Lappin v T J F Scaffolding Maintenance and Hire Pty Ltd and
[2010] VCC 1644
•26 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-08-01936
| KRISTY LAPPIN | Plaintiff |
| (as Administrator of the Estate of the late MATTHEW LAPPIN) | |
| v | |
| T J F SCAFFOLDING MAINTENANCE & HIRE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8, 11, 12 & 13 October 2010 |
| DATE OF JUDGMENT: | 26 October 2010 |
| CASE MAY BE CITED AS: | Lappin v T J F Scaffolding Maintenance & Hire Pty Ltd and Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1644 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – claim for general and pecuniary loss damages arising out of workplace incident – negligence by employer and/or breach of Occupational Health and Safety (Manual Handling) Regulations 1999 – death of worker after workplace injury – entitlement of estate to damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with | Clark Toop & Taylor |
| Mr S Martin | ||
| For the Defendants | Mr S A Smith | Herbert Geer |
| HIS HONOUR: |
Preliminary
1 This is a claim for pain and suffering and pecuniary loss damages by the estate of a deceased worker arising out of a workplace incident which occurred on 16 January 2002. The worker, Mr Matthew Lappin (“the worker”), was subsequently killed in a motorcycle accident on 16 March 2008.
2 By the Amended Statement of Claim, it is alleged the worker suffered an injury to his lower spine in the workplace incident as a result of the negligence of his employer, the first-named defendant, or breach by it of the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the Regulations”).
3 According to the provisions of s.29 of the Administration and Probate Act 1958, the cause of action vested in the worker survives for the benefit of his estate.[1] The action is thus brought in the name of his widow, Kristy Lee Passey (formerly Kristy Lee Lappin). Even notwithstanding the worker’s Statement of Claim was issued after his death, the defendants do not contest that he had a cause of action immediately prior to his death. In fact, the worker had instituted an application pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) for leave to bring common law proceedings.[2] Her Honour Judge Lawson, by judgment dated 21 December 2007, granted the plaintiff leave to bring the proceeding (“the serious injury application”).
[1] See further Lotter v Salmon Street Ltd [2006] VSC 495
[2] [2007] VCC 1884
4 By consent, the plaintiff’s affidavits in support of the serious injury application[3] and the transcript of his evidence,[4] was admitted into evidence in the present proceeding. In addition, various medical and radiological reports, wage records, claim forms and other related documents were admitted into evidence.
[3] Exhibit D – Plaintiff’s Court Book (“PCB”) 6-20, 27-30
[4] Exhibit E – Transcript (“T”) 19-48
5 By reason of the worker’s death on 16 March 2008, the claim in respect of both pain and suffering and pecuniary loss damages is limited (subject to a finding as to liability) for the period from 16 January 2002 to 16 March 2008.
The Pleadings
6 Leave was granted to the worker to file an Amended Statement of Claim. By that document, the worker’s cause of action was brought against TJF Scaffolding Maintenance & Hire Pty Ltd, the worker’s employer at the time of injury, and the Victorian WorkCover Authority (“the Authority”).
7 The reason for the addition of the Authority as a defendant was that the first defendant had been placed in liquidation and subsequently dissolved. Pursuant to s.601AG of the Corporations Act 2001, a person may recover from the insurer of a company that is deregistered providing that the company had a liability to that person. The amendment was made with the consent of both the first and second defendants.
8 By that Amended Statement of Claim, the worker alleges that on 16 January 2002, in the course of his employment with the first defendant, he was required to manually handle a heavy steel corner bracket (“the corner bracket”) which placed undue strain on his lumbar spine, causing injury. It is further alleged the injury arose as a result of the negligence of the first defendant, in particular by:
• failing to provide a safe system and place of work; • failing to provide adequate supervision; • failing to provide adequate manual or mechanical assistance; •
failing to comply with the Regulations made pursuant to the Occupational Health and Safety Act 1985.
9 It is further alleged that the first defendant was in breach of its statutory duty pursuant to the Regulations and/or the Code of Practice for Manual Handling.
10 It is further alleged that by reason of the injuries sustained in the incident of 16 January 2002 (“the subject incident”), the worker suffered a further fall in approximately February 2002 while carrying his son (“the second incident”), and suffered further injury. As a result it is alleged the worker suffered an aggravation of the injury to his lower spine at the L4-5, L5-S1 levels, and further, an injury to his right foot.
11 By their Defence, the defendants deny negligence or breach of statutory duty, and do not admit the worker suffered injury as alleged.
The Evidence
12 Evidence was given by Kristy Lee Passey, the worker’s wife. She met the worker in June 2000 and they were married in August 2002. They have four children:
• Thomas, born 26 March 2002; • Billie Clair, born 12 March 2004; • Charlie, born 5 February 2006; and • Mitchell, born 23 March 2007. 13 Before the worker’s injury, their relationship was smooth and the worker was in constant work with three or four employers. Sometimes there were short gaps between employment, the longest being of seven weeks. Before his injury, the worker was not aggressive nor had he any anger control problems within the relationship. The situation changed after injury and he became frustrated and was a different person. There were some incidents of violence committed by the worker against Ms Passey. She said this was because he was frustrated with his injury and the pain. She said he loved his children and got on well with them. After the injury, his involvement with them was somewhat limited. He became isolated and would often remain locked in the shed. He saw less of his family and friends. After injury, he spent a lot of time in bed, on the couch or in his shed. Shortly prior to his death, he was taking a range of medication, including Panadeine Forte, Mersyndol Forte, Tramadol, Valium, Stilnox and Murelax.
