John L Thom v Juan Carlos Carle
[2014] ACTSC 4
•28 January 2014
JOHN L THOM v JUAN CARLOS CARLE
[2014] ACTSC 4 (28 January 2014)
NEGLIGENCE – PERSONAL INJURY – claim by employee against employer – system of work – formwork carpenter employed on multi-storey office project – plaintiff required to carry large sheets of formply – plaintiff sometimes carrying two sheets – each sheet weighing 23 kg – plaintiff required to nail kickboards at ankle level – unsafe system of work – employer negligent
DAMAGES – PERSONAL INJURY – injury to lumbar spine – pre-existing degenerative changes – impairment of earning capacity – possible future surgery – plaintiff unable to return to work as formwork carpenter – permanent partial loss of earning capacity
No. SC 301 of 2010
Master Harper
Supreme Court of the ACT
Date: 28 January 2014
IN THE SUPREME COURT OF THE )
) No. SC 301 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: JOHN L THOM
Plaintiff
AND: JUAN CARLOS CARLE
Defendant
ORDER
Judge: Master Harper
Date: 28 January 2014
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff in the sum of $337,334.42.
the plaintiff’s costs be paid by the defendant.
the order as to costs be stayed for 21 days.
This is a claim for damages for personal injury by an employee against an employer. The injury is said to have happened on 30 October 2008 on a building site at Phillip. The defendant was a subcontractor providing formwork for a multi-storey building being constructed as Commonwealth government offices. The plaintiff was a formwork carpenter, and suffered a low back injury as he straightened up from a bending or kneeling position where he had been nailing boards into place at a little above floor level.
The defendant admits on the pleadings that he was the plaintiff’s employer but denies negligence and pleads contributory negligence.
The plaintiff was born in July 1985. He was 23 at the date of injury and is now 28. He is a single man, with a son now aged six who lives with his mother at a country town some two hours drive from Canberra. The plaintiff visits his son every weekend.
The plaintiff left school at the end of year 10. He had learning difficulties associated with dyslexia. His reading and writing skills are very poor. He completed a TAFE course in carpentry in 2001. Thereafter, he worked in the building industry, when work was available. He moved to Canberra to live with his parents in about 2007, and worked for a year or so as a barman at a hotel. In September 2008, he started work with the defendant, initially through a company controlled by the defendant which has since been deregistered. There was plenty of work and he was well paid. He worked six days a week from 6:30 am until 4:30 pm, and was paid $1,100.00 net per week.
The Phillip project was one which took several months. The plaintiff’s evidence was that he underwent a site induction when he started employment. His job was, in his words, to erect formwork frames and plywood, and to nail the plywood for the concrete to be poured into. The concrete would be poured one floor at a time. A pallet of plywood was dropped by crane on the floor being worked on. The plaintiff would slide a sheet of plywood off the pallet. He would then tilt it on its edge and put his right hand on the bottom and his left hand on top, and in a twisting motion would pick it up and carry it to where it was to be placed. The sheets were 1.2 metres wide, 1.8 metres long and 17 mm thick. The plaintiff initially thought that some sheets were 2.4 metres long but it seems from other evidence that the sheets being used on that job were all 1.8 metres long. Sometimes the plaintiff carried one sheet and sometimes two sheets at a time. He carried two sheets to get the job done more quickly and keep up with his boss. He said that he had to carry the sheets varying distances between 10 and 50 metres. There was no trolley provided, or other means of moving the sheets. Usually the plaintiff had to carry the sheets past obstacles such as material, packs of timber and other workers. He had to tilt his head to one side as he carried the sheets, to see where he was going.
The plaintiff originally thought that a sheet weighed about 20 kilograms, however he was told Dr Cubitt, an expert witness in his case, that a sheet weighed 30 kilograms; and that was the evidence he gave in court. It seems from other evidence that the weight of a sheet of plywood of those dimensions is 23.25 kg.
The plaintiff would then place each sheet into position and fix it by nailing it with his hammer. The nailing work was at about ankle height and required bending the back. The plaintiff demonstrated the position in the witness box, with his back bent to a roughly horizontal position. He said that the process of collecting and carrying a piece of formply, and taking it and putting it in place was a constant all-day process. He thought that he would have done it about fifty times a day.
After about six weeks on the job, he became aware of pain in the left side of his back, just above the belt line. The pain would get better overnight, but would be back by the next afternoon. It got worse as the days went by but not to an extent where it interfered with his work.
On 30 October 2008, a Thursday, the plaintiff started work as usual at about 6:30 am, and attended to his normal duties. At about 10:30 am he was nailing edge boards or kicker boards at ankle height. As he straightened up he felt a sharp burning sensation in his low back, a different pain to what he had previously experienced. He was unable to continue working. He took the rest of the day off. He saw a general practitioner, Dr Ooi, at Phillip Medical Centre. Dr Ooi gave him a certificate for about ten days off work, and advised him to stay in bed and rest. He did so. He needed help from his parents with washing and cleaning, and sometimes putting his socks on. Dr Ooi demonstrated some muscle stretches, which the plaintiff performed. His mother rubbed gel into his back. His pain improved but did not go away. After a week and a half off, the plaintiff went back to work, performing the same duties but at a slower rate. He no longer attempted to carry two pieces of plywood at a time. He spoke of a grinding sensation in the back, and said that the sharp pain returned every time he bend over to hammer a nail in. He worked on for about another ten days but decided that he was not coping, and gave up work with the defendant.
