Jenkins v Hansen and Yuncken (Tasmania) Pty Ltd
[1989] TASSC 9
•7 February 1989
Serial No 2/1989
List "A"
CITATION: Jenkins v Hansen and Yuncken (Tasmania) Pty Ltd [1989] TASSC 9; A2/1989
PARTIES: JENKINS, Edward Robert
v
HANSEN and YUNCKEN (TASMANIA) PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 3220/84
DELIVERED ON: 7 February 1989
DELIVERED AT: Hobart
JUDGMENT OF: Wright J
Judgment Number: A2/1989
Number of paragraphs: 35
Serial No 2/1989
List "A"
File No 3220/84
EDWARD ROBERT JENKINS v HANSEN AND YUNCKEN (TASMANIA) PTY LTD
REASONS FOR JUDGMENT WRIGHT J
7 February 1989
On 23 November 1983 the plaintiff, who was then employed by the defendant as a builders' labourer at the site of the Triangle Service Station at Howrah, injured his left knee as he stepped into a shallow pier excavation whilst carrying a piece of prefabricated concrete form work. The form work consisted of a square frame constructed from four pieces of ¾" thick structural ply wood each measuring approximately 1200 mm. long by 450 mm. wide. This boxing had been constructed on site at some short but unspecified distance from the excavation by David Jones, an apprentice carpenter also employed by the defendant. The only other employee of the defendant on site at the relevant time was Mr Coleman, the foreman. The job in hand at the site was described by the plaintiff in the following words:–
"We had to knock down a wall, take down part of a roof, use a jack hammer to smash up the paving that was there and dig footings for the pier holes and dig down alongside the big old petrol tanks so we could get strops round them to lift them out."
These tanks were removed and thereafter the men were engaged in excavating pier holes for the placement of concrete footings and piers to support new concrete decking.
This job had been in progress for approximately a fortnight prior to the plaintiff's injury. It is plain from the evidence of Mr Jones that the concrete form work could not have been put together in situ because of the restrictions created by the dimensions of the excavation. The excavations had been dug in stony, crumbly soil using a back hoe and jack hammer. Similar form work for other pier holes had been constructed and placed in position without incident before the plaintiff's accident. On some of these occasions the plaintiff had carried the form work to the pier hole and placed it in position by himself; on other occasions he had been assisted by David Jones to perform this task. As the plaintiff said, "He helped me put them down there, you know, because they were awkward". At another point in his evidence he said "David and myself brought them down". I asked him whether that meant that they carried the boxing from opposite sides? He said, "No David would get one end and I would get the other. They wasn't heavy so some I would carry on my own but some of them David helped me to carry". This last answer appears to me to have significance in two respects. Firstly, it tends to suggest that even when two men were carrying the form work together one at least would have his forward vision obstructed to some extent if carrying it while holding the end rather than the side. Secondly, it seems to me to have a bearing upon the question of whether or not it was unreasonable for the plaintiff's employers to instruct him (if indeed they did) to carry the form work on his own. The plaintiff made no suggestion that on previous occasions when carrying the form work on his own he had suffered any difficulties in maintaining his equilibrium or footing.
On the day of the accident, shortly before the plaintiff sustained his injury, Mr Bob Devine a representative of his union, the Builders' Labourers Federation, had come on site. Apparently he was in the practice of going to building sites of this kind in the Hobart area once or twice a fortnight for the purpose, I infer, of checking on working conditions and matters generally pertaining to the welfare of members of his union. As the plaintiff and David Jones were working in the pier hole, cleaning it out ready for placement of the boxing, the plaintiff looked up and saw Devine standing there. Devine said, indicating David Jones, "What have we got another labourer on site have we?". There was then some discussion between Devine and Mr Coleman during which Devine threatened to call a 24 hour strike, presumably on the basis that Jones was performing work which should have been performed by a member of the Builders' Labourers Federation of which he was not a member. I say "presumably" because although the plaintiff and Jones both gave evidence on the plain assumption that carrying form work down to the excavation was something which should have been done by a builder's labourer and no–one else, the basis of this assumption was never satisfactorily explained. Whether it was based upon a unilateral assertion by the union, an industrial agreement between the union and the employer, the terms of an industrial award or merely the confident claim by an individual union official was not made clear. Neither Devine nor Coleman gave evidence.
Following Devine's question a discussion followed and some agreement was reached between Devine and Coleman that the obligatory 24 hour strike would not commence until the following morning so that the job then in hand could be completed. A load of concrete had already been delivered to the site and was waiting to be poured at this time.