14 Ms Passey said his libido was affected and he used Viagra. As a result of the incidents of violence, at one point they separated for approximately three weeks. She loved him and therefore returned to him.
15 She said he loved his children but became frustrated that he was no longer able to involve himself in their activities. Before the injury, the family went camping and he would horse ride regularly at his parent’s farm in the Latrobe Valley.
16 She was present when her husband was interviewed by Mr Dorhmann, engineer, in 2005. She recalled him describing the incident leading to injury when a heavy item weighing 25 to 40 kilograms was passed down by another worker while standing on scaffolding. It was a corner plate and the worker described it as being heavier than the usual. She recalled him describing that it weighed about twice that of a piece of scaffolding which weighed 18 kilograms.
17 As to the future of the family, she expected that the worker would have remained working in the building industry as a scaffolder.
18 In cross-examination, she accepted the worker had been involved in an assault involving three bouncers prior to his injury and was charged and convicted. He was intoxicated at the time. She said, before his injury, anger was not a major issue within the relationship. If there was work available, the worker would take it up. Sometimes there was no work in the industry and he had some time off. Otherwise he had a good work ethic. Ms Passey accepted that the worker was not working for a period from September to November 2001. She said boxing was a passion with him, he trained hard and at one point thought he might make a career in boxing. He had some success as a fighter. It was possible he may have taken up boxing as a career.
19 Evidence was given by Mr Mark Dorhmann, a consultant engineer. He provided a report of 29 September 2005.[5] Mr Dorhmann met and received instructions from the worker in order to prepare his report and form his opinion. He took a history of the happening of the subject incident on 16 January 2002. He said that the worker demonstrated how the incident had happened, and although he could not recall precisely what was said, he made various calculations at the time, based upon that demonstration.
[5] Exhibit U
20 In assessing the nature of the risk of the activity being undertaken at the time of injury, he utilised a method of calculation of the effects of force on the spine according to an index calculated by NIOSH.[6] This method of calculation assesses weights, distances moved, including height above the ground and attributes an index which assists, in a general way, in calculating the likelihood of an injury to the spine from a particular lift. In that regard, Mr Dorhmann made a number of calculations as set forth in his report[7] as to the lowering of the corner bracket which was passed by a fellow-worker from above to the worker on the day of injury. The circumstances described to him as to how the incident occurred are as set forth in his report[8] and are as follows:
[6] The National Institute for Occupational Safety and Health, the United States federal agency responsible for conducting research and making recommendations for the prevention of work-related illnesses and injuries.
[7] PCB 169
[8] PCB 165-166
“4.5
On 16 January 2002, he was at a worksite where his employer was erecting scaffolding. The location was at 1 Wallace Avenue, Toorak and there were between six and nine men from TJF Scaffolding & Hire Pty Ltd working there.
4.6
In the course of assembling the scaffold, various parts had to be conveyed to different levels as the scaffolding was progressively built. Mr Lappin was working several stages above ground level, and was receiving parts as they were passed to him by a Peter Cassells.
4.7
There was a mesh safety fence between the part of the scaffolding platform on which Mr Lappin was standing, and the point from which Mr Cassells was passing these parts to him. Peter Cassells was a very short man (he was known locally as ‘no legs’), but he was working from a level which was elevated above that of Mr Lappin, such that when he passed him items, Mr Lappin had to reach up to above his head height to take hold of them.
4.8
The effect of the intervening safety fence (which was there evidently to protect people from stepping accidentally into an uncovered area of the platform) was that it extended the horizontal reach necessary to pass things from one man to the other.
4.9
At or about 8.00 am Peter Cassells passed Mr Lappin a metal ‘corner return infill’[9]. This is a metal part which fills in a gap at the corner where two scaffolding platforms meet, and where conventional scaffold planks cannot fill in the space.
[9] The corner bracket
4.10 The ‘corner return’ plate is assumed to have measured approximately 520 millimetres by 520 millimetres by 65 millimetres. It is also assumed to have weighed at least 25 kilograms, and may have been more (up to 40 kilograms) [it is noted in the circumstances report provided that a corner return plate was weighed on behalf of the investigator, and found to weigh 20 kilograms; however, I am instructed that the ‘corner plates’ (as Mr Lappin described them) on this particular job were considerably heavier than what was ‘normal’.] He said ‘… they came from Sydney … they were very heavy … much heavier than the usual ones’. Mr Cassells passed this plate down to Mr Lappin. He took hold of it with both hands at the same time, reaching forwards as he did so, just above head height. The men were not able to slide the plate between each other.
4.11 As he took the weight of the plate and began to swing it towards himself (intending to throw it or place it on the scaffold platform), he felt strong pain in his lower back. 4.12 … 4.13 Mr Lappin had not been provided with any training, warnings or instructions from his employer about risks associated with lifting or handling items at work, nor was he given any advice on what methods (if any) he could take to avoid being exposed to a risk of back injury when handling such items.
