Kevin Robert Smith v Robert Arthur Duncan and Kerry Margaret Duncan Kevin Robert Smith v Choice Hr (Maitland) and Ors
[2012] NSWDC 39
•30 March 2012
District Court
New South Wales
Medium Neutral Citation: Kevin Robert Smith v Robert Arthur Duncan & Kerry Margaret Duncan Kevin Robert Smith v Choice HR (Maitland) & Ors [2012] NSWDC 39 Hearing dates: 13 - 16 February 2012 Decision date: 30 March 2012 Before: Judge M Sidis Decision: The proceedings are adjourned to a date to be fixed to deal with s 151Z issues, costs, any claim for interest and for the entry of final orders.
Catchwords: INDUSTRIAL ACCIDENT - back injury - adequacy of assessment of manual handling tasks - adequacy of training - oversight in operation of sweeper attachment to bobcat - apportionment between labour company and host employer - contributory negligence - extent of residual income earning capacity - extent of need for domestic assistance in share household. Legislation Cited: Workers Compensation Act 1987Occupational Health & Safety Act 2000Occupational Health & Safety Regulations 2001 Motor Accidents Compensation Act 1999Civil Liability Act 2002 Category: Principal judgment Parties: Kevin Robert Smith (Plaintiff)
Robert Arthur Duncan (Defendant) Kerry Margaret Duncan (Defendant)
Choice HR Maitland (Defendatnt)Representation: Mr McSpedden (For the Plaintiff)
Mr Jenkyns (For the Defendant Kevin Robert Duncan & Kerry Margaret Duncan)
Mr Levick (For Choice HR)
Turner Freeman (For the Plaintiff)
Harris Wheeler (For the Defendant Kevin Robert Duncan & Kerry Margaret Duncan)
Stewart Hamilton-Hicksons (For Choice HR)
File Number(s): 2010/321138 2010/120587
Judgment
Kevin Robert Smith was injured at work on 19 May 2007. He was employed by Choice HR (Maitland) Pty Limited, a labour hire company, and working under the direction of Robert Arthur Duncan the co-proprietor of a business trading as Bitumen Roads and Pothole Repairs.
In order to meet the exigencies of the scheme for workers compensation, the plaintiff commenced separate proceedings against Choice HR (321138/2010) and Robert and Kerry Duncan (120587/2010). The claims were heard together and it was agreed that evidence taken in respect of one claim should be taken as evidence in the other, except as to apportionment of liability.
Each of Choice HR and Mr and Mrs Duncan cross-claimed against the other and the provisions of s 151Z of the Workers Compensation Act 1987 were relied on.
Other cross claims issued in the claim against Mr and Mrs Duncan were severed. I allowed the parties to those cross claims to be present throughout the hearing and to participate to the extent necessary to protect their interests. Two of those parties, Suncorp Metway Insurance Ltd and the Markey Group Pty Ltd, took up that opportunity. Underwriting Agencies of Australia Ltd elected not to do so and withdrew at 2.30 pm on the first day of the hearing.
The essence of the plaintiff's claim against Choice HR was that, as his employer, it failed to take care for his safety in the workplace and that it owed him a non-delegable duty of care in respect of the negligence of Mr Duncan. Against Mr and Mrs Duncan the plaintiff claimed that he was working under the control and supervision of Mr Duncan and that they assumed responsibilities for his safety in the workplace analogous to those of an employer to take reasonable care to protect him from the risk of foreseeable harm which they failed to do.
The allegations of liability included:
1Breaches of the Occupational Health & Safety Act 2000 and the Occupational Health & Safety Regulations 2001. The plaintiff informed the Court that the claims of breach of statutory duty were relied on as evidence of breach by the defendants of their duty of care to the plaintiff and not as separate heads of liability.
2Negligence:
(a)in the way in which Mr Duncan operated a bobcat immediately prior to the plaintiff's injury;
(b)in respect of the system of work and plant and equipment provided and maintained;
(c)in his supervision and training;
(d)in failing to warn him of danger;
(e)in failing to adhere to standards and guidelines for manual handling.
The defendants denied all allegations of liability, loss and damage. They alleged contributory negligence on the part of the plaintiff.
The plaintiff claimed for non economic loss, loss of income earning capacity, domestic and attendant care services and out of pocket and other expenses. His claim potentially exceeded the jurisdictional limit of the District Court. No objection having been taken by the defendants under s 51 of the Civil Procedure Act 2005, the matter proceeded on the basis that the Court's jurisdiction was unlimited.
Although pleaded, the parties agreed that the facts and circumstances of the plaintiff's injury did not give rise to a right of action under the Motor Accidents Compensation Act 1999.
The defendants accepted that they owed a duty of care to the plaintiff. Choice HR accepted that, as the direct employer of the plaintiff, its liability was non-delegable. Mr and Mrs Duncan accepted that, as host employers of the plaintiff they were responsible for his safety in the work place.
