Joshua Jeremiah Bole v Territory Scaffolding Pty Ltd
[2012] ACTSC 182
JOSHUA JEREMIAH BOLE v TERRITORY SCAFFOLDING PTY LTD
[2012] ACTSC 182 (21 December 2012)
PERSONAL INJURY – Workplace injury – Fall from scaffolding – Injury to right leg – Medical evidence supports injury – Negligence found
DAMAGES – Assessment of compensation – Loss of income due to pursuit of particular type of employment not referable to accident
Griffiths v Kerkemeyer (1977) 139 CLR 161
Fox v Wood (1981) 148 CLR 438
No. SCC 713 of 2009
Judge: Burns J
Supreme Court of the ACT
Date: 21 December 2012
IN THE SUPREME COURT OF THE )
) No. SCC 713 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: JOSHUA JEREMIAH BOLE
Plaintiff
AND:TERRITORY SCAFFOLDING PTY LTD
Defendant
ORDER
Judge: Burns J
Date: 21 December 2012
Place: Canberra
THE COURT ORDERS THAT:
Judgment for the plaintiff in the sum of $311,530.42
The plaintiff, Joshua Bole, sustained injuries when scaffolding he was dismantling collapsed underneath him, causing him to fall and injure his right leg. The defendant, Territory Scaffolding Pty Ltd, was his employer. The plaintiff claims that his injuries were caused by breach by the defendant of its contract of employment with him, or breach by the defendant of a statutory duty owed by the defendant, or alternatively by the defendant’s negligence.
The defendant has denied liability.
The plaintiff gave evidence that on 26 February 2009, in the course of his employment with the defendant, he was carrying out work disassembling scaffolding at a construction site in Calwell in the Australian Capital Territory. The plaintiff was an experienced scaffolder, and had constructed and dismantled scaffolding of this type on a very large number of occasions prior to 26 February 2009. The plaintiff stated that he went about dismantling the scaffolding on 26 February 2009 in exactly the same way that he had undertaken this task on previous occasions. The plaintiff was working at the Calwell building site with two other employees of the defendant, one of whom was the site manager. Both the plaintiff and the site manager examined the scaffolding before they commenced to dismantle it. They did not observe any problems. However, as the plaintiff was removing one of the hand rails in the process of dismantling the scaffolding, the scaffolding twisted and collapsed. This caused the plaintiff to fall approximately two metres onto a plank covering a hole in the ground. He fell through the plank and partly into the hole, breaking his femur.
In the course of his evidence the plaintiff stated that the scaffolding had been constructed by the defendant. In an earlier statement dated 8 April 2009 which was obtained by QBE Insurance from him as part of an investigation into his workers compensation claim, the plaintiff stated that the scaffolding had been erected “by another company” and that he did not know who had erected it. It does not appear to me that the statement made by the plaintiff in that regard is necessarily inconsistent with his evidence that the defendant had constructed the scaffolding. It may well have been the case that another company had erected the scaffolding acting as a contractor to the defendant. It was clear from the plaintiff’s evidence that he did not know precisely who had constructed the scaffolding; however it was his clear evidence that the defendant had been responsible for its construction.
It was not suggested to the plaintiff in cross examination that the defendant had not been responsible for the construction of the scaffolding. Nor was any evidence called by the defendant on that issue. I therefore accept the plaintiff’s evidence that the defendant was responsible for construction of the scaffolding.
I find, on the balance of probabilities, that the scaffolding had been negligently constructed. I infer this from the plaintiff’s evidence that he was familiar with this type of scaffolding, and had participated in dismantling scaffolding of this type on numerous occasions in the manner which he did on 26 February 2009, and that on none of those occasions had the scaffolding collapsed as it did on 26 February 2009. This finding means that the plaintiff must succeed on liability.
After the accident the plaintiff was conveyed to the Canberra Hospital by ambulance. At that time his right femur was in a traction splint. He was assessed by the trauma team, and it was determined that he had a penetrating injury to the right shin and also had a fractured right femur. He was stabilised, given analgesics and then directed to the operating theatre for treatment of his injuries. At the Canberra Hospital he came under the care of Dr Richard Hocking, an orthopaedic surgeon. He was treated with a closed intra medullary nail.
