr Thomas said that he had never adopted this procedure. That is he had never filled in the holes and then returned to the depot to get the compactor. His evidence was that the dolomite and crushed rock was loaded onto the truck and then they placed the compactor on the truck before leaving the depot.[12] I do not consider that this difference is significant for present purposes, and I note Mr Haddon’s evidence that both methods were utilised depending on the nature of the job.[13] The key factor is that both Mr Jaspers and Mr Thomas gave evidence that they were filling potholes on 8 July 2004. Mr Jaspers says he injured his back the course of putting a compactor on the truck. Mr Thomas says that Mr Jaspers complained of hurting his back as they were putting a compactor on the truck.
[11] Transcript p25, p43
[12] Transcript p315
[13] Transcript p523
Mr Jaspers went to see Dr Heinzle at the Elizabeth Vale Work Health Clinic on 8 July 2004. Dr Heinzle’s note of this attendance indicates that Mr Jaspers said that he had been working at the Prospect Council and that he had “strained back moving a compactor onto a truck this morning”.[14]
[14] Exhibit P14
Mr Jaspers completed a Work Cover Notice of Injury form on 12 July 2004 for a low back strain. In that form he stated that he was “lifting a compactor onto side of truck” at the time of the injury. He further said that a “team lift” led to the injury and that the cause was “weight of compactor”.[15]
[15] Exhibit P7
Prospect’s pleadings contend that if Mr Jaspers injured his back on 8 July 2004 he did so whilst shovelling rather than in the course of lifting a compactor.[16] The basis of this pleading is not clear. Prospect did not call any evidence in support of the shovelling proposition other than to tender Mr Jaspers’ time sheet for the day in question which suggests that he was undertaking “path maintenance/tree roots”.[17] This may be the origin of the claim about shovelling although this is not entirely clear because the pothole work also involved shovelling. Mr Thomas and Mr Jaspers both deny that they were undertaking path maintenance.
[16] Amended Defence paragraph 2.3
[17] Exhibit D10
The issue of the job sheet is one aspect of the plaintiff’s evidence that Prospect submits indicates he is not a witness of credit. The job sheet was put to Mr Jaspers and he agreed that it suggested that he had spent 3 hours on the 8^th July 2004 on path maintenance and tree roots. He agreed it was his own hand writing but he suggested that it was an error and that he really should have put the 3 hours under road maintenance. He said that he was quite sure that he was not doing path maintenance and tree roots on that day. He said that the forms were “not real accurate anyway”. He said that they used to get told off that they hadn’t filled on in and that they would often start from the second week and work their way back[18]. The following day in cross-examination Mr Jaspers was asked about writing “workers comp” in two places on the work sheet. His response was as follows:
[18] Transcript p242-44
ABecause I was instructed to. Also going to the sheets, I remember something from the other day, your questions, and I remember that my discrepancies and other employees with filling out those sheets was the case that David Haddon instructed us to put our times under different job headings, because apparently the budget on some job titles were at their full capacity or something, and they had to book it under another job number.
QSo you had been thinking about this overnight, have you.
AWell, I was thinking about the discrepancies that I had with those sheets, yes.
QIs this the case, that you told her Honour yesterday that you must have put the number of hours that you worked on the day of the incident in the wrong place.
AThat’s quite true, but your memory does come back at some stage.
QI think you said yesterday, that you must have done that in error, is that right.
AThat’s what I thought at the time, yes.
QYou realised overnight that this might be a major deficiency in your case.
ANo, I was just wondering what discrepancies were in the sheets.
QYour mind was ticking over overnight and you thought you better find another explanation for why you had written the three hours in the wrong place.
AI was just trying to think of the truth, the reason why we had discrepancies for the sheets.[19]
[19] Transcript p265-66