4.14
Mr Lappin is quite adamant about the fact that the corner plates on this job were heavier than usual, and substantially so. He explained that a single 3 metre length of scaffolding support type weighed 18 kilograms, and he believed that this particular corner return had weighed ‘… about as much as two of those pipes’.”[10]
[10] This evidence is admissible of the fact – see s.63 of the Evidence Act 2008
21 According to the demonstration by the worker, and the calculations by Mr Dorhmann as a result, the particular lifting incident giving rise to injury had a NIOSH lifting index of just over 3. According to the calculations made by Mr Dorhmann, a safe lift in the circumstances would have involved a weight of no more than 8.28 kilograms. A lift of 25 kilograms was likely to expose the worker to the risk of a back strain injury. Should the lift have been as much as 40 kilograms, then the corresponding lifting index would be adjusted to 4.8. Mr Dorhmann described the goal of a workplace to have a design and work program so that lifts were achieved with a lifting index of no more than 1.0. If the lifting index was more than 1.0 but less than 3.0, then any such lift ought be approached with caution, and a range of measures adopted to ensure the risk of injury was reduced. These measures included training and instruction. If a lift had a lifting index beyond 3, then Mr Dorhmann stated that the compression on the spine was at a dangerous level, and such a lift should not be undertaken. He said the lift by the worker on 16 January 2002 was such a lift.
22 In cross-examination, Mr Dorhmann conceded that the information with which he was provided, the circumstances report, included a statement of Mr Tuotoka that a corner bracket of the same dimensions was weighed at 20 kilograms. However, according to the instructions provided by the worker, the corner bracket used in this particular lift weighed between 25 and 40 kilograms.
23 Mr Dorhmann accepted that the NIOSH index was a generalised guide and did not take into account the gender of the worker, their fitness, their age and the extent to which they were used to heavy manual work. It was put to Mr Dorhmann that the horizontal location of 31.5 centimetres, that is the measurement used by him as being the distance of the object from the worker’s spine, may in fact have been less. He said this was unlikely. He said all the measurements used by him were conservative. Mr Dorhmann calculated the vertical location at 175 centimetres, or about head height of the worker. The index did not change regardless of whether the worker was 6 foot 10 or 5 foot 6. The asymmetric angle was the angle of the twist performed by the worker when he received the corner bracket. Mr Dorhmann said the NIOSH calculation was a generalised method only of assessing the nature of the lift. It did not take account of the fact that scaffolders were generally stronger. He said it resulted in an informed estimate of the forces involved.
24 Evidence was given by Mr Thomas Terrance Lappin, the worker’s father. He was formerly a police officer, and the father of eleven children, the worker being the youngest. Other of his children were police officers, teachers, a pilot and a professional singer. The worker had a lot of early learning difficulty and was diagnosed as dyslexic. He was effectively illiterate. He took medication and was prescribed special glasses which assisted in reading. He found early learning difficult and he was rebellious at school and a truant. From time to time he was in trouble with the courts and the police. He appeared before the Children’s Court on assault charges. He was a passionate boxer and had turned professional before his injury. He was a wonderful father who loved his children. After he suffered the back injury he became more family orientated and withdrawn. He was devastated by the injury. He had always been a good worker and took delight in showing his strength by lifting heavy objects. After injury he drank more. Generally speaking, after he commenced work at thirteen years of age he was never out of a job. When he commenced work as a scaffolder he enjoyed the work and loved the challenge of the job. He had been a leading hand for a short time but had difficulty filling out the forms.
25 Evidence was given by Mr Ian Domoney, an instructor at The Victoria University at Werribee, in scaffolding. Until 1998 he had been employed as a scaffolder in the construction industry and in 2002 took up a position as an instructor. He is also an assessor, approved through WorkSafe Victoria, of persons seeking to obtain a certificate of competence in scaffolding. He gave evidence about the demands within the industry for scaffolding certificates to be granted to applicants. He said over the period from 2002 to 2008 the University ran scaffolding courses which went over approximately two weeks. There was a high attendance by persons seeking to be certified, and additional courses were put on at night.
26 He further was experienced in the scaffolding industry generally and said that over that period there was a great demand for scaffolders to be employed. He said it was not unusual for scaffolders to move from one project to another, or from one employer to another but generally speaking, there was always plenty of work available. Most of the students that he assessed obtained employment.
27 In cross-examination, when it was put to him that the worker had a number of periods off work, particularly a seven-week period in 2001 due to lack of employment, he said that that could happen from time to time.
28 By consent, various medical reports were tendered into evidence. The worker’s general practitioner, Dr Christiansen, provided a number of reports.[11] He noted that in May 2002, the worker’s back “gave way” causing him to fall down some stairs and to break his foot. He considered that the worker had suffered a disc injury in the first incident which had resulted in continuing low- back pain producing a significant level of disability. He thought the worker’s back would always be troublesome and he could not think of a career that would be suitable for him. He noted that the worker was not adaptable to a desk job.
[11] Exhibit J
29 The evidence of Dr Christiansen given at the serious injury application was admitted into evidence by consent.[12] In summary, he said:
[12] Exhibit K, T 49-75
• He had treated the worker since 18 January 2002. •
The worker had great regrets about the effect of the injury upon his boxing career.
•
He considered the worker would not be able to return to heavy physical work but may be able to do a light job for perhaps 20 hours per week in the future.
• The worker would not be suited to a job which was tedious. •
He said that he did not think the worker would be suitable for work as a product assembler, hand packer, packager, container filler, as was suggested by a rehabilitation provider.
•
As at December 2007, he was treating the worker with anti-inflammatory and analgesic medication and was seeing him about every three months.
•
As at December 2007, he was prescribing Panadeine Forte and Tramadol for pain, Mobic as an anti-inflammatory, Temazepan to help with sleep, and Lexapro.
•
He was criticised in cross-examination for having few if any examination findings in the course of his clinical notes.
