Johansen v Millmerran Shire Council

[1995] QSC 125

IN THE SUPREME COURT

OF QUEENSLAND

TOOWOOMBA  Writ No. 55 of 1994

[Johansen v. Millmerran Shire Council]

BETWEEN:

WAYNE ERNEST JOHANSEN

Plaintiff

AND:

MILLMERRAN SHIRE COUNCIL

Defendant

REASONS FOR JUDGMENT - THOMAS J.

Delivered 30 June 1995

CATCHWORDS:     NEGLIGENCE - inadequate access system on front-end loader.

DAMAGES - quantum - back injury and depression.

Counsel:A.J. Williams for the plaintiff

M. Grant-Taylor for the defendant

Solicitors:MacGillivrays for the plaintiff

O'Shea Corser, Wadley for the defendant

Hearing Dates:  19-20 June 1995
IN THE SUPREME COURT

OF QUEENSLAND

TOOWOOMBA  Writ No. 55 of 1994

[Johansen v. Millmerran Shire Council]

BETWEEN:
  WAYNE ERNEST JOHANSEN
  Plaintiff

AND:
  MILLMERRAN SHIRE COUNCIL
  Defendant

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered 30 June 1995

On 17 May 1990 the plaintiff, in the course of his employment with the Millmerran Shire Council, was operating a front-end loader.  It was necessary to mount and dismount the vehicle with reasonable frequency.  On the day in question it had rained, and the plaintiff dismounted from time to time to attend to piles of stones that he was collecting into the machine bucket.  The access path from the driver's cabin to the ground consisted of a combination of attachments, described in more detail later, consisting mainly of a step outside the cabin and two rungs.  During one or more of his mounting or dismounting manoeuvres the ball of his foot slipped, but he was able to stop himself from falling.  He was wearing steel-capped workboots.  He decided that next time he would dismount by facing in the opposite direction, that is to say whilst facing outwards from the machine.  He expected to obtain the advantage of the heel of his boot on a rung.  The rungs and the edge of the step were small steel bars or struts which were described as round, shiny and smooth, and on that particular day, slippery.
           As he left the cabin facing outwards, he held onto the steering with one hand and placed a foot on the top step.  The plaintiff is unsure of the mechanics but believes that he was proceeding from the first step down to the top rung when his left foot slipped.  He threw his hands out to catch something and his left thumb lodged inside the lower corner of the framework of the cab.  That broke his fall, and in fact he ended up virtually dangling with his toes nearly touching the ground.  The fall did not involve percussion by any part of his body striking the ground, but subjected his body to a twisting, wrenching action. 
           The vehicle in question was a 1978 model which had been purchased second-hand by the Council in about 1983.  The means of ascent and descent was by no means easy or straight-forward.  It can best be understood from viewing the photographs in ex.2.  The cabin floor stood about 1.435 metres above ground level.  To ascend, there were firstly two metal rungs in a frame fixed to the side of the machine.  The bottom rung was 505 millimetres (20 inches) above ground level.  The top rung was a further 480 millimetres (nearly 19 inches) above the bottom rung.  Above the rungs was a "step" welded to the body.  It was 450 (nearly 18 inches) millimetres above the top rung.   It consisted of two short horizontal bars in a rectangular frame.  The combination of those short bars and the frame may be referred to as the top step.  It formed a rectangle 150 millimetres by 270 millimetres.  However the outer framework was shaped so that the part available for use was a scooped out portion 180 millimetres wide.  In other words the step protruded about six inches out from the framework, and the available width in which to place one's foot was about seven inches.  This step was not directly above the lower rungs, being a little to the right of a straight climb.  Having reached this top step there was then a further five inches of bodywork to climb over before getting into the cab.  The lower rungs were 220 millimetres wide (about nine inches) and protruded 345 millimetres from the side of the machine (fourteen inches).