He continued to see Dr Ooi and other doctors at the same practice. He was referred for x-rays and a CT scan of his lower back, and sent to see a neurosurgeon in Sydney, Professor Noel Dan. Professor Dan recommended a steroid injection, which the plaintiff had in June 2009 into the left lower back. The process was painful and gave a lot of relief from pain for about a week. After that the pain started to come back, accompanied by a grinding sensation.
In August 2009, the plaintiff started a fitness and rehabilitation programme arranged by the defendant’s workers’ compensation insurer with an organisation called Health Portal. This included physiotherapy and hydrotherapy, and continued for about six weeks. The plaintiff found that it helped his condition a lot.
In December 2009 the plaintiff saw Professor Dan again, and a little later had a further injection. His back felt very much better after the second injection. By the time of trial, he was continuing with massaging and stretches, as instructed at Health Portal. His mother and father were carrying out massages, and rubbing gel into his back, initially nightly, but by the time of trial twice a week.
In late 2010, the plaintiff was certified by his doctor as fit to resume work part-time, with a carrying restriction of 7 kg. In September 2010, he started work with a company called Care Traffic, through a Centrelink employment agency at Queanbeyan. The work was as a traffic controller using a stop-slow sign, and setting up speed signs on the roadway. His employer, as he understood it, did contract work for the ACT Government. He worked similar hours to his pre-injury employment but was earning at trial much less – about $650.00 to $700.00 a week.
From time to time he needed to take Panadeine Forte for back pain. The pain was triggered by lifting, twisting and bending. Sometimes he would get a sharp pain putting his shoes and socks on.
He remained able to drive for about two hours to see his son every weekend, but had to sit down, rest and stretch at the end of the drive, and was exhausted by the time he got back to Canberra.
Before his injury, he rode a motorcycle on a family property out of Canberra but had found that he was unable to do so after the injury. He also found that he was no longer able to help around his parent’s home with vacuuming. For some time he was unable to cope with washing up or washing clothes, but this had improved by trial.
The plaintiff became depressed by the fact that he was unable to work for almost two years, but the depression had largely resolved following his employment as a traffic controller.
His back pain interfered with his sleep, as he tried to get into a comfortable sleeping position.
In January 2009, the plaintiff signed a statement prepared by an investigator instructed by the defendant’s insurer. The statement was typed and ran to five pages. It clearly contains some information which I am satisfied would not have been volunteered by the plaintiff (such as the name of the head contractor and the principal formwork contractor for the development) which I infer had been furnished to the investigator by the insurer or the defendant. Having regard to the plaintiff’s limited reading skills, I cannot be sure that he read and understood the statement before he signed it, or that it was not based to some extent on further information provided from other sources. Subject to those reservations, I accept that most of its contents were probably prepared from information supplied by the plaintiff to the investigator. The description of the circumstances surrounding the injury contained in the statement are as follows:
5.On 30.10.2008 I was working on the Phillip site. I was working with other ABE employees erecting scaffold on the fifth level of the building. Erecting formwork involves building a platform on top of steel supports. The timber we use for bearers and joists is 100 x 75 and 150 x 100 mm and it varies in length up to 4.8 metres. Sheets of plywood are placed on top of the timber frame to form the base for concrete. Each sheet of ply weighs 20 kilograms. There is a lot of repetitive lifting in formwork construction.
6.At about 11.30 am on the above date, I was bending down nailing the edge board to a frame. As I went to straighten up, I felt a severe pain in my hip area on the left side. The sharp pain seemed to be in the one spot. I went to bend down again but the pain was so severe I had a job to move. Jose, (I don’t know his family name) is another employee of ABE. He was working close to me when I hurt my back and I told him about it. He is staying in one of the rooms at this hotel. Mario is a supervisor for IC Formwork. I reported my injury to him. Juan Carle was working on another site at the time of my injury and his brother, Bruno, who usually works with us wasn’t at work that day.
7.Mario drove me to a Doctors surgery near the Woden shops and left me there. The doctors there wouldn’t see me as they didn’t bulk bill. I then walked back to the building site to get my vehicle. I drove to the Phillip Medical and Dental Centre and after about a three hour wait, I was seen by a Doctor Chong Beng Ooi. He put me off work for one and a half weeks and prescribed some pain killers. I didn’t get the pain killers as I couldn’t afford them.
The plaintiff agreed that the statement contained an accurate version of the events relevant to his injury.