• With the worker’s back injury, he would be unable to return to boxing. •
The worker had given a history that he had fallen down stairs as a result of a spasm in his back which led to a fracture of a bone in the right foot, although he did not know the precise mechanism which led to the injury. There was some doubt in the doctor’s mind as to whether the two injuries were related.
•
There was the possibility that given the initial scans, notwithstanding the worker had injured a disc in the first incident, the bulging or prolapse of the disc may have occurred at a later time.
•
Evidence of the disc injury was the associated leg pain indicating a pressure on an exiting nerve.
30 A report of Dr Peter Kempster, neurologist, of 4 April 2003 was tendered into evidence.[13] He assessed the worker in April 2003. He received a history that the metal bracket weighed up to 40 kilograms and the worker suffered injury to his lower spine when he twisted and bent to lower the item. He obtained a further history that the worker suffered pain radiating into his left leg with tingling into the left foot. He stated:
“The initial story of acute back pain and sciatica when lifting suggests a disc prolapse in his lower spine which must have initially caused some nerve root irritation. However, there is no ongoing sciatica or objective nerve root disturbance and this now seems to be a musculoskeletal back pain problem … .”
[13] Exhibit L, PCB 34
31 A report of Dr Katrina Reardon, neurologist, of 24 October 2004 was tendered.[14] She obtained a history of the worker having had an injury on 16 January 2004 (this is an error – the date of injury was 16 January 2002). The history referred to a corner bracket weighing between 2-20 kilograms and rotating the upper body. The worker collapsed to the ground with the shock of the pain. Dr Reardon was of the view the worker had some degenerative changes in his lumbar spine, mainly involving the facet joints at L1-2 on the left side. She said there was no significant radiological evidence to suggest disc injury nor nerve root involvement. She considered the worker had chronic lumbar back pain and some mild degenerative changes in the facet joints. She thought the changes were due to wear and tear but an injury at work may have contributed. She thought the worker had developed a chronic pain syndrome and had sleep deprivation from pain with associated mood problems. She considered he would not be able to return to his previous employment as a scaffolder but may be able to perform a different job with light duties.
[14] Exhibit M, PCB 39-41
32 A report of Dr Robert Brzozek, musculoskeletal physician, of 18 August 2005 was tendered.[15] The worker was referred to Dr Brzozek by Dr Christiansen on 31 May 2002. He gave a history of injuring his back by lifting the corner bracket which he said weighed approximately 20 kilograms. He described his movements at the time as bringing the corner bracket down and rotating to the left to pass it to a colleague, and said he felt a giving way of his leg (as though he had been pushed from behind) and noticed pain in his back, left leg and buttock, with pins and needles. Dr Brzozek considered the worker had –
“… non-specific lumbo-sacral spinal pain with the likelihood of an underlying lumbo-sacral disc injury. There was also secondary gluteal myofacial [sic] disorder and mild left L5 or S1 nerve root irritation.”[16]
[15] Exhibit N – PCB 42-45
[16] PCB 43
33 Dr Brzozek injected the lumbosacral facet region with a mixture of cortisone and local anaesthetic. There was immediate improvement in movement. He considered the lifting incident of January 2002 was the cause of the lumbosacral condition.
34 The worker was examined in November 2004 and October 2007 by Dr Albert Kaplan, consultant psychiatrist, and his reports tendered.[17] He received a history that the corner bracket weighed approximately 30 kilograms. The worker told Dr Kaplan that since injury, he had become withdrawn and found it difficult to get out of bed. His social life was affected and he found it difficult to be around his children. He had become irritable and short-tempered and had struck his wife. He preferred to be home by himself and would not socialise with friends. He had thoughts of suicide and had become forgetful, with difficulty in concentration. His sleep pattern had been erratic and he had lost his libido.
[17] Exhibit O, PCB 46-61
35 Dr Kaplan considered that the chronic pain from the lower back injury had a “devastating” impact upon the worker emotionally and that he had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He was demoralised by the effect upon his boxing career and his inability to work in his chosen trade. He had become frustrated, irritable and depressed. The frustration was compounded by his literacy skills which limited his options for retraining.
36 When Dr Kaplan again examined the worker in October 2007, the psychiatric condition had not improved and the Adjustment Disorder with Mixed Anxiety and Depressed Mood continued. Dr Kaplan thought that the prognosis was for ongoing symptoms for so long as his physical pain remained.
37 The worker was examined at the request of his solicitors by Mr Kenneth Brearley, orthopaedic surgeon, in October 2004 and July 2007. His reports were tendered in evidence.[18] Mr Brearley obtained a history of the occurrence of the workplace incident similar to other practitioners, in particular, that the corner bracket weighed 30 kilograms. He inspected the CT scans of 4 September 2003 which he said showed broadbased posterior disc bulges at L4-5 and L5-S1 with no canal stenosis. There were minor facet joint degenerative changes at L4-5 and L5-S1. He said the MRI scan of 15 June 2002 showed a congenitally small canal at L4-5 with mild canal stenosis at that level. There was no focal disc degeneration. A nuclear bone scan performed on 26 March 2004 suggested facet joint degenerative arthritis at L1-2 and L4-5.
[18] Exhibit P, PCB 62-66, 69-69d
38 Mr Brearley diagnosed discogenic disease of the lumbosacral spine with disc injuries at L4-5 and L5-S1. There was no actual disc prolapse but there were symptoms of lumbar nerve root irritation in the early stages after injury. He thought there was no indication for surgery. Mr Brearley said the worker was totally unable to resume his former physical work either as a scaffolder, or his professional boxing career. He said the worker was incapacitated for all forms of work. He noted depression had compounded the physical problems. He said there was no prospect for improvement into the foreseeable future of the physical condition. He said the worker should maintain his then present medication regime, including anti-depressants. He noted his intake of analgesics was alarmingly high.