           With this configuration, the process of mounting and dismounting was in my view unnecessarily awkward.  Fairly simple adjustments could have made the access route simpler and safer.  It was essentially a ladder system without adequate handgrips.  The only obvious grip was a horizontal bar fixed to the seat inside the cabin.
           An employer has a duty to exercise reasonable care to guard its employees against unnecessary risk.  No particular instruction or advice was offered by the defendant to its employees who were required to use this machine.  In the ordinary course of events the risk of an employee suffering injury in mounting or dismounting the vehicle was not high, particularly if the driver concentrated upon each step taken, but it was a real risk.  Employees are often distracted and do not always make wise decisions about their movements.  Good employees are keen to finish their tasks;  and it commonly rains. 
           I accept the evidence of Mr MacDonald, who has studied the question of access pathways quite deeply, and who has considerable practical experience as well as theoretical knowledge of the subject.  In particular I accept that there is a particular need for a reasonable grip on rungs of ladders and that this aspect of the system could have been easily and cheaply remedied.  The uniformity in step length is also an important factor, especially in ladder type situations, and the defendant's configuration departed from this with respect to each step.  The grab-rails were inadequate.  Some deviation both sideways and outwards was involved in the path, contributing to a risk of instability or loss of control.  And, as earlier mentioned, there was a total lack of instruction or advice. 
           In my view a reasonable employer discharging its duty to its employee should, by 1990, have modified this rather spartan system of access.  It is correctly characterised by Mr MacDonald in his report as a rudimentary access system, and even within that class of access it was inadequate.  It could have been made quite safe at little expense in the manner suggested by Mr MacDonald, which is in effect to provide a continuous ladder with a continuous hand-grip, with the grips continuing higher than the rungs.  Had such a structure been provided it is inconceivable that the present accident would have occurred.
           Mr Grant Taylor, for the defendant, submitted that there was no causal relationship between any structural defect and the accident, because the plaintiff chose to turn himself around and descend in a manner which disabled him from using his hands effectively.  However had a simpler and safer access been available, the occasion for the plaintiff to contemplate this rather dangerous means of descent would probably not have arisen.  I find that there is a causal relationship between the defective access path and the accident, and that the defendant was guilty of negligence.
           I also find that the plaintiff was guilty of contributory negligence.  There was nothing hidden about the access path or its difficulty.  It was obvious to anyone that it was not an easy mount or dismount operation.  Furthermore, it was plain that it was a ladder rather than a stairwell.  It was not reasonable, in my view, for a person exercising due regard for his own safety, to decide to descend facing outwards.  The whole concept of a ladder system is reversed by facing the open air, and losing the control that the hands can give when facing the structure.
           The plaintiff was guilty of contributory negligence.  His change of technique in descending in this way was probably contributed to by the earlier slips, and while that helps one to understand what happened, and whilst it also helps to some extent to reduce the degree of blame that he should share with the defendant, it does not by any means eliminate his contribution to the incident.  In defence counsel's phrase, I accept that it is a sizeable contribution.
           I apportion responsibility as to seventy-five percent against the defendant and as to twenty-five percent against the plaintiff.