The issues were:
1Whether the circumstances in which the plaintiff was injured involved any breach of duty on their part.
2Whether there was contributory negligence on the part of the plaintiff.
3The extent to which the plaintiff was entitled to compensation for his injury.
4The extent to which the plaintiff's compensation was to be adjusted by reference to the provisions of s 151Z of the Workers Compensation Act 1987.
BREACH OF DUTY
This issue raised the following sub-issues:
1the circumstances in which the plaintiff was injured;
2the extent to which those circumstances created a foreseeable risk of injury;
3the extent to which, by induction, training or other means, any foreseeable risk of injury was guarded against;
4the apportionment of liability as between the defendants.
The circumstances of the plaintiff's injury
At the time of his injury the plaintiff was a 36 year old unskilled labourer. He had experience in many types of heavy manual work.
In May 2007 Mr Blaker of Choice HR contacted the plaintiff and told him that there was work repairing potholes at the RAAF Base at Williamtown.
He met Mr Duncan at the Base on 18 May 2007 and started work on that day. Also working with him and Mr Duncan was Mr Peter Roddom, another employee of Choice HR.
They worked a full day from 8 am. Mr Duncan operated a bobcat to the front of which was attached a sweeper that was covered by a metal housing. The plaintiff and Mr Roddom used an item of machinery variously referred to as a pothole rammer or a whacker packer. Its purpose was to compact the filling placed in the potholes.
The plaintiff worked with Mr Duncan and Mr Roddom for a second day on 19 May 2007. Having finished work on a pothole Mr Duncan instructed them to place the rammer on the top of the metal housing of the sweeper. They did so by means of a team lift that involved the plaintiff and Mr Roddom each taking one end of the equipment to lift it. They did this without incident.
Mr Duncan drove the bobcat to where his truck and trailer were parked. The plaintiff and Mr Roddom were in the process of team lifting the rammer from its place on the housing of the sweeper onto the trailer when the plaintiff noticed that the broom of the sweeper was rotating. To avoid the bristles of the broom he took a larger than intended step and in so doing injured his back.
Mr Roddom said the plaintiff complained about his back in the course of the lift and that he did not see what caused the plaintiff to complain.
Mr Roddom told the Court that the broom was not rotating at the time of he and the plaintiff lifted the rammer. He said the sweeper was noisy and fast moving when it was operating and he would not go near it. He said Mr Duncan told them not to go near the sweeper when it was operating.
Mr Roddom was shown a facsimile (Exhibit 2D-4) dated 28 May 2007 from Mr Duncan to Mr Blaker in which he reported:
After the incident Kevin said that he had stood away from the front of the broom because the broom bristles were turning. Peter agreed that they were indeed still turning, however I was unaware of this.
Mr Roddom then said that his recollection was that the broom was not turning at the time of the incident but agreed that the bristles could have been rolling. He said he could not be certain if the broom was spinning. He agreed that he could have told Mr Duncan that the broom was spinning. He agreed that it could have been spinning.
Mr Duncan agreed that the plaintiff made an unusual move in the course of the move and that he immediately complained of an injury to his back. Mr Duncan stepped out of the bobcat and asked the plaintiff what happened. He agreed that the plaintiff told him that broom was rotating and that he asked Mr Roddom to confirm this. He said Mr Roddom told him it was turning. The broom was lifted at that stage and, in the absence of friction with the road surface, would have been spinning freely.
I accepted that the broom of the sweeper was rotating at the time the plaintiff and Mr Roddom were undertaking the lift of the rammer from the bobcat to the trailer. I find that it was the rotation of the broom that caused the plaintiff to make the unusual move that resulted in his injury.
In deciding whether the circumstances of the plaintiff's injury involved negligence on the part of the defendants I was required to consider the provisions of s 5B of the Civil Liability Act 2002 as follows:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
Foreseeability
There were two aspects to the evidence concerning the risk presented to the plaintiff at the time of his injury: the lift itself and the rotation of the broom of the sweeper.
Back injuries as a result of lifting are common in the work place and much effort has been expended in research and the preparation of guidelines and techniques designed to minimise the likelihood of their occurrence.
The broom of the sweeper was made up of metal and plastic bristles. The Operation and Maintenance Manual (Exhibit A) published in respect of the sweeper attachment used by Mr Duncan contained multiple warnings of the risk of injury or death to bystanders. The left and right hand sides of the housing covering the sweeper was equipped with warnings that read:
WARNING
STAY AT LEAST 9 FEET (3M) AWAY FROM OPERATING EQUIPMENT.
FLYING OBJECTS AND ROTATING PARTS CAN CAUSE INJURY OR DEATH.
STOP ENGINE BEFORE CLEANING OR SERVICING.
KEEP ALL GUARDS IN PLACE.