39 The worker was examined by Mr David Brownbill, neurosurgeon, in July 2007, who provided a report.[19] Mr Brownbill obtained a history that the corner bracket was 20 kilograms or more and that it was passed to the worker from a level above and was taken, twisting and bending to place it to the left. Mr Brownbill noted the worker was taking sixteen tablets of Codalgin Forte per day, together with Tramal, Lexapro, Valium and sleeping tablets. The worker complained of severe low-back pain and aching all over his body. He reviewed the CT and MRI scans. He said they demonstrated some facet joint degenerative changes at the two lower lumbar levels. He said:[20]
“On the information provided on the history of sudden onset of low back pain with severe leg radiation in association with lifting and twisting, it would be anticipated that he had suffered lumbar intervertebral disc derangement with protrusion but that has not been demonstrated on several lumbar spine radiological investigations. … I consider on probability that he has suffered an organic physical damage to structures about the lumbar spine, possibly involving facet joints, with aggravation of pre-existing degenerative changes and with the onset of a psychological reaction with depression to the initial pain and activity restrictions … with likely resulting accentuation and perpetuation of his perceived ongoing pain. …. His prognosis is uncertain but I do not anticipate any untoward neurological sequelae.”
[19] Exhibit Q, PCB 70-75
[20] PCB 73
40 Mr Brownbill considered the worker should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He was unable to return to his previous employment.
41 A report of Mr Hugh Weaver, orthopaedic specialist, of 24 October 2007 was tendered into evidence.[21] Mr Weaver was retained on behalf of the defendants. The history provided to Mr Weaver by the worker was that the corner bracket probably weighed around 20 kilograms and that the worker twisted in order to deal with the object and developed the sudden onset of low-back pain. The pain had persisted and by 2007 it was constant and severe. The worker no longer experienced lower limb pain, but there was groin pain. He told Mr Weaver that he had fallen over on a number of occasions and had apparently suffered fractures to a foot. Mr Weaver considered the worker was suffering some genuine, if limited pathology affecting one or more discs of the lumbar spine. He thought he exhibited a fairly low pain threshold and suffered psychological problems as a result of the ongoing pain. He thought it was “conceivable” that the worker had incurred an injury to one or more of the intervertebral lumbar discs. He did not have the benefit of the CT nor MRI investigations. He thought there would be great difficulty returning the worker to the workforce. The prognosis was very poor given there had been no improvement in the pain and restriction over more than five years. He would not be able to resume his work as a scaffolder into the future, or other forms of heavy employment.
[21] Exhibit S, DCB 15-22
42 Evidence was given by Mr Gerard Nicolle, the operations manager of an organisation known as Incolink. It is a construction industry body designed to provide various employer sponsored benefits for employees within that industry. It provided a redundancy fund, income protection and funding for the provision of training schemes.
43 He said that over the period from November 2002 until October 2007, an employer could have contributed a total of approximately $15,000 to Incolink to make provision for the worker. If, for example, the worker were to be made redundant, or suffer some period of unemployment due to a work downturn, the fund would provide a benefit to that worker up to the balance of the contributions of the employer to that time. If, for example, in October 2007 he was made redundant, he could receive up to $15,000. He said that most employers in the construction industry were members of the fund; he thought approximately 90 per cent of employers. He said that if a worker was not working, then no contributions would be made.
44 By consent, the affidavits of the worker sworn 15 April 2006 and 23 October 2007, and the annexures thereto,[22] were tendered into evidence. These affidavits were filed in support of the application for leave before her Honour Judge Lawson.
[22] Exhibit D
45 In those affidavits, the worker deposed:
•
He was educated to thirteen years of age, or Year 7, in the Latrobe Valley. He had a learning disorder and was found to be dyslexic. He still had significant problems with reading, writing, spelling and grammar.
•
He worked from a young age in a range of employments, including as a garbage collector, farm labourer, boat hand, work in the mining community and eventually as a scaffolder. He obtained a certificate in scaffolding.
•
He had an interest in boxing and turned professional at an early age and had about twenty professional fights.
•
He had injuries from a number of motorcycle accidents, including in 1999 and 2000, and suffered various fractures. The injuries were not lasting and he was able to continue his boxing career.
•
He commenced work in 2001 with the first defendant. There were brief absences from employment due to lack of work.
•
On 16 January 2002, he was working at a residential construction site at Wallace Avenue, Toorak. Another worker handed him the corner bracket, measuring approximately 500 by 500 millimetres. He estimated it weighed 30 to 40 kilograms. The corner bracket was handed to him from above and he took it at about head height. He twisted and reached upwards in an attempt to grab hold of and control the corner bracket and he felt pain in his lower spine.
•
He was not provided with any training, warnings nor instructions as to the risks involved in lifting and handling heavy items.
•
He underwent a range of radiological investigations and was treated by his general practitioner, Dr Christiansen.
•
As time progressed he continued to suffer ongoing pain in his middle and lower back and symptoms referred to his left leg. He did not return to work.
•
In February 2002, he was walking up stairs when he said his back “gave way”, causing him to fall and sustain an injury to his right foot and ankle. This resulted in a comminuted fracture of the medial aspect of the navicular bone. He suffered continuous pain in the right foot thereafter.