Damages

The plaintiff immediately suffered pain in his back, and reported the incident at lunchtime.  He thought he had pulled a back muscle.  He continued working that afternoon but was sore and tender.  He was unable to go to work on the following day (a Friday).  He attended work on the following Monday, doing mainly maintenance work but the pain increased.  He visited his doctor, Dr Greenhill, on Tuesday 22 May.
           The medical evidence makes it perfectly clear that he suffered a serious back injury in the area of L5-S1, involving displacement of the S1 nerve root.  Eventually his GP referred him to an orthopaedist and, on 6 September 1990, to Dr Lee Atkinson a neuro-physician.  A month later Dr Atkinson operated and removed what he describes as a "mushy fragmented disk".  He replaced a fat graft around the nerve root.  Unfortunately the operation was not successful.  He had physiotherapy, but continued to be troubled by left sciatica.  He attempted all forms of reasonable exercise and attended a Worker's Compensation Board rehabilitation centre programme between 17 December 1990 and 9 January 1991.  The testing failed due to recurrence of pain.  He was readmitted to hospital on 20 March 1991, and a myelogram and CT scan revealed posterior displacement of the left S1 nerve root and obliteration of the fat graft, with a recurrent left disk protrusion.
           The prospect of improving this condition by a further operation has only a fifty percent success rate, which was considerably less than the statistical chance of benefit from the first operation.  Upon explanation of the limited chances of successful surgery, the plaintiff decided against any further operative treatment.  It is not suggested on behalf of the defendant that the plaintiff's decision was in any way unreasonable or that he has failed to mitigate his loss.
           The plaintiff was anxious to return to work, and the realisation that the operation had been a failure and that repair was not available contributed to serious depression.  In April 1991 he was informed by the defendant that his job was no longer available and that the defendant had been "tolerant enough".  The plaintiff went through a very serious period of suffering and mental anguish and it would seem that his GP, very wisely, referred him to a psychiatrist.  The plaintiff is of the view that his psychiatrist (Dr Bryant) saved his life.  He was in an acute phase when referred, and immediate drug therapy was commenced.  This has relieved the acute phase, but ongoing drug treatment has been considered necessary, and it would seem that the plaintiff has entered upon a lifestyle of taking pharmaceutical pain-relievers and antidepressant drugs including methadone.  All of this has been under medical supervision, but it produces its own separate impact upon the plaintiff's life.  It is likely that the plaintiff has formed a dependency upon such drugs and it may be difficult to reduce his intake to an acceptable level, at least in the short term.
           Dr Bryant and Dr Nothling both support the view that he suffers from a major depressive disorder secondary to his accident.  It became serious after the surgery had failed and he was made aware of this.  His plans, which up to the time of the accident were reasonably optimistic and involved the prospect of purchasing an allotment or a house in the Millmerran district, were dashed by the consequences of the accident.  His relationship was adversely affected, as was his sexual functioning.  His symptoms included blackouts, panic feelings, loss of self-esteem and a wide range of symptoms which commonly accompany depression including loss of concentration, poor memory and difficulty in sleeping.  The plaintiff's reactions and descriptions of his feelings are in my view perfectly genuine.
           In summary, this plaintiff suffered a very serious permanent back injury which has made it impossible for him to re-enter the workforce in any labouring capacity, or, so far as can be seen, any work which involves the driving of a vehicle or equipment.  He has also suffered a serious depressive illness which will have permanent effects. 
           The plaintiff has required considerable care and assistance up to the present time, particularly in the earlier phases.  His then de facto wife, Patricia, with whom he had had an apparently stable relationship since 1982, had obtained part-time employment at a local Roadhouse, but was forced to give this up in order to take care of the plaintiff.  He had been a very keen motor-cyclist, but this form of travel was no longer open to him.  In fact all forms of travel caused pain, and he did not feel able to drive himself.  Accordingly she drove him to and from his medical appointments and other essential journeys.  She was required for a time to help him in bathing, assisting in putting him to bed and in dressing him, as well as cutting the wood. 