The manual directed the operator to:
Keep bystanders away at least 9 feet (3m) when the Bobcat Sweeper is in operation. Tilt the sweeper backward just above the ground.
There could be no real doubt therefore that lifting heavy objects and standing close to the rotating broom presented foreseeable risks of serious harm.
Risk Management
The plaintiff relied on a number of factors to support the claim that the defendants failed to act reasonably in responding to the risk of harm that faced him when he attempted to lift the rammer onto the trailer.
They were the inadequacies of induction and instruction; the inadequacy of any assessment of the hazards involved in the lift; the operation of the broom in close proximity to his position; the failure to comply with obligations imposed by statute. The plaintiff claimed that the defendants failed to implement readily available preventative measures.
Induction
The plaintiff, Mr Roddom and Mr Duncan attended induction sessions conducted by the RAAF and Spotless at the Williamtown Base before commencing work on 18 May 2007. The role of Spotless on the Base was not made apparent. It was not suggested that those inductions dealt with manual handling tasks.
Mr Roddom said that Mr Duncan conducted a toolbox meeting before work commenced on 18 May 2007. As already noted Mr Roddom's reliability as to his recollection of events was doubtful. He said that at this meeting Mr Duncan told him and the plaintiff about the machinery to be used, that they should bend their knees when lifting and avoid contact with rammer and with the bristles of the broom on the sweeper.
Mr Duncan said he asked Choice HR to send him two experienced asphalt hands by which he meant persons experienced in working with asphalt and the machinery involved, including the rammer. He expected that they had prior training in manual handling.
Mr Duncan said he conducted a toolbox meeting on 18 May 2007 at which he ticked each item listed in his standard Safe Working Method Statement (SWMS) as it was discussed. These items included the lifting of the rammer and other equipment, team lifting and the need to bend knees and keep the back straight when lifting.
He said he searched his records but was unable to find the SWMS signed by the plaintiff and Mr Roddom at that meeting. He suggested it could have been handed to the RAAF or Spotless for the purpose of their investigation of the incident. He agreed that it was possible that no SWMS was completed on this occasion.
He produced the SWMS signed by the plaintiff when he worked for him on a prior occasion in December 2006 (Exhibit 1D-3). He said that it was in identical form to the SWMS he used in May 2007.
The plaintiff said he was not good at reading and all SWMS's were the same. I took this evidence to mean that he did not read these statements before signing them.
The plaintiff also agreed that Choice HR provided training in May 2005 that included watching a video. He agreed that he might have been given a book to read about lifting methods. Exhibit 2D-1 was a document signed by the plaintiff acknowledging that he read the OH&S handbook issued by Choice HR that made reference to safe lifting practices. He did not remember that it contained an instruction to stop work if he thought a practice was unsafe or if there was a hazard in the workplace.
The plaintiff agreed that before 18 May 2007 he had been instructed in manual handling techniques and that he understood the need to bend his knees and maintain a straight posture when lifting. He said he did not need this instruction from Mr Duncan.
I accepted that the plaintiff was experienced and informed about manual handling practices. He said he was on site to do the work and follow the instructions of those for whom he worked. He did not therefore take issue with Mr Duncan's instructions on how to lift the rammer from the bobcat to the trailer. He confirmed that he had no difficulty performing the team lift with Mr Roddom on 18 May 2007.
I did not consider that the injury in this case was the result of the failure to induct, train or warn the plaintiff about lifting techniques.
Risk Assessment of the Lift
Experts, Mr Adams and Mr Underwood, were of the opinion that the method adopted for lifting the rammer from the bobcat to the trailer presented an unacceptable risk of injury to the plaintiff irrespective of the additional factor presented by the rotation of the broom.
Their opinions were based on the information supplied to them concerning the weight of the rammer, the movements involved in lifting it and the stresses placed on the plaintiff's body as a result.
The reports of both experts were based on assumptions that the weight lifted by the plaintiff was greater than he was in fact required to lift. In the course of the hearing a rammer identical to that lifted by the plaintiff was weighed at a time when it was empty of fuel. The parties agreed that its total weight was 61.9 kg, that the top of the rammer where the motor was located weighed 32.1 kg and the bottom where the pressure plate was located weighed 29.8 kg. The extra weight of fuel remaining in the rammer lifted by the plaintiff was not known but it could be assumed that some fuel remained in the machine.
Mr Adams maintained that, even empty of fuel, this was an unacceptably high load and pointed to the current National Code of Practice and Standard for manual handling that indicated that weights within the range of 16 to 20 kg provided safe lifting forces for an experienced and fit worker who was able to adopt an ideal posture. He noted that in 1981 the maximum recommended weight for a lift to be performed by an adult male was 37 kg. He referred to the National Standard and Code of Practice released by Work Safe Australia in 1990 that set an absolute maximum weight at 55 kg and emphasised the need to address the postural aspect of the task to be performed when assessing the likelihood of injury.