Whilst Mr Jaspers’ evidence is somewhat confusing I do not consider that he was deliberately trying to mislead the Court in giving evidence on this topic. I accept his explanation that he was simply trying to provide a reason as to the discrepancy although he could not specifically recall why he had written 3 hours for path maintenance. In saying this I note the evidence of Mr Thomas on the same topic. He was shown Mr Jaspers’ time sheet and gave evidence as follows:
QYou see that it has Mr Jaspers’ name on it.
AYes, I do.
QAre you familiar with sheets such as this.
AYeah, I’ve filled a few out, yes.
QWas the practice to fill them out on the day.
AOh look, to be honest it was pretty slack and sometimes we’d actually fill it out a few days later, just as long as they are in for that week ending, fortnight ending.
QDo you see down the left-hand column there are various typewritten or printed entries, starting about halfway down the page there appear to be various examples such as kerb and gutter, path/maintenance, which presumably means path maintenance, then road maintenance, drain maintenance and others.
AYes.
QDo you see that the next column there is something entitled ‘G/L account’.
AYes.
QThat is the heading of that column, then there are various numbers.
AYep.
QLook like account numbers.
AYep.
QFirstly, do you know what G/L stands for, have you got any idea.
AI don’t know what G/L means but I know that there are account numbers that go on to different jobs, the numbers go to different jobs.
QThe numbers that are allocated to different jobs, is that for budgetary purposes within the council, to your knowledge.
AYes.
QWas there ever any instruction given about the filling out of these forms.
AYou know, you would do a job and sometimes you didn’t know what category it come under, so you would go an see the supervisor, Mr Haddon, and he would tell you what number to put it under. That was quite common practice.
QWas there a practice that Mr Haddon would tell you to put something that you knew might have been, say, kerb and gutter, under something else.
AYes.
QWas that common practice, very rare or what.
AIt wasn’t over common but when it suited his budget or suited himself it was done, yes.[20]
[20] Transcript p311-12
Mr Haddon was not asked any questions on this topic.
The undisputed medical evidence is that Mr Jaspers suffers from a disc prolapse at T12/L1. There is no evidence that he suffered this condition prior to 8 July 2004. The medical evidence was that this injury was consistent with the stated cause.
I reject Prospect’s contention that Mr Jaspers injured himself whilst shovelling. I find that Mr Jaspers sustained that disc prolapse as he and Mr Thomas moved the compactor from the ground to the back of the truck.
Was the system of work unsafe?
What was the task?
There is no doubt that Mr Jaspers and Mr Thomas were required to place the compactor on the back of the truck. It is equally uncontentious that there were no mechanical aids to assist them in that task.
Mr Jaspers said that the compactor was about 900 mm in length by about 600 mm in width and about 600 mm in height.[21] He estimated it to be between 50 – 70 kgs in weight.[22] Mr Thomas said that it was about 2 feet by 18 inches approximately and he estimated it to be about 60 kilos in weight.[23]
[21] Transcript p45
[22] Transcript p31
[23] Transcript p308
Exhibit D5 comprising two photographs of the relevant compactor was tendered through Mr Haddon. One of the photographs has dimensions on it showing the width of the compactor to be 600mm wide. Mr Haddon agreed with the dimensions and also said that the weight of the compactor was 85 kilograms.[24] The weight of the compactor was described as 85 kg in a manual handling risk assessment conducted by the defendant on 25 July 2002.[25]
[24] Transcript p541
[25] Exhibit P9
Exhibit D5 is a copy of part of Mr Toshach’s report dated 31 October 2008.[26] Mr Toshach’s evidence was that he took the photograph of the compactor and that the measurements were his.
[26] Exhibit P10
Taking all of this evidence into account I find that the dimensions of the compactor were as indicated in Exhibit D5 and that it weighed 85 kg.
The truck that Mr Thomas and Mr Jaspers were using had hinged sides. Mr Jaspers said that they lifted the compactor onto the passenger side of the truck.[27] Mr Thomas said that they put it on the back of the truck following opening what he described as a swinging tailgate.[28] I do not consider this discrepancy to be of significance. What is clear is that they both say that they were lifting the compactor onto the tray of the truck. They both assess the height of the tray in similar terms. Mr Jaspers said that the tray of the truck was “midway between the belly button and chest height” on him[29] and Mr Thomas said that it was a little bit below his chest height.[30] Mr Thomas said they were of similar height and that was also my observation in court. He said he was 5’7” – he used to be 5’9”. [31] Mr Toshach’s report indicates that he measured the distance from the ground to the tray of the truck as 1000mm.
[27] Transcript p45
[28] Transcript p317
[29] Transcript p44
[30] Transcript p308
[31] Transcript p330
To summarise, it was necessary for Mr Jaspers, with Mr Thomas, to move a compactor weighing 85 kilograms from the ground to the tray of a truck a distance of about 1 metre.
How did Mr Jaspers approach the task?
Mr Jaspers said that he and Mr Thomas performed a two man lift to get the compactor from the ground to the back of the truck. They lifted bending their knees and keeping their backs straight.[32] They placed the first 50 – 100 mm of the compactor on the truck and then moved it in a snaking motion to get it fully onto the back of the truck. He said it was hard to do this because of the dolomite and crushed rock on the truck. They had to lift it a bit further to get it over the crushed rock and dolomite.[33] Mr Jaspers said that there was about 100-200 mm of dolomite still on the truck.[34] As they were pushing he felt a sharp jolt in his mid-back going down into both buttocks to his heels.
[32] Transcript p33
[33] Transcript p46
[34] Transcript p44
In cross-examination Mr Jaspers was asked why he did not clean an area of the back of the truck; it was put to him that it was obvious that you would not want to lift the compactor up a hill of material. He said “I just did what everybody else did at the Council”[35]. He said there wasn’t an area clear of material at the back of the truck and that the material was between 100 and 200 millimetres deep. It was put to him that he only needed to clear an area of about 90 cm to 60 cm to accommodate the compactor. He said that if he jumped up on the back of the truck and cleared an area it would be time consuming and he would get his “arse kicked”.[36]
[35] Transcript p231
[36] Transcript p228–29
Mr Thomas described the way in which they approached the task as follows:
AWhen you use these wackers usually there is one on each side to lift it up. Me and him are pretty big fellows, we found it pretty heavy really. It was all right up to about there (INDICATES) because the tray was so high we had to try an extra bit to get it on and then we had to push it in because we had filling on the back. I can remember we had to push it into the truck a bit.
QWhen you say it was okay up to about that height, did you mean about chest height for you.
ALow chest, about that height (INDICATES).
QA little bit below your chest height.
AYes.
QYou say that you got it up to that level and then had to push it. Is it the case that you were able to get one part of the wacker onto the tray of the truck.
AYes. Well, you wouldn’t be – you would probably get half on and then you have to push the rest onto it.
QIn relation to the pushing manoeuvre, did you both take part in that.
AYeah, I would say so, yeah.
QDid you say there was some rubble still on the back of the truck.
AYes, where it spilled over the back so we had to try and get it as far as we could so it wouldn’t slide out.
QDo you remember what the rubble comprised.
AIt was just metal and sand together, like a rubble.
QWhen you say ‘metal and sand’, is that the same thing as dolomite and crushed rock.
AIt wasn’t actually blue dolomite, it was the white quarry sand rubble.
QAfter you got one part of the wacker onto the tray of the truck and started the pushing manoeuvre, did the two of you take part in that.
AYeah, we would have.
QDuring the course of that, did something happen.
AYeah, I remember Johnnie and me we both pushed, he gave way halfway through the push and he said ‘Oh my bloody back as gone’. He just let go (INDICATES) and, like, went to a crouching position and then tried to get up type of thing.[37]
[37] Transcript p308-09
In cross-examination Mr Thomas said that there was some white quarry sand and rubble on the area where they were lifting the compactor. He couldn’t remember precisely how much they had put on but that it had come to the rear of the truck. He described putting a bucket load onto the truck that would have been about 1 metre to ¾ of a metre. The load was not placed right to the rear because otherwise it would have spilled out when they opened the tailgate. He said there would have been a bit of clear tray on the back of the truck of about 3 feet to a metre.
He was then asked whether there was any clear space for them to start to put the compactor on the back of the tray or truck. He said:
AThere could have been some metal before shovelled that could have been left on the back. There’s usually some metal left there using it before. You just put in fresh stuff so you have metal on the back. All I can remember is this metal.
QYou can’t do any more than that.
AIt is a long time ago.