After discharge from hospital, the plaintiff was required to use a wheelchair and then crutches for mobility. He was restricted to a wheelchair for about two weeks, and then used crutches for about 6 weeks. He attended rehabilitation three days a week for about one and a half years. He was unable to drive for nine months, and had to rely upon family and friends to drive him to rehabilitation sessions.
For the first 6 months after the accident, the plaintiff was virtually bedridden. He was not allowed to undertake many physical activities, including heavy lifting. He stated that his mother did most of the cooking and cleaning for him.
The plaintiff testified that he became depressed for about 9 months after the accident, but that he then got involved in church activities and his friends helped him.
His major physical problems, besides the fractured femur, were his right knee and hip, which had significant pain and decreased mobility.
On 1 March 2010 the plaintiff underwent further surgery to remove the femoral nail. On 19 April 2010 he underwent a third operation, a right hip arthroscopy to reduce his pain and improve the mobility in the joint. He continued to have pain and reduced mobility in his right knee until he underwent a fourth operation on 16 September 2010, being an arthroscopy of the right knee. This revealed fissures in the cartilage consistent with traumatic fracturing of the retropatella cartilage surface of the patella.
In or about May 2011 the plaintiff commenced job seeking with a firm called Advanced Personal Management (APM). In a report dated 2 August 2011 to the plaintiff workers compensation insurer APM reported that they had “completed two weeks of intensive job seeking for Mr Bole without attaining a suitable position for him”. They recommended job seeking for the plaintiff cease. It is apparent from the report that the plaintiff’s then physical restrictions were a significant factor in APM’s inability to find employment for the plaintiff. By 2 August 2011 APM had completed in excess of 18 weeks of job seeking for the plaintiff without any success.
A vocational plan was prepared by a rehabilitation counsellor, Mr Tony Ware, on behalf of the plaintiff’s workers compensation insurer. In a report dated 10 August 2012, Mr Ware noted that the plaintiff was referred to him on 1 December 2011. On 16 February 2012 the plaintiff attended a medical review which was satisfactory. By that time the plaintiff had undertaken a significant gym program so as to improve his fitness and strength. He had also lost significant weight. The vocational plan for the plaintiff was for him to use his transferrable skills, interest and experience in fitness to secure a different job with a different employer in the fitness industry. A work trial was arranged for the plaintiff at Canberra Olympic Pool from 13 March 2012 until 20 April 2012. This was apparently successful. It was recognised that the plaintiff would need to obtain a Certificate 3 in Fitness in order to be employed in the fitness industry. The plaintiff commenced such a program in June 2012, but whilst progressing well in the program had not completed it by the date of the report, being 10 August 2012.
The Medical Evidence
In a report dated 8 April 2009, Dr Hocking noted that the fracture was well aligned, however there was still a significant fracture gap. He expressed the opinion that they would eventually fill in. In a further report dated 28 May 2009 Dr Hocking noted that the fracture was progressing to union very well. At that time he gave the plaintiff the all clear to commence weight bearing without crutches for small distances. He also considered that the fracture was sufficiently united for him to be able to drive a motor vehicle. Dr Hocking then saw the plaintiff on 2 July 2009. In a report of the same date Dr Hocking noted that x-rays continued to show improvement in the fracture. Dr Hocking was confident that the plaintiff could now fully weight bear at times, and that his fracture would no longer be at any risk of subsiding. He expected that the fracture would continue to heal over the next three months. On 10 August 2009, Dr Hocking again saw the plaintiff. At that time x-rays revealed that the fracture was completely united. Dr Hocking noted that the plaintiff had some significant quadriceps wasting, which could be addressed through gym work. Dr Hocking next saw the plaintiff on 15 September 2009 after an exacerbation of pain caused by a fall.
In a report dated 21 December 2009 Dr Hocking expressed the opinion that the plaintiff’s rehabilitation had plateaued. He was now getting right groin pain and right knee pain. Occasionally there was swelling in his knee and also some clicking. Dr Hocking felt that his physical findings were consistent with Impingement Syndrome.