In dealing with posture, the plaintiff said that he was required to lean forward to lift the rammer from the housing of the sweeper. This distance of this horizontal movement was in issue. The plaintiff did not know precisely where the rammer was positioned but said that it was necessary for him to bend forward to lift it. Mr Roddom thought the rammer was positioned further towards the plaintiff's side of the sweeper, indicating that there was little horizontal distance involved. Mr Duncan did not recall if the rammer was placed in the centre of the sweeper housing so that it was equidistant from each end.
I placed no reliance on Mr Roddom's evidence since he appeared to recall little of the incident and I accepted that the rammer was most probably centrally located on the housing of the rammer. On this basis the horizontal distance to the rammer from the edge of the sweeper housing was 345 mm.
The need to lean forward was significant to the assessments of both Mr Underwood and Mr Adams because it involved the movement of the centre mass of the load away from the plaintiff's body at the time the plaintiff was undertaking a twisting motion to move the rammer to the trailer. Mr Adams said the need to bend was the factor of significance and the extent to which the plaintiff was required to bend was not relevant.
Another factor was the height from which the rammer was required to be lifted. Mr Adams reported that the ideal lifting height was at waist level. His report was based on his assessment that the plaintiff lifted from below waist height. This was not correct. The plaintiff agreed that he lifted the rammer by the handle that projected from the top surface of the machine and that it was at his chest height at the time of the lift. Mr Adams said that lifting from waist height was safer than lifting from above or below that height. However, he said that the lift height was not a significant factor.
In response to the question of whether he undertook the recognised precaution of bending at the knees at the time of the lift, the plaintiff said that this was not possible because of the height from which he lifted.
Mr Underwood said that the team lift presented another risk factor because it relied on close co-ordination between the team members.
Mr Adams supported his opinion by reference to the formula provided by the guidelines published United States National Institute for Occupational Safety and Health (NIOSH). On the basis of the information available to him at the time of preparation of his report he calculated that the lifting index used by the guidelines to assess risk was between 3.4 and 5.4. He said a lifting index of one presented no significant risk. A lifting index above three presented a risk that was unacceptably high.
It was apparent from the evidence that a number of the values relied on by Mr Adams to arrive at the lifting index set out in his report were inaccurate to the point where the lifting index for the activity undertaken by the plaintiff at the time of his injury fell below 3. He maintained that the activity remained a risk because the formula was conservative and it did not take account of the twisting movement and minimum vertical distance of the load movement involved in the lift.
Much of the cross examination of Mr Adams concentrated upon his use of the NIOSH formula and the discrepancies between the values used in his calculation and the evidence.
There remained, however, the evidence of national codes of practice and standards for manual handling that indicated that weights should be restricted to the range of 16 to 20 kg. Added to this were the factors, regarded by both experts as significant, of the plaintiff's leaning forward and turning and the movement to avoid the rotating broom of the sweeper.
The rotation of the broom
The plaintiff and Mr Roddom were unable to state whether the broom was operating as they made their way towards the trailer because, as directed by Mr Duncan, they walked behind the bobcat. This was relied on to explain why the plaintiff was unaware that the broom was in motion and why neither he or Mr Roddom told Mr Duncan that it was rotating.
Mr Duncan operated the bobcat at all times. He explained that the 60 inch sweeper was raised and lowered hydraulically by controls within the cabin of the bobcat. The broom attachment was used to clean up road base and other materials.
He said there was a switch on the right hand side of the joystick that started and stopped the spinning operation of the sweeper. He described the switch as spring loaded or a trigger switch that he activated with his index finger. The speed of operation was increased or decreased by the use of the throttle on the right hand side of the bobcat. In idle or neutral mode the throttle was pulled back close to the seat. When in idle mode, the broom rotated very slowly. It was turned off by the same pulling action on the trigger as was used to turn it on.
The sequence followed to operate the sweeper was therefore that Mr Duncan turned on the engine of the bobcat to activate the hydraulic mechanism, he pressed the trigger, he moved the sweeper back and forth through the operation of the joystick and he used the throttle to increase or decrease the speed of operation.
There were two other ways in which the sweeper might be turned off. One was to turn off the motor of the bobcat. The other was to raise the lap bar within the cabin of the bobcat. This had the effect of turning off the operation of any attachment.
Mr Duncan said there was no light or other means within the cabin of alerting the driver to whether the trigger mechanism had turned the sweeper on or off. The cabin of the bobcat was enclosed and it was airconditioned. Mr Duncan therefore was unable to see or hear whether the broom was rotating. This evidence was inconsistent with the information provided in the sweeper manual (at page 5). The manual dealt with three different models of the sweeper and, in the absence of cross examination of Mr Duncan to suggest that, as stated in the manual, there were in fact lights that indicated that the broom was operating, I have assumed that the model he operated was not equipped with these lights.