•
As a result of the levels of pain, he abused alcohol and was involved on one occasion in an assault at a nightclub. He sustained other criminal convictions, including breaking and entering into premises of a person who he alleged owed him money. He received suspended gaol sentences for these offences.
•
In April 2003, he was referred to Dr Kempster, neurologist. He was taking anti-inflammatory and pain-relieving medication. Dr Kempster referred him for a CT scan of 4 September 2003, which he understood demonstrated a posterior disc bulge at L4-5, with a further bulge at L5-S1.
•
As at April 2006, he was taking a range of pain-relieving medication, including Tramal, two to three tablets per day; Mersyndol Forte, six to eight tablets a day; anti-inflammatory, Celebrex; Valium; Neurolax; and Temazepam to assist with sleep. He was further prescribed the anti- depressant medication, Zoloft.
•
He considered that with his back injury he would be unable to resume employment as a scaffolder.
•
He claimed a range of impediments in his recreational and domestic activities, including driving a motor vehicle and the heavier duties around the home. He claimed that he was unable to participate in activities with his young children, and that his libido was affected.
• He was unable to maintain his interest in and involvement with boxing. •
In his further affidavit of October 2007, he deposed that he continued to suffer dull pain in his lower back, hip and groin regions. There was a changed sensation in his legs. His right foot and ankle soreness persisted.
• He continued to take painkilling and anti-inflammatory medication. •
He was in receipt of a Disability Support benefit and by 2007 had four young children.
46 The evidence of the worker given at the serious injury application was admitted by consent.[23] That evidence may be summarised as follows:
[23] Exhibit E, T 19-48
•
Since schooling days, the worker had difficulty with reading and writing and his wife attended to all the paperwork.
•
In 2006, the worker was convicted of assault and received a suspended gaol sentence.
•
After injury, the worker was walking up some stairs and his back “gave way”. It was like someone took his legs out from under him without warning. This had not happened before, but had happened on three occasions subsequently.
•
At the time of the serious injury application, he was taking three Tramal painkilling tablets per day; six Mersyndol Forte; from six to eighteen Codalgin tablets; Valium; Neurolax and Temazepam. He further took Lexapro for depression.
•
As at January 2002, he was the Victorian Professional Middleweight and Lightweight Champion. He intended to go to England to sign a contract to fight, but that did not proceed after injury.
• He had thirty amateur fights and six professional fights before injury. • The last fight before injury was eighteen months earlier. • He was training for boxing at the time of injury and was extremely fit. • His wife did most of the work looking after the children. •
He was involved in three motorcycle accidents prior to the injury, including one which involved a blood alcohol reading above 0.05.
•
In April 2001, he was involved in a fight and subsequently charged with assault. He was drunk at the time.
• His temper became worse after the injury. •
In June 2003, he was charged with and convicted of making a false document, unlicensed driving, burglary, theft and making a false report.
•
In September 2006, he was charged with and convicted of recklessly cause injury. This related to a demand for $4,000. He was convicted and given a six months’ suspended sentence.
•
The worker had not undertaken a pain management course, nor any workplace retraining, nor any course to improve his literary skills.
47 On behalf of the defendants, various medical reports were tendered.
48 The worker was examined on a number of occasions by Mr Peter Nelson, surgeon, over the period from May 2002 to October 2006.[24] He received a complaint from the worker of constant low-back pain, made worse by prolonged sitting or standing, bending or stooping, which initially extended to his legs, but by October 2006 there was no pain into the legs, save for some numbness into the groin. He noted the high intake of medication. He thought the worker had suffered a musculoligamentous strain to the supporting ligaments and related structures of the back, but said that the effects of such injury had ceased. He thought the disability was out of proportion to the pathology shown on the various scans. He thought any ongoing problems were related to a congenital central canal stenosis shown on the most recent scan and to some degenerative changes in the lower spine associated with the ageing process. He said the effect of the original musculoligamentous strain had long since ceased and that his ongoing symptoms were not related to that injury. He did not think the worker had any permanent incapacity for employment provided he observed certain restrictions as to the lifting of weights and placing strain on his spine.
[24] Exhibit 1, DCB 1-14
49 The worker was further examined by Mr Geoffrey Klug, neurosurgeon, in February 2003.[25] The worker described the corner bracket as weighing approximately 40 kilograms, with the onset of severe pain which spread to his left leg. Mr Klug considered the worker had suffered a musculoligamentous injury to his low-back but did not feel there was any evidence of a disc injury to the area. He said the worker could not resume his pre-injury employment but would be able to undertake some form of employment which did not require him to bend or lift appreciable weights or twist his spine. In view of the worker’s background and poor education, it would be difficult for him to find any type of employment within his capabilities. There was no surgical procedure to be recommended. He thought the impairment would not be permanent and that with the passage of time the injury would resolve.
[25] Exhibit 2
50 Further, on behalf of the defendants, a number of letters of the Industrial Work Conditioning Clinic were tendered.[26] This correspondence indicated the worker failed to attend two vocational assessment appointments in June 2002. As such, the Clinic was unable to make an assessment of work capacity.