It then seems to have been assumed by all of those present that because of the intervention of this union official, Jones should give no further assistance in the preparation of the pier hole and, according to the evidence, Coleman then instructed the plaintiff to place the form work in position so that the concrete pour could commence. The plaintiff, who prided himself on being a particularly strong person, stepped into the middle of the box shaped form work and lifted it with a hand under the bottom edge on each of two sides. He said that he had to lift it pretty high so that he could walk properly and he estimated its weight to be approximately 30 kilograms, but he said "They wasn't heavy but they was awkward". Plainly he did not regard 30 kilograms as being an excessive weight for him to carry. He claimed that the foreman, prior to leaving in company with Devine to inspect the site amenities, had directed him to perform this task as follows, "Don told me to go and get the box and put it in and start to pour the concrete". He was asked whether he had requested any assistance from David Jones to help carry it and he said "No because there had been a bit of a hassle with the union and so I thought you know to save any more hassle I'd do it on me own". It is plain from answers which he gave in cross–examination that Mr Coleman's instruction was not in the nature of a specific or detailed direction as to how the task was to be performed, or, for that matter, by whom. He said, "I could probably have done it without him telling me anyway". Mr Worsley counsel for the defendant then said, "Yes that's right and would you have done it on your own if he hadn't told you" (i.e. to go and get the boxing) and the plaintiff replied, "I most likely would have. Yes." He said that when carrying the box frame work he thought that he could not see the ground for more than maybe four or five feet in front of him. Asked if he had had any difficulty going down towards the hole, he said there were a couple of loose stones but he managed it. He said:–
"I knew where the hole was so I just kept walking towards it. I could see it at a distance as I was going towards it, but once I got near it I couldn't see it, but I knew it was there. … I went to step into the hole and as I walked up to it I must have stepped on the edge of it and the edge had been – loose stone and that – the edge give way and I stumbled. .......... I felt a sort of tearing sensation in my knee."
Cross–examined as to this he said,
"I was going to step into it" (the hole) "and then put the box down because if I dropped it I'd have knocked dirt into the hole, then I'd have to take the box out and clean the hole out again, extra work".
Asked how deep the excavation was he said that at one end it was about as deep as the box (ie 450 mm.) and at the other end it was about eight or nine inches deep. He said at the place at which he slipped the excavation was about a foot deep. So plainly enough, although the drop was higher than the normal height of a step or stair, it was not a substantial fall from one level to the next. Indeed, the excavation could, I think, be fairly described as comparatively shallow. To approach the hole he had to walk down a slope – one which he said, "came down on a gentle rate right to the bottom." He agreed it was not "far off" being flat immediately adjacent to the hole. It is worth remarking that no plans or diagrams were put in evidence and there was nothing before me to indicate with any accuracy the nature of the contours surrounding the hole. Although claiming that his vision of the hole was obstructed to some degree by the boxing he was carrying, the plaintiff said, "If I had stopped and looked down, I wouldn't have fell in the hole".
Despite his injury the plaintiff continued to work for the rest of the afternoon (approximately one hour), placing the form work in position and filling it with concrete. However, the knee started to swell at home that evening and by the following morning it was even more swollen and was very painful. The plaintiff alleges that the injury to his knee occurred because the defendant failed to provide a safe system of work and, despite discussion which occurred at the trial concerning the proper foundation for the plaintiff's action, no attempt was made to expand the plaintiff's case by amending the claim so as to allege an act of casual negligence on the part of the defendant's foreman, Coleman. The defendant's alleged negligence was particularised in the following way:–
(a)Failing to employ sufficient and competent workmen to complete work instructed to be performed within the time required.
(b)Failing to provide sufficient assistance for the lifting and carrying of materials on the site.
(c)Requiring the plaintiff to carry a framework which in all the circumstances exposed him to risk of injury.
(d)Failing to organise the work schedule to avoid undue haste to complete preparatory work which in the circumstances exposed the plaintiff to risk of injury.
Three additional particulars of negligence which were included in the statement of claim were abandoned at the trial.
The plaintiff gave evidence that prior to the accident he had frequently urged the foreman to obtain more assistance on site and he said (without objection) that Mr Coleman "Kept on telling me that he'd asked for more men but they wouldn't give them to him and they'd give him a hard time about being behind schedule and they wouldn't give him no men to help kick it along".
One of my initial difficulties with this case has been that from any common sense point of view there were indeed sufficient men at the site to do the job required of the plaintiff. It had been Mr Jones' practice to give assistance in work of this kind in the past when required and plainly enough he was assisting Mr Jenkins to clean the excavation prior to placing the form work when Devine came on site. There is little doubt that if Devine had not come on site and made his objections, Jones would have continued to give assistance and would no doubt have helped the plaintiff carry the form work down to the excavation if requested to do so.
In the course of Mr Brown's closing address on behalf of the plaintiff, I put to him that Devine's appearance at the work site could be regarded in a sense as a novus actus interveniens in that it was his intervention, rather than the employer's neglect, which deprived Mr Jenkins of appropriate assistance. I suggested to Mr Brown that, if the employer in fact had sufficient able–bodied men on site ready, willing and able to give assistance to each other in the performance of these rather mundane tasks, it could not be said that the employer had failed to provide sufficient assistance simply because an uninvited union representative, by threats of industrial action, coerced those present into adopting other than their normal work patterns. Mr Brown vigorously contested this proposition, submitting that if the employer chose to employ people on site who could provoke such intervention from a union representative it should have been foreseen by the employer that upon the development of such a demarcation issue, a workman in the position of the plaintiff would be effectively deprived of needed assistance. He submitted that it was plain that the plaintiff was a conscientious workman, anxious to do his job properly and efficiently. He said that once a union dispute of this kind developed his client had "Hobson's choice" and it should have been foreseen by the defendant that he would then have continued to try to finish the job on his own in precisely the way that he did.