Mr Duncan said that he drove the bobcat to the trailer where he stopped and throttled back to a very low idle speed. He did not switch off the motor or raise the lap bar. He agreed that it was possible that he inadvertently activated the broom when the bobcat was stationery so that it turned slowly because the throttle was in idle.
Mr Duncan acknowledged that there were signs on each side of the housing of the sweeper warning persons to stand at least 3 metres away from the rotating broom. He said this reflected his understanding that the broom was dangerous when in operation. He agreed that a person in the plaintiff's position might apprehend a danger and step out of the way although the broom was turning only at a slow speed.
Statutory Obligations
The claim against Mr and Mrs Duncan relied on clauses 80 of the Occupational Health & Safety Regulation 2001 on the basis that Mr Duncan was the controller of the plaintiff's working environment. This regulation imposed obligations to eliminate, as far as practicable, the risks of manual handling.
Against Choice HR the plaintiff relied on s 8 of the Occupational Health & Safety Act 2000 and clauses 9 - 14 of the Occupational Health & Safety Regulation 2001. Those provisions imposed on an employer obligations to ensure as far as reasonably practicable the health, safety and welfare of at work of its employers and to undertake risk identification and assessment, eliminate or control risks, instruct, train and supervise employees.
The plaintiff claimed that failure to comply with these statutory obligations provided further evidence in support of his claim that they were in breach of their duty of care.
Preventative Measures
Mr Adams and Mr Underwood proposed a number of relatively simple and inexpensive methods of minimising the risks they identified. They were:
1Undertaking a proper risk assessment of the task involved in placing the rammer on the trailer and ensuring that instructions were provided to deal with the risks identified;
2Ensuring that the sweeper attachment was always switched off unless it was actually in use to sweep a surface and particularly when workers were required to move in close proximity to the sweeper;
3Raising the sweeper attachment to the height of the rear of the trailer to enable the rammer to be slid from the sweeper to the trailer rather than lifted;
4Fitting rollers to a handle at the top of the rammer that were specifically designed to permit the rammer to be lifted one end at a time.
5Using an hydraulic lifter at a cost estimated by Mr Adams to be $300.
Breach
This analysis established that the risks involved in the lift and in the operation of the sweeper were foreseeable, not insignificant and that there were precautions available to the defendants to deal with the risk of harm to the plaintiff.
Mr Duncan said that he used the team lift method of moving the rammer from the bobcat and onto the trailer on many occasions without incident both before and after the plaintiff suffered his injury.
The defendants argued that it was not reasonable to expect that a small operator in the position of Mr Duncan or even a labour hire company such as Choice HR should be familiar with the NIOSH formula for the assessment of risks.
I did not regard the absence of prior injury to be determinative of the issue of breach and although the defendants might not have been aware of the NIOSH formula, they were well aware of the risks involved in manual handling and provided instruction on techniques designed to deal with those risks.
I concluded that the defendants did not act reasonably in protecting the plaintiff from the risk of harm.
In respect of Mr and Mrs Duncan my reasons for this conclusion were:
1 Mr Duncan's business operations involved the manual handling of heavy items of plant and equipment. He did not personally undertake an assessment of the risk involved in performing this particular task. He did not retain an appropriately qualified person to do this on his behalf.
2A proper assessment would have identified the risk inherent in a team lift of an item of significant weight that also involved a twisting motion and pointed to the need to use a safer method of lifting the rammer to the trailer. A number of alternative methods were available at little cost.
3The instructions given to the plaintiff to bend his knees and maintain an upright posture when lifting were appropriate for a standard lifting task. The problem that the defendants faced in this litigation was that the task that Mr Duncan asked the plaintiff to perform did not permit him to comply with the instruction to bend his knees and maintain an upright posture.
4It was Mr Duncan's inadvertence that resulted in the continued operation of the sweeper, either because he forgot to turn it off after using it or he accidentally turned it on.
5Mr Duncan had full control of the sweeper mechanism and he was aware that this mechanism did not provide a means by which he could ascertain from within the cabin of the bobcat whether or not the broom was rotating. His failure to ensure by the simple means of switching off the bobcat that the broom was not rotating before allowing the plaintiff to approach the sweeper in those circumstances involved a failure on his part to take care for the safety of the plaintiff.
In respect of Choice HR my reasons for this conclusion were:
1Choice HR was in the business of supplying labour for work involving manual handling. The authorities made it clear that they could not avoid responsibility by failing to make inquiry of host employers concerning their risk assessment practices.
2At the very least its obligations, both at common law and in order to fullfill its statutory obligations, required that Choice HR inquire and confirm that its host employers undertook adequate assessment of the risks involved in the work that it was sending its employees to perform and that it attend at work sites from time to time to confirm that risk minimisation techniques were being implemented.
I find the defendants liable to the plaintiff in negligence.
Apportionment
It was accepted that Mr and Mrs Duncan should bear the greater proportion of liability for the incident that caused the plaintiff's injury.