QBut if there was no clear space there and there was some material a metre high, you wouldn’t have tried to lift the compactor and place it a metre higher than the bottom of the tray, would you.
AWell, you’re asking for the actual height of the rubble.
QYeah.
AThat would have been at the peak of the rubble not on the end. I mean, the rubble runs so you wouldn’t have a metre high right at the back straight up further, you would of had it gradually (INDICATES).
QI’m putting a hypothetical question: if in fact someone had put two scoops or put them in the wrong place, you had a great big pile at the back a metre high, you wouldn’t have even opened the tailgate, it would have just fallen out.
AThat’s dead right.
QAnd not only that, but you would have realised that would have been foolhardy to lift the compactor where you’re trying to put it up and, you know, a metre higher than the bottom of the trailer.
AYou wouldn’t attempt it would you really. No way.[38]
[38] Transcript p318-19
Later he was asked whether any part of the compactor was sitting on any of the material on the flat tray of the truck. He said:[39]
I would say it’s been sitting on the materials because if it wasn’t on the materials it would slide very easily, if it was on the back end of the truck. If I can recall, there was material we had to shove to get it to, to get more of it in. We were pushing it uphill.
[39] Transcript p320
He described Mr Jaspers calling out in pain whilst they were pushing the compactor.
Mr Gordon Morrison, orthopaedic surgeon, provided four reports concerning Mr Jaspers[40] and also gave evidence. In Mr Morrison’s first report dated 4 April 2007 he recorded the history of injury as follows:
Mr Jaspers told me on the 8^th July 2004 during the course of his employment as a labourer, he and another worker were lifting a compactor weighing some 60 kgs into a truck. While manipulating the compactor on the truck he felt sudden pain in his back with an electric shock feeling that ran into both heels.
[40] Exhibit P11
He was asked to amplify this comment in evidence by reference to his handwritten notes. He gave evidence as follows;
AYes, I wrote he was lifting a compactor, there was a helper and upon lifting and pushing he felt sudden pain in his back and described –
QHe reported pushing to you, you say while manipulating with the compactor.
AYes.
QI wonder if I can ask you about the action of pushing, as distinct from the action of lifting, and can I ask this question in light of your final diagnosis I think of this man, this prolapse at T12/L1 level. Is pushing an item of the sort of weight that was described to you something that is consistent with causing a prolapsed disc at that level.
AIt is consistent, yes.
QIs it the sort of activity that one might expect to cause a disc prolapse at that level.
AAt any level but a disk prolapse by definition occurs in a degenerate disc; the sudden nature of it as happened in Mr Jaspers’ history is consistent with some forcible action and any pushing would be that type of action.
QAnd in terms of the forces on the spine and in particular the discs, is the pushing motion any more or less likely, or can’t you say, to give rise to a disc prolapse than the action of lifting.
AI would state it is as likely, I wouldn’t state that it is any more or less likely.
QPerhaps just one further question on that topic; one can envisage pushing a heavy item perhaps in two ways, or at least two ways, one of which might be a push and pull sort of action or a wiggling sort of action on the one hand and the other might be a straight push over some resistance with the weight on the other. Is either of those two just as likely or more or less likely to cause the prolapse that you diagnosed.
AThey are both just as likely, I don’t think there is anything in the literature to support any particular manoeuvre as being more likely though.
QAnd if her Honour were to find that Mr Jaspers first felt pain in his back as he was engaged in the pushing motion, as opposed to the lifting motion, would it be a reasonable thing to conclude that it was the actual pushing that gave rise to the prolapse at that time.
AYes.[41]
[41] Transcript p473-74
I accept Dr Morrison’s evidence that it was the pushing motion as opposed to the lifting motion that gave rise to the disc prolapse. This is consistent with both the evidence of Mr Jaspers and Mr Thomas.
Prospect has argued that even if it is found negligent in respect of the lift that it should escape liability because the lift itself was not causative of Mr Jaspers’ injury. Rather, it is said that Mr Jaspers’ injury was caused in the pushing of the compactor onto the truck.
I agree that the injury was caused by the push rather than the lift but I do not agree that this means Prospect should escape liability.
Prospect took issue with the plaintiff’s pleadings at the commencement of the trial asserting that the pleadings related only to lifting not to pushing. The precise pleading complained of was paragraph 8 of the Statement of Claim.
On 8 July 2004 the plaintiff and another worker were engaged in lifting a compactor from the ground to the tray of a truck when the plaintiff sustained injury to his back.
It is my view that the pleading is adequate. Plainly it was not possible to lift the compactor on to the back of the truck in one motion. The task was to get the compactor from the ground to the tray of the truck. This was a process which included a lift and necessarily a push to get the compactor on to the back of the truck. It is artificial to separate the pushing motion from the lift. An appropriate system of work for transporting the compactor on the back of the truck must encompass both the lift and the push.
Was the risk of injury foreseeable?
The Council had a written work procedure for the task.[42] I will return to this document in due course but for present purposes it is sufficient to note that the procedure identifies a number of hazards relating to transportation of the compactor. Those are stated to be “strain, cuts, and abrasions”.
[42] Exhibit D15
Mr Haddon said that some employees complained about lifting the compactor prior to the incident involving Mr Jaspers.[43] He further gave evidence about conducting a risk assessment on that task in 2002. This resulted in a document being prepared entitled “Manual handling risk assessment”.[44] Initially it was thought that this document related to the precise task undertaken by Mr Jaspers but on further enquiry Mr Haddon indicated that it refers to lifting the compactor onto the bituminising truck rather than the two and half tonne truck. This document identifies the risk as;
Risk of a manual handling injury is high due to the weight and frequency of the task. The action of lifting and twisting also increases the risk of injury.
[43] Transcript p538
[44] Exhibit P9
Mr Haddon conceded in his evidence that the weight of the compactor of itself rendered the operation hazardous. The lift onto the bituminising truck was not as high as the lift onto the two and half tonne truck. Mr Haddon said it was a difficult lift because of the restricted space on the bituminising truck. Presumably this was because once the lift was completed it was difficult to manoeuvre the compactor into position. Plainly however the lift onto the two and half tonne truck also involved a degree of twisting and manipulation of the compactor in order to push it onto the back of the truck.
Mr Haddon also gave evidence that in the 12 years he worked at the Council before Mr Jaspers’ injury he was not aware of anyone being injured as a result of lifting the compactor. This evidence is of limited value particularly given that no evidence was led that Mr Haddon was the person to whom such injuries would have been reported. It seems likely that he was not given his evidence that he was not aware of Mr Jaspers’ injury until about a month after the event.
Mr Toshach said that it is generally understood in the area of occupational health and safety that the lifting and manoeuvring of heavy weights can cause injury to the spine. He agreed that pushing heavy objects, so long as there is some friction, may cause injury to the spine.[45] This is consistent with Mr Morrison’s evidence. In Mr Toshach’s report[46] he stated at paragraph 8.1:
It is my opinion that any safety conscious employer, including Prospect Council, would have identified the hazards associated with the work that led to Mr Jaspers’ injury.
[45] Transcript p431
[46] Exhibit P10
He then goes on to identify a number of what he described as “simple and inexpensive options” which could have prevented this accident. He said that, based on his knowledge of industry and in the course of his practice as an occupational health, safety and welfare officer, manual handling and shifting of heavy equipment in the order of 60-80 kgs would be something that any employer should do a risk assessment about. No risk assessment for the precise process undertaken by Mr Jaspers was produced by Prospect but the risk assessment that I have referred to above related to an analogous process of lifting the same object on to a different truck.
It is my view that a reasonable person in a position of Prospect would have foreseen that that a requirement to lift an 85 kilogram compactor one metre from the ground and then manipulate it to place it securely on the tray of a truck involved a risk of injury to workers like Mr Jaspers. Not only do I consider the risk of injury to have been reasonably foreseeable I accept Mr Jaspers’ contention that Prospect had in fact foreseen it. That this is so is demonstrated by the safe work procedure[47] and the risk assessment of the similar process of lifting the compactor onto the bituminising truck.
[47] Exhibit D15
Was Prospect’s response reasonable?