           They married in 1993, but unfortunately, probably as a result of the plaintiff's changed personality, the marriage failed and she left him on 1 October 1994.
           In August 1992, Dr Bryant prescribed anti-depressant medication and suggested methadone.  This was a serious step, but the condition requiring treatment was serious and included risk of suicide.  His consumption of drugs since that time is well documented.  Exhibit 22 is a remarkable exhibit, meticulously prepared, of the drugs and shows, with probably a fair degree of accuracy that he has taken 9,432 pills by way of prescribed medication between the accident and date of trial.  Many of these are quite strong pain-relievers (including Panadeine Forte) and many others are drugs prescribed for relief of depression and associated symptoms, including Serapax, Mogadox, Prothiaden, Zoloft and Methadone.
           Both psychiatrists consider that he will require long-term psychiatric treatment.
           The plaintiff's work history before his accident was not particularly impressive.  He came to Australia from New Zealand at age eighteen in 1978.  He married young and fathered two children, but that relationship failed in 1981 and he has had little contact with that wife or children since 1985.  His evidence concerning his pre-accident work history was not satisfactory and this is the only area in which I have any serious reservations about his evidence.  The extent to which he earned money from employment was considerably overstated in evidence in chief.  He was employed on various occasions, including for example less than twelve months on drilling rigs, something like six months as an anode setter at Bells Bay in Tasmania, some work variously as a metal polisher, sales representative, car detailer and driver, and for a time as a formworker under a CEP scheme.  However a number of his so-called "employments" seem to have been informal arrangements through which he received some advantage such as free rental or other non-monetary benefits which would permit him to continue to claim social security benefits.  No doubt he was acting consistently with obtaining maximum benefits from the available system.  It did not however demonstrate a solid earning capacity, and his track-record does not give confidence for an expectation of continuous employment in the future.  During 1985 he obtained work under a CEP scheme, but from 29 January 1986 he was on social security for three years constantly to 25 January 1989.  He associated with a number of bands during this time, assisting with lighting, mixing sound, and other activities to assist the promotion of the bands, but did not earn income from such activity.
           Early in 1989 he and his companion Patricia went to Millmerran where her people lived.  He obtained casual employment from the Millmerran Shire Council but was laid off in July 1989.  However on 11 September 1989 he took up what was described as a permanent position as a plant operator and general worker.  He enjoyed the work.  It included a wide variety of tasks which he described as "town ranger".  This included digging graves, assisting at burials, collecting stray dogs and other miscellaneous activities.  Patricia obtained a part-time job, and they were considering the prospect of buying a property, although they did not get beyond the stage of ascertaining the availability of a loan.  His work record during the seventeen months when he and Patricia lived in the Millmerran district was far better than that of any previous period.  It is however too great a leap to hold that he would have stayed there, fully employed until retiring age of sixty or sixty-five.  There is reason however to think that he had commenced a more mature phase in his life and that his future work history was likely to have been better than it was in the period 1978 to 1988. 
           He undoubtedly had an earning capacity, and, having regard both to the less impressive part of it (1978-1988) and the more impressive recent part of it (1989-1990), I shall act on the premise that he was likely to have exercised about two-thirds of his earning capacity during the remaining years of his working life.  He was thirty years old when he suffered his accident on 17 May 1990.  This is a case in which it is not possible for me to be any more precise in the necessary projections that must be made.