The plaintiff agreed in cross-examination that the foreman on the job, Mario Carrabs, had been stringent as a supervisor, particularly in relation to the lifting and carrying of heavy weights. He agreed that Mr Carrabs had told him not to carry two sheets of ply at a time, but he said that about half of the time he had carried two sheets at a time, even in Mr Carrabs’ presence. He remembered Mr Carrabs telling him not to carry two sheets, but he remembered Bruno, the defendant’s brother, laughing about this and telling him to continue carrying two sheets at a time. He said that he had been trying to keep up with the other employees.
The plaintiff agreed that he did not tell the defendant, or anyone in a position of authority, about the back pain he had felt for the two weeks or so before his injury on 30 October.
It was put to the plaintiff that he had told Dr Ooi, the second time he saw him, on 10 November 2008, that he no longer had any pain. He said the reason he said this was that he wanted to go back to work, although he had in fact still been in considerable pain. He thought that despite this he was fit to go back to work, and did not want a further certificate for time off.
Having initially told counsel for the defendant that he had moved four stacks of fifty boards, that is two hundred boards a day, he finally agreed after further cross-examination that he had probably moved something more like twenty boards a day, or about two boards an hour.
The plaintiff agreed that prior to his employment by the defendant, his work had been of a fairly short nature, with considerable periods of unemployment, supplemented by Centrelink benefits.
The plaintiff was asked in re-examination about his relationship with the defendant’s brother Bruno. His evidence was that Bruno was his boss on site, and that it was Bruno to whom he went for instructions about his work. Bruno generally carried two pieces of plywood at a time.
The plaintiff said that there were about seventy men employed on the site as formwork carpenters while he was there. The induction process he had mentioned had taken about twenty minutes, including the time taken to fill out a questionnaire. They had been told about the correct procedure for lifting, but had not been given a demonstration, or provided with an opportunity to lift a load in order to be told whether they were doing it correctly. After the induction they received no further training in relation to lifting on the site.
A copy of the induction questionnaire was tendered. The plaintiff had signed it on 8 September 2008. There were two pages of yes/no questions. By way of example, a question was “Has your employer explained to you their policy on health and safety?”. The plaintiff had ticked the “yes” box. Another question was “Have you been instructed on the correct lifting procedure?”. Another was “Have you been instructed on proper manual handling techniques?”. The plaintiff had ticked the “yes” box for both of those questions also. Another was “Do you know who your safety representative is?”. The plaintiff had ticked the “yes” box here also. It would have been more convincing if the plaintiff had been required to name the safety representative, and, in answer to a subsequent question, the names of the first aid officers. He answered another question, “Do you understand IC Formworks Warning System?”. He also answered that question by ticking the “yes” box. The question and answer do not assist me in knowing what the warning system was, or coming to a view as to whether the plaintiff really understood it, bearing in mind the plaintiff’s difficulties with reading and writing, I take little comfort from his answers to the induction questionnaire, which conveys an impression of going through the motions rather than ensuring that each new employee genuinely understood and appreciated the various aspects of safety relevant to their jobs.
Counsel for the plaintiff tendered statements by the defendant, his brother Bruno, and the foreman Mario Carrabs.
The defendant said that his company had been a subcontractor to IC Formwork for about three years. His brother Bruno had worked for him. He said that formwork carpentry could be tiring and involved repetitive work, with some lifting. He made sure that all of his employees were properly trained in correct lifting techniques. At the time of the plaintiff’s injury, he, or his company, had had a subcontract to IC Formwork to prepare the formwork for the principal contractor, Doma Constructions, on the office block at Phillip where they were working. On 30 October 2008, he had been working on another building and had placed Bruno in charge of his workers on the Phillip job. Bruno rang him during the morning to tell him that the plaintiff had hurt his back while nailing a kickboard on the formwork. He had subsequently identified suitable duties for the plaintiff, but conceded that it was hard to identify light work in erecting scaffolding.
Bruno in his statement described the plaintiff as a fairly good worker, but said that he thought that he was too slightly built for formwork carpentry work.
Mario Carrabs said in his statement that he was engaged as a foreman-supervisor on the project. There had been sixty-sixty five workers on the job. He had a vague recollection of the plaintiff reporting his injury on 30 October 2008. He said that the plaintiff had left the site to go to a doctor and had not returned. He did not mention that he had driven the plaintiff to the doctor. He said that the plaintiff had been given a site induction on his first day on the job. He had been a run-of-the-mill worker.
Neither the defendant nor his brother Bruno gave oral evidence. Mr Carrabs was called in the defendant’s case. He had been a formwork carpenter employed by IC Formwork Pty Ltd for nineteen years at the time of the hearing. He had started as a labourer with the company some twenty five years before trial. He was a qualified carpenter. His recollection was that the Phillip job had run for eight or nine months, and that the building had been of seven or eight storeys.
