Liberta v Canute (WA) Limited
[2006] WADC 196
•1 DECEMBER 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LIBERTA -v- CANUTE (WA) LIMITED [2006] WADC 196
CORAM: STAVRIANOU DCJ
HEARD: 31 JULY & 1-4 AUGUST 2006
DELIVERED : 1 DECEMBER 2006
FILE NO/S: CIV 1845 of 2005
BETWEEN: PABLO LIBERTA
Plaintiff
AND
CANUTE (WA) LIMITED
Defendant
Catchwords:
Employer - Duty of care - Whether reasonable care exercised - Claim fails - Turns on own facts
Damages - Personal injury - Injury to spine - Capacity for work - Effect and operation of s 93F of Workers' Compensation and Rehabilitation Act 1981 considered
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (as amended)
Result:
Judgment for defendant
Representation:
Counsel:
Plaintiff: Mr B L Nugawela
Defendant: Mr T Lampropoulos
Solicitors:
Plaintiff: Vertannes Georgiou
Defendant: Kott Gunning
Case(s) referred to in judgment(s):
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Hamilton v Nuroof WA Pty Ltd (1956) 96 CLR 18
March v Stramare (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Murray River North Pty Ltd v Midgley [2006] WASCA 104
Tame v New South Wales (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Beer v Duracraft Pty Ltd [2004] WASCA 192
Kschammer v R W Piper & Sons & Anor [2003] WASCA 298
Pollock v Wellington (1997) 15 WAR 1
Purkess v Crittendon (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
STAVRIANOU DCJ: The plaintiff claims damages for personal injuries suffered by him in an accident which occurred in the course of his employment with the defendant.
On 30 March 2004, the plaintiff was required to mow lawns at a home unit development in Cooloongup. The plaintiff's case is that as he unloaded a lawnmower from a trailer he injured his back.
The plaintiff alleges that the injury to his back was caused by the defendant's negligence, alternatively breach of statutory duty, alternatively breach of contract.
Liability and quantum are in issue.
The issues and pleadings
The defendant accepts that it owed a duty of care to the plaintiff to exercise reasonable care and to take precautions to ensure that he was not exposed to foreseeable harm whilst performing his duties as a maintenance man.
The particulars of negligence and breach of statutory duty are that the defendant:
"7.1instructed or allowed the plaintiff to remove the lawnmower from the trailer using a single wooden plank when it was unsafe to do so having regard to the size and weight of the lawnmower (approximately 90 cms wide and 180 kgs weight) and the height of the trailer from the ground (approximately 60 cms);
7.2failed to modify the trailer by installing a wide ramp to the rear of the trailer;
7.3failed to instruct the plaintiff to use at least two single wooden planks joined together as a makeshift ramp when removing the lawnmower from the trailer;
7.4failed to supervise the plaintiff as to a safe method of removing the lawnmower from the trailer;
7.5failed to inspect, identify and assess the risk of injury or harm likely to arise from the plaintiff removing the lawnmower from the trailer on a single wooden plank; and
7.6failed to heed and act upon a verbal complaint made by the plaintiff to the defendant prior to the accident that the procedure used to get the lawnmower on and off the trailer was unsafe."
The defendant at the commencement of the trial conceded that if only one plank was provided to the plaintiff then it would be guilty of negligence. Whether the plaintiff had one or two planks available for loading and unloading was one of the principal factual controversies at trial. In written submissions delivered on the final day of trial the plaintiff abandoned reliance upon particular 7.3.
The defendant denies negligence and pleads that the plaintiff was guilty of contributory negligence in that:
"he did not use of (sic) the option of using an extra plank to assist in balancing the mower when moving it from or onto the trailer when he knew or ought to have known that this would reduce the risk of the mower becoming unstable on a single plank."
The plaintiff claims damages under the following heads:
1.General damages;
2.Loss of earning capacity both past and future;
3.Loss of superannuation benefits both past and future;
4.Past and future gratuitous services;
5.Future medical expenses;
6.Past and future travelling; and
7.Special damages.
The plaintiff alleges that as a result of the accident he suffered an injury to the thoracolumbar and lumbo sacral region and a suspected fracture of the T12 vertebra.
The defendant admits that the plaintiff suffered an injury to his back on 30 March 2004 and pleads that this was an injury to his thoracolumbar spine.
The defendant pleads that the injury loss or damage was caused or contributed to by:
"(a)pre‑existing degenerative condition of the spine;
(b)pre‑existing Sherman's (sic Scheuermann's) disease
(c)pre‑existing osteopenia"
The defendant further pleads that:
"(a)the plaintiff has a capacity to work and has sufficient retained earning capacity to be able to earn a full time wage in suitable employment.
(b)the plaintiff's entitlement to damages is limited by s 93F(1)(a) of the Workers' Compensation and Injury Management Act 1981."
Plaintiff's background
The plaintiff was born in Argentina on 3 July 1966 and is now 40 years of age. He is married and has three children.
In 1982, the plaintiff arrived in Australia. He attended a local high school in South Fremantle where he completed year 10. He then had a number of different jobs before he commenced work as a tiler in about 1985. He remained so employed until the beginning of 2003 when he commenced employment with the defendant as a maintenance worker.
The plaintiff's duties with the defendant initially included replacement of reticulation, repair of roofs and painting. The plaintiff stated that as at February 2003 his earnings as a full time employee with the defendant were $1100 net per fortnight, and that he was still receiving that sum as at March 2004.
In September 2002 the plaintiff attended upon Dr Toby Nichols, a general medical practitioner. The plaintiff stated that at that time, he told Dr Nichols that he had muscle discomfort in his lower back. The plaintiff stated that this persisted for six months.
According to the evidence of Dr Michael Lee, a specialist neurosurgeon, in 2005 when the plaintiff gave a history to Dr Lee, he did not mention that he had problems with his back prior to 30 March 2004. When the plaintiff saw Mr McCloskey, a specialist orthopaedic surgeon, upon the referral of his general practitioner, the plaintiff denied that he had had any pain in his back prior to 30 March 2004. When cross‑examined about what he had told Mr McCloskey, the plaintiff said that he had misunderstood the question from the doctor and that he overlooked the previous back problem because he had recovered from it.
The plaintiff saw Professor Andrew Harper on 30 May 2006. This was for a review arranged by the solicitors for the plaintiff and not for treatment. The plaintiff's evidence was that he told Professor Harper that he had had no problems with his thoracolumbar spine before 30 March 2004. The plaintiff agreed in cross‑examination that he had seen him to get a report to help his case.
The plaintiff stated that he was active, fit and healthy before the accident. He stated that as a result of the injuries he suffered in the accident he is now unable to engage in a range of social, recreational, domestic and sporting activities. When asked about back pain prior to the accident the plaintiff stated that he had "pain but not injury".
The defendant's business
The defendant is an investment company associated with Mr Jim Marshall and his daughter Ms Colleen Hurst.
In 2003, the plaintiff commenced employment with the defendant. His duties included the performance of maintenance work on a number of investment properties owned by the defendant.
Warren Neil was also an employee of the defendant as was Geraldine Jones who was the defendant's property manager.