Pain Suffering and Loss of Amenities

The plaintiff was thirty years old when injured, and his whole lifestyle has been altered for the worse.  His injury destroyed a promising phase of his life.  His amenities including motorcycle riding are no longer available.  He can walk well, but not for lengthy periods, usually being limited to thirty to forty minutes per day.  His life has become a ritual of tablet-taking, to avoid pain.  In consequence he does not complain of gross physical pain, but rather of the limitations upon what he can do and the way in which his life has changed.  He has recently made attempts to re-establish his contacts in the music industry and expressed some optimism.  This is a favourable sign in relation to his amenities of life although I do not consider it will be likely to have any very productive returns of income.  He has genuine psychiatric disabilities and will require ongoing treatment.  Associated with this, the problem of possible pharmaceutical drug dependence will require medical supervision and discipline.  The figures submitted by counsel as appropriate for this head of damage ranged between $50,000 and $60,000.  I shall accede to the final submission of counsel for the plaintiff and allow a total under this head of $60,000 including interest.  This is notionally an award of very close to $57,000, with an allowance of interest for five years at two percent on $30,000, having taken into account the fact that he received the benefit of a PPD lump-sum settlement of $7,131 some years ago.

Past Economic Loss
           It is not seriously suggested that he retained or regained any earning capacity in the five years that have elapsed since the accident.  If he had remained in his then employment, his net earnings to date would have been $77,923. 
           Consistently with my view that overall he would probably have exercised about two-thirds of his full earning capacity I shall give effect to the probability that it would have been more heavily exercised during this particular period, and perhaps less heavily exercised in future years.  I shall allow $55,000 for past economic loss.

Future Economic Loss

It is difficult to imagine that he will earn any significant sums through employment.  He cannot safely drive, any form of labouring is beyond him, and his concentration is adversely affected.  He tried rouse-about gardening for two days but suffered unduly as a result.  He has however recently attempted to establish a business, assisting bands in country areas.  If he can obtain their allegiance and obtain work for them he would get ten percent of engagements.  If he was able to obtain the lighting and sound contracts he would get between $50 and $70 per engagement.  He would buy improved equipment if he obtains an award.  I do not doubt that he will spend time and effort in this direction, but its prospect of returns are unproven and it would be unduly optimistic to think that he will succeed in earning substantial income.  Whilst he expressed some optimism, it would be unrealistic to regard him as likely to earn more than $60 per week on any regular basis, and I do not understand defence counsel to suggest otherwise.  It is possible he will do better, and equally possible he will do worse.  This activity will at least provide him with a stimulus and improve the amenity of his life.  Although he is substantially unemployable the prospect of employment from this or some other source should not be totally dismissed and I shall rate his residual earning capacity at $60 per week over the same period as his future economic loss is to be calculated, that is to say for a period of twenty-five years up to age sixty-one.

           Two-thirds of the wages he would currently be earning in his previous employment gives a figure of approximately $224 per week net.  If a residual earning capacity of $60 per week is taken into account, the figure to be projected for future economic loss is $164 per week.  Applying the actuarial tables for a twenty-five year period yields a figure of $123,656.  I shall round this down to $120,000 to give effect to the different weighting appropriate to pre-trial loss and post-trial loss in this instance.  There is an additional component of loss of superannuation, which I shall also discount by approximately one-third.  This will require a figure of $22,000 to be added to the assessment for future economic loss.

Future Psychiatric Treatment

I shall discount slightly the estimates of Dr Bryant and will assess damages under this head on the basis of $40 per week for a period of five years.  This comes to $9280.

Griffiths v. Kirkemeyer Damages

These have now been agreed at $8750.

Future Pharmaceuticals

I assess these at $4000.

Special Damages

All other special damages are now agreed and will be included in the following summary.

Summary of Damages and Interest

Pain suffering and loss of amenities (including interest)	$  60,000.00
Past economic loss	55,000.00
Future economic loss	142,000.00
Griffiths v. Kirkemeyer damages (including interest)	8,750.00
Future psychiatric treatment	9,280.00
Future pharmaceuticals	4,000.00
Travelling expenses for medical treatment	11,576.00
Medical expenses personally incurred by plaintiff	4,628.45
Other special damages personally incurred (including interest)	898.85
WCB hospital expenses	2,510.00
WCB medical expenses	4,381.83
WCB miscellaneous expenses	4,166.25
Fox v. Wood	2,055.60

Interest

The total amounts received by the plaintiff for Worker's Compensation (over $20,000) and disability support pension payments ($35,000) is equivalent to the amount awarded for past economic loss.  For the reasons stated in Hourn v. Schyberg (unreported 9.5.94) I consider it inappropriate to award interest in respect of that item of damage.  However interest should be allowed on the plaintiff's expenditure on travelling expenses and other personally incurred items of special damages for a period of five years at six percent - $3,750.
           The provisional total of damages and interest is $312,996.98.
           After deduction of twenty-five percent for contributory negligence the figure is $234,747.73.
           The amount refundable to the Worker's Compensation Board is $40,989.08.  There will therefore be judgment for the plaintiff for $193,758.65 with costs to be taxed.