He identified a diagram of a floor of the building, an L-shape, and explained that each floor had been divided into four rectangular areas for concrete-pour purposes. His recollection was that the building had been about 100 metres on one frontage and about 80 metres on another, and about 30 metres wide throughout. He gave persuasive evidence that the plywood had been 1.8 metres in length by 1.2 metres. He said that 2.4 metre plywood had not been used in the industry for some fifteen years. There were fifteen pieces of plywood in a pack, moved onto the floor from ground level with a crane, a pack weighing about a tonne. He thought that sheets of plywood would have to be moved no more than fifteen metres from where a pallet had been unloaded, to where a sheet was to be used.
His evidence was that staff should have carried only one sheet at a time. This was a general industry practice. If he saw a worker carrying two sheets he would tell them to put one down and carry them only one at a time. He had no specific recollection of seeing the plaintiff carrying more than one sheet or speaking to him about it. He did remember seeing Bruno Carle carrying two sheets, and telling him to put one down and carry one at a time only. This might have happened, to his recollection, more than once.
Mr Carrabs thought that he had seen Bruno Carle carrying two sheets only twice, and that he had each time told him not to carry more than one at a time. He had never seen the plaintiff carrying more than one sheet. He accepted that there had been many occasions where he had not been in a position to see what was happening on site in that regard.
Mr Carrabs was asked about the correct way of nailing in kicker boards. He said that everyone had their own way of doing it. He did it from a crouching position. He thought that if you had to do it all day you would probably end up with a strain in the back.
Senior counsel for the plaintiff called an expert witness, Dr L J Cubitt. Dr Cubitt is a professional engineer and a Fellow of the Institution of Engineers Australia. He has a Bachelor of Engineering with honours. He also has a Diploma of Mechanical Engineering and a Doctorate of Philosophy in Engineering. He has lectured to engineering students at Monash University and Ballarat University in manual handling and risk management. He has worked extensively as an expert witness in court cases and has prepared more than a thousand reports for litigation purposes.
There was some challenge to his expertise by counsel for the defendant.
He was asked to assume, consistently with the evidence, that the plaintiff was about 1750 mm tall (5 ft 9 in approximately) and that he weighed about 63 kg at the time of his injury. However, among the assumptions he was asked to make was an assumption that the sheets of formply were 2.4 metres in length and that he was under pressure to carry two sheets at a time on occasions.
Dr Cubitt noted that there was no formal job rotation system adopted by the defendant, and that the plaintiff was given minimal training for his work, with no specific training as to manual handling tasks. He was not consulted by his employer as to the risk of injury of the manual handling tasks expected of him.
Dr Cubitt identified the issues associated with the plaintiff’s injury as:
(a) the repetitive task of nailing the formply to the edge timber;
(b) the lack of job rotation;
(c) the amount of overtime worked by the plaintiff;
(d) the ergonomics of the lifting and carrying of the sheets of formply;
(e) the training provided to the plaintiff.
Dr Cubitt noted the requirements of the Occupational Health and Safety (Manual Handling) Regulations 1997 (ACT), and the ACT Manual Handling Code of Practice, gazetted on 3 February 1999. In the absence of any submissions by counsel for the defendant that the regulations and the code were not applicable at the time of injury, I have assumed for the purposes of the case that they were each in force.
The code focused on identification, assessment and control of the risk of injury.
The code, I was informed, referred to an increase in the risk of back injury with loads of more than 20 kg, recommending that mechanical assistance or team lifting arrangements should be provided with heavier weights. I am persuaded that there was much more risk of injury where two sheets were carried at a time than where the load was restricted to a single sheet. I take account, also, of the fact that the sheets were large and awkward for one person to carry, and that lifting and carrying them involved a twisting motion of the body. I note, probably more significantly for present purposes, that there was twisting involved in bending to nail the kickboards, and straightening afterwards.
Dr Cubitt also referred to the potential problems arising from working overtime. As he said, muscles tire as an employee works on similar repetitive tasks for lengthy periods. The employee becomes more prone to injury as that time goes on.
Dr Cubitt referred to systems which could have been introduced to minimise the risk of injury. These included the use of a trolley to move sheets of formply from one part of the floor to another; requiring two people to lift and carry sheets of formply; and rotation of jobs every hour, with a five-minute break. He provided photographs of trolleys used at Bunnings, a major hardware retailer, for moving sheets of timber. His evidence was that such a trolley should be available at a cost of no more than $200.00. In the absence of evidence that such trolleys are available at or below that price, I am not persuaded that I should accept that evidence, but it seems reasonable to assume that such trolleys could be found by an employer in the building industry at an affordable price, even if the trolleys were to cost a few hundred dollars each.
As to job rotation, Dr Cubitt referred to Australian Standard SAA HB 10-1987 which referred to the desirability of redesigning a job with repetitive aspects, for example by introducing a system of job rotation, to reduce the risk of injury. His opinion was that a job rotation system where staff changed tasks every hour with a five-minute break each hour would significantly reduce the risk of injury and increase the overall productivity of the workforce.