The Council had a written work procedure for the task.[48] There was no evidence about the origin of this document, its author or its content. There was no evidence as to whether this work procedure followed a risk assessment of the task of transportation of the compactor. On its face the safe work procedure relates to the method of transporting the compactor by any council vehicle. It relates equally to the bituminizer as to the 2 ½ tonne truck utilised by Mr Jaspers and Mr Thomas. The task indicates that mechanical aids are to be used if available. It is common ground that there were no mechanical aids for the 2 ½ tonne truck. Following the risk assessment on the bituminising truck it appears that there were mechanical aids for that vehicle and it further appears that there was a tailgate lift fitted to at least one of the utes.
[48] Exhibit D15
Mr Haddon said that when Mr Jaspers undertook his first period of employment with the Council, he in all likelihood underwent an orientation process that was exactly the same as that given to a direct Council employee. Mr Haddon said he would have been the person who did the induction. He was not able to recall specifically giving Mr Jaspers an induction and the Council keeps no records of such inductions.
Mr Haddon said initially that he would have given the written work procedure to Mr Jaspers as part of his induction process.[49] It subsequently became apparent that if he had undertaken Mr Jaspers’ induction he would not have actually given him a copy of the procedure. Rather it was Mr Haddon’s practice to show employees such as Mr Jaspers this procedure, along with other relevant procedures, as part of his induction. The procedure was kept in a red folder in a central location to which all employees had access.[50] Mr Haddon said that about a dozen pages of the folder would have been relevant to Mr Jaspers. He would not have been given a copy of the pages but that he would have access to them in the outside store area.[51]
[49] Transcript p552
[50] Transcript p532
[51] Transcript p531– 34.
As I have indicated above the procedure identified a number of hazards associated with the transportation of the compactor. The instruction on how to transport the compactor is as follows:
Team lifting is required to lift on and off the vehicle – minimum of two people. Use mechanical aids if available.
Mr Haddon said that the team lifting technique was “in unison to lift and place on the rear of the vehicle” and he said that there was no specific training or procedure in relation to that.[52]
[52] Transcript p550
Prospect pleads in it’s defence that Mr Jaspers was guilty of contributory negligence for failing to undertake the lifting task in accordance with instructions he had received from Maxima or Prospect and in failing to use an appropriate heavy lifting technique as directed by Prospect. The only direction that appears to have been given was the team lifting direction contained on the safe work procedure. It is clear that Mr Jaspers was aware of the requirement to lift the compactor as part of a team. Indeed this is what he did with Mr Thomas. It is clear from Mr Haddon’s evidence that there was no direction or training given beyond the statement in the safe work procedure.
Mr Jaspers said that he had some training in safety techniques and induction processes in the past. When he started at his former employer BHP he had training in safe lifting practices and manual handling, he also had training during a six month course with the civil skills centre and when he started at Maxima.[53] He denied having any induction or training when he first went to the Prospect Council but said that Mr Haddon showed him where things were kept and what sort of work he would be doing. He said that on the second occasion he went to the Council he didn’t need to be shown again how to do his work. The safe work procedure was not put to Mr Jaspers. He was not asked whether Mr Haddon had shown him the procedure or the red folder.
[53] Transcript p19-20
Doing the best I can with this evidence it does appear that Mr Haddon gave Mr Jaspers some form of induction on the first occasion that he worked at Prospect. I accept that Mr Haddon’s general practice was to show workers the red folder with the relevant safe operating procedures. I cannot however be confident that Mr Haddon did show these to Mr Jaspers. Even if he did show the procedure to Mr Jaspers, its content is not particularly helpful in the absence of more detailed instruction about the method of lifting the compactor when mechanical aids were not, as in this case, available.
Whilst Mr Jaspers may well have received training in manual handling and lifting techniques prior to starting with Prospect I do not consider that this relieves Prospect of the obligation to properly train a worker such as Mr Jaspers. It is my view that a reasonable person in the position of Prospect would have ensured that manual handling training was provided for their workplace conditions and in particular for the foreseeable risk associated with the lifting of the compactor. It is my view that this induction falls far short of what is reasonable particularly in view of the unhelpful brevity of the safe work procedure.
There is no reference in the procedure to the necessity to clear a space on the back of the truck. Mr Haddon said that this was covered in the induction. He said he gave instructions to Mr Jaspers as follows:[54]
[54] Transcript p535
QNo. Did you tell Mr Jaspers to clean up all the material before he put the wacker onto the truck.
AHe was shown what to do first off.
QHe was shown what to do first off.
AYes.
QBy whom.
ABy myself.
QThat was part of the induction process was it.
AYes.
QCan I suggest this to you. Having the tray of the truck clear that’s really a matter of degree I think isn’t it that you could have a large part of dolomite and crush rock still remaining on the truck, perhaps up to 4, 5, 6 inches off the tray of the truck.
ANo, no. If you got a shovel and swept, cleaned the back of the tray you’d have hardly anything there.
QI think what I’m getting at is this. There are various ways in which material can be left in the back of the truck. You can have dolomite and crush rock filling the whole of the tray of the truck on the one hand.
AYep.
QAnd on the other hand at the other end of the extreme you can have remnants of dolomite and crush rock left over form a job where dolomite and crush rock left over from a job where dolomite and crush rock has been already used to fill holes.
ANo. That’s a tip truck. Once you tip that up it all comes off.
QDo you say there are no remnants remaining.
AThere’d be nothing. It’s a total tip truck which tips and releases everything off.
QWas it the case that workers would sometimes shovel the dolomite and crushed rock out of the tray of the truck if only a small amount was needed.
ACorrect.
QIf they did that they might not even use the tipping mechanism of the truck.
ACorrect.
QIf they did that there might be a small amount remaining by way of remnants if the tipping mechanism hadn’t been used.
ACorrect.
Mr Haddon did not remember specifically inducting Mr Jaspers but said that it was his usual practice to do so and that he would have done so on the first occasion he worked at Prospect. Presumably, his response in this passage of evidence is related to his usual practice, rather than to an actual recollection of telling Mr Jaspers about this. Further, this was not put to Mr Jaspers. Given the evidence of Mr Jaspers and Mr Thomas I have no confidence that Mr Jaspers was told to clean up all the material before he attempted to get the compactor on the truck.
In any event, Prospect has called no evidence to suggest that this injury would not have occurred if the back of the truck had been swept clean as suggested. This is particularly the case when Mr Haddon’s evidence appears to concede that even with this process there would be likely some material on the back of the truck.
No evidence was called by Prospect as to the system of supervision it employed to ensure that workers were complying with its work procedures other than Mr Haddon indicating that if he saw someone attempting to lift a compactor onto 100-200 mm of material on the back of a truck he would have spoken to the employee and shown them how to clear a space.[55]
[55] Transcript p524
The plaintiff contends that, even if the system was one that Mr Jaspers was made aware of and trained in and even if Prospect ensured compliance, it is a bad system. The risk was identified in respect of the bituminising truck in the manual handling risk assessment at least on 25 July 2002. It was stated in that assessment that urgent action was required. The action that was suggested was hiring a truck with a lifting mechanism until the current vehicle could be modified and then long term that a replacement truck be purchased.
The bituminising truck was modified to include a lifting mechanism. One of the smaller trucks, known by the workers as the Ute, has a tailgate lifter. Neither the bituminizer nor the Ute were available to Mr Thomas and Mr Jaspers on the day. It is uncontentious that no other lifting devices were available. It is clear from the evidence that workers at Prospect were, on a regular basis, required to manually lift the compactor off and on the tray of various vehicles including the 2.5 tonne truck.
The manual lift was plainly hazardous and frequently undertaken. The risk was substantial and the degree of probability of its occurrence high. It was therefore in my view, incumbent upon Prospect to take some action to minimise or exclude the risk.
I accept the evidence of Mr Toshach as to the various alternatives available, including the use of a small trailer, a frame with a ramp slung under the truck, a platform mounted to the truck, a frame under the truck reducing the amount of bending required in keeping the lift height to a minimum. I also note the possibilities of making an hydraulic lifting device or hydraulic tailgate available. Mr Jaspers gave evidence of using such devices at other councils for whom he had performed work. Two of Prospect’s vehicles had these devices.