I have already dealt with the elements that resulted in a finding of negligence against Choice HR. I considered that in this its contribution to the incident that caused the plaintiff's injury was at the upper level of the range at which labour hire companies have been held to be proportionally liable.
In this case the plaintiff was, with the knowledge of Choice HR, despatched to undertake work that involved heavy manual handling.
Choice HR presented no evidence to suggest that it ever took any steps to comply with its statutory obligations concerning the conditions in the workplace controlled by Mr Duncan or otherwise to confirm that the manual handling practices adopted by Mr Duncan minimised the risk of harm to the plaintiff.
In the circumstances I assessed its proportion of liability at 25%.
CONTRIBUTORY NEGLIGENCE
Choice HR did not press its claim of contributory negligence.
Mr and Mrs Duncan claimed that the plaintiff was aware that the broom was a component of the sweeper that was capable of movement and that he ought to have checked that it was not operating before standing close to it to lift the rammer. Mr Duncan said that he expected the plaintiff and Mr Roddom to tell him that the sweeper was not operating.
This claim overlooked the evidence that none of the plaintiff, Mr Roddom or Mr Duncan expected the sweeper to be in operation. The reason it was turning was through inattention or oversight by Mr Duncan.
I did not accept that the plaintiff could be held responsible for Mr Duncan's mistake or that he contributed negligently to the harm he suffered by failing to anticipate Mr Duncan's negligence.
I make no finding of contributory negligence on the part of the plaintiff.
CAUSATION
Mr Duncan said that he adopted the team lift practice without incident to load the rammer onto the trailer on numerous occasions before the plaintiff suffered injury and for some time afterwards. This factor was not of itself determinative on the issue of causation. As pointed out by the experts, the combination of the factors of team lift, excessive weight and twisting motion created an unacceptable and foreseeable risk of harm that exposed workers to injury if something went wrong in the course of the lift.
The injury in this case resulted from a practice of lifting the rammer to the trailer in circumstances that did permit the techniques of bending the knees and maintaining an upright posture to be implemented.
Both Mr Adams and Mr Underwood agreed that the plaintiff's reaction to the rotating broom of the sweeper was another significant factor to the occurrence of the injury. They accepted that this movement was reactive to the movement of the machinery at a time when the plaintiff was already in a twisting posture and that it involved additional postural deficits that increased the overall risk of injury.
I find that the plaintiff discharged the onus of proving that the negligence of the defendants was a necessary condition of the occurrence of the harm that he suffered.
DAMAGES
Non economic loss
The plaintiff was 36 years old at the time of his injury. He is now 41. His hobbies prior to the injury were fishing, four wheel driving and camping. He owned a boat that he used frequently to go fishing. He was in good health, single and living alone.
He said that when he took the step to avoid the rotating broom he felt his back go bang and felt pain in his right leg and back. He was unable to put the rammer on the trailer. He stayed at the work site but was unable to carry out any more work.
The next day was a Sunday and he stayed in bed, unable to move and in considerable pain. He was unable to straighten his back. He rang Mr Blaker of Choice HR on that day to report his injury. He did not work on Monday 21 May 2007 but attended to paperwork concerning the accident.
He was referred for an MRI scan on 22 May 2005 and referred to a pain specialist. He was given a steroid injection that failed to relieve his pain.
In October 2007 Dr Ferch recommended surgery. The plaintiff obtained a second opinion from Dr Bookalill before proceeding with surgery in December 2007.
Dr Bookalill confirmed that the surgery proposed by Dr Ferch was appropriate. He said there was a good prospect that it would resolve the plaintiff's back and leg pain. He did not expect that the plaintiff would recover sufficiently to go back to work as a labourer.
The plaintiff said this did not improve the condition of his low back. Physiotherapy after the operation did not assist. He relied on pain killing medication and continued to consult with Dr Ferch and his general practitioner, Dr Khaira.
The plaintiff has attended a pain clinic since 2010. He continued to obtain prescriptions for pain killing, anti-depressant and anti-inflammatory medication from his general practitioner at three monthly intervals.
His current domestic arrangement was that he lived in rented accommodation that he shared with a friend, Mr Dione Kennett and his son and with his partner who, at the time of the hearing, was pregnant with their first child. He said he was very happy in this relationship and that it had helped him considerably.
However, he was no longer able to go fishing, camping or four wheel driving. The boat was sold because he found it too painful to go out in it. He attempted camping, using two blow up mattresses but found this too painful.
The plaintiff said he had no pain free days. The level of his pain fluctuated, becoming worse in wet weather. He was unhappy at the loss of his hobbies and he was particularly distressed when his pain was such that he was unable to go out. He said he felt shit when excluded from activity in this manner.
He said that he went out infrequently. His outings were to the TAB or a hotel and occasionally he visited friends. He said most of his friends came to visit him.