Dr Cubitt also expressed the opinion that training was a proven method of minimising the risk of injury to employees. His view was that if adequate training had been provided to the plaintiff, the hazards associated with manual lifting and moving of the formply would have been greatly reduced. A reduction of risk could also have been achieved by a greater level of consultation between employer and employee.
Dr Cubitt was called to give oral evidence. All of his evidence, including his report was subject to challenge as to admissibility by counsel for the defendant. I said during his evidence that I would reserve the issue of admissibility until I had heard all of his evidence.
Dr Cubitt was in court and heard the plaintiff’s oral evidence.
Dr Cubitt’s evidence was that he had examined over a thousand manual handling jobs. Five of these assignments had been specifically involved with formwork carpentry on building sites. He had been qualified as a professional engineer, and in practice, for forty-eight years. His practice had been as a structural engineer and a mechanical engineer. In his early years, ergonomics had not been a field of specialist study but had become so as he had continued to practise in the field.
He accepted that the plaintiff had been given some instruction about lifting objects. He had been trained to bend his knees when lifting, and to lift with the object close to the body. He had been told to keep a straight back and not to twist. Dr Cubitt said that these were minimal instructions, and were inadequate to deal with lifting and carrying of sheets of plywood, or stooping down to nail kickboards. The instructions had not been specific to the tasks the plaintiff had been expected to carry out. The employer should have consulted with each employee about the risks of injury involved in each manual handling task the employee was expected to carry out.
The plaintiff did not tell Dr Cubitt about feeling pain in his back for two weeks leading up to 30 October 2008. This was a significant piece of information, and Dr Cubitt said that the plaintiff should have told his supervisor about it at the time. He would have expected the supervisor and the employer to take steps to deal with it. At the same time, he said that employees feared for their jobs and tended to tell the boss what they thought the boss wanted to hear.
Counsel for the defendant put to Dr Cubitt that a weight of 20 to 22 kg for an adult male was a reasonable weight to be expected to lift and carry. Dr Cubitt disagreed with the proposition. He said that it depended on how the lifting and carrying occurred. That weight range might be reasonable if there was no need to twist the body, and if the weight could be lifted close to the body. He explained that to lift a panel of formply from a pallet at floor level the plaintiff had had to lean over, take hold of the sheet of timber and slide it across the stack of sheets. As he did so, it would tilt. He would then have used his right hand to lift and his left hand to steady the sheet, to lift it to shoulder level to carry it. It was impossible to comply with the lifting instructing (bend the knees, keep the back straight and keep the load close to the body) in lifting a sheet of formply from a stack. It made a difference in relation to lifting a 20 kg or 23 kg weight what size and shape the object was. Dr Cubitt’s opinion was that a sheet of formply 1.8 m x 1.2 m could not be safely lifted and carried by one man. The task could be safely carried out by two men.
Dr Cubitt said that there was a risk of injury associated with lifting a weight of more than 9.48 kg. With a weight of 20 kg the risk was higher, and higher again with greater weights (for example, 46.5 kg, the weight of two sheets) for a twisting lift of the kind used by the plaintiff.
Dr Cubitt also expressed the opinion that two minutes was a relatively long period for a worker to be stooping over nailing sheets of formply at ankle level.
Dr Cubitt’s experience was that a worker did not become injured instantaneously when lifting, but that the injury might occur over a period of time. He acknowledged that this was an issue better dealt with by a medical expert, but that from an ergonomic perspective, the tasks being carried out by the plaintiff in positioning and nailing sheets of form ply carried a significant risk of injury, quite apart from the risk involved in lifting and carrying the sheets.
I am satisfied that Dr Cubitt has the necessary qualifications and experience to express the views contained in his report and his oral evidence as to ergonomics and risk of injury on building sites. His report and oral evidence will accordingly be admitted.
All of the medical evidence was tendered in report form. The plaintiff tendered the clinical notes of the Phillip Medical and Dental Centre, radiological reports, and specialist reports by Professor Dan and Dr Ron Brooder, a neurologist qualified by the plaintiff’s solicitors.
The plaintiff gave Professor Dan a history of some back soreness for a couple of weeks related to lifting heavy plywood and the like, leading up to the incident on 30 October 2008 when he was nailing edge boards which required him to bend very low. When he straightened he had a very sharp pain to the left of the low back. The pain was in a localised area. The plaintiff tried to bend over to finish the job but could not do so. He complained of constant pain since then until he saw Professor Dan for the first time in March 2009. Professor Dan arranged a foraminal steroid block injection at L4-5 on the left, which was performed in June 2009 with good relief of pain.
Dr Brooder saw the plaintiff for the first time in August 2009. He was provided with copies of earlier reports and scans. He took a detailed history and carried out a physical examination. The plaintiff had just commenced a general fitness and rehabilitation program with Health Portal. The plaintiff remained aware of persistent pain, aggravated by physical activity involving bending or lifting. His general mobility was markedly impaired. He was slow and hesitant when moving, and complained of increased low back pain on the left side with all lumbo-sacral spine movements.