[26] Exhibit 3, DCB 84-88
51 The worker’s taxation returns for the relevant years were tendered.[27] These disclosed the following earnings:
[27] Exhibit H, Exhibit 4
Year Ended Gross Earnings Notes June 1998 $10,760.00 - June 1999 $24,883.00 - June 2000 $37,759.00 Includes $1,181.00 benefit from TAC June 2001 $48,089.00 Includes various workplace allowances June 2002 $51,110.00 Includes some WorkCover payments
made after the date of injury
Liability
52 The first matter to determine is the weight of the corner bracket which the worker was required to manoeuvre from approximately head height when it was passed to him by a fellow worker. The weight is variously described in the worker’s affidavit as between 30 to 40 kilograms, in the history to Mr Dohrman as between 25 to 40 kilograms and in the histories provided to various of the doctors as between 20 to 40 kilograms.
53 In my view, the statement in the worker’s affidavit, and the history to Mr Dohrman are more likely to be accurate, given that at the time, a specific inquiry was being made as to the weight of the object. I accept the corner bracket weighed something between 25 and 40 kilograms.
54 On any view, this is a heavy weight to lift in the manner described. Added to the fact that the worker took the weight at approximately head height, he was then involved in a twisting process which I accept would have put a greater strain upon his lower spine. While it is correct to say that the NIOSH index utilised by Mr Dohrmann is general only, I accept his evidence and calculations that a safe lift in the circumstances would have been something in the order of 8 to 10 kilograms. A lift thus of 25 kilograms or more produced a real risk of injury. While the calculations of Mr Dohrman could not be said to be exact given he was making calculations from a demonstration by the worker, nonetheless I accept them as generally accurate and, as a result, the lifting incident, and in particular the twisting component, was undertaken with a real risk of injury to his lower spine.
55 I further accept the evidence of the worker that prior to the lift, he was given no training nor instruction as to the manner in which the lift was to be undertaken, and the risks involved. From the evidence, he was not being supervised at the time.
56 It is somewhat uncertain what steps the employer ought to have taken to avoid the risk of injury in the manoeuvre being undertaken by the worker. It is difficult to know from the evidence whether some form of mechanical lifting device could have been employed. However, in my view, a relatively straightforward solution would have been to have the lift undertaken by the worker with the assistance of another worker.
57 I accept the task was “manual handling” within the meaning of the Regulations. I further accept that the lift in question involved the “application of high force” within the meaning of s.5 of the Regulations. In particular, it involved the use of a heavy weight with the worker’s body in a turned position. As such, Regulation 13 requires an employer to ensure that the task be identified. Further, once identified, the task must be the subject of a risk assessment as required by Regulation 14. Had that assessment been undertaken, I am satisfied that it would have shown a risk of a musculoskeletal injury. As such, Regulation 15 requires the employer to eliminate or, so far as is practicable, reduce the risk.
58 The first defendant called no evidence that there had been any identification or assessment of the lift, nor obviously any attempt to eliminate or reduce it. In such circumstances, I am of the view the first defendant breached the Regulations, in particular Regulations 13, 14 and 15.
59 As such, I am satisfied that there was negligence on the part of the first defendant and/or breach of the Regulations. The worker’s claim in respect to liability succeeds.
Damages – Pain and Suffering
60 I accept that as at the date of injury, the worker was a young man who enjoyed his employment as a scaffolder, and in particular he was enthusiastic about and competent in boxing. He had a number of prior injuries, particularly from riding motorcycles, and had been in trouble with the law over a significant period. I accept that he had early learning difficulties and was dyslexic.
61 I accept that the worker had no pre-existing injury or dysfunction to his lower spine. I accept that he suffered significant pain in the incident and that that pain continued through until the time of his death.
62 The majority of medical opinion is to the effect that he suffered an injury to his lower spine with derangement of the inter-vertebral discs at the lower levels, and possibly some injury to the facet joints. The radiology does not disclose any frank prolapse, nor evidence of neurological compromise. Despite the lack of any prolapse to the lower spine, I accept that the injury did produce significant pain to the worker, which required him to take an extensive range of painkilling, anti-inflammatory and various other forms of medication, including anti-depressants.
63 I reject the opinion of Mr Nelson, who assessed the worker on behalf of the defendant.
64 Such was the effect of the injury, that it significantly limited the worker’s domestic activities, and in particular his involvement with his young family. I further accept that the injury put an end to his boxing career, although I note there had been some eighteen months since his previous fight. It appears to me that while the worker was a skilled boxer, the prospects of him making a career in that area were modest given his full-time work as a scaffolder, and the fact that he had a young growing family.
65 For all of that, however, I accept that without injury he would have maintained some form of interest in boxing, and that became lost to him because of his back pain and restriction.
66 The medical opinion is uniform that he would not have been in a position to resume employment as a scaffolder, and the loss of that to him was a matter of significance.
67 I further accept that the worker had a significant psychological reaction to injury. He was a young man who was proud of his fitness and strength. For such a person, particularly with a young wife and family, the loss of that prowess would be significant. The worker had some sexual dysfunction, became depressed, irritable and isolated, and was prescribed anti-depressant medication.
68 I am not satisfied, particularly given the evidence of Dr Christiansen, that the subsequent fall which caused a fracture to the worker’s foot was related to the subject incident.
69 Various matters were raised in the course of cross-examination in the serious injury application as to the worker’s credit. I do not find any of those matters, in particular his criminal convictions, detract from his evidence of the impact upon him of the injury sustained. He had a somewhat irresponsible even wild youth, but like many persons, constant employment and a young family had had a stabilising effect upon him. I was impressed by the evidence of his wife and his father in that regard. True it is he received further criminal convictions after injury, but he was given suspended sentences which reflected an acceptance by the judge hearing the charges of the nature of the offences and his prospects for rehabilitation.