Dr Hocking’s next report is dated 5 January 2010. At that time he reviewed the plaintiff after an MRI scan. The intra-articular substances within the plaintiff’s knee appeared to be all normal, although he did have a significant amount of bone marrow oedema related to the tip of the nail. Dr Hocking thought that this may be causing the plaintiff’s knee pain. Dr Hocking suggested that the plaintiff’s knee pain may resolve if they took the nail out. In addition he considered that the plaintiff’s hip problems may resolve with a hip arthroscopy.
On 1 March 2010, Dr Hocking removed the femoral nail under general aesthetic. It had been proposed to conduct the hip arthroscopy at the same time, however there was too much soft tissue trauma around the hip to proceed with that procedure.
The right hip arthroscopy was conducted on 19 April 2010 under general aesthetic. In the course of that procedure it was discovered that the plaintiff suffered from a labral tear, a cam lesion and an acetabular chondral lesion at the anterosuperior margin.
On review by Dr Hocking on 5 May 2010 it was noted that the plaintiff was making good progress.
Dr Hocking provided a report dated 21 March 2011, which repeated much of the information set out above. He noted that on 16 September 2010 the plaintiff underwent a right knee arthroscopy which revealed fissures in the cartilage of his retropatella surface which was consistent with traumatic fracturing of the retropatella cartilage surface of the patella. Dr Hocking expressed the opinion that this had occurred in the fall on 26 February 2009.
On behalf of the plaintiff a report of Dr G Griffith, Consultant Surgeon, dated 4 September 2010 was tendered. Dr Griffith examined the plaintiff, took a history and also examined x-rays and other medical records. He expressed the opinion that on 26 February 2009 the plaintiff suffered:
1. Nervous shock – recovered.
2.An acute comminuted fracture of the junction of middle and lower thirds of the right femur (comminution involving the upper shaft rather than the lower) with 1.7 cm of shortening (now permanent because of malunion).
3.Post traumatic haematoma of the right thigh – now resolved.
4.Severe contusive injury of the infrapatellar region of the right knee.
5.Contusive injury to his right hip.
Dr Griffith considered that the plaintiff had suffered the following sequelae:
1.Persistent right hip arthralgia (relieved since arthroscopy in March 2010).
2.Persistent right knee arthraligia (cause obscure but remaining intrusive).
3.Minor post-traumatic ache right lower thigh at the fracture site.
4.Post-surgery impaired sensation in the lateral aspect of the lower right thigh (due to interference with regional nerve when removing the screws) – of no real significance as far as function is concerned.
5.Recurrent effusion right knee.
6.Possible laxity of cruciate ligaments (though MRA (sic) of the knee [was] normal) with functional hyperextension more than 10 degrees greater than that evident on the left uninjured side.
7.Heterotopic calcification of supratrochlear region of the right femur (of no significance).
8.Persisting restricted movement of the right hip.
9.Post-traumatic adjustment disorder – now chronic – with elements of depression and anxiety and social withdrawal – [at the time] persisting and untreated.
Dr Griffith noted that the femoral fracture was soundly united although with a permanent 1.7 centimetre shortening. The right hip arthroscopy had been successful in relieving his symptoms, although there was still restricted movement. The prognosis of the plaintiff’s knee was guarded. The overall prognosis was for gradual improvement, especially if the plaintiff was able to effectively mobilise his knee by cycling. Cycling was highly recommended rather than any high impact activity. It was Dr Griffith’s opinion that the plaintiff’s condition was a consequence of the accident on 26 February 2009.
Dr Griffith noted that the plaintiff’s ability to work was affected by a limping gait, and his chronic right knee and hip pain. He considered that the plaintiff required further treatment.
A further report dated 12 June 2012 from Dr Griffith was tendered on behalf of the plaintiff. Dr Griffith noted that it was 22 months since his last assessment, and that towards the end of 2010 an arthroscopy was performed on the plaintiff’s right hip. The symptoms in regard to the plaintiff’s right hip in relation to pain and range of management were dramatically improved since that procedure. At the time he was seen by Dr Griffith the plaintiff had minimal pain in his hip. There was virtually normal range of motion. The plaintiff still had some discomfort in his right knee, but with no swelling. There was also some aching in the retropatellar region without crepitus or locking. The joint was stable.
For the last five and a half months before Dr Griffith saw him, the plaintiff had performed a self-directed exercise program at a gym. This included using weights and leg strengthening exercises. He had now commenced jogging again, which he was able to do without aggravating symptoms. He had also dramatically reduced his weight from 115 kilograms to approximately 85 kilograms.