Dr Brooder’s opinion was that the plaintiff had had pre-existing but generally asymptomatic disc changes at L4-5 and L5-1, associated with the development of an intervertebral disc and annulus protrusion on the left side. He thought that there might also be some contribution to his pain from a disc bulge at L5-S1 with irritation of the left S1 nerve root.
Dr Brooder thought that the plaintiff’s prognosis was guarded. He had significant abnormalities in the lumbo-sacral spine at a relatively young age. There was a reasonable prospect that his condition would improve with the passage of time, but a significant risk that he would remain subject to pain and disability to some degree indefinitely.
Dr Brooder thought that the plaintiff’s condition and disability had been contributed to in a significant way by the incident on 30 October 2008. He was unable to work at all at the time of the appointment, and was unlikely to be able to return in the future to work of a heavy physical nature, or work involving lifting or prolonged or repetitive bending. It was likely that the aggravation to his condition which he suffered on that date would lead in the future to increased degenerative changes and premature arthritic changes at L4-5 and S5-1. It was possible that he might require surgery at some time in the future. He was at significant long-term risk of developing a continuing low back pain syndrome with associated disability.
Dr Brooder saw the plaintiff again in November 2011. By then he had completed a vocational assessment and rehabilitation program. He had had a further foraminal block at L4-5 in mid-2010 which had resulted in significant improvement in his low back pain. He had been certified fit to resume work part-time with a lifting restriction of 7 kg in October 2010. He had found suitable casual work as a traffic controller. He remained limited in his capacity for day-to-day household activities. He had been unable to return to his pre-accident sporting interests, although he had attempted cycling but with aggravation to his low back pain. His general mobility had improved since Dr Brooder first saw him but he remained slightly slow and hesitant in movements.
Dr Brooder noted that it was by then more than three years since his injury, and that his pain had failed to resolve fully. In those circumstances, he thought it likely that the plaintiff would remain subject to intermittent low back pain and associated disability to some degree indefinitely. He was permanently unfit for heavy physical work, or any work involving heavy lifting or prolonged or repetitive bending. Hence he was permanently unfit to work as a formwork carpenter. He was fit for lighter work such as the casual work he was doing as a traffic controller. He remained at long-term risk of developing a progressive intervertebral disc protrusion at both L4-5 and L5-S1 disc levels and might ultimately require surgery.
The plaintiff was sent by a firm of solicitors acting for the workers’ compensation insurer to Dr Peter Battlay, orthopaedic surgeon, and Dr Nicholas Burke, occupational physician. Dr Battlay saw the plaintiff in July 2009. He had the benefit of Professor Dan’s first report, and also of reports by Dr Gary Cohen of 1 December 2008 and Dr Charles Hoy of 13 January 2009, neither of which are in evidence. When he saw the plaintiff, he was about to commence a strengthening program and had gained some relief from the nerve block. He still complained of low back pain. Dr Battlay thought that he had a resolving L4-5 disc protrusion, and that he was likely to continue to improve, but with the possibility of symptoms further down the track. He was incapacitated for work at the time but should be fit to work, initially with light duties, in the future. His condition was caused by his employment activities but it was quite likely that there had been some pre-existing degenerative changes prior to the incident.
Dr Burke saw the plaintiff in September 2009. He was clearly provided with some background material but does not say in his report what it was. His diagnosis was of low back strain with probable aggravation of pre-existing degenerative change in the lumbar spine. The prognosis was guarded. It was likely that the plaintiff would continue to have some symptoms. He was fit to return to full-time work, in Dr Burke’s opinion, as long as he could avoid heavy or repeated lifting, repeated bending and twisting, and prolonged sitting and standing. It seemed unlikely that he would be able to return to work as a carpenter.
He said that the incident at work appeared to have been fairly minor. It was possible that it had caused some degree of aggravation of the pre-existing degenerative change. He concluded “It is now almost twelve months since the original event and one would have expected any aggravation to have resolved over this period of time. Hence, any contribution from his employment is likely to be quite low”.
It was on the basis of this report that the insurer ceased to make workers’ compensation payments to the plaintiff, causing him to fall back on Centrelink support.
In August 2010, the solicitors for the defendant sent the plaintiff to see a Dr Kelman, an orthopaedic surgeon, for a medico-legal report. The plaintiff attended the appointment. The report was not served on the plaintiff’s solicitors. I draw the available inference that Dr Kelman’s opinion would not have assisted the defendant’s case.
The defendant’s solicitors referred the plaintiff in August 2010 to Vocational Capacity Centre Pty Ltd, a multi-disciplinary medico-legal practice, where the plaintiff was seen by a physiotherapist and a vocational psychologist. Another vocational psychologist within the practice, with the assistance of a labour market research assistant, prepared what is described as a labour market analysis report.
The vocational capacity assessment overall confirmed that the plaintiff was at the time not capable of returning to work as a formwork carpenter. A number of jobs which he was considered capable of performing were identified, including a position as a road maintenance traffic controller, the job he succeeded in obtaining.