70 While it is difficult to say whether the worker would have continued to suffer pain and restriction into the foreseeable future, I accept that he did suffer over the years from 2002 until his death in 2008. The assessment of general damages in this proceeding is somewhat novel. Normally general damages are assessed for the past, present and future. In this proceeding, general damages are to be assessed for a period of just over six years. On behalf the defendant, Mr Smith urged an arithmetic formula be utilised by calculating the six-year period as a percentage of the worker’s life expectancy. According to life expectancy tables, the worker could have expected to live approximately sixty-one years beyond injury. Mr Smith submitted thus it was appropriate to calculate pain and suffering damages which would have been awarded to the worker with a normal life expectancy and reduce that by 90 percent.
71 On behalf of the worker, Mr Ingram submitted that the arithmetic apportionment, while a factor to be considered, did not take account of the significant amount of pain, suffering and loss of enjoyment of life which had occurred over that six-year period. He submitted that an award of $200,000 would have been appropriate were the worker still to be alive, and that an appropriate apportionment was as to one-half of that sum.
72 Mr Smith submitted that pain and suffering would have been assessed in the range of $100,000 to $150,000, and an appropriate figure was ten per cent thereof, that is $10,000 to $15,000.
73 In my view, a simple arithmetic formula to assess pain and suffering damages, while a matter to be taken into account, is not determinative. I accept that according to the life expectancy tables, the worker would have lived for another sixty or so years. However, an apportionment of ten per cent fails to take into account the significant pain and distress suffered by the worker at the time of the incident. Further, the loss of the worker’s passion for boxing would be at its most intense in the years following the incident. The worker was not able to participate in a full way in the early years of his children’s development. They are important years.
74 With time, it is probable that the worker would, to some extent, have come to terms with the injury and the restriction placed upon his life. In my view, the effects of the injury would be felt most intensely in those earlier years.
75 The purpose of compensation is to the place the worker into the position he would have been in, absent injury, to the extent that money is able to do so. Taking all these matters into account, in my view, it is appropriate to assess pain and suffering damages in the sum of $50,000.
Damages – Loss of Earnings
76 I accept the submissions of Mr Ingram that the worker’s earnings for the years 1998 and 1999 are of little if any significance in the calculation of economic loss. He was a young man at that time, and was not settled in his career. Thereafter, his wages increased considerably in the following three years.
77 I accept that as a scaffolder, it was likely that the worker would have had some time away from work on occasions when no work was available, or when he moved from one job or one project to another. However, I accept the evidence of Mr Domoney as to the demand for scaffolders over the period from 2002 to 2008. Further, the worker would have had at least some benefit from the Incolink fund referred to in the evidence of Mr Nicolle, were he to be away from employment.
78 It is put on behalf of the defendants that the worker had an inherent work capacity for lighter duties on a part-time basis and this ought to reflect in any assessment for economic loss. The worker was educated only to Year 7 and had significant learning difficulties. He had only a modest capacity to read and write.
79 The evidence of his treating general practitioner, Dr Christiansen, was that the worker would not be suited for any form of manual work. He did say[28] that the worker might, in the future, be able to undertake perhaps 20 hours per week. However, I am not satisfied that that meant the worker had a work capacity before his death. All his work had been in manual labour and with his limited education and restriction in the prospects of retraining, I am satisfied the worker had no residual work capacity over the relevant years.
[28] T 53 L10
80 I am further not satisfied that the defendants’ submission that the worker would have returned to his boxing career at some time over the years 2002 to 2008, is made out. With the responsibilities of a family, it is far more likely he would have remained in work as a scaffolder. His last fight had been eighteen months before injury.
81 According to the employer claim report,[29] at the time of injury the worker was earning $783.56 gross per week plus overtime of $226.82, a gross weekly wage of $1,010.38. According to the worker’s taxation return for the year ended June 2002, he earned $51,110.00 gross. This sum included some payments of weekly compensation by the Authority after his injury, paid at either 95 per cent or 75 per cent rate. Had he not, however, been in receipt of such payments, he would have earned a full wage. This translates to $982.88 gross per week.
[29] Exhibit G
82 According to the worker’s claim form,[30] he was earning $788.50 gross per week, together with $311.25 for 8 hours’ overtime.[31] This totals $1,099.75 gross per week.
[30] Exhibit F
[31] The employer’s calculation is based on 6 hours’ overtime.
83 In my view, it is appropriate to assess the worker’s earnings at the time at $1,030.00 gross per week. This is the average of the three calculations above. Allowing for taxation, this leaves a net figure of $788.00 per week. Multiplied by 322 weeks, this leaves a net loss of $253,736.00.
84 Mr Smith submitted there ought to be a significant reduction for vicissitudes, in particular, for the prospect that the worker would have some time away from employment when there was no work or for the risk of redundancy. While the worker had the safety net of the Incolink benefit, that was limited to $15,000 at best. As a positive vicissitude, the calculations as to loss of wages do not factor in any increase in his earnings beyond 2002.
85 On balance, I am satisfied there ought to be a modest allowance for the risk of work turndown or redundancy. I allow 10 per cent in that regard.
86 The calculation in respect of loss of earnings is as follows:
Loss of Wages: $253,736.00
Fox v Wood component, as agreed: $5,989.00
Superannuation – 9 per cent of gross earnings: $29,849.40
__________
Total: $289,574.40 __________ Less 10 per cent: -$28,957.44 __________ $260,616.96 ========== 87 I shall hear from the parties further as to costs, and as to the accuracy of these calculations.
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