Dr Griffith noted that psychologically he reported that he was coping well. He had taken charge of his emotional and psychological situation and was receiving a great deal of support from fellow church members.
In terms of employment Dr Griffith noted that the plaintiff was currently qualifying as a Personal Trainer. In June 2011, before his fitness program commenced, he attempted to perform a security job for two weeks, standing and walking about, but only lasted one week because of increased symptoms. Dr Griffith considered that it would be unlikely that this experience would be repeated if he were to attempt those duties at the time he saw him in 2012.
Dr Griffith stated that in addition to the conditions set out in his first report, arthroscopy had now revealed that the plaintiff had also suffered post traumatic vertically oriented splitting of the cartilage of the right patellar at three sites in the accident on 26 February 2009. With regard to sequelae, the plaintiff no longer suffered from right hip arthralgia, except to a minimal degree. Right knee arthralgia was also minimal. The fracture site was no longer a source of pain, with minimal disturbance of sensation and disturbed cutaneous innervation of no significance of the lower right thigh. There was no overt effusion of the right knee. There was marked hyperextension which persisted but was not a cause of concern. Movements of the plaintiff’s right hip were no longer restricted since his last arthroscopy at the end of 2010. The plaintiff’s Post-Traumatic Adjustment Disorder had now completely resolved.
Dr Griffith expressed the opinion that the plaintiff was fit to perform any type of work which does not require working from heights, which has been forbidden by his operating surgeon due to the risk of his knee giving way and precipitating another fall. Dr Griffith thought that there was no reason why he could not return to other physically demanding occupations at that time, and he was capable of working fulltime. Dr Griffith was of the opinion that the plaintiff required no specific treatment at that time, although in years to come he may require an arthroscopy to deal with chondromalacia patellae, at a cost of approximately $20,000.
On behalf of the plaintiff a report from Dr Leon LeLeu dated 28 March 2012 was tendered. Dr LeLeu is an occupational physician. Dr LeLeu noted the history of injury on 26 February 2009 and subsequent treatment. At the time that he saw the plaintiff, the plaintiff was undergoing a work trial as a Personal Trainer at the Canberra Olympic Pool. He was not being paid for that. Dr Le Leu noted the history of the plaintiff working as a scaffolder for approximately five years before the accident. Before working in scaffolding the plaintiff worked in the army reserve from 2002 to 2005. He also worked as a furniture removalist, bar person and anything to do with outside work. Dr Le Leu expressed the opinion that the plaintiff would be unable to return to work as a scaffolder because of his right knee injury. In general he was not fit for work of a moderately to highly physical nature because of the adverse effect it would have on his right knee. He was considered fit for light sedentary or semi-sedentary work of a clerical/administrative/policy/reception nature. Dr Le Leu noted that whilst the plaintiff may be physically capable of undertaking that type of work, it was not necessarily work for which he had education, experience or training. He considered that the plaintiff would also be fit, with care, for the personal training work which he had embarked upon.
A report dated 21 December 2010 was obtained from Dr Zoltan Zsadanyi, a Consultant Psychiatrist. Dr Zsadanyi saw the plaintiff on 15 December 2010. He noted the history of injury in the accident of 26 February 2009, and the plaintiff’s subsequent treatment. The plaintiff stated that immediately following the injury he started feeling depressed. The injury came as a shock to him, and as time progressed he also became aware of restrictions and limitations by virtue of his injury. In the first three months following the injury, the plaintiff stated that he was prone to isolating himself from his family and friends. He said that he started experiencing a worsening of mood swings, and everything around him was affecting him. He experienced a period of tearfulness and sadness. This was partly due to the realisation of his inability to continue working in construction work and being outdoors.
At the time that Dr Zsadanyi saw him, the plaintiff stated that he was still prone to being edgy, moody, and angry. However, since the arthroscopy on his hip in April 2010 and the arthroscopy on his right knee in September 2010, prior to being seen by Dr Zsadanyi, the plaintiff was more hopeful that he would be able to start working again in 2011.