Prospect in its pleadings stated that its systems were “reasonable in the circumstances having regard to the resources available to it”. No evidence was called about Prospect’s resources. Further there was no evidence to refute Mr Toshach’s evidence that the various alternatives he suggested were simple and inexpensive.
I therefore find that Prospect’s response to the foreseeable risk was inadequate. I specifically reject the contentions in Prospect’s defence that its systems of work were reasonable, that it had an adequate occupational health, safety and welfare policy in place at the relevant time and that the plaintiff received adequate training and instruction from the defendant in relation to the task he was required to undertake. Prospect is therefore liable in negligence to Mr Jaspers.
Contributory Negligence
Prospect says that Mr Jaspers and Mr Thomas had no regard for their own safety because it was obvious that one or other of them would have been injured if they are pushing the compactor up 100 to 200 millimetres of dolomite.
Mr Jaspers’ counsel contends that at most Mr Jaspers was merely inadvertent or inattentive. Counsel for Prospect says that if there is a pile of dolomite of 100 to 200 millimetres right where you are going to put the compactor that is not inadvertence or inattentiveness, it is plain stupidity.
I have found that there was no clear instruction to clean up the dolomite. Prospect says that it was so obvious that no warning should have been necessary. I reject that proposition. If it was so obvious, one would have expected it to form part of the safe work procedure and to have a very clear direction to employees that this was the case. There was no evidence that this occurred.
Further, there is no evidence that the presence of the dolomite was causative of the injury. Mr Morrison’s evidence was that pushing a heavy object was the sort of activity that was likely to cause an injury of the type suffered by Mr Jaspers. There was no evidence that the presence of dolomite made such an injury more or less likely.
In my opinion, there was nothing culpable in the conduct of Mr Jaspers and Mr Thomas. The truck contained some material which may or may not have made pushing the compactor more difficult. Their failure to consider whether that was the case at its highest constituted inadvertence, inattention or misjudgement and no more. I do not consider Prospect has demonstrated that Mr Jaspers was guilty of contributory negligence at the time the accident occurred.
Assessment of Damages
Preliminary
Mr Jaspers was born on the 16^th September 1968. Accordingly he is now 43 years of age. He attended school to age 16 when he left to become a trade’s assistant making metal security doors. Subsequently he obtained a position with BHP in Adelaide undertaking processing work, in particular, as a folder operator.
Whilst at BHP he suffered injuries to his left knee and left shoulder. Mr Jaspers disclosed these injuries in his statement of loss sworn on 22 February 2008.
A bundle of documents relating to claims for compensation with BHP has been tendered as exhibit D16. It appears from these that the chronology of claims is as follows:
24.04.1995        Worker’s Compensation Claim for left shoulder pain.
04.06.1996        Injury to left shoulder – lifting flashings onto a rack.
26.11.1996        Injury to left knee when jumping onto forklift truck.
14.10.1997        Strained left shoulder in purlin area – lifting bundles of purlins.
23.12.1997        Arthroscopy on left knee.
14.01.1998        Medical certificate from Dr Laburn relating to left knee and   shoulder strain indicating no squatting kneeling or climbing and   limited above shoulder work – 3 hours per day on alternate days.
01.05.1998        Left shoulder surgery.
05.11.1998        Agreement to keep Mr Jaspers on modified duties until return to   work plan completed.
21.01.1999        Medical certificate – Dr Whitelaw – no lifting greater then 25   kilograms – permit restrictions – store person duties.
24.02.1999        Mr Jaspers resigns from BHP.
In evidence Mr Jaspers said that as a result of his left knee injury he had a couple of days off work and then one to two weeks after the arthroscopy. He said he was on light duties for a while and then went back to normal duties.[56] He also described a left shoulder injury at BHP and an operation for that injury. He said that he lost a month or two from work and then went back onto the folders. He said neither injury continued to trouble him to any great extent. In the cold months they used to ache.[57] He did however agree that he did a lot of damage to his shoulder as he tore all the muscles.[58] In cross examination he agreed that he had been working as a storeman for about one or two years prior to his resignation. He also agreed his boss asked him to go back to the folding machine duties but he preferred to remain in the store which was a lighter duty job.[59]
[56] Transcript p21
[57] Transcript p22
[58] Transcript p214
[59] Transcript p187-8
The medical evidence obtained at the time is comprised in exhibits P13 and exhibit D16. This includes reports from:
Dr Mintz the treating orthopaedic surgeon provided reports dated 19 December 1997, 24 February 1998 and 11 August 1998. He treated Mr Jaspers for the left knee injury and undertook an arthroscopy on 11 February 1998. He described the problems with the knee as at the minor end of the scale causing difficulty with flexed knee activity such as stairs, kneeling and squatting. In his last report he assessed Mr Jaspers as having a 10% loss of function in the left knee. Dr Mintz did not expect any deterioration with the passage of time, nor did he expect further surgery to be required.
Dr Munyard, orthopaedic surgeon provided a report dated 12 January 1998 concerning the left shoulder injury and the left knee. He considered the left knee showed a degree of traumatic chondromalacia patellae. There were problems with the rotator cuff and an element of cervical spine problems as well. Dr Munyard considered the prognosis to be reasonable but did not consider Mr Jaspers' condition stable at that stage.
Dr Edward Mah, an orthopaedic surgeon provided a number of reports as the treating surgeon for Mr Jaspers’ shoulder injury. These reports are dated 19 April 1998, 14 May 1998, 3 October 1998, 22 December 1998 and 17 June 1999. He diagnosed Mr Jaspers as suffering a labral tear within the shoulder joint and a small rotator cuff tear which was repaired during surgery in about May 1998. The surgery comprised left shoulder arthroscopy, acromioplasty and repair of the rotator cuff tear. Mr Jaspers made good progress and achieved a full active range of motion of the left shoulder and was cleared for normal duty from 26 October 1998. Dr Mah assessed a permanent disability in terms of loss of function of the left shoulder in the order of 10%. He indicated that Mr Jaspers managed his duty as a storeman at BHP and was able to work with Challenge Recruitment as a labourer. Mr Jaspers reported some periodical residual pain or ache in the left shoulder despite good function.
Dr Laburn was Mr Jaspers’ general practitioner. I have two reports from Dr Laburn, both dated 1 December 1997, one related to the left shoulder injury for which the general practitioner said the prognosis was favourable and the other for the knee injury which Dr Laburn suggested required arthroscopy.
Dr Lloyd Coats, orthopaedic surgeon provided a report dated 29 August 1998 for medico/legal purposes relating to the left knee and left shoulder. He considered Mr Jaspers had chondromalacia or damaged articular surface of the left patellae together with a rotator cuff injury and ongoing tendonitis of the left shoulder. Dr Coats considered Mr Jaspers condition to be stable following arthroscopy of the knee and shoulder. He assessed the permanent residual disability for the left knee as equalling 10% of the function of the lower limb at or above the knee and the left shoulder as equalling 10% of the function of that shoulder. No further treatment was required and he was likely to remain relatively stable. Dr Coats said that the condition of the knee prevented Mr Jaspers from undertaking work involving frequent weight bearing, flexion of the knees such as climbing ladders or prolonged walking or lifting which required knee flexion. The restrictions related to the dominant left arm would be aggravated by recurrent elevation of the arm or working with the arm elevated.
Dr Gary Clothier, a consultant in rehabilitation medicine provided a report dated 16 September 1998 concerning both injuries. He noted Mr Jaspers was in the recovery stage following surgery on his left shoulder on 1 May 1998. Dr Clothier made recommendations following a work site visit as to the various positions available to Mr Jaspers. He did not consider the position of purling assistant suitable noting it was one of the heaviest jobs in the workplace but considered that Mr Jaspers’ prognosis for return to work as a folder operator in the long term was satisfactory.
Mr Jaspers said that neither BHP injury continued to trouble him to any great extent. They ached in the cold months but neither interfered with the work he undertook following his resignation from BHP until the subject injury.[60]
[60] Transcript p22
Mr Jaspers gave rather confusing evidence about his employment following BHP. As I have indicated he is not particularly good with dates, times or sequences. The best that can be said is that he worked in a number of positions principally in a labour hire arrangement including driving trucks on the northern expressway project and operating other heavy machinery such as dump truck operator and roller.