At the commencement of the trial Mr Brown tendered by consent a large number of awards which he said "go towards the issue of wages". He continued:–
"Can I say to your Honour that you are not required to look at these Awards except in those parts that will subsequently be marked and drawn to your attention by counsel."
Shortly thereafter he said:–
"With respect to economic loss I tender those documents."
The reception into evidence of those documents was consented to by defence counsel Mr Worsley; no doubt, on the understanding that they related only to damages and their relevance would be confined to that issue. However, subsequently during the final address by Mr Brown, an attempt was made to utilize the awards for the purpose of demonstrating a demarcation between the permissible work to be done by labourers on the one hand and carpenters on the other. In my opinion the passages referred to do not support the proposition that the awards provided a clear delineation between the work which either or both such employees may do on such a building site. No specific reference was made to any passage in any of the awards which could reasonably lead to this conclusion and I do not see it as part of my function to comb through hundreds of pages of material in the hope of finding some morsel beneficial to the plaintiff's case.
There is no evidence before me as to the frequency of disputation between Hansen and Yuncken and the Builders' Labourers Federation or other unions concerning the work which may or may not be done on sites of this kind by workmen with or without particular skills or belonging to particular unions. I am not so naive as to be unaware that demarcation disputes can and do occur in industrial situations from time to time, but can I be satisfied that the defendant should have foreseen that, if Mr Jones continued to give assistance to the plaintiff in the same way that he had in the past during the currency of the job, union intervention may unexpectedly deprive the plaintiff of assistance and that he may then feel compelled to over–reach his capacities and injure himself in the process? There is simply no evidence to justify that conclusion. In particular there is no evidence that Mr Devine had raised any objection to work being done by Jones on that site on any earlier occasion.
As a background to this problem it must be remembered, of course, that although the plaintiff was not a skilled workman he was an experienced builders' labourer and had worked on building sites, presumably doing tasks similar to the one in hand on the 23 November 1983, over a number of years. He was, of course, obviously subject to Mr Coleman's direction, but the way in which he actually performed his allotted tasks seems to have fallen very largely within his own discretion. This was not a case of a repetitive industrial process or one performed in close proximity to dangerous machinery by an inexperienced man. As was said by Gibbs CJ in Turner v The State of South Australia (1982) 42 ALR 669:–
"The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. 'For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment'. Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319. When the employer does unreasonably fail to take a precaution against danger the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart and Ritchie Ltd [1973] 1 ALR 125; 47 ALJR 410 at 416–17 and 419."
There are several reported cases involving injury to workmen who have been carrying or moving equipment about a work site and who have come to grief in the process. But, as has been observed on many occasions, there is little profit in comparing one factual situation with another. As the High Court said in Waugh v Kippen (1986) 64 ALR 195 at 198, reference to such decisions:–
"... serves to emphasise that while the principles to be applied in each case remain the same, the circumstances of each case are necessarily different and render any attempt to draw a bland comparison unhelpful."
With such caution in mind, it is nonetheless worth noting that in Castro v Transfield Queensland Pty Ltd (1983) 47 ALR 715, in which an employee fell while carrying a heavy oxygen cylinder, it was plain from the evidence that he had been performing similar tasks in a similar way over an extended period of time and was unaware that other workmen were available to assist him if he required such assistance. That case cannot be usefully compared with the present. In Turner v The State of South Australia (supra) the plaintiff suffered injury whilst attempting to lift a 44 gallon drum of fuel which was lying on its side. A task of that kind was not uncommon in the course of Mr Turner's employment. As Murphy, Brennan, Deane and Dawson JJ said at p674:–
"The system of work laid down by the employer, at least insofar as it was communicated to the appellant made no provision for lifting a full drum into the upright position. It was left to the appellant, if he found a full drum on its side when he came to refill his engine, to determine whether he should essay the task of attempting to lift the drum on his own or take it upon himself to seek mechanical or manual assistance to effect that task.
It was foreseeable that the appellant might essay the task of attempting to lift a full drum on his own and thus be exposed to the risk of injury. That risk of injury could have been avoided by the driver of the mobile crane ensuring that a full drum was put down on its end, not on its side, and, in case the driver of the mobile crane did not put the drum on its side, by the provision of a system of work which both prohibited a welder from attempting unaided to up–end a full drum and prescribed a safe method of getting it up–ended."
Once again a simple comparison illustrates that the fact situation before the High Court on that occasion cannot usefully be compared with the fact situation which I have described above. Finally, it only remains to be said that a comparison with the facts in Waugh v Kippen itself is also unhelpful in the present circumstances.
It seems to me that in no realistic way can it be said that the defendant in this case had in existence an unsatisfactory system of work which exposed the plaintiff to an unnecessary risk of injury. The system that it had appears to have worked perfectly adequately on all occasions except on the day that the accident occurred. On that occasion, due to the intervention of a union representative, the system was disrupted and the plaintiff then proceeded to improvise with a method of his own – a method which he had used without mishap or obvious danger on previous occasions on that same job. He had indeed been instructed by his foreman to place the boxing in the hole, but as I stated previously there is no allegation in this case and it has in no way been fought on the issue that this was a specific act of negligence by the foreman for which his employers should be vicariously responsible.