Initially after the injury the plaintiff experienced a number of months of poor sleep and frequent waking early in the morning. This was mostly in relation to his pain levels and being unable to sleep comfortably. The plaintiff stated that he experienced some dreams in relation to the accident and sometimes would wake up in a sweat. The plaintiff’s weight had increased since the accident. At times he felt that his life was not worth living, and experience suicidal ideation, but he never acted on those thoughts.
Dr Zsadanyi stated that the plaintiff’s symptoms suggested an adjustment disorder with depressive symptomology lasting for approximately six months following the injury. He did not consider that he had any residual signs of a psychiatric diagnosis as at December 2010. From the psychiatric perspective he considered the plaintiff to be fully capable of working.
On behalf of the defendant three reports from Dr Raymond Wallace, an Orthopaedic Surgeon, were tendered. The first report dated 18 July 2010 was prepared after Dr Wallace had seen the plaintiff on 8 July 2010. At the time that he saw the plaintiff, the plaintiff was complaining of persisting pain at the right groin radiating to the lateral aspect of the right hip with intermittent grabbing sensations. The pain was worse with stair climbing, bending, squatting, crouching, in cold weather or on abduction movements at the right leg and was relieved by a home exercise program. He also complained of intermittent stiffness at the right hip. With respect to his right knee, the plaintiff complained of peripatellar pain, particularly at the medial and lateral facets, which was worse with stretching or bending or squatting or crouching, and with no relieving factors. He further complained of intermittent locking and giving way, but no stiffness or swelling.
Dr Wallace noted that the plaintiff had been unable to return to work since the injury in February 2009. At home he had no difficulty in dressing himself. His sleep was disturbed occasionally at night by ongoing pain. He was able to drive a motor vehicle without difficulty. Around the house he is able to help with activities including low work or lifting heavy objects. He was unable to help with home maintenance activities of mowing and gardening. The plaintiff had previously enjoyed activities such as basketball, rugby and boxing, but had been unable to resume those activities.
Dr Wallace examined the plaintiff and also referred to x-ray, CT and MRI results. He was of the opinion that the plaintiff had suffered injuries to his right leg as a result of a fall from scaffolding at work on 26 February 2009. Dr Wallace briefly detailed the medical history of the plaintiff, stating he was admitted to Canberra Hospital where he underwent intramedullary nailing of the fracture of the right femoral shaft. The plaintiff then continued under the care of his treating orthopaedic surgeon, Dr Hocking, and underwent removal of screws at the right femur in April 2009 followed by a right hip arthroscopy in May 2009.
Dr Wallace was of the opinion that the plaintiff would benefit from review by Dr Hocking for consideration of arthroscopic debridement of the right knee. He would also benefit from operative intervention in the form of arthroscopic debridement at the right knee followed by twice weekly physiotherapy visits over a period of a month in the post-operative period. With regard to his right hip, Dr Wallace felt that the plaintiff would benefit from an unsupervised home exercise program concentration on mobilisation and strengthening exercises with intermittent use of analgesic and anti-inflammatory medication. He considered that the plaintiff did not require further operative intervention at his right hip or right femur.
With respect to the plaintiff’s fitness for work, Dr Wallace considered the plaintiff unfit to return to his pre-injury duties as a scaffolder. He considered that the plaintiff would not be fit for activities requiring repetitive bending, squatting, crouching or kneeling at his right leg, sitting or standing in one position for a prolonged period, repetitive lifting above five kilos, working in confined spaces, at heights or on ladders or prolonged periods of walking on uneven ground or stair climbing. He considered the plaintiff currently fit to return to work at part time light duties up to 25 hours per week with due consideration being given to restrictions on his activities.
He believed that the plaintiff currently required domestic and/or personal assistance in the order of three hours a week due to ongoing right left disability sustained as a result of his accident in February 2009.
Dr Wallace’s second report is dated 20 June 2011, with Dr Wallace having reviewed the plaintiff on 9 June 2011. Dr Wallace noted that since his last review of the plaintiff in July 2010 he had undergone arthroscopic debridement at the right knee. At that time he was found to be suffering from fissures at the retropatellar surface and a chondroplasty was performed. In the post operative period the plaintiff was recommenced physiotherapy which continued until December 2010. In 2011 the plaintiff had continued with a gymnasium strengthening program, and had ceased the use of analgesics.