The plaintiff stated that in about November 2003 he, Ms Jones and Mr Neil had a discussion concerning expanding the maintenance work being carried out on the defendant's properties to include lawnmowing. He stated that in about January 2004 there was a discussion at Mr Marshall's home concerning lawnmowing, and in attendance were the plaintiff, Mr Neil, Ms Hurst and Mr Marshall. The plaintiff stated that, at that time, it was agreed that lawnmowing equipment would be purchased and that Mr Neil would obtain quotes for the purchase of the equipment. The plaintiff stated that Ms Hurst mentioned that it would be a good idea to buy a trailer set up for the lawnmowing together with a ramp to enable the lawnmower to be loaded and unloaded. However, a trailer was not purchased and a trailer which the defendant already owned was used.
Quotations were obtained for the lawnmower, a blower vac, and also other equipment including a whipper snipper, edger and safety equipment. The equipment was purchased on 27 January 2004 at a cost of $5295. After purchase, Mr Neil and the plaintiff collected the lawnmower and equipment from the supplier.
The plaintiff's evidence
The plaintiff stated that when the lawnmower was collected, a small ramp was used to load it onto the defendant's trailer by the supplier.
The plaintiff stated that Mr Neil and the plaintiff returned to the defendant's premises. Mr Neil suggested that a plank which was on the garage floor of the defendant's premises be used for unloading. It was the plaintiff's evidence‑in‑chief that he told Mr Neil at that time that it was unsafe as the plank was too short and too narrow. When asked about the plank in cross‑examination he said he couldn't recall saying anything to Mr Neil. It was the plaintiff's evidence that Mr Neil told him to centre the lawnmower and that he should be okay bringing it (the lawnmower) up and down. The plaintiff stated that Mr Neil also told him that "You've just got to be careful."
The plaintiff's evidence was that after the lawnmowing equipment had been purchased he would mow the lawns of the defendant's properties on Mondays and Tuesdays and then on Thursdays he would do the lawnmowing at Mr Marshall's home.
In his evidence the plaintiff stated that his practice was to lower the trailer's tailgate, then place one end of the single plank on the lip of the tailgate so that it was flat with the floor of the trailer, while the other end of the plank would sit on the ground.
He described the way in which the lawnmower was handled by him as follows:
"I used to put the lawnmower very close to the edge of the trailer. I used to put my left hand on the clutch of the lawnmower, which I used to use as a brake, as the brake to stop the lawnmower from running down the plank on top of me, so I used to bring it down. I used to at the same time bring the mower down, slowly down the plank.
Did you say clutch?‑‑‑Yes, a clutch.
Left hand?‑‑‑That's like is when you've got the lawnmower going, when the clutch is actually pressed on, you actually press it on, the lawnmower wasn't working. It was running but it wasn't going so when you released that, the clutch, the mower will start working.
For the purpose of the transcript, you are showing holding the clutch and releasing it with your left hand?‑‑‑That's correct.
You mentioned a brake?‑‑‑That's the brake. I used to use the clutch as a brake when I used to bring the lawnmower down.
And you said the plank would be in between your legs?‑‑‑That's correct.
And you were holding the handle of the lawnmower at what height of your body?‑‑‑About chest high.
And your legs would be on the ground?‑‑‑Between the two planks ‑ between the single plank.
On the ground?‑‑‑On the ground, that's right."
The plaintiff said that he was concerned about the work environment. He stated his concerns arose because at any given time either the plank would go off the edge of the tailgate or the lawnmower would have slid off the plank.
The plaintiff said that he expressed his safety concerns to Ms Jones and Mr Neil several times prior to 30 March 2004. He stated that Mr Neil's response was to tell him to just be careful. When asked why he had not utilised the petty cash system to buy a second plank the plaintiff stated that he was too busy with work, it was not his duty to provide the other plank and he had been told to use the single plank.
The plaintiff stated that on 19 April 2004 he purchased a 4.2 metre long plank from Colli & Sons (a hardware store) at a cost of $85.15.
The plaintiff's evidence was that there was only one plank available for use as a ramp prior to the 30 March 2004.
It was the plaintiff's evidence that on 30 March 2004 he loaded the lawnmower and all the equipment onto the defendant's trailer and then drove, with the loaded trailer, to a set of four units in Cooloongup.
He told me that he removed the equipment from the trailer. He stated that as he was bringing the lawnmower down the ramp the lawnmower started falling onto the left side. His evidence was that he: "grabbed the lawnmower and pushed it back ‑ or lifted it back onto the plank, and at that stage felt a really bad sharp pain in my back." He stated that he managed to get the lawnmower to the ground and then sat down on the grass.
The plaintiff said that a tenant of one of the units spoke to him. The plaintiff's evidence was that he then telephoned Mr Neil and told him what had happened and Mr Neil told him to be careful and that he would see him at the office. The plaintiff stated that he then tried to telephone Ms Jones but that she could not be contacted and he therefore left a message for her. The plaintiff was able to complete his lawnmowing duties on the day but stated that he did that work slowly.
The plaintiff stated that after the accident on 30 March 2004 he was able to continue his employment with the defendant. He said, however, that later on in the week, after he had finished loading the trailer, he was overwhelmed with pain in his back. This occurred as he was in the process of hitching the trailer to the tow bar. On that day, which was 8 April 2004, the plaintiff saw Dr Leopold Foong. Dr Foong diagnosed a soft tissue injury, prescribed painkillers and advised the plaintiff to rest over the Easter period.
It was the plaintiff's evidence that he returned to work with the defendant on light duties on 19 April 2004, and that he remained so employed until August 2004, when he commenced a work trial with Bunnings. He stated he initially worked eight hours five days per week on light duties, but it was subsequently reduced to six hours per day five days per week. The plaintiff stated that by about December 2004 he was only working three hours per day.
The plaintiff stated that he has not worked since 19 May 2005 when his work trial with Bunnings ceased. He stated that he had applied for many jobs since that date but has been unable to secure a position.
The plaintiff stated that the single plank he had purchased from Colli & Sons was cut into two. He stated that he then attached a piece of angle iron in the centre of the plank and a hook system to ensure the planks would not move or slide off the tailgate. He stated that he also planed each plank to create an angled edge so they would be level with the road.
The plaintiff stated that after his injury the defendant adopted a system of placing the two planks side by side and hooking them onto the trailer. The plaintiff gave evidence that on one occasion in about mid July 2005 he had observed his replacement using a single plank to unload the lawnmower. The plaintiff produced a videotape of the incident. The employee did not give evidence and there was no evidence as to the circumstances in which the person depicted in the video came to be doing what he was doing. The admission of the videotape into evidence was objected to by the defence. I am prepared to admit the video as exhibit 6.
The plaintiff stated that Mr Marshall saw him loading and unloading the lawnmower using a single plank on one occasion. The plaintiff sought to rely upon the fact Mr Marshall was not called as a witness "to contradict what the plaintiff had said". The issue at trial principally concerned the availability of planks. Mr Neil and Ms Hurst were called by the defendant in relation to that issue. I do not accept any inference against the defendant can and should be drawn in the circumstances.
Other evidence
Geraldine Ann Jones was the office manager for the defendant. She described her work as predominantly property management. She stated that she was involved in seeing tenants for the defendant's leasehold properties.
She stated that as at the 30 March 2004, Mr Neil would do whatever was required to be done by way of maintenance and the plaintiff would assist him.
She stated that the lawnmowing equipment would be moved by trailer and on occasions the equipment would be unloaded into the garage to enable the trailer to be used for other activities.