The evidence does not satisfy me that the plaintiff was walking "blind" or that he stumbled and fell as a consequence of carrying an excessively heavy load. He knew he was approaching the edge and agreed that with a little more care on his part the mishap could have been averted. The accident occurred because he stepped onto the insecure edge of the excavation. Even if the mishap had been caused by slipping or stumbling, as Neasey J said in Hutchinson v Attorney–General, 53/70 at p7, although a slip or stumble may be due to negligence "....it is also one of the ordinary minor mishaps of common experience, which may occur to anyone without particular cause or fault". Mr Worsley put it quite well in his closing address when he said:–
"...there is always a risk, building sites being what they are, a building site is not a level paved carpark, it is a rough area, it involves people trampling over things, climbing over, in and under and round excavations and machinery and equipment, materials, there is always a risk that someone might slip and fall. People slip and fall purely by accident and on building sites, of course, that's more prone that sort of thing will happen. That doesn't mean that we have to have a fully automated building site. The only way you can totally alleviate the risk of people falling on building sites, is not to have people there.".
There is no allegation of negligence based upon the suggestion that the defendant was unreasonable or negligent in requiring the plaintiff to work in such a location in such conditions. Furthermore, there is little if anything in the evidence to persuade me that the plaintiff's accident would probably not have occurred had he been assisted by another person. In that eventuality, of course, he would not have been walking in the middle of the box and would have been sharing its load with another but, as he said, he would have been carrying it from the front or back and, if from the back, his vision may well have been obstructed to the same or a greater extent than it was immediately before the accident. It should be stressed that this was not a case in which he was obliged to over–reach his physical capacities and as a consequence sustained a strained back or some comparable injury. Put at its highest he says he was injured because the load was awkward for him to carry alone.
For an employer to be liable for failure to take reasonable care to avoid exposing his employee to an unnecessary risk of injury, it is necessary for the plaintiff employee to demonstrate on the balance of probabilities that the risk complained of was foreseeable. This does not mean that an employer is absolved simply because the consequences complained of would not have occurred without the intervention of a third party (see Home Office v Dorset Yacht Company Limited, [1970] AC 1004) but in the current case there is a dearth of evidence which could satisfy me that the defendant in providing the simple system of work under discussion could or should have anticipated that a visit by a union representative to the site may result in the plaintiff attempting to place the form work in the excavation unaided. Nor I think could it be said that even if such a sequence of events should have been foreseen that his employers should also have foreseen a real risk of an accident of the kind actually sustained by the plaintiff if he undertook that task on his own. In my view none of the particulars of negligence has been sustained. In considering the issue of foreseeability I have not overlooked what was said by Mason J (as he then was) in Wyong Shire Council v Shirt (1979–1980) 146 CLR 40 at pp 47 to 48; but even bearing in mind that in his Honour's view:–
" ..... a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk....",
it is impossible, in the absence of evidence indicating either a practice of which the employer was aware or the employer's awareness of the occurrence of previous disputes generated by union representatives in circumstances such as the present, to conclude that the defendant should have foreseen the disruption of what was apparently a normal and practical work pattern by the arrival of a union representative on site. There is simply no evidence from any source which could satisfy me that the concatenation of events following Mr Devine's visit to the site was foreseeable in the sense discussed by Mason J In Marks v Attorney–General, 331985, Cosgrove J, after discussing Wyong Shire Council v Shirt (supra) and Turner v South Australia, (1982) 42 ALR 669, said at p20:–
"The principle remains intact. The employer's duty is to take reasonable care to avoid exposing employees to unnecessary risks. That involves consideration of the reasonable man's comprehension of and response to a risk (or chance) which that reasonable man would have foreseen as a risk of injury. The application of the principle is not a matter of law – it is a matter for the tribunal of fact, and therefore often for a jury."
I agree with his Honour's analysis of the cases and his conclusion which I have quoted. The magnitude of the risk if it exists and the degree of probability that a mishap will occur must both be assessed in determining whether a breach of duty has been proved. On the evidence before me I could not regard the risk as other than slight nor its likelihood as other than remote. I am reminded of the words of Windeyer J in Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 205:–
"The case, as presented, seems to me to be another instance of a tendency to say that simply because an accident happens to a man at work, which conceivably could have been by some means avoided, the system of work was unsafe and the injured man's employer was responsible. That, as Taylor J said in Rae v Broken Hill Pty Co Ltd (1957) 97 CLR 419, at p430, has been said many times to be 'a completely erroneous approach to the problem'. Yet it is an approach still sometimes taken, and this has been one of the factors producing what Kitto J in Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177, at p180, spoke of as 'the tendency which has been shown by some courts in recent years to put at altogether too high a level the duty of an employer with respect to the safety of his employee'. In that case Taylor J, Dixon CJ, agreeing, said as to the facts there in question at p183:–
'If one seeks far enough it is possible to perceive an element of risk in the performance of any task however simple but the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful.'