There was no real challenge to the plaintiff’s credibility. Generally when something was put to him by counsel for the defendant and he was told that it was based on other information in the case, he accepted it. He came across to me as a genuine, truthful and honest witness. I thought that he had quite a good memory for the events generally, and I accept his evidence.
I was impressed by Dr Cubitt’s qualifications and experience. He gave his evidence frankly and logically. As an engineer he has experience of the building construction industry and as to what happens at a practical level on a building site. Although he does not have the modern academic qualifications in ergonomics, it is a field he has worked in for many years, from a time when such a field was barely recognised and there were certainly no academic courses available about it. I accept his evidence as to the human physical movements involved in the sort of work the plaintiff was called upon to perform, and I accept generally his evidence about risk management and safety issues. In particular, I accept his opinion that there was a risk of injury involved in requiring the plaintiff to lift, carry and install sheets of plywood as he did, and that the risk was greatly exacerbated where the plaintiff carried two sheets of plywood on his own, rather than one.
It seems to me that the induction given to the plaintiff about the risk of injury on site was perfunctory and aimed at satisfying a requirement rather than preventing injury to the individual employee. A system aimed at the latter would have included getting the employee to demonstrate that he understood the correct way to carry out lifting and other risky manoeuvres.
I accept that Mario Carrabs, as site foreman with IC Formwork Pty Ltd, genuinely attempted to ensure that workers on site carried only one piece of formply at a time, but I also accept that the plaintiff, and the defendant’s brother Bruno, often carried two pieces of formply at a time, and that the plaintiff thought that this was expected of him by his employer, the defendant, in order to get the work done at an appropriate pace.
It seems to me more likely than not that the work required of the plaintiff, of picking up and carrying one and sometimes two sheets of formply from the stack which had been delivered by crane to the position where they were to be installed failed to comply with the code and regulations as to manual handling, and that the defendant knew or ought to have known that this was so. I accept that this work, performed by the plaintiff from the start of his employment with the defendant, during the period leading up to 30 October 2008, caused some injury to his low back at the L4-5 and L5-S1 levels, and was the reason for the back pain of which he spoke, during the period of about two weeks leading up to 30 October 2008.
I accept that the plaintiff had degenerative changes in the lumbar spine at those levels, prior to the commencement of his employment with the defendant, but that the condition was until then asymptomatic.
I have no doubt that it was the incident on 30 October 2008, when the plaintiff straightened and stood from a low bending position, which caused the onset of sharp pain in the left lumbar area, and prevented him continuing with his work at that time.
The opinion expressed by Dr Burke as to causation is one I have come across in other cases, and which may be attributable to a difference between the legal and medical concepts of causation. Dr Burke did not go quite so far as to say that there was no causal connection between the incident of 30 October 2008 and the plaintiff’s low back symptoms when he saw him in September 2009, referring rather to an expectation that any aggravation caused in October 2008 should have resolved by September 2009. From a legal viewpoint, however, I am obliged to take into account the fact that prior to the plaintiff’s employment by the defendant in late 2008 his low back condition, although it would have been discoverable radiologically, had not been productive of any symptoms, and that after October 2008 it had caused, and continued by September 2009 to cause, significant low back pain. That is enough for me, having regard to the legal concept of causation, to be satisfied that the plaintiff’s employment, and in particular the incident of 30 October 2008, were at least a cause, if not necessarily the sole cause, of the pain.
Apart from that opinion expressed by Dr Burke, there is no real difference of opinion in the medical evidence. Before October 2008, the plaintiff was able to work as a formwork carpenter earning $1,100.00 net per week. After that incident he was unable to do so, and continues to be unable to do so. He is now able to work as a traffic controller earning, it is agreed between the parties, about $200.00 less net per week.
The plaintiff’s injury could have been avoided if there had been a system in place, as recommended by Dr Cubitt, of having sheets of formply carried by two employees. It might even have been avoided if the plaintiff had been restricted to carrying one piece of formply at a time. I am satisfied that his work with the defendant, carrying sometimes one and sometimes two pieces of formply in the way he did, after lifting them from the stack, contributed to his low back condition becoming symptomatic. It seems to me that the incident on 30 October when he straightened after nailing kickboards from a stooped position, could be described as the straw that broke the camel’s back – a further cause of his continuing pain and disability. For those reasons I am satisfied that his injury was caused by an unsafe system of work adopted by the defendant as his employer, and therefore that his injury resulted from the breach by his employer of a duty of care owed to him.
The defendant pleaded a defence of contributory negligence, the particulars being that the plaintiff failed to take reasonable care for his own safety. I am not persuaded that the defence is made out on the facts.
As a result of the negligence of the defendant, the plaintiff has been placed in a position where a career formerly open to him has now been closed. I must take into account in the defendant’s favour the fact that his low back, as we now know, but was not known before the accident, was vulnerable to injury by reason of degenerative changes. If the injury in October 2008 had not happened, the plaintiff would have remained vulnerable to low back injury in the future in his work as a formwork carpenter.