It was Ms Jones' evidence that she saw the lawnmower being loaded and unloaded onto the trailer. She said that a single plank would be used and put on the edge of the trailer, and that the mower would then be taken up and down on the plank. She said she saw the method being used on a number of occasions by the plaintiff and by Mr Neil.
She stated that after the 30 March 2004 she had had a discussion with Ms Hurst and told her that she was concerned about the lawnmower coming off the trailer on a single plank. It was Ms Williams' evidence that Ms Hurst said to her that it did not matter because all of the other lawnmowing contractors used a single plank as well and it was a standard thing to do.
She gave evidence that the single plank system of loading and unloading did not change after the 30 March 2004 and it was still being used when she left the defendant's employment in February 2005. She said she could not remember two planks being there at all whilst she was working for the defendant.
She said she did not know what the plaintiff did with the plank purchased from Colli & Sons. She said she could not recall the plaintiff planing one end of each plank and putting brackets on the other end of each of the two planks. She stated that she could not recall the plaintiff complaining to her about using one plank to remove the lawnmower.
She stated that she had not recently discussed this case with the plaintiff. She said the last discussion was a couple of weeks or a month before trial.
Floriana Liberta
Floriana Liberta is the plaintiff's wife. She gave evidence that before the accident the plaintiff was fit and healthy. She told me the accident had impacted on all aspects of the plaintiff's life. She gave evidence that he was always in pain after the accident and got very moody.
Expert Evidence
Chong Ngai Chew gave evidence on behalf of the plaintiff.
He has a doctorate in Mechanical Engineering and is a certified professional ergonomist who has had substantial experience since 1988 in the area of ergonomics and safety aspects of work systems.
Dr Chew produced a report dated 24 March 2006. He noted in that report that he had obtained information that the average weight of a lawnmower of the type the plaintiff was using when injured was 170 kilograms. He noted that the plank width was 215 millimetres and that the width of the lawnmower was 795 millimetres. In his view, there was a high risk of the lawnmower losing stability as it travelled down a single plank because of the narrow width of the plank. There was, in his view, a high risk of injury being suffered should the lawnmower lose stability because of the large lifting force required to reposition it on the plank.
Dr Chew was asked what reasonably cost-expedient modifications could have been carried out to the trailer to minimise the risk of injury to a person such as the plaintiff.
His response to that question in his report was:
"In my opinion, one modification is to have attachment points at the rear of the trailer to enable a stable ramp to be affixed thereto for the purpose of moving the lawnmower down from the trailer. The design of the ramp would be one which enables a person to walk on it whilst moving the lawnmower. The ramp should be sufficiently wide to permit safe movement of the lawnmower and the person thereon."
During examination‑in‑chief Dr Chew was asked about the ramp and the necessity for it to accommodate a person walking down it.
His response was:
"Well, in the current set‑up via the single plank or at other plank ramp, the person removing the lawnmower from the trailer is, as I understand it, basically pulling the lawnmower down with him between the lawnmower and the road. So in the event of a mishap, the risk of the lawnmower impacting on this person is very real, or in the alternative, if the lawnmower for some reason loses stability on the ramp, as in this case it did, as I understand it, then the person either has a choice of to let the lawnmower fall or try and right it. In the alternative, if a ramp is wide enough for a person to actually climb onto the trailer and push the lawnmower forward and walk down the ramp, then the lawnmower will not impact on this person for a start and, secondly, if the lawnmower does lose stability, the person virtually will not be at risk of being hit by the falling lawnmower."
Dr Chew was asked about whether the use of two single wooden planks joined together as a makeshift ramp was a reasonably safe and expedient measure, available to the defendant to minimise the risk of injury to the plaintiff. Dr Chew stated that it was his opinion that the use of two planks placed beside each other would have reduced the risk of the lawnmower running off the side of the ramp when it was being removed from the trailer using the method as had been described to him by the plaintiff. However, the alternative method did not in his view, obviate the risk.
In terms of practice, Dr Chew said that he had seen the defendant's system of work being used by some lawnmowing contractors. He stated that he had seen contractors using a two or three‑plank ramp and actually move the lawnmower downwards by pushing it forward down the ramp. In cross‑examination he said he had commonly seen systems utilising two and three planks as a ramp.
Dr Chew said he had not seen any other type of ramps in practice other than an accumulation of planks.
The defendant's evidence
Warren George Neil commenced employment with the defendant in January 2002. His duties were general house maintenance.
Mr Neil gave evidence that the plaintiff was instructed to price the necessary equipment to enable the defendant to carry out lawnmowing to its properties. He stated that the equipment purchased was a lawnmower, an edger, a snipper, a blower, a fuel can, ear muffs and face shield.
Mr Neil stated that a quote for these items was obtained and shown to him by the plaintiff.
Mr Neil stated that when it was necessary to collect the equipment he went to the supplier with the plaintiff. He stated that the defendant's trailer was used together with two scaffold planks which Mr Neil said he obtained from his home.
It was Mr Neil's evidence, that after a demonstration as to the operation of the mower by the salesman, the equipment was loaded onto the trailer. He stated that the two planks supplied by Mr Neil were used as a ramp, and that the plaintiff and Mr Neil then returned to the defendant's office where the lawnmower was unloaded with the planks again being used as a ramp.
Mr Neil stated that he accompanied the plaintiff on the first few occasions when the lawnmower was used and assisted in doing the work required. He stated that the method used to unload and load the lawnmower was to sit the two planks on the tailgate and ride the mower down. He stated that when the lawnmower was being loaded onto the trailer its power would be used to drive it up the planks onto the back of the trailer.
He stated that the plaintiff did lawnmowing two to three days a fortnight.
It was Mr Neil's evidence that the planks he provided were Australian hardwood, and that they were strong. Mr Neil told me that he had had involvement with a scaffolding business and that the planks were left at his home from that business. Mr Neil stated that when he provided them for use by the defendant he told the plaintiff they were only temporary and that the plaintiff had to get two more planks for the job. Mr Neil stated he wanted the planks returned because they were needed to go under his caravan.
He stated his planks were returned after the plaintiff had purchased a length of timber from Colli & Sons and made two planks from that timber. Mr Neil's evidence was that he took one plank home to put under his caravan and the other one was left at the office because he had no use for it.
Mr Neil denied that before the accident the plaintiff had complained to him that he only had one plank and that that wasn't enough. He denied that he told the plaintiff to mind his own business or something similar.
It was Mr Neil's evidence that he had observed the plaintiff's replacement loading and unloading the lawnmower after the incident. It was Mr Neil's evidence that he had observed that employee using two planks. In closing submissions counsel for the defendant referred to the video record depicting the plaintiff's replacement unloading the lawnmower using a single ramp. It was submitted that this adversely impacted upon Mr Neil's credibility. Although he was cross‑examined concerning the method of unloading subsequent to 30 March 2004 he was not asked about the video depicting the plaintiff's replacement.
Mr Neil stated that he was the maintenance manager but that the plaintiff was always going to be in charge of the gardens and lawns whereas he was going to be in charge more of the buildings and structure.
Colleen Ellen Hurst is a director of the defendant. She stated that she did not receive any complaints about the method of loading or unloading the lawnmower.
She stated that in relation to petty cash there usually was a float in the office and that if maintenance staff required parts or other purchases they either took the petty cash beforehand and brought the receipt back, or alternatively they purchased the item from their own funds and then claimed it back upon return to the defendant's office. She stated that because of the small size of the business there were no formal rules about authority levels concerning the use of petty cash.