The same thing was said again in Vozza v Tooth & Co Ltd (1964) 112 CLR 316, at p318. It is always important to remember that the fact that an accident happens to a man at work is not of itself evidence that those in control of the work or responsible for the manner of its performance were negligent. If a man be unreasonably exposed to the risk of injury that fact must ordinarily be apparent before he was injured. An intelligent, instructed and reasonable observer must then have foreseen the possibility of an accident. It must have been clear then that the employer was failing in his duty to take reasonable care for the workman's safety."
I should add that in reaching my conclusions as to liability, I have accepted the evidence of the plaintiff and Mr Jones in substance and, although it would be unrealistic to think that there was no element of reconstruction in their evidence, speaking as they were of transitory events five years after the accident had occurred, by and large I see no reason to cast doubt upon their credibility in respect of this issue. Nonetheless, for the reasons stated, it is my opinion that there should be judgment for the defendant.
In accordance with normal practice, however, I shall now proceed to assess the plaintiff's damages. He was 35 years of age at the time of the accident and is now 40. Mr Brown, in his opening address, said:–
"You will be invited to conclude that this 40 year old man with a bad stutter, little formal training and education, a lax and unstable knee and a bad back will generally be incapable of finding regular employment and you will accordingly, Sir, be asked to treat the plaintiff as a person who is not likely to get back into the work–force at all."
The evidence established that the plaintiff was educated at Campania Area School, leaving at the age of fifteen. He has had no formal education beyond grade 7 and has always worked as a labourer or plant operator. Much of his labouring work has been performed with building companies including the defendant company on several occasions. Until his accident he was a fit man, not afraid of hard work and had never been out of work for more than 3 or 4 weeks at a time.
I have already described the mechanism of the plaintiff's injury and the immediate symptoms which he suffered. The following morning he consulted Dr Whyte and was referred to Mr Binns, an orthopaedic surgeon. The knee ached, was swollen and he was unable to put weight upon it. It was painful to walk on and at night it ached when he was in bed. Mr Binns arranged for his admission to St. Helens Hospital where an meniscectomy was performed on the knee. Mr Binns recommended that he should return to work and he returned to Hansen Yuncken on or about 3 April 1984 performing normal builders' labourers work thereafter. On an occasion when he was cutting metal with an oxyacetylene torch on 5 July 1984 the knee gave sharp pain and he grabbed at a hot piece of steel burning his hand. These were painful burns initially but it is not claimed that they produced any residual disability. Following this incident the plaintiff consulted Mr Binns again and was re–admitted to hospital for further surgery on the knee. This operation, a lateral patella release, was performed on 10 August 1984. According to the plaintiff, this had an adverse, rather than a beneficial, effect because thereafter the knee bent too far the wrong way and this condition eventually required the fitting of a knee brace appliance to support the knee. Nonetheless, the plaintiff returned to work with the defendant company on 22 September 1984 and at that time he was given light duties. This situation apparently continued without interruption until the end of 1984. Soon after resuming following the Christmas break in January 1985, the plaintiff was directed with three other employees to take a large bench to the Boyer Paper Mill. He said:–
"When we got up there the foreman was up there and he helped us to unload it and it was taken into the building and there is a doorway and the four of us were carrying it up to the doorway but it was not wide enough for two of us on the front to go through the doorway so the foreman went through and I took the weight on me own to get through the doorway. Halfway through the doorway my knee folded up underneath me."
He continued:–
"As I'm going down I could feel my back. It was terrible, terrible pain. It felt like a muscle pulling when I went down."
He went back to see Mr Binns who admitted him to St. Helens Hospital where he gave him an epidural injection in the back. This procedure was carried out in April 1985. It provided symptomatic relief for the back for a considerable time. At about this time the plaintiff also consulted Mr Law and was referred by him to the Douglas Parker Rehabilitation Centre for a work assessment. There he was given physiotherapy treatment which seemed to improve his back and additionally he was given speech therapy for his life long stutter. This also appeared to improve. An epitome of the Medical Records of the Douglas Parker Rehabilitation Centre was put in evidence by consent. A perusal of this document indicates that in the opinion of the various assessors who saw him, the plaintiff was unlikely to return to unrestricted heavy labouring as a combined result of the back and knee injuries.