Mr Jaspers’ taxation returns were tendered as a booklet, exhibit P5 and show his income for the years leading up to and following the accident as follows:

Financial Year Ended 30 June Gross Income
Australian Government Pensions/Allowances
Tax Paid

1998 $26,017.00 Nil $5,527.15

1999 $39,402.00[61] Nil $9,673.14

2000 $16,530.00 $ 3,865.00 $3,650.81

2001 $20,742.00 $6,281.00 $2,957.00

2002 No return filed

2003 $25,379.00 $6,496.00 $3,700.00

2004 $36,349.00 $8,425.00 $5,820.00
[61] Including eligible termination payment from BHP of $10,105

Mr Jaspers was unable to explain why he did not file a tax return in the 2002 financial year. He agreed it might have been because he earned less money than was necessary to put in a tax return. In the 2001 taxation year he said he was working for Maxima and they did not give him anywhere near full time work. He said they did not have enough work and he possibly declined some work that didn’t suit his personal life at the time as a sole parent.
He agreed that in 2003 he was unemployed most of the school holidays and that Maxima did not give him consistent employment in that year.
It is clear that following the accident that is the subject of this claim his income went up and this can be demonstrated by the following table extracted from his tax returns.

Financial Year Ended 30 June Gross Income
Australian Government Pensions/Allowances
Tax Paid