She stated that there were always two planks available for use.
The medical evidence
Professor Andrew Craig Harper
Professor Harper is an occupational physician who saw the plaintiff on 30 May 2006 for the purpose of review at the request of the plaintiff's solicitors.
Professor Harper provided a report, dated 30 May 2006, in which he noted a diagnosis of chronic low back pain resulting from a lifting incident. The report stated that, in his view, wedging of low thoracic vertebrae probably resulted from the incident described to him by the plaintiff.
The plaintiff was, in Professor Harper's view, precluded from returning to his pre‑accident occupation as a maintenance man as well as any manual labour job including work as a tiler. The report stated that the plaintiff's disability was permanent and there was no contra‑indication to finalisation. Professor Harper's assessment of permanent disability of the thoracolumbar spine was 20 per cent loss of effective function of the spine.
Professor Harper took a history that the plaintiff had experienced a sudden onset of mid and low back pain with the mid back pain in the infrascapular region, to the left of the mid‑line, and the low back pain was in the lumber region to the right.
In relation to symptoms Professor Harper noted in his report that:
"1.Low back pain. He experiences a knife‑life constant pain on the right side of the lumbar region. Pain severity ranges between 5‑8/10 with pain increasing during the day and as he tires. Aggravating factors are getting up and down from the squatting position, getting in and out of a car, prolonged sitting, prolonged walking and prolonged standing in one position. He gets relief lying flat on the floor and taking support on his arms while sitting. Back pain radiates to the left of the lower back when it becomes more severe. He experiences an occasional tingling in his right leg but generally there is no radiation of pain to the legs. He said his back is stiff sometimes. When his back pain is worse, he needs to stop what he is doing. He estimates having 4‑4½ bad days per week. On a bad day he does the bare minimum. He also experiences a feeling as though something is dislocating in his back which then goes back into place. He has a popping sensation in the back which he said is pain‑free and there is also a crunching noise in the back which is painful.
2.Mid back pain. He experiences an electric‑shock type pain superimposed on a continuous pain located in the mid thoracic spine at the level of approximately T9. Pain severity ranges between 5‑8/10. Aggravating factors are walking and prolonged standing. He gets relief from lying flat. Episodes of mid back pain last from 4 hours to all day. Mid back pain does not radiate. On occasions there is associated neck stiffness.
3.Mood changes. He feels anxious about what he will be able to do in the future. He is depressed intermittently in association with exacerbations of pain. He said symptoms have got worse but have been stable for the last 3 months.
Professor Harper's diagnosis was of:
"chronic low back pain resulting from a lifting and twisting incident, and wedging of low thoracic vertebrae probably resulted from this incident."
In his evidence Professor Harper elaborated upon the wedging as follows:
"…I only know about the wedging because of the x‑ray findings, and then I have deduced that they arose from the incident through his description of the accident which, as described, was one which involved very considerable force and certainly would exceed an amount necessary to cause a compression fracture of a vertebrae. So it was, in all likelihood, that the compression fracture or the wedging of the vertebrae, which is simply just squashing of a vertebrae body, arose through him taking the weight off the mower, by holding it obviously by his arms, but that weight then gets transferred vertically down through the spine, and that force is actually taken by the spine and results – in his case, has resulted in squashing a couple of vertebrae bodies."
Professor Harper stated that in his view the accident of 30 March 2004 may accelerate degenerative changes in the thoracolumbar spine, and that, as a general proposition the greater the compression the greater the likelihood of some osteoarthritis later in life.
He stated that he was not told by the plaintiff about the incident involving the lifting of the trailer.
He agreed that it was more common to have pain when you have a fracture.
It was his evidence that when he asked the plaintiff about prior problems to his middle back or low back he was told the plaintiff had no medical problems. He was asked about the plaintiff's presentation and in particular the plaintiff's sighing and grimacing. It was his evidence that the plaintiff's sighing and grimacing was definitely greater than he saw on average in the people that he sees with this condition.
In his view the radiological reports of February 1991 and September 2002 did not affect his expressed view as to the causation of the plaintiff's disability.
Michael Lee
Michael Lee is a consultant neurosurgeon and gave evidence on behalf of the plaintiff. He stated that he had examined the plaintiff on two occasions and provided reports dated 18 February 2005 and 23 March 2006.
Mr Lee stated that it was his opinion that the plaintiff had sustained a significant rotational straining injury to his thoracolumbar and lumbosacral region.
Mr Lee was uncertain as to whether the fracture noted at T12 on radiological imaging was a result of the incident. When further questioned concerning the fracture he stated that, given the history and the symptoms, "one would say on the history that it probably is related to the incident."
He told me that he believed that the work incident was the cause of his current complaints. In his view, the plaintiff was permanently precluded from returning to his normal occupation.
In his report of 18 February 2005, when dealing with work capacity, Mr Lee wrote:
"I do not believe that he has any work capacity at the moment. It's possible he may be able to resume work trials in work of a light physical nature if such can be found again, despite (sic)it is going to be difficult because of his inability to sustain physical activity without exacerbating his low back pain."
In his evidence he stated that the "low" shouldn't have been there.
Mr Lee's assessment of the plaintiff's permanent degree of disability was 20 per cent, and his assessment of the plaintiff's prognosis for recovery was poor.
The history obtained by Mr Lee from the plaintiff was that on 30 March 2004 the plaintiff had pain or severe pain in the thoracolumbar and lumbar region and that three days later when he was hooking up the trailer the plaintiff had severe pain in the low back.
He was asked about the trailer incident and said:
"If he experiences symptoms for the first time in his mid back when he's attempting to manoeuvre the trailer, on that history you would associate the problem with his mid back with the trailer incident?‑‑‑I think there would be two events in sequence.
And by which – are you agreeing with me that in terms of probabilities you would associate the problem with the mid back with the attempts to manoeuvre the trailer?‑‑‑If one assumes that he didn't have mid‑back pain initially."
David Kennedy
David Kennedy is a general practitioner and stated he had been practising in musculoskeletal medicine for over 25 years and that he had been doing medico‑legal work for 22 years. He stated that he does predominantly medico‑legal work on referral from solicitors.
He stated that he examined the plaintiff at the request of the plaintiff's solicitors and subsequently provided a report dated 3 November 2004. He stated that he obtained a history from the plaintiff as to the incident of 30 March 2004 and was told by the plaintiff at that time that the plaintiff had felt sharp pain in the mid to lower back. He said he made no note at the time of any difficulty in communicating with the plaintiff.
He stated that the plaintiff described to him a subsequent incident which occurred on the Friday after the first incident, whereby the plaintiff developed severe pain in his lower back as he was hooking a trailer onto a vehicle.
In his report of 12 July 2004 Dr Kennedy expressed the following opinion:
"Mr Liberta sustained a significant injury to his thoracolumbar sacral spine as a consequence of an industrial accident on the 30th March 2004 in which he sustained a fracture to the twelfth thoracic vertebral body as well as damage to mid to lower thoracic costovertebral and posterior facet joints and also lower lumbar and upper sacral intervertebral discs and posterior facet joints.
Mr Liberta continues to have significant problems with respect to the functioning of his thoracolumbar sacral spine that directly relates to the injuries sustained at the time of the industrial accident. He should continue with his current treatment regiment incorporating hydrotherapy, physiotherapy and a coordinated exercise programme with the use of oral analgesic and anti‑inflammatory medication when necessary."