Dr Wallace noted that the plaintiff complained of intermittent locking of the right hip and persisting pain at the anterior aspect of the right groin radiating to the anterior aspect of the right thigh. This pain was worse in cold weather, when getting in and out of a car, when walking long distances or on abduction, and had no relieving factors. He also complained of intermittent stiffness at his right hip. With respect to his right knee, the plaintiff complained of retropatellar pain and a grinding sensation. The pain was worse on running long distances or bending, squatting or crouching and was relieved by use of a knee brace. He noted no swelling or locking of the joint. The plaintiff also complained of intermittent giving way at the right knee in hyperextension, and of intermittent stiffness.
With respect to the plaintiff’s work and other activities, he had remained off work from the time of his injury in February 2009 until the end of March 2011 when he took a job as a security guard. He found that that work aggravated his right hip and knee pain, and he had to cease that work after completing six shifts. He had then remained off work until he was seen by Doctor Wallace in June 2011.
At home the plaintiff had no difficulty in dressing himself. His sleep was disturbed occasionally at night by ongoing pain. He had no difficulty in driving a motor vehicle. He was able to do most housework, but was unable to help with home maintenance activities such as mowing and gardening. He had been unable to return to pre-injury activities such as basketball.
Dr Wallace considered the plaintiff unfit to return to his pre-injury duties as a scaffolder. He also considered the plaintiff not to be fit for activities involving repetitive bending, squatting, crouching or kneeling at his right leg, sitting or standing in one position for prolonged periods, repetitive lifting above 10 kilograms, working in confined spaces, at heights or on ladders, or prolonged periods of walking on uneven ground or stair climbing. He considered that the plaintiff was fit to return to work full-time on light duties with due consideration being given to restrictions on his activities. He considered that the plaintiff currently required domestic and/or personal assistance in the order of two hours per week.
Dr Wallace expressed the opinion that the plaintiff would benefit from an unsupervised home exercise program concentrating on mobilisation and strengthening exercises at his right hip and right knee with intermittent use of analgesic medication. As it was then two years post-injury, he considered that the plaintiff had a poor prognosis for further recovery of function of his right lower limb.
Dr Wallace’s third and final report is described as an impairment assessment and is also dated 20 June 2011. He assessed the plaintiff as having suffered a right lower limb impairment of 20% as a result of loss of loss of range of movement at the right hip. He assessed the plaintiff as having suffered a permanent loss of efficient use of his right leg, at or above the knee of 25% as a result of the February 2009 work injury.
Conclusion
There can be no doubt that the plaintiff suffered a significant injury to his right leg, including the right hip, in the accident of 26 February 2009. I accept the evidence he gave as to the circumstances of the accident, the injuries he sustained and the effects those injuries had upon him.
In my opinion the plaintiff is now in a position to earn as much as he earned as a scaffolder. The medical evidence establishes he is fit to work in a number of unskilled and semi-skilled occupations. It was suggested by his counsel that I should make some allowance for limited future wage loss, but I do not consider that appropriate. Any loss which the plaintiff may now suffer as a personal trainer is a consequence of his decision to pursue this type of employment.
The plaintiff was paid workers compensation for wage loss of $134,879.48 and past medical expenses of $87,463.51. As they were paid by or on behalf of the defendant I will deduct those sums from the damages to which the plaintiff is entitled.
I will allow $6000 by way of a buffer for future out of pocket expenses, specifically the prospect that he may require further treatment as described by Dr Griffith.
I will allow Griffiths v Kerkemeyer damages as claimed by the plaintiff. The claim is moderate and supported by the medical evidence.
I assess damages as follows:
General damages $140,000.00 Interest $8,400.00 Past wage loss
- ($1100 nett per week for 4.5 years –
Less workers compensation payments)
$122,520.52 Interest on unpaid component at 5% $12,500.00 Fox v Wood $19,209.90 Future out of pocket $6,000.00 Griffiths v Kerkemeyer $15,400.00 Total
$311,530.42
I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 21 December 2012
Counsel for the plaintiff: Mr Muller
Solicitor for the plaintiff: Snedden Hall & Gallop Lawyers
Counsel for the defendant: Mr Pilkington SC
Solicitor for the defendant: Dibbs Barker Lawyers
Date of hearing: 10 September 2012
Date of judgment: 21 December 2012
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