2005 $36,832.00 $2,321.00 $7,217.00

2006 $31,462.00 $5,654.00

2007 $30,158.00 $4,998.00

2008 $43,915.00 $8,430.00

2009 $45,070.00 $7,637.00

2010 $36,478.00 $6,828.00

This income is a combination of Mr Jaspers’ earnings and workers’ compensation payments.
General damages for pain and suffering and loss of amenities
Mr Jaspers suffered a disc protrusion at T12-L1. There was no nerve root involvement. Mr Eriksen assesses his permanent impairment as 20% loss of function of the thoraco lumbar spine. Mr Morrison assesses the permanent impairment as 25% loss of function. There is no dispute that he has identifiable pathology which has given rise to muscle spasm and an asymmetrical range of mobility. It is uncontroversial that he is no longer fit for general labouring duties, driving trucks and operating heavy machinery being the type of work he performed prior to the injury. He is fit only for light to moderate work duties.
There appears to be no further treatment required by Mr Jaspers for his back condition other than an exercise program and occasional medication for pain relief. This will assist with symptoms but will not improve his overall condition.
In addition I accept the evidence of Dr Davis that Mr Jaspers suffered an adjustment disorder with mixed features present for 6 or so months following the injury. Dr Davis also considered that Mr Jaspers experienced a chronic pain syndrome which continues and is reactive to his experience of pain. Mr Jaspers is not presently incapacitated for work by reason of his psychiatric condition but does require ongoing management of his chronic pain syndrome coordinated by his general practitioner. In evidence Dr Davis described the way in which these psychological conditions impacted upon Mr Jaspers’ perception of pain:
Yes, I thought particularly in the early six months when he was struggling emotionally it is quite likely that emotional state resulted in more severe pain. As the emotional state settled, reportedly after six months or so, I assumed that the emotional influence of pain was less.[62]
[62] Transcript p273
He was then asked about his evidence that Mr Jaspers was not incapacitated for work due to a psychiatric condition.
QIn those circumstances, are there likely still to be underlying features of either the adjustment disorder or the chronic pain syndrome even in the absence of incapacity.
AYes, I think I have commented that he still experienced some reactive emotional states which were less severe and disruptive and thereby not constituting a diagnosis but an ongoing experience of frustration, perhaps irritability, perhaps anger.[63]
[63] Transcript p274-5
The defendant says that Mr Jaspers has exaggerated his symptoms. In particular the defendant points to the history Mr Jaspers provided to Dr Eriksen in which he described his level of pain as being 10 on a scale of 1 – 10 with 10 being the worst.
I do not consider Mr Jaspers deliberately attempted to mislead the court or doctors when describing his symptoms. I refer to my general comment that he is an unsophisticated man. His evidence must also be seen in the context of Dr Davis’ evidence about the effect of Mr Jaspers’ psychiatric symptoms upon his experience of pain. The quantification to Dr Eriksen is most certainly an exaggeration but Mr Jaspers’ evidence about his disability and incapacity in court did not appear in general terms to be exaggerated. In particular he made no effort to hide his ability to work full time and extensive overtime as a security guard. This does not sit well with a 10 out of 10 score for pain but shows Mr Jaspers was being frank about his work capacity. I note further that Dr Morrison says that Mr Jaspers reported a different, and more realistic, level of pain to him. When the 10 out of 10 score was put to Dr Morrison he commented as follows:
OK. The quantification out of 10 personally I don’t find very useful so I don’t use it. He described at that time when I first saw him as constant back ache, so the pain he described to Dr Eriksen does seem quite different, there was back ache radiating to the right buttock. I can’t comment on Dr Eriksen’s method of assessment, but it does seem a different degree of severity to what was described to me.[64]
[64] Transcript p484
Taking the evidence as a whole I consider it likely that Mr Jaspers suffered significant pain in the initial six months following the injury exacerbated by his psychological condition. I further find that he has continued since that time to suffer ongoing symptoms although not of the severity he reported to Mr Eriksen.
I accept Mr Jasper’s evidence concerning the restrictions on his lifestyle. His evidence was that during the initial six months he was almost totally incapacitated for his usual activities. Since then he has had difficulty taking care of his children as well as household chores, gardening and maintenance.
He lives with his partner and their three children. He could not tell the court when precisely the children were born. It appears that the children were born after the accident although possibly the oldest was born shortly prior to it.
Mr Jaspers said he had great difficulty mowing the lawn with his old lawn mower. He bought himself an electrical mower, electric whipper snipper and an electric hedge trimmer which made it easier for him to look after the garden. He is limited to driving for about 45 minutes. In the early stages of his recovery he needed to sit on a cushion. He no longer requires this but he still requires a lumbar cushion whilst driving. He has difficulty playing with football and wrestling with his children. He is unable to do rough and tumble sports with them. He has difficulty sleeping at night because he has to sleep on his right hand side. He says he has more pain following activity and in the cold months. He experiences pain if he sits for longer than 20 minutes. He said that he no longer feels depressed as he did in the early stages, he has learnt to live with his symptoms.
It is surprising that Mr Jaspers’ partner was not called to give evidence about his difficulties around the home. I do not however see any reason to discount Mr Jaspers’ evidence about that topic. It was generally consistent with the medical evidence.
Mr Jaspers’ entitlement to non-economic loss is governed by s.52 of the Civil Liability Act 1936. His ability to lead a normal life was significantly impaired by the injury for at least 7 days as required under s.52(1)(a). I assign the numerical value 15 to Mr Jaspers’ non-economic loss. The injury having occurred in 2004 his damages for this head of loss amount to $23,840.
Loss of earning capacity (past and future economic loss and superannuation)
Mr Jaspers was, I find, totally incapacitated for work for a period of some 6 months following the injury. Thereafter he undertook a graduated return to work in alternative duties. I accept the medical evidence that he is permanently incapacitated for general labouring duties, truck driving and heavy machinery operation of the type he was performing prior to the accident by reason of his back injury. He is now fit only for light to moderate duties.
The defendant contends that the BHP injuries precluded Mr Jaspers from unrestricted labouring duties in any event. It points to the tax returns that indicate that Mr Jaspers did not undertake full time work prior to the accident and says that this demonstrates that Mr Jaspers was not fully exercising his capacity for work prior to the back injury.
The medical evidence concerning the BHP injuries is limited. I referred to the contemporaneous evidence above. Dr Eriksen gave evidence in this matter that he examined both of the plaintiff’s knees and that the examination was normal. He also examined the upper limbs including the left shoulder and that was normal. He said that whilst he focussed on the back he examined the limbs.
Dr Eriksen indicated in his second report dated 5 March 2009 that Mr Jaspers was able to do a deep squat and squat on either leg in the erect position without any specific abnormality. In cross-examination he agreed that in general terms this precluded a major problem in either of the knees. He further noted that there was no muscle wasting in the lower limbs and said that if a person has significant knee pathology they develop wasting of the quadriceps quite quickly. Mr Jaspers had no such wasting and accordingly Dr Eriksen considered it unlikely he had a significant problem with either knee.[65]
[65] Transcript p564
Taking this evidence in conjunction with the fact that Mr Jaspers was able to work without difficulty in a number of occupations from which he is now precluded by reason of his back injury, it is my view that the BHP injuries represented a relatively minor limitation on Mr Jaspers’ earning capacity.
The situation is further complicated because Mr Jaspers injured his knees whilst participating in a WorkCover rehabilitation programme for the back injury. He was undertaking alternative duties as part of a work hardening program at Barry’s Hardware in mid-2005. He submitted a notice of injury and a claim for workers’ compensation claim to QBE on 20 April 2006 saying he suffered a bilateral knee injury in August 2005.[66] The duties he was undertaking at the time of injury were stated to be “bending and squatting to weed pot plants”.
[66] Exhibit D7
On 18 October 2005 he saw Dr Paterson, orthopaedic surgeon complaining of pain in both knees aggravated by bent knee activity such as bending, squatting, stairs and kneeling. On 7 October 2006 Mr Jaspers complained of “clunking in the right knee over the previous 8 months and a tendency for the knee to buckle”.[67] On 20 November 2006 Dr Paterson undertook an arthroscopic examination of his right knee. In a report dated 20 November 2006, Dr Paterson said that Mr Jaspers would be totally incapacitated for two to six weeks and then would be partially incapacitated for an unpredictable period.. He further said that Mr Jaspers “is almost certainly not going to become fit to return to his previous employment as a labourer”.[68]
[67] Exhibit D8
[68] Exhibit D8
Dr. Morrison gave evidence that this right knee injury precluded Mr Jaspers from forceful activities involving the knee such as squatting or kneeling for extended periods.[69] He agreed that the right knee injury might be sufficient of itself to preclude Mr Jaspers undertaking heavy labouring work.[70] Dr Eriksen however took a different view based on his examination of Mr Jaspers as I have outlined above. Mr Jaspers himself said that his right knee has not been a problem since he recovered from the arthroscopy.
[69] Transcript p479
[70] Transcript p492-3
The defendant says that it should not be liable for the period of time off work owing solely to the right knee injury. I agree. The defendant also says that this knee injury should either be treated as a novus actus interveniens or a negative contingency that has come to pass. I reject the negative contingency argument. The defendant says that by virtue of the BHP injuries it was only a matter of time before Mr Jaspers would suffer further injuries preventing him from carrying out unrestricted labouring work. There was no evidence to support this contention and I note further that, whilst Mr Jaspers complained of bilateral knee pain following the incident at Barry’s Hardware, the surgical treatment and the assessment of incapacity related to the right knee. The BHP injury was to the left knee.
I also reject the contention that the subsequent knee injury be treated as a novus actus interveniens relieving the defendant of liability for economic loss flowing from the back injury. The principles relating to this issue are set out in the High Court decision of Medlin v SGIC.[71]
For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss and damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience.[72]
[71] (1995) 182 CLR 1
[72] Medlin at page 6
In this case I have found that Mr Jaspers was able to work as a general labourer albeit with some minor restrictions occasioned by his pre-existing left shoulder and left knee conditions. The back injury caused by the defendant’s negligence precludes him from working in his previous occupations as a general labourer, driver and machine operator. The subsequent knee injury may also preclude him from working in those occupations. No evidence was called to suggest that the subsequent knee injury added significantly to the incapacity caused by the back condition let alone that it was of sufficient gravity to break the causal nexus. Further, no evidence has been called to suggest that the knee injury would have occurred in any event regardless of the back injury.
Mr Jaspers received rehabilitation assistance from WorkCover. The defendant is critical of his participation in that process and suggests that he was less than motivated. The evidence on that topic was however limited. Mr Jaspers gave what I accept to be good reasons for his inability to continue with various rehabilitation positions. I also note that he undertook retraining as a security guard and was able to obtain full time employment in that area. This does not sit comfortably with the suggestion by the defendant that he was not willing to fully exercise his remaining work capacity.
After completion of the security guard training, Mr Jaspers commenced employment with Ample Security on a full time basis. This employment was obtained through the WorkCover RISE scheme and apparently involved some form of incentive for Ample to employ Mr Jaspers.[73] His employment commenced on 6 May 2007 and ceased on 23 October 2008. During that time he was working full time hours with overtime.[74] He left Ample to take up work with Patron Security Services. The date on which he started is not entirely clear but it appears likely to have been on 28 October 2008.[75] He worked full time for Patron until 21 December 2008. He left apparently due a dispute with his employer over shift allowances and damage to a patrol car. He felt that he had been unfairly treated by his employer.[76]
[73] Transcript p127
[74] Exhibit P2
[75] Transcript p162
[76] Transcript p176
Mr Jaspers resumed employment with Ample Security on 14 April 2009 where he worked until 7 February 2010. Again he was working full time hours with extensive overtime. Mr. Jaspers terminated his employment with Ample Security. It appears that there were some disciplinary issues involving Mr Jaspers. He again took the view that he was being dealt with unfairly and in consequence he terminated his employment in an SMS message to his employer.[77]
[77] Exhibit D1
Mr Jaspers’ current employment is as a crowd controller with Paul Tomney Security. He started there on 31 December 2010. This is casual, part-time work on Friday and Saturday nights. He works at least 8 hours per week in 3 – 4 hour shifts at an hotel. On occasion he also undertakes an extra 7 hour shift at the Para Hills Community Club.[78]
[78] Transcript pp 122 - 123
It is unfortunate that Mr Jaspers gave up work for which he was suited and which paid well. Since terminating his employment with Ample he has not been able to obtain alternative full time employment despite a large number of applications to a range of employers.[79] The permanent work he has been applying for is full time but not in the security industry. It appears that he has chosen not to pursue such employment because the work offered is usually casual rather than permanent and was also generally night work which is not “family friendly”.[80]
[79] Exhibit P3; Transcript pp118-121; 124-127
[80] Transcript p207
The defendant contends that this voluntary termination of suitable employment and the voluntary limiting of the types of work sought should significantly reduce Mr Jasper’s damages. The principles relevant to this contention are well articulated in the High Court decision in Medlin[81] as follows:
A plaintiff is not precluded from recovering damages for loss of earning capacity merely by reason of the fact that he or she voluntarily left employment which was unsuitable or in which he or she was unhappy. The continued availability of such employment will, of course, be relevant to the question of the existence and extent of any loss of earning capacity and a finding that a plaintiff’s termination of employment was not the product of an accident-caused loss of earning capacity will necessarily preclude the calculation of damages on the basis that it was. Such a finding does not however mean that damages cannot be recovered for loss of earning capacity in relation to the period subsequent to the termination of that employment if there is in fact an accident-caused loss of earning capacity which has been or will be productive of financial loss during that subsequent period.[82]
[81] See note 70 above
[82] At p11-12
In this case the reason Mr Jaspers left his employment with Ample was unrelated to his injury. Further Mr Jaspers has chosen not to pursue certain areas of security guard work for reasons unrelated to his injury. On the other hand he has suffered a significant loss of earning capacity because he is unable to work as a labourer and indeed there are restrictions upon his work capacity as a security officer by reason of his back injury. Further it is not at all clear that Mr Jaspers could have continued working at Ample Security even if he had not resigned. First he was the subject of disciplinary action. It is possible that this could have resulted in the employer terminating his employment. Second, an affidavit filed by the defendant’s solicitors concerning their inability to locate and call the proprietor of Ample Security to give evidence indicates that Ample Security is no longer in operation.
Past Economic Loss
The plaintiff’s solicitors prepared a schedule of past economic loss which was tendered during the course of submissions. This is based on a gross weekly earnings of $600. It sets out Mr Jaspers’ actual earnings and the claimed loss for the financial years from the date of accident to 30 June 2010. In addition I have been provided with details of the payments made by Work Cover Corporation in respect of Mr Jaspers’ claim for compensation. The difficulty is that Work Cover has assessed payments on the basis of notional weekly earnings at about $700 per week. This is reflective of Mr Jaspers’ earnings at the Prospect City Council but does not reflect his past earnings as disclosed by his taxation returns or the fact that he was a casual employee who did not necessarily work a full year.