In his view, the plaintiff should continue treatment incorporating hydrotherapy, physiotherapy and a coordinated exercise program together with the use of oral analgesic and anti-inflammatory medication. Surgery was not in his view an option.
He considered the plaintiff was unfit to return to his pre‑injury occupational duties or any employment which involves strenuous and repetitive use of his spine under stress or load. He assessed the plaintiff as having a 22 per cent permanent loss of the efficient use of his back.
In his report of 12 July 2004, he noted that the plaintiff denied any previous history of low back injuries or problems. Dr Kennedy stated that he had specifically asked the plaintiff about prior injury.
Peter Holt Lacey
Peter Holt Lacey is a general medical practitioner who provided reports dated 10 May 2006 and 25 July 2006. He stated that he first saw the plaintiff in August 2004.
He stated that in his view it was a reasonable assumption that the plaintiff suffered a wedge fracture to T11 and T12 at the time of his accident in 2004. In his view the plaintiff's low back pain may be postural in nature related to the T11 and T12 fractures.
Dr Lacey's opinion was that the plaintiff will be able to engage in predominantly sedentary employment for four hours per day.
Leopold King Sun Foong
Leopold King Sun Foong is a general medical practitioner who saw the plaintiff and provided reports dated 18 June 2004 and 29 August 2005. He saw the plaintiff on a number of occasions between 8 April 2004 and 14 July 2004.
Dr Foong first saw the plaintiff in relation to this matter on the 8 April 2004. He stated that he understood that this was the date the plaintiff had lifted a trailer at work. He had obtained a history of the plaintiff injuring his back moving a lawnmower down a ramp and that on 8 April 2004 the pains on the right side of his back were worse.
In his report of 29 August 2005 Dr Foong noted that his examination of the plaintiff confirmed tenderness over the T11-T12 and L1 spinal processes and tenderness over the right paraspinal area over the same mentioned areas.
Eamonn McCloskey
Mr McCloskey is a specialist orthopaedic surgeon. He first saw the plaintiff on 17 June 2004 upon referral from Dr Foong. Mr McCloskey stated that on 17 June 2004 he obtained a history from the plaintiff that he had injured his back while moving a lawnmower. He stated that the plaintiff told him that pain was felt primarily in the lumbar region and in particular over the right paravertebral muscles. Mr McCloskey noted that x‑rays revealed damage consistent with Scheuermann's disorder in the thoracic lumbar junction.
In July 2004 Mr McCloskey referred the plaintiff to Dr Geoffrey Gee for the purpose of review and in particular to determine whether there was any role for localised spinal injections.
Mr McCloskey stated when the plaintiff presented to him, the plaintiff told him he was sore and would groan. He stated in his view the plaintiff had pre‑existing degenerative change throughout his thoracolumbar spine and that he considered that the pre‑existing degenerative change was consistent with Scheuermann's disorder.
He stated that it was his experience that "Scheuermann's disorder does predispose to degenerative change in the lumbar spine and thoracolumbar spine", and that in his view the disorder would have developed in the plaintiff's adolescence. He stated that changes in the vertebrae in the form of wedging can develop with Scheuermann's disorder.
In relation to degeneration Mr McCloskey's evidence was:
"You also mentioned that Scheuermann's disorder may or may not lead to degeneration?‑‑‑It's contentious. I mean certainly my experience is that it does predispose to back pain, and a lot of articles that I have read over the Internet and through when I was overseas would indicate that it certainly is quite common for it to present either with pain later on in life or predisposed to degeneration. But, you know, it's not a hundred per cent accepted throughout the orthopaedic community."
Mr McCloskey stated that it was his opinion that the severity of the symptoms as described by the plaintiff are out of proportion to the mechanism of injury as described by the plaintiff and that there were non‑organic features on examination. In his report of 20 September 2004 he noted clinical findings were minimal.
Mr McCloskey stated that it was his opinion that the plaintiff should have the capacity to work full‑time in the occupation of a building estimator, building contractor, sales assistance, stock purchasing clerk, spare parts interpreter and automotive parts interpreter. They are basically non‑physical jobs.
It was his view that "a little minor wedge fracture" will heal within a couple of months with no major long‑term disability at all.
He stated that he saw the plaintiff on 17 June 2004, 14 July 2004, 14 February 2005 and 25 January 2006.
He stated that he would place physical restrictions on the plaintiff because of the changes in the plaintiff's back. When asked about the changes he stated that the plaintiff does have changes in the thoracolumbar spine and that with bending, twisting, or lifting especially heavy‑type weights, he could cause further damage with more pain. When asked to clarify the changes he stated that he meant the Scheuermann's changes, the degenerative change and the wedging of the vertebra.
In his report of 25 January 2006 Mr McCloskey answered a series of questions. The questions and his responses were relevantly:
"1.Detail the mechanism of injury as reported by Mr Liberta. Highlight the steps Mr Liberta had taken to remove the lawn mower, the position of himself and the lawn mower at the time it is alleged the lawn mower started to fall. Detail whether the lawn mower hit the ground.
Mr Liberta indicates that he injured himself at work on the 30th March 2004. The time of accident was approximately 9:00am. He indicates that he injured himself while moving a 185kg professional lawn mower from the trailer. He indicates that the trailer is approximately 500mm off the ground. That he used a single plan (20mm wide x 1.5m long). Mr Liberta indicates that he was standing upright the whole time. He says that he was walking backwards. The lawn mower was being guided down the plank. He indicates that at one stage while the lawn mower was on the plank he lost control and the lawn mower started to fall to the left. He tried to adjust this by lifting the lawn mower back onto the plank. He says that during this manoeuvre he developed severe pain. (Indicates diffusely over the lower thoracic and lumbar spine). Mr Liberta indicates that he was able to steady the lawn mower and bring it down to the ground. The lawn mower itself did not hit the ground.
He initially rested for ½ hour and during this interval rang his employer. He also indicates today that he continued to work during the week but with significant pain.
2.Detail your findings on clinical examination.
Throughout the examination Mr Liberta vocalized pain while dressing and undressing. He grimaced and vocalized pain while walking and alighting to and from the examining couch.
I felt that he was muscular and he had a barrel chest. Significant kyphotic deformity of the thoracic spine.
There was mildly positive pseudo rotation and occipital compression test.
There was diffuse superficial tenderness to palpation from the mid thoracic to the lower lumbar spine.
Flexion extension of the spine was also limited. Straight leg raise tested informally was to 90º bilaterally but tested formally was to 45º bilaterally. Hip rotation with the hips flexed to 90º was associated with Mr Liberta reporting severe back pain. He was able to walk on his tiptoes, walk on his heels and he was able to squat but indicated that all these manoeuvres were associated with increasing back pain. There was subjective sensory hypoesthesia in the right leg. He reflexes in both lower limbs were normal.
3.Detail Mr Liberta's current symptom presentation. Has there been any change to his symptoms since your last review and if so, detail any changes since your last review?
Mr Liberta indicates that he has ongoing thoracic and lumbar spine pain which is there constantly and aggravated by housework and the use of a clutch in a manual car. Improved to a minimal extent by lying flat. He also indicates that he has more recently started to develop headaches.
He indicates that his pain on the whole has deteriorated since February 2005. On a visual analogue scale the pain varies from 5 – 8.5. He indicates that there is occasional tingling on the right hand side of his back from the level of the neck to the buttock. Occasional tingling in the right buttock. No neurological symptoms referable to the bladder or bowel. Ongoing treatment with Panadol (predominantly for headaches). Codalgin Forte only when he has extreme pain (3 occasions over the last month). However the use of Codalgin Forte is associated with indigestion.