He agreed that he had no physiotherapy since about July 2009. He said it did not help him and he had no present intention of having this treatment. He consulted his general practitioner at three monthly intervals for prescriptions and expected this to continue. The prospect of further surgery had been raised with him but he was reluctant at this stage to proceed.
Mr Kennett said he first met the plaintiff when they both had four wheel drive vehicles and they went driving. He said the plaintiff at that time was constantly active and that he enjoyed fishing and his work.
He said that after the injury he was in great pain, unable to bend and emotionally down. He said the plaintiff could collapse as a result of a sneeze and that he was unable to sit and watch television for more than half an hour. He said the plaintiff had progressed from a proud to a broken man.
Mr Kennett said that he and the plaintiff went out during the day. The plaintiff occasionally drove their vehicle but it was easier for him to drive and for the plaintiff to take the passenger seat.
The plaintiff was referred by his general practitioner to Dr Ferch for specialist orthopaedic treatment. In October 2007 Dr Ferch confirmed that there was no significant past history of back injury. He initially proposed conservative treatment in anticipation that the damaged disc would heal. This did not occur and on 9 January 2008 Dr Ferch performed surgery for reduction of an L5-S1 spondylolisthesis and posterior lumbar interbody fusion. Dr Ferch reported throughout 2008 on the plaintiff's progress. He reported reduction in the pain that he was suffering in the right leg and he expected improvement to the point where the plaintiff would return to work with lifting restrictions. The plaintiff continued to complain of stiffness and recurrent episodes of low back pain to the point where in March 2011 Dr Ferch expressed the opinion that this would affect him long term and suggested that he obtain treatment for pain management.
Dr Ghabrial examined the plaintiff between February 2010 and August 2011. His opinion was that the plaintiff's continued symptoms resulted in marked disability so that he was permanently unfit to undertake activities that involved excessive bending and twisting, sitting or standing for lengthy periods or lifting more than 10 kg.
Dr Morris examined the plaintiff at the request of Mr and Mrs Duncan. No report from Dr Morris was in evidence.
The plaintiff's evidence and presentation, supported as they were by the opinions medical experts satisfied me that he suffered a serious injury to his low back with ongoing and substantial pain and disability. It was at no stage suggested to the plaintiff that he exaggerated the severity of his condition. He was a young man at the time of his injury and he was still only 41 years old at the time of the hearing. He faces a considerable period of life with debilitating pain.
I assessed his non-economic loss at 60% of a most extreme case and awarded him $312,000.
Loss of income earning capacity
The plaintiff said he returned to work in May 2007, initially performing office work at Choice HR and drilling holes in locks for a machinery company. The plaintiff's back pain increased because of the requirement to sit for extended periods while doing this work. He was unable to continue after two to three days.
Between February 2008 and June 2009 the plaintiff performed light duties at G & J Machining, starting with one to two hours on two days per week and increasing to four hours on three days per week. His said his boss for this work was the best bloke I ever met. When this man retired the plaintiff was told that work was no longer available.
The plaintiff has not worked since. He said he had been offered no further work by Choice HR or by the rehabilitation service. He consulted a number of agencies after his work with G & J Machining finished without success. He considered taxi driving but said this would involve sitting for too long.
In the six months prior to the hearing he applied for work in a number of hardware stores without response. He said he would try this work if it were offered to him although he had some concerns about his capacity to work at a cash register, lift and stand for more than one hour.
The plaintiff held a traffic control ticket but said he could not do this work because it required lengthy periods of standing and the need to lift signs. He could not work as a supervisor because it involved paperwork that he could not do because of his low level of literacy. He agreed that he could view security monitors if he was allowed to move around. He did not apply for this work because he needed to undertake a written test to obtain a licence. He thought it would be too hard for him to pass this test because he was not that brainy.
The plaintiff said he had some hope that he would return to work. He did not know what work he might be able to do. He said he definitely could not return to the heavy manual work he performed prior to his injury. He said prospective employers lost interest as soon as he mentioned his back fusion.
The medical experts all agreed that the plaintiff could not return to his previous employment. Dr McDonald took the view that the plaintiff could return to light work that involved significant restrictions. Dr Ghabrial's opinion was that he was unlikely to return to any work because of his marked disabilities.
There were two functional assessment reports in evidence. They were both undertaken in September 2011. The report of Ms Gray, occupational therapist, (Exhibit 2D-5) appeared to contain some inconsistencies concerning the plaintiff's functionality. She concluded that he was capable of performing light work with restrictions limiting him to work between waist and shoulder height and in a position that allowed him to change posture every 30 minutes between sitting and standing as necessary.
Ms Kinniburgh, rehabilitation counsellor, noted (Exhibit 2D-6) that the plaintiff's general practitioner certified him as fit for four hours work on three days per week with significant restrictions. She suggested that the plaintiff was suited for work as a retail sales assistant, mail clerk, customer service officer or sales clerk. Ms Kinniburgh noted the low level of the plaintiff's educational attainment but said that he demonstrated ability to learn in the practical work environment. She proposed training in keyboard work and that the plaintiff be assisted in searching for employment. It did not appear that this assistance had been provided.