The plaintiff now claims to be totally unemployable as a combined result of both the back and the knee injury. Consequently, it is necessary to examine the question of whether or not the back injury is a novus actus interveniens in respect of which the plaintiff should not be compensated in the current action or whether it is the type of foreseeable consequence of an earlier injury which can properly be regarded as having been caused by that original injury. By a late amendment to the defence, the defendant raised the issue of novus actus interveniens in respect of the disability claimed to have resulted from the plaintiff's back injury in January 1985. The point is not without substance, particularly, if it can be said that the mishap at the Boyer Paper Mill was not only a separate incident but one which potentially involved the plaintiff's then current employer (coincidentally the defendant in the present action) in tortious liability to the plaintiff for exposing him to an unnecessary risk of injury on that second occasion. In the circumstances described by the plaintiff, it would not be difficult to envisage his instituting proceedings of the kind before the court in Waugh v Kippen (1986) 160 CLR 156, but perhaps with better prospects of success than those encountered by the plaintiff in that case. Would it not, therefore, be both odd and contrary to principle for the defendant to be at risk in damages for disabilities arising from a subsequent event without being able to contest his liability therefor on the basis of properly particularized allegations of negligence in a separate action? Fortunately this is not a novel problem and has been the subject of pronouncements by the High Court on more than one occasion, the most recent and perhaps the most apt of which appears to be Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522. In a joint judgment the Court said at p528:–
"A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: McKew v Holland & Hannen & Cubitts (1970) SC (HL) 20 at p25. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: See Chapman v Hearse (1961) 106 CLR 112 at pp124–125. Whether such a line can and should be drawn is very much a matter of fact and degree (1961) p122. In Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323, the plaintiff's condition after the subsequent injury was regarded as falling outside the area of foreseeable consequences of the earlier act of negligence: there were 'two injuries, two unrelated acts of negligence' p326. Barwick CJ said at p327:–
'I ought to add that in point of fact I cannot accept that, however much the workman's deteriorated condition caused by the first tort exposed him to the possibility of further harm, an injury of the nature of that suffered by the plaintiff in the employ of the cross–claimant was relevantly foreseeable.'
Where it is not possible to draw a clear line, the first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury: cf Lothian v Rickards, per Griffith CJ (1911) 12 CLR 165 at p176. Thus Gibbs J in Dillingham (supra) accepted the suggestion that if a pedestrian were run over by two drivers consecutively, and both were negligent, the injuries caused by the negligence of the second driver would be damage for which both drivers are liable if those injuries were also the foreseeable consequence of the first driver's negligence.
In particular circumstances, minds may differ as to whether a subsequent injury was foreseeable or whether it is too remote to be regarded as a consequence for which an earlier tortfeasor may be held liable."
In Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216, Thomas J after referring to Mahony v J Kruschich (Demolitions) Pty Ltd, (supra) Chapman v Hearse (1961) 106 CLR 112 and Mt Isa Mines Limited v Bates (1972) 46 ALJR 408 said:–
"The tests stated in these cases are stated in terms whether the original actor 'should have realized that a third person might so act' (Chapman v Hearse and Mt Isa Mines Limited v Bates) and 'it depends on whether or not the subsequent tort and its consequence are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence'. (Mahony v J Kruschich (Demolitions) Pty Ltd, at 528). All these cases emphasise that the question whether the chain of causation between the original negligent act and the ultimate consequence is broken must be regarded as a matter of circumstance and degree from case to case."
Professor Luntz in his book "Assessment of Damages for Personal Injury and Death", 2nd edition, (1983) section 5, paragraph 2.5.01 to 2.5.07 provides an interesting discussion and rationalization of some of the earlier decisions in this field and, in general, the comments he makes appear to be in accord with subsequently decided cases.
Unlike cases such as Chapman v Hearse, (supra)Neall v Watson (1960) 34 ALJR 364 and the two cases from which quotations have been reproduced above, the present case appears to me to provide a fairly straight forward illustration of the type of situation in which it can be said that the first injury was causative of the second and, furthermore, that it was foreseeable at the time the first injury occurred that the second may result therefrom. Whilst it may not be possible to say that the precise mechanism of the second accident was foreseeable by the employer at the time of the first, this is not a valid objection if loss or injury of the same general kind could then be foreseen (Cadbury Schweppes Pty Ltd v Belbin, No 251981, per Neasey J at p14 and Thorpe Nominees Pty Ltd v Henderson & Lahey (supra) per Thomas J at 220). Of course as both learned judges said (with ample support from the decided cases), foreseeability alone does not determine the question of causation. Nonetheless in this case I think there is a close correlation between foreseeability and causation. If an employer has negligently injured a workman who is regularly involved in labouring duties and the workman thereafter is obliged to resume working for his living with a weakened knee, it is not difficult to regard a subsequent injury sustained as a direct consequence of that weakness (as I infer it was in this case) as being both foreseeable and caused by the original tort. This being so, if the plaintiff had been successful in establishing negligence against his employers in the current action, his damages should reflect not merely increased vulnerability to subsequent injury but the actual loss proved to have accrued as a combined result of both injuries. With this conclusion in mind, I return to a review of the evidence.
The plaintiff said that following the epidural injection and his course of speech therapy and physiotherapy at the Douglas Parker Centre, he was feeling "really good" and he was able to perform tasks such as cutting up wood with a chain saw. The significance of this illustration was not apparent at the time it was given on the second day of the trial but later when video tapes of the plaintiff's activities in and about his home were shown and put in evidence, it became quite clear that on 10, 11 and 12 May 1985 he was able to move about his very steep hillside block and cut and carry wood with reasonable agility and apparent lack of disability. It is not without significance that the plaintiff was unaware that he was being filmed on those occasions whereas, in May 1987 and on subsequent occasions when he was again filmed, he was plainly aware that he had been under surveillance for some time and that the earlier tapes were in existence. I think it fairly plain from this disclosure by the plaintiff that his marked decrease in activity, his use of a stick and his unwillingness to engage in heavy physical tasks as depicted in later video tapes, whilst not a product of deliberate malingering, probably resulted in substantial part from an awareness that he may be under observation by investigators employed by the defendant. Even if I am wrong as to this, there is one further complicating factor which I will advert to shortly which suggests that the entirety of the plaintiff's present disability cannot fairly be laid at the door of the defendant as damages in the present case.