4.When considering the incident, Mr Liberta's diagnosis and current symptoms, do you consider he sustained a soft tissue injury and any injury of this nature has fully resolved, that is, do you consider Mr Liberta has recovered from any workplace disability/injury as defined pursuant to the Workers Compensation and Injury Management Act 1981 (as amended) arising from the incident on the 30 March 2004? If so, what are the ongoing reasons for Mr Liberta's symptoms?
I am of the opinion the (sic that) Mr Liberta does have pre‑existing degenerative change throughout his thoracolumbar spine. That some of his ongoing symptoms relate to aggravation of previously asymptomatic degenerative change there in the thoracolumbar spine. I however would also comment that I am of the opinion that the severity of the symptoms as described by Mr Liberta in my opinion are out of proportion to the mechanism of injury as described by Mr Liberta. That there are non‑organic features on examination.
5.Detail the treatment Mr Liberta is currently receiving. Do you consider this treatment is reasonable, taking into consideration the workplace incident? If so, what is the expected duration of such intervention? If not, how do you come to this conclusion?
At this stage Mr Liberta indicates that he has ongoing medications in the form of Panadol and Codalgin Forte. He tries to gently exercise at home.
6.In your report date 16 May 2005, you indicated Mr Liberta held the capacity work (sic to work) in a number of occupations.
A.Do you still consider Mr Liberta has the capacity to work full time in the aforementioned occupations?
a. If you do not consider Mr Liberta has the capacity to work full time, please outline what part time hours, Mr Liberta may be able to work per week.
I am of the opinion that Mr Liberta should have the capacity to work full time in the occupation of a building estimator/building contractor, sales assistant (Mr Liberta would have to be careful of repetitive bending and/or heavy lifting), stock purchasing clerk, spare parts interpreter/automotive parts interpreter.
B.You will recall Mr Liberta was participating in a return to work program under the guide of APM at Bunnings in Rockingham, were at its peak, Mr Liberta was working 40 hours per week.
(a)Do you consider Mr Liberta has the capacity to work in this occupation full time?
Yes.
(b) If you do not consider Mr Liberta has the capacity to work full time in this occupation, please outline the part time hours, which would be appropriate per week.
7.We understand Mr Liberta is currently applying for work. Please detail what efforts he has made to date. Identify what occupations in which organizations he has applied. Do you consider Mr Liberta has the full time capacity to work gainfully in any or all of these occupations?
(a)Do you consider Mr Liberta has the capacity to work full time in these occupation? If so, please detail;
(b)If you do not consider Mr Liberta has the capacity to work full time, do you consider he has the capacity to work part time? If so, detail the number of hours he could work per week.
It is my understanding that Mr Liberta has been seeking employment through the CRS.
8.Do you consider Mr Liberta has the capacity to return to an occupation similar to that which he held at the time of the alleged incident (Maintenance Worker)?
I would avoid returning to work as a maintenance worker as there are pre‑existing degenerative change throughout the thoracolumbar spine. Further "insult" to this area may lead to increased pain.
9.Do you consider Mr Liberta has the capacity to work as a tiler?
No.
10.Do you consider that Mr Liberta has the capacity to work as a Driveway Attendant at a petrol station?
Yes.
11.In your opinion, are there any barriers not related to the alleged workplace disability, which are preventing Mr Liberta from returning to work? If so, please detail these.
As previously explained I feel there are features of inappropriate pain behaviour from Mr Liberta. His degree of pain symptomatology as described by Mr Liberta in my opinion is out of proportion to the mechanism of injury. He does have non‑organic signs on examination."
Geoffrey James Gee
Geoffrey James Gee is a specialist in pain management. He stated that he saw the plaintiff on referral from Mr McCloskey. He produced reports dated 14 October 2004 and 18 January 2006. In his report of 18 January 2006 he noted that the plaintiff's then current clinical examination was accentuated by many behavioural features including grimacing, verbalisation and rubbing of his back. He described the verbalisation as being grunting and groaning and giving an indication that he was experiencing pain.
In relation to radiology and scans he noted in his report that:
"I reviewed his most recent scans. His MRI scan of his thoracic and lumbar spine demonstrates degenerative changes with no evidence of fractures, disc protrusions or nerve entrapment."
In his evidence he said he was there referring to changes in the lower thoracic area particularly at T12‑L1 or T11‑12.
When dealing with symptoms and prognosis in the same report he said:
"I do not believe that his current symptoms are wholly attributable to the workplace incident of 30 March 2004. I accept there is probably an injury process to his 12th thoracic vertebra but this appears to have healed on the evidence from both his MRI scan and his most recent bone scan.
I believe that Mr Liberta's current clinical and radiological investigations indicate that Mr Liberta's injuries have fully resolved."
In relation to employment he opined:
"I believe that Mr Liberta has the capacity to work full‑time in all of these occupations. I have indicated that I believe that he has the capacity to work as a building estimator, building contractor, sales assistant, stock purchasing clerk and a spare parts interpreter/automotive parts interpreter… 'I can see n reason why Mr Liberta could not undertake full‑time work in these occupations."
He stated that he considered that based on his clinical assessment of the plaintiff and his most recent radiological investigations, the plaintiff had the capacity to return to his pre‑accident duties as a maintenance worker.
Whilst Dr Gee accepted that the plaintiff had fractured his vertebrae he stated that based on the evidence from both the MRI scan and the most recent bone scan the fracture had healed.
John Richard Suthers
John Richard Suthers is a specialist occupational physician and saw the plaintiff on two occasions at the request of the defendant's solicitors. He subsequently prepared three reports dated 1 October 2004, 13 December 2004 and 27 October 2005.
Mr Suthers stated that when he first saw the plaintiff on 1 October he noted that the plaintiff was currently experiencing:
·Constant electric shock of a tingling nature at about the level of T12 indicating the mid thoracic region.
·Constant right loin pain which is typically around about 3‑4/10 but on exacerbations can flare up to 8/10. He has not had it at this level now for a couple of weeks.
·Left sided tenderness from L1 to L5.
In his report he noted: "Clearly Mr Liberta has some underlying degenerative changes that pre‑existed this injury." In his evidence he stated the degenerative changes were those seen on x‑ray, ie either Scheuermann's disease or to a lesser extent degenerative change in the lumbar spine. He stated that in his view the Scheuermann's disease was longstanding and unrelated to his ongoing symptoms. He was asked about Scheuermann's disease in examination‑in‑chief and the following exchange occurred:
"Just in relation to that paragraph, you say, Mr Suthers the Scheuermann's disease is longstanding and unrelated to his ongoing symptoms. Do you mean to convey by that that the Scheuermann's has no impact upon his present condition? Is that what you're saying?‑‑‑Your Honour, what I had in mind there was that the Scheuermann's is – has been there for a long time and that I was unable to explain his ongoing symptoms on the basis of the Scheuermann's disease alone. I thought there were other more plausible explanations for his ongoing symptoms."
He stated that in his view the plaintiff probably sustained a soft tissue injury from the incident of March 2004. As to the plaintiff's condition it was the evidence of Mr Suthers that the plaintiff had recovered fully from that injury and any ongoing pain related to the underlying degenerative processes at multi‑levels or the non‑organic features. He stated that in his view there were quite strong features of non‑organic pain.