In deciding the plaintiff's claim for income loss I concluded that his most likely future prospects had he not suffered injury were that he would continue to work as an unskilled labourer. I was satisfied that his injury rendered him incapable of the heavier aspects of unskilled work.
The plaintiff's work at G & J Machinery established that he retained an income earning capacity for some form of light process work on a part-time, limited hours basis with an understanding employer. His income from that work was $165 net per week. At best therefore his residual earning capacity could be assessed at that rate and updated to a current rate of $200 per week.
I considered that the plaintiff's prospects of securing employment of this nature were very limited. He has been unsuccessful in finding an alternative position since June 2009. I therefore concluded that realistically his residual earning capacity should be assessed at $100 per week.
The parties agreed that the plaintiff's average net income at the time of his injury was $637 per week. I calculated his past income loss as follows:
$637 per week to 20.2.08, 39 weeks$24,843
$700 for 207 weeks to the date of hearing144,900
$169,143
Income from G&J Machinery 11,289
$158,454
The claim for future loss of income was calculated at $800 per week, reduced by $100 to take account of residual income earning capacity with the resulting calculation:
$700 x 768.1 less 15% for vicissitudes$457,019
Claims for past and future superannuation at 11% of the loss were assessed at $17,430 and $50,272 respectively.
In the absence of dispute, I allowed the Fox v Wood component in the sum of $6,257.12.
Domestic Assistance
The plaintiff said that after his injury his friends, including Mr Kennett, and his sister who called every second day assisted him and that they continued to assist to the date of the hearing. His sister cleaned for him and washed his dishes. He said he managed alone on other days.
The plaintiff said that he tried to mow his lawn but this caused him great pain. The workers compensation insurer paid for a mowing service for a period. This task was subsequently undertaken by Mr Kennett's son.
The plaintiff's estimate of the domestic assistance provided to him by Mr Kennett, his son and the plaintiff's partner occupied about 11 hours per week. The tasks they performed included lawn mowing, house and bathroom cleaning, washing, cooking and dish washing. The plaintiff expected that they would continue to perform these services on a voluntary basis.
Mr Kennett confirmed that he and his son performed various domestic tasks for the assistance of the plaintiff. He said the plaintiff washed dishes at times and did some general housework that could be performed at bench height. He said the plaintiff's partner also performed some of these tasks.
Mr Kennett accepted that some of the work was for the benefit of the occupants of the household generally but he said that they all undertook extra work because of the plaintiff's disability.
Mr Kennett expected that the household would move to larger accommodation the plaintiff's child was born. He said the plaintiff would continue to need some to help him and he would not leave him.
No claim was made for the past assistance provided to the plaintiff except for the period commencing from 1 July 2011. I was asked to take into account the evidence that assistance was required when assessing non economic loss. The significance of the date of 1 July 2011 was not made clear and I therefore disregarded this period in assessing this part of the claim.
For the future a claim was made for 6 hours per week of assistance on a voluntary basis.
I took into account the nature and extent of the restrictions that the plaintiff's disabilities placed upon his capacity to perform domestic tasks and accepted that these restrictions imposed a greater load on the other members of his household. I concluded that the claim of 6 hours per week in voluntary assistance was reasonable. This allowed for less than one hour per day to meet the plaintiff's needs over and above those of the household generally and for the fact that the members of the household were required to contribute extra time to internal and external domestic work to make up for the plaintiff's incapacity to share the load.
I allowed the sum of $144,508.50 as claimed.
Medical expenses
Past out of pocket expenses were agreed in the sum of $103,121.15 for medical and related expenses, of which $3,100.25 was for pharmaceuticals.
The plaintiff claimed the sum of $32,113 to meet the cost of his ongoing need for pain killing medication and physiotherapy.
I accepted the submissions put on behalf of Mr and Mrs Duncan that the limited cost of medication to date was an indication that the plaintiff's needs were less than the amount claimed and that the plaintiff said that he discontinued physiotherapy because it did not assist him.
I allowed the plaintiff $20,000 for future medical expenses to provide for quarterly medical consultations, medication and contingencies, including the slight prospect of future surgery.
Summary
The plaintiff's loss and damage was assessed as follows:
Non economic loss$312,000
Past income loss 158,454
Future income loss 457,019
Past superannuation 17,430
Future superannuation 50,272
Fox v Wood 6,257.12
Domestic care 144,508.50
Past out of pocket expenses 103,121.15
Future out of pocket expenses 20,000
ORDERS
The proceedings are adjourned to a date to be fixed to deal with s 151Z issues, costs, any claim for interest and for the entry of final orders.
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Decision last updated: 20 April 2012
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