The plaintiff has been left with some continuing pain and discomfort in the low back. His career as a formwork carpenter has been closed to him. He is no longer able to play soccer, even at the level of kicking a ball around a park with his son. His leisure activity of cycling is in practical terms no longer open to him. He is no longer able to ride a motorcycle on his grandmother’s property. It is likely that his low back problems will affect many of his daily activities. He can work but at a less challenging and probably less satisfying position.
He remains at risk, as Dr Brooder said, of the degenerative changes in his lumbar spine getting worse over the years, and there is a possibility, if only a possibility, that he will ultimately require surgery to alleviate pain arising from those levels. For a man who is still only 28, this must be seen as a very serious injury, causing a significant diminution in his quality of life.
Damages
Senior counsel for the plaintiff seeks an award for $80,000.00 for general damages for pain and suffering and loss of enjoyment of life. Counsel for the defendant concedes that an award of $60,000.00 would be appropriate. It seems to me on reflection that the proper figure is $75,000.00, and I award that amount.
Both counsel agree that general damages should be apportioned equally between past and future. For interest on the past component I award $4,000.00.
Treatment expenses to the date of trial are agreed between counsel at $18,422.71, plus travel expenses of $1,870.85, a total of $20,292.76. There will have been an increase in these expenses since trial. For past expenses I allow a total of $22,000.00.
For future expenses, the plaintiff claims an amount within a range of $15,000.00 to $20,000.00. The defendant through his counsel concedes a figure of $2,000.00. I accept that the plaintiff will need analgesic medication from time to time, and may need other treatment in the form of massage, physiotherapy and the like. There is also the possibility of surgery at some time in the future. It is really not possible to apply a mathematical approach to the calculation of an award for future treatment expenses. I allow $8,000.00.
Past loss of earnings are agreed to the date of trial at $18,800.00, plus interest of some $4,500.00. It is agreed between the parties that past loss is to be calculated at $880.00 net per week until the plaintiff found employment as a traffic controller, and thereafter at a differential of $200.00 net per week.
I allow $35,000.00 for past loss of earnings, plus interest of $6,000.00.
Counsel for the defendant concedes a figure of $119,000.00 for loss of earning capacity for the future, calculated on the base of a continuing loss of $200.00 net per week, with the resulting figure reduced by 50% for vicissitudes and the various other factors. Senior counsel for the plaintiff accepts the approach but says that the discount should be no more than 25%.
I accept that there must be a significant discount to recognise the degenerative condition of the plaintiff’s lumbar spine prior to injury and the possibility that some incident, whether compensable or otherwise, might have caused a significant reduction in his working capacity at some point. Again a mathematical approach is inappropriate. It is a matter for the Court to exercise its discretion in arriving at a figure which is appropriate in all the circumstances to compensate the plaintiff for the impairment of his earning capacity for the future. It seems to me that an appropriate figure would be $150,000.00, and I award that amount.
The Fox v Wood (tax on workers’ compensation) figure is agreed at $10,834.42.
The plaintiff claims, under the Griffiths v Kerkemeyer (1977) 139 CLR 161 principle, for the past and future value of services provided to him gratuitously by family and others, an amount within a range of $10,000.00 to $20,000.00. The defendant concedes a figure of $2,500.00. That is, I think, a little parsimonious. For past, including interest, and future, using an hourly rate of something between $20.00 and $25.00, I allow $10,000.00.
It is conventional to allow 9% of the amounts awarded for past and future loss of earning capacity, for loss of superannuation benefits. For the past I allow a rounded amount of $3,000.00, and for the future $13,500.00.
The individual components of the award for damages are as follows:
General damages $75,000.00 Interest on past component $4,000.00 Treatment expenses - past $22,000.00 - Future $8,000.00 Past loss of earnings $35,000.00 - Interest $6,000.00 - Future $150,000.00 Griffiths v Kerkemeyer $10,000.00 Fox v Wood $10,834.42 Loss of superannuation benefits – past $3,000.00 - Future $13,500.00 $337,334.42
On consideration, that sum seems to me a fair reflection of the impact of the defendant’s negligence on the plaintiff. There will be judgment for the plaintiff for $337,334.42.
Costs should follow the event. I shall make an order for costs accordingly, but stay that order for 21 days in case there are considerations to be taken into account of which I am unaware, and a party wishes to make an application for a different order. Either party may make such application informally, and give notice to the Court and to the other party by email within 21 days. If such notice is given the stay will be extended until further order.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 28 January 2014
Counsel for the Plaintiff: Mr SH Pilkinton SC
Solicitors for the Plaintiff: Blumers Pernsonal Injury Lawyers
Counsel for the Defendant: Mr GJ Parker
Solicitors for the Defendant: Minter Ellison
Date of hearing: 3, 4 July 2012
Date of judgment: 28 January 2014
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