Mr Suthers stated that the plaintiff is perceiving pain but his behaviour and reaction to that does not meet the accepted findings, either clinically or radiologically.
Mr Suthers stated that it was his opinion that the plaintiff's prognosis was good and that in the fullness of time he should make a full recovery. He stated that the plaintiff does have degenerative changes but nothing particularly untoward to limit his long‑term options and there was, in his view, no identifiable acute pathology from the incident.
Corina Eileen Della‑Posta
Corina Eileen Della‑Posta provided a report dated 3 July 2006. She had not seen the plaintiff but stated that she considered that the plaintiff had the necessary skills to do a number of occupations ranging from ceramic tiler to cleaner. When asked about the plaintiff's skills to work as a building estimator or spare parts interviewer, she agreed that a full vocational assessment was required before she could determine suitability for those occupations.
Principles applicable to employer’s liability
The duty of an employer is to take reasonable care to avoid exposing its employees to unnecessary risk of injury (Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307‑8; Hamilton v Nuroof WA Pty Ltd (1956) 96 CLR 18 at 25). The employer is not the insurer of the safety of the employee and the duty is not an absolute one (Bankstown Foundry Pty Ltd v Braistina (supra) at 307 and 314).
In order to establish liability there are four elements which need to be proved:
"1.That there was a risk of injury which was reasonably foreseeable. (The foreseeability issue).
2.That there were reasonably practicable means of obviating the risk. (The preventability issue).
3.That the employee's injury belonged to the class of injuries to which the risk exposed him. (The causation issue).
4.That the defendant's failure to eliminate the risk showed a want of reasonable care for the employee's safety. (The issue of reasonableness)."
(See Glass, McHugh and Douglas: The Liability of Employers in Damages for Personal Injury (2nd Ed at p14).
In McLean v Tedman (1984) 155 CLR 306 it was made clear that the standard of care expected of a reasonable man required him to take account of the possibility of inadvertent and negligent conduct on the part of others, and so also, an employer is required to take account of such a possibility in the conduct of his employees. At p312 it was said that:
"The employer's obligations in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle, the employer is bound to take care to avoid such a risk. ... The employer's obligation is not merely to provide a safe system of work: it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ... and in deciding whether an employer has discharged his common law duty to his employee, the court must take account of the power of an employer to prescribe, warn, command and enforce obedience to his commands."
The failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. Tame v New South Wales (2002) 211 CLR 317 at [98]‑[99] per McHugh J.
In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason J at p 47 considered the question of whether a defendant had breached its duty of care and said:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the person. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the Tribunal of Fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable but, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors."
In March v Stramare (1991) 171 CLR 506 at 622 Deane J said:
"For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it."
Findings
I prefer the evidence of Mr Neil to that of the plaintiff and Ms Jones. He gave his evidence in a straightforward manner. His evidence was logical and consistent. I formed the view he was doing his best to give evidence as to what he could recall and was being entirely truthful. I concluded he was a down‑to‑earth, level‑headed and sensible person. I find that he had planks at his home which had been used to stabilize his caravan, and that these were left over from his scaffolding business. I find it was these planks which he made available for use by the defendant and its employees to load and unload the lawnmower. Mr Neil's evidence as to the availability for use of two planks is supported by the evidence of Ms Hurst.
Counsel for the plaintiff submitted that Mr Neil's evidence should not be accepted. Reference was made to discussions involving Ms Hurst. I do not accept that that affects his credibility or reliability. Reference was also made to the video of the plaintiff's replacement showing the use of a single plank to unload a lawnmower. I have carefully considered that evidence and it does not cause me to doubt the credibility and reliability of what Mr Neil told me. There was no evidence that he was in attendance on the occasion depicted on the video when the person shown was unloading the lawnmower using a single plank. There was no evidence that Mr Neil saw the incident.
I find that the plaintiff's evidence explaining the inconsistencies in what he told medical practitioners was unconvincing. The plaintiff told Professor Harper who he was seeing for a medical‑legal review that he had not had prior problems with his back. In evidence the plaintiff agreed he had had back problems before 30 March 2004. The plaintiff said he did not mention prior problems because he had recovered. The plaintiff grimaced and sighed excessively in presentation to medical practitioners, including those he was seeing who had been arranged by his own solicitors.
The plaintiff signed an accident report form on 8 June 2004. This was prepared with the assistance of Ms Jones. In that report he described the bodily location of the injury as being "Lower back. Right side." There was no mention of mid back problems. In that same report he noted that he did not seek medical attention immediately because the "pain wasn't severe." In his evidence he told me the pain was severe.
The plaintiff was cross‑examined in relation to his friendship with Ms Jones. He was evasive in his answers. He initially said he did not know her before he had commenced work with the defendant. He subsequently said he met her six months before he commenced employment with the defendant.
The plaintiff was not an impressive witness. I generally am not prepared to accept and rely upon his evidence.
Both Geraldine Jones and Warren Neil could authorise purchases through the petty cash system, however there was no formal system.
Ms Jones in evidence said if she was asked, she would have approved the purchase of a second plank. There is no reason why the plaintiff would have been reluctant to ask Ms Jones for petty cash to purchase a plank if indeed there was only one plank available for use.
I generally do not accept that Ms Jones' evidence can be relied upon. She said that there was only one plank used after the accident. The preponderance of evidence, including that of the plaintiff, was that that was not the case. The impression I formed of her evidence was that she was prepared to assist the plaintiff wherever possible. This in my view affected her objectivity and the reliability of her evidence.
I find that when the defendant decided to commence doing lawnmowing on its investment properties it acquired the necessary equipment at a cost of just over $5,000. I do not accept that in the circumstances Mr Neil would not have responded to the request for a second plank to be purchased.
The evidence of Mr Neil which I accept was that he instructed the plaintiff to use two planks to load and unload and that these planks were available for use by the plaintiff. These were planks supplied by Mr Neil. The plaintiff's evidence and submission at trial was that there was only one plank available for use. I am not satisfied that that was the case. I prefer, as I have said, the evidence of Mr Neil to that of the plaintiff and Ms Jones.
I accept, as the defendant has admitted that the plaintiff did injure his back on 30 March 2004. However, I do not accept the plaintiff's description as to how the accident of 30 March 2004 occurred.
Was the defendant in breach of duty
The plaintiff's pleaded description of the accident was that he was using a single plank to unload the lawnmower. It is pleaded that the lawnmower began falling and the plaintiff attempted to arrest the falling by pulling it back towards his right and pushing it back up the plank.
Particulars 7.1 and 7.3 (before being deleted) when read with the plaintiff's pleaded description of the accident suggest that the principal allegation of negligence was the use of a single wooden plank to unload this lawnmower. The claim was not so limited at trial.
Particular 7.2, namely that there was a breach of duty in failing to install a wide ramp to the rear of the trailer was also relied upon. It was submitted that this was a reasonable and practicable alternative that should have been adopted. In not adopting that system the plaintiff contends there was a breach of duty.
The plaintiff's case is that the width of the ramp created by a single plank was inadequate. This was accepted by the defendant. However the defendant's case is that the two plank system was adequate.