However, I will continue now to review the progress of the plaintiff's condition in as chronological a sequence as possible from the evidence which he gave. By June 1985, he said he had returned to work with the defendant company but a list of relevant dates subsequently placed before me by both counsel as "agreed" dates suggests that this was in fact 26 August 1985. Mr Law had provided him with a knee brace before this time. One day when he was getting out of a motor vehicle at work he apparently twisted his knee and fell over, damaging the brace. A not dissimilar incident occurred in April 1986 when he dismounted from a fork–lift truck. On this occasion as he fell he broke a back brace which he had been in the habit of wearing ever since returning to work in June the previous year. It is not claimed that either of these events exacerbated the plaintiffs pre–existing condition so it is unnecessary for me to examine the "novus actus" argument again in relation to these matters. The plaintiff said that up until this time he had been doing hard work for half the time and on other occasions had been employed as yardman by the defendant. He said that when working hard his back and knee injury would cause him to become exhausted by the end of the day. On 19 May 1986 whilst performing yardman duties, he felt his back click and he suffered a severe spasm in his back which caused his legs to go stiff and hard down onto the accelerator of the vehicle which he was then driving. He was unable to prevent the vehicle smashing into the loading bay. Fortunately he was not injured by this collision. This was the first time that he had had such an attack. Mr Law who was called as the sole medical witness in relation to the plaintiff's injuries, was asked during the course of his evidence if he could explain this unusual and alarming occurrence in terms of either the back or leg injuries sustained by the plaintiff. He was quite unable to do so despite having referred the plaintiff to two specialist colleagues for additional opinions. As there is no proved correlation between the injuries sustained on 23 November 1983 and 25 January 1985 and this condition, I am unable to attribute any disability produced by these so–called spasms to those injuries or either of them and I think therefore that the back spasms must be left out of account in assessing damages in the current action. This is of some considerable significance because the plaintiff had been working apparently satisfactorily for the defendant until the occurrence of that first back spasm, but since then he has not worked at all. His employment was formally terminated on 13 May 1987. Since the onset of the back spasms, the plaintiff has been in the habit of using a walking stick. He does not claim that that aide is necessitated by the knee injury or the back injury. He carries it in case he is suddenly assailed by another spasm and needs to support himself.
One is tempted to surmise that the plaintiff's back spasm on 19 May 1986, resulted from the injury which occurred at the Boyer Newsprint Mill in January 1985. However, this is an inference which just cannot be drawn in my opinion. There are a number of reasons for rejecting it. In the first place the plaintiff suffers from acromegaly. This is a condition of long standing and although Dr Hoffman, who has treated him for the condition ventured the opinion that his back pain was probably unrelated to it, it appeared to me that she was stating this view with the pain from the January 1985 incident in mind, rather than the back spasm that occurred in May 1986. It therefore seems to me that whilst there can be no basis for saying that acromegaly is a probable cause of the back spasms, it certainly remains at least a possibility that there is some causal connection. Secondly, the onset of the original back spasm appears to have had no obviously precipitating cause. The plaintiff does not claim that he was involved in any specially arduous task at the time and his description of the occurrence does not suggest that he was placing undue strain upon his back. Thirdly, the plaintiff agreed in cross–examination that he has pulled back muscles from time to time in the past. He said:–
"Everyone pulls them doing that sort of work but that is only probably 8 to 10 days and you are back to normal again".
The possibility therefore exists that the back spasm syndrome has its genesis in one of these minor traumas. Fourthly, there was a time gap of some 16 or 17 months between the Boyer incident and the onset of the first back spasm – so there is obviously no close chronological connection between the two events. Finally, as already stated, Mr Law is unable to explain the aetiology of the back spasm and does not suggest a mechanism whereby it could be related either to the knee injury or the Boyer incident in January 1985.
During the course of his evidence the following exchange occurred between the plaintiff and myself:–
"His Honour: This is a spasm of the back muscle though I take it Mr Jenkins, is it? Or is it something more like a seizure or a fit?
Witness:Its – I can't explain it really. Every so often I'll feel a bit off colour and I can feel my back aching a little bit more than what it should be and I've got to watch myself. If I don't – I'll be sitting down like now and I'll go to stand up and I'll have one of these spasms. I lose all control from just up past the hips down. I lose all control in my legs and they just go stiff.
His Honour: Stiff?
Witness:Stiff. Just sort of locks.
His Honour: So it is not just a stiffening of the back. It is a stiffening of the legs and it is accompanied by a feeling of unwellness.
Witness:Hmn.
His Honour: I see. Yes."
The plaintiff said that these attacks could happen at any time. He said:
"I may have one on say today and I may not have another one for another month but then again I could have another one tomorrow".