As I have indicated I find Mr Jaspers was totally incapacitated for work for a period of about six months after the accident and thereafter partially incapacitated. I reject the defendant’s contention that he did not fully exercise his residual capacity for work by failure to participate in rehabilitation. It is my view that Mr Jaspers has made a genuine attempt to undertake employment following his recovery and that apart from the short period of time that his right knee injury was in the acute phase of injury and treatment he is entitled to compensation for past economic loss.
Some reduction must be made from the gross amount of damages claimed for past loss of earning capacity on the basis that Mr Jaspers was a casual employee who did not necessarily work a full year. It appears clear however that in the period immediately prior to his back injury Maxima had been supplying him with regular work and he was capable of undertaking heavy work at Prospect and similar places of employment. In my view therefore any reduction for this results in only a moderate deduction from the gross sum.
Taking as my starting point a gross weekly earnings of $600 which I accept is a conservative amount, less Mr Jaspers actual earnings but adding superannuation at the rate of 8% and making a small deduction for contingencies I award, in round figures, $140,000 for past loss of earning capacity and loss of employer superannuation contributions. Because Mr Jaspers received the equivalent in worker’s compensation payment no interest is payable on this aspect of his claim.
Future loss of earning capacity
The back injury has precluded Mr Jaspers from working in labouring duties of the type he undertook prior to his injury. Superimposed upon his low back condition is the more recent bilateral knee injury sustained whilst on the work hardening programme at the hardware store. I find the left knee condition to be resolved and the right knee condition, on the basis of the evidence given by Dr Eriksen and Mr Jaspers to represent only a minor additional impairment. Mr Jaspers back condition is unlikely to improve and his residual working capacity is therefore equally unlikely to improve.
It is difficult to ascertain whether Mr Jaspers would have been able to continue in full time work as a labourer even had he not sustained the back injury. It is my view that there is a reasonable likelihood that other injuries would have precluded him from such heavy employment including the possible deterioration of his pre-existing knee and shoulder conditions. On the other hand Mr Jaspers willingness to undertake retraining as a security officer and his ability to work full-time in those alternative duties together with his family responsibilities including three young children indicates that it is likely that he would have continued in full-time employment of some type until age 65. Allowance must also be made for the fact that full-time work may not have been available to Mr Jaspers for all of the period after the trial up to age 65.
In the circumstances it is my view that the back injury represents a substantial interference with Mr Jaspers’ capacity to work. The difficulty is in assessing the manner in which this is productive of a financial loss. Taking a “rough and ready approach”[83] based upon the past loss of earnings of $600 gross per week, I propose to use a net weekly loss of $300 per week to assess Mr Jaspers’ future economic loss. This must be translated into a capital sum having regard to the prescribed discount rate of 5% in s55 of the Civil Liability Act 1933.
[83] Murray v Dawson [1996] 24 MVR 244
Mr Jaspers was born on 16 September 1968. For a discount rate of 5%, the relevant multiplier to age 65 is $694. Applying this to a net week loss of $300 yields an amount of $208,200. I reduce that by approximately 25% for the adverse contingencies I have mentioned and I add 9% which is agreed to be the appropriate amount to reflect employer superannuation contributions. In round terms I therefore assess the damages for future loss of earning capacity and superannuation in the sum of $175,000. No interest is payable
Special Damages
The quantum of past special damages has been agreed in the sum of $12,500. No interest is payable because the accounts have been paid by WorkCover.
Gratuitous Services
It is agreed that at the time of the cause of action arose Mr Jaspers partner was neither a domestic partner within the meaning of s11A of the Family Relationships Act 1975 nor a putative spouse within the meaning of s11 of that Act. Accordingly under s58(1) of the Civil Liability Act 1936 no damages are to be awarded for gratuitous services.
Future Medical Expenses
As I have indicated the plaintiff requires only limited future medical treatment. This comprises support from his general practitioner for his psychological issues, medication for pain relief and attendance at a gymnasium. I assess this in the sum of $5000.
In summary my assessment is as follows:
Non Economic Loss    $ 23,840.
         Past Economic Loss & Superannuation               $140,000.
         Future Economic Loss & Superannuation $175,000.
         Past Medical Expenses  $ 12,500.
         Future Medical Expenses                    $    5,000.
Total:                   $356,340.
I will hear the parties as to the entry of judgment and as to costs.

Financial Year Ended 30 June	Gross Income	Australian Government Pensions/Allowances	Tax Paid
1998	$26,017.00	Nil	$5,527.15
1999	$39,402.00[61]	Nil	$9,673.14
2000	$16,530.00	$ 3,865.00	$3,650.81
2001	$20,742.00	$6,281.00	$2,957.00
2002	No return filed
2003	$25,379.00	$6,496.00	$3,700.00
2004	$36,349.00	$8,425.00	$5,820.00