The plaintiff relied upon the expert evidence of Dr Chew. In his opinion one modification is to have attachment points at the rear of the trailer to enable a stable ramp to be affixed. However, I find that the attachment of the planks to the trailer was not in any way a cause of the accident. The plaintiff did not give evidence that movement of the plank caused or contributed to the lawnmower falling. What the plaintiff said in evidence was that the lawnmower started falling to the left side. There was no evidence as to any movement of the plank.
Dr Chew was not specific as to the actual width of the ramp required and did not give evidence as to the type of material which could be used in the construction of the ramp used. He had not seen a system which did not use planks.
Dr Chew's evidence was that he had commonly seen the two plank system utilised. His evidence in relation to the two plank system was that its use would not obviate the risk. An employer's obligation does not require an elimination of all risk. What an employer must do is to take reasonable care. In this case I am satisfied that the defendant did take reasonable care. It had a proper system in place which enabled the loading and unloading of the lawnmower by use of two planks. I am satisfied based on Mr Neil's evidence that there were two planks available for use by the plaintiff.
Dr Chew was of the opinion that the use of two single planks placed beside each other would have reduced the risk of the lawnmower running off the side of the ramp when it was being removed from the trailer using the method described by the plaintiff. He did not further expand upon his view as to the two ramp system either in his report or in evidence.
I am satisfied that the two plank system used by the defendant was an adequate system.
I am not satisfied on the evidence of Dr Chew that the use of a single ramp would have been reasonably practicable in the circumstances. There was no evidence as to the cost of such a ramp. There was no evidence as to the degree of difficulty and inconvenience in using such a ramp. The lawnmowing in this case was to be performed by the employee. There was no evidence one employee could handle and use such a ramp. There was no evidence as to its dimensions, weight or construction material.
Particulars 7.1 and 7.2 are not established.
There was insufficient evidence to support the proof of pleaded particulars 7.4 or 7.5. The plaintiff's evidence was that if the planks were available he would have used them. Accordingly, there is no proof of a failure to supervise.
I do not accept that there were verbal complaints as alleged by the plaintiff. In this regard I rely upon and I refer to the evidence of Mr Neil. Particular 7.6 is not made out.
I am not satisfied any of the particulars of negligence have been made out. The plaintiff has not established any of the alleged breaches. The claims for breach of statutory duty and contract, reliant as they are upon the same allegations as for the claim in negligence, are dismissed.
Provisional assessment of damages
I have determined that the plaintiff's claim should be dismissed. I do however propose to provisionally assess damages.
The plaintiff was 37 years of age at the time of the accident. I accept that prior to 30 March 2004 the plaintiff was working on a full‑time basis for the defendant as a maintenance man. This work was manual in nature.
The conclusions of the medical practitioners who saw the plaintiff regarding diagnosis and prognosis, were necessarily dependent upon the plaintiff's history and complaints. The history obtained was in most cases inaccurate as the plaintiff did not disclose prior back problems. Because of the view I have formed of the plaintiff's evidence his history and complaints were an unsatisfactory basis for medical assessment.
Whilst the statement of claim alleged a "suspected" fracture of the T11‑T12 vertebrae, at trial the plaintiff asserted that there was a fracture sustained on 30 March 2004.
The defendant admits that the plaintiff was injured on 30 March 2004. The defence pleads that the injury was an injury to the back and to the thoraco lumbar spine.
I do not accept the plaintiff's evidence as to the degree of his incapacity or that he is disabled to the extent alleged by him. By 19 April 2004 he was able to resume light duties with the defendant. He was involved in a work trial for about six months.
I do not accept that the plaintiff suffered a fracture of the T12 vertebra on 30 March 2004. I rely in this regard upon the opinion of Mr McCloskey the orthopaedic surgeon. Mr McCloskey had first seen the plaintiff in June 2004 on referral from the plaintiff's general practitioner. I prefer his opinion in this matter. In my view, given the nature of the injuries alleged, he was the one most qualified to express views as to the plaintiff's condition. He was the first specialist to see the plaintiff. He saw the plaintiff on four occasions. He accepted that the question of Scheuermann's disorder was contentious within the orthopaedic community. I accept his view that a fracture to T11‑T12 will heal over in a few months with no long term disability.
I accept, based upon Mr McCloskey's evidence, that the plaintiff aggravated degenerative changes in his spine on 30 March 2004. Dr Lacey considered the accident accelerated regenerative and arthritic changes in the thoracic spine. There was no evidence of sufficient precision to enable a finding to be made as to when the plaintiff's degenerative changes would have become symptomatic but for some trauma. There was however a possibility that they would occur. In saying that, I am mindful that degenerative changes may remain asymptomatic throughout a person's life.
After the accident on 30 March 2004 the plaintiff was able to continue working until 8 April 2004 when his back pain became worse. He was off work from that date until 19 April 2004 when he resumed employment with the defendant on light duties.
I accept that the degenerative changes in the plaintiff's spine did not preclude him from engaging in full‑time employment prior to 30 March 2004.
There was extensive video surveillance evidence produced at trial taken over long periods of time showing the plaintiff undertaking a range of activities including walking, sitting and standing.
The plaintiff had some physiotherapy treatment arranged by his general practitioner. He was prescribed medication and continues to take painkillers.
There was no agreement or determination recorded for the purposes of s 93E of the Workers' Compensation and Rehabilitation Act 1981 (WA) that the plaintiff’s degree of disability was not less than 30 per cent. Consequently s 93F(1) of that Act applied. That section provides:
"(1) Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E ‑
(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."
As at the 1 July 2006 "Amount A" was $ 319,349.
In Murray River North Pty Ltd v Midgley [2006] WASCA 104 (12 June 2006) Pullin JA (Wheeler JA agreeing) outlined the proper construction of s 93F and the method of application of the section. From his Honour's reasons the following principles emerge:
1.The amount of damages to be awarded is to be a proportion of the maximum amount that may be awarded.
2.The proportion is to be determined according to the severity of 'the' disability. The use of the definite article in s 93F(1)(a) means that it is necessary to concentrate on the particular disability in question.
3.The maximum amount which may be awarded is only to be awarded in a most extreme case of 'a' disability of less than 30 per cent in degree. The use of the indefinite article 'a' potentially requires consideration to be given to many disabilities of less than 30 per cent in degree.
4The amount of damages to be awarded will be affected by both the severity of the particular disability and the whole category of most extreme cases of disabilities of less than 30 per cent in degree.
5.Economic loss suffered by the worker is relevant but not determinative. It is just one factor to be taken into account.
6.Factors, such as the impact of the disability on the ordinary activities of life, such as sporting activities, will be relevant. The pain and suffering experienced will often restrict a person's capacity to carry out tasks, and so pain and suffering may be a relevant factor. The Court will weigh up all those factors and make a determination about the severity of the disability.
7.The amount of damages which might have been awarded at common law is merely one indicator of the extent of disability. It will not be the determining factor because damages are calculated by reference to both transient and permanent effects of an injury."
The plaintiff suffered some pain and discomfort as a result of the accident on 30 March 2004. This had an effect on his enjoyment of life. He has, as Mr McCloskey has said, the capacity to work full‑time in a range of occupations but there are restrictions in the form of a requirement to carry out sedentary and light duties. He ceased his work trial with Bunnings in 2005 for legal reasons. He also referred to problems with coping with the work required but I was not convinced this was the case. Having regard to the severity of the disability, I determine that the applicable proportion is 25 per cent of a most extreme case.
On this basis the plaintiff's damages would have been assessed at $79,837.
Conclusion
The plaintiff's claim is dismissed.
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