Averaging it over the period since May 1986, the plaintiff said that these incidents occurred about once a fortnight or once every three weeks. The spasms themselves last only a couple of seconds or sometimes up to a minute. The plaintiff described the symptoms and sequelae of the back spasms in the transcript commencing at p162 and I will not attempt to reproduce all of that evidence here. However it appears plain that the spasms are of relatively short duration although at the time they occur they produce acute pain and a stiffening of the legs. When the pain passes off there is a residual pain which may sometimes require the plaintiff to go to bed. The pain itself occurs only in a localized spot, just above the waist in the spine. The plaintiff distinguished this pain from the pain that has been constantly present in the back since the incident in January 1985 but it appears from my reading of the evidence that the plaintiff's present inability for work is seen by him as emanating from the spasm problem. Until that problem manifested itself the plaintiff had been working, albeit on lighter work from time to time and with some interruptions; but since then he has been unable to work primarily, I infer, because he fears that a spasm will seize him and immobilize him in potentially dangerous circumstances. This then is not a case in which the defendant bears some evidentiary onus to show that the back spasm is unconnected with events of 23 November 1983 or January 1985. It is a situation in which upon the plaintiff's own case, no inference can fairly be drawn that the back spasm problem emanates from either of the two earlier incidents. In these circumstances, the plaintiff does not satisfy me that his unemployability since May 1986 is attributable to either or both of those events (see Purkess v Crittenden (1965) 114 CLR 164).
On the other hand, the plaintiff gave evidence, which I accept, that over–use causes pain and swelling in the knee and work involving lifting or vibration (e.g. jack–hammering) causes pain to the back in the area injured in January 1985. Plainly enough, therefore even before the onset of the spasm problem, he was not fit for unrestricted heavy duties but was able to cope with the requirements of his employment because, firstly he was retained by Hansen & Yuncken in their workforce and was given lighter than normal duties when possible. Additionally, his fellow workers showed sympathy and consideration and aided him where possible. Secondly, the plaintiff obviously had a quiet pride in his physical strength and disliked inactivity. He therefore developed sufficient resilience to continue working with some level of chronic pain.
It could not be expected however that this situation would continue indefinitely, and there is thus some significant level of interference with the plaintiff's future work capacity which should be attributed to the accident in November 1983. How and when the plaintiff would have ceased working if the back spasm in May 1986 had not intervened, is difficult to say but plainly a reasonable amount must be assessed in general terms to compensate for the plaintiff's loss of future earning capacity. Mr W B Law viewed the combined effect of the two injuries – i.e. the knee injury and the back injury which occurred in January 1985 as of particular significance. Mr Law also ventured the opinion (although without indicating the part that the back spasm problem played in his assessment) that the plaintiff is presently unfit for work involving prolonged lifting or stooping. I also think that it is a fair inference from Mr Law's evidence that the passage of time in itself is likely to increase the symptoms from both injury sites. It was suggested to Mr Law in cross–examination that the bulging of the disc which was detected at the level L5/S1 following the January 1985 incident may not have been the result of trauma. Mr Law said:
"One has to say this that it is a very common disease wearing out of a disc and bulging of a disc whether you are injured or not."
Nonetheless, on the whole of the evidence I am satisfied that that injury was either produced or rendered symptomatic for the first time when the plaintiff was carrying the work–bench at the Boyer Mill in January 1985.
Taking into account the rather complex factors which I have discussed above, it is clear that an arithmetical approach to damages is out of the question. Doing the best I can from the material available, I assess the plaintiff's loss of earning capacity, insofar as it has arisen from the events of November 1983 and January 1985, at the sum of $65,000. To this amount must be added the agreed sums of nett economic loss between 23 November 1983 and 1 July 1985 on which date the plaintiff returned to work following the period of immediate incapacity resulting from the incident at Boyer – viz., $13,189.00. Special Damages consisting of hospital expenses, medical costs and equipment costs, amounting in all to $4,074.00 were also agreed, as were items in respect of future medication and equipment costs amounting to $4,109.00.
In addition, the plaintiff must be allowed an appropriate sum for pain, suffering and loss of amenities of life. Damages under this head are also unfortunately complicated when one considers the extent to which the plaintiff has reduced his activities as a result of his unexplained propensity to suffer from back spasms. It is also perfectly plain that he has been substantially inhibited in his activities around his house and property, knowing that he is or is likely to be under camera surveillance by investigators employed by the defendant's insurers at any given time. I infer that such self–imposed restraint is likely to cease immediately upon the termination of this litigation. Nonetheless, it is plain that the plaintiff suffers substantial pain from time to time from both injury sites. He has few inner resources and as a consequence has a tendency towards increased irritability as a result of enforced idleness. Symptoms in the back and leg are likely, I think, to increase with age but there was no suggestion by Mr Law that the abnormal back will require surgical intervention and he specifically denied there was any prospect of arthrodesis for the knee. I assess the plaintiff's damages under this head at $28,000.00. In summary then, the plaintiff's damages are assessed as follows:–
Future economic loss $65,000.00
Past economic loss $13,189.00
Special damages $ 4,074.00
Future medication and equipment costs $ 4,109.00
Pain, suffering and loss of amenities $28,000.00
Total: $114,372.00
However as previously stated, there will be judgment for the defendant.
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