Maynard v Rover Mowers Ltd
[1999] QSC 14
•3 February 1999
THE SUPREME COURT
OF QUEENSLAND
No. 4509 of 1996
BrisbaneBefore White J
[Maynard v Rover Mowers Ltd]
BETWEEN:
IAN RAYMOND MAYNARD
Plaintiff
AND:
ROVER MOWERS LIMITED (ACN 000 257 303)
Defendant
CATCHWORDS: Personal injury - where sustained - safe system at work - taking mower discs from paint line - damages - likely future employment prior to injury.
Counsel:Mr S Di Carlo for the plaintiff.
Mr W Campbell for the defendant.
Solicitors:Baker Johnson for the plaintiff.
C A Sciacca & Associates for the defendant.
Hearing Dates: 16-20 March 1997.
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 3 February 1999
The Plaintiff claims damages for personal injury allegedly sustained when employed by the defendant on 27 March 1992 in factory premises at Eagle Farm. Both liability and quantum are in issue. The plaintiff alleges that he sustained injury to his back when he was unloading a number of recently painted motor mower disks from hooks suspended on a moving line. The defendant maintains that the plaintiff did not sustain his injury in the workplace but in the course of some private pursuit. Even if the injury did occur at work, the defendant contends that it was not as a consequence of any fault on its part.
There are differences in the approach which each party contends should be taken to the plaintiff’s losses, particularly the use which he might have made of his earning capacity had he not been injured. It is not suggested by the defendant that he has not had serious problems with his back dating from the end of March 1992 culminating in a number of surgical procedures and that he continues to experience pain and discomfort in both his thoracic and lumber spine.
Liability
BackgroundThe plaintiff was born on 29 October 1951 in New Zealand. He came to Sydney to live and work as a young adult in the butchery business and moved to Queensland in the early 1980s. He married his present wife in 1985 and lived in Esk where he now resides. He has 3 sons, now adults, from his first marriage and a stepson. He owned a house in Esk which he renovated with assistance from his wife and friends and which was rented out from time to time. The family lived in other accommodation in the area. He had had a variety of occupations but in recent years had been a real estate and car salesman, picked crops for local farmers, worked on his Harley Davidson motorcycle and, from time to time, engaged in something of a quid pro quo lifestyle with acquaintances and friends in the Esk area. His wife had been employed in Ipswich. As a consequence of strains on the marriage, his wife had left the home in Esk and moved to a rural property in the district. The plaintiff came to Brisbane for work in mid 1991 and lived in a house at Eagle Farm with his stepson and others from time to time.
He obtained work as a casual labourer in the defendant’s factory on 5 August 1991. It was his practice to go home to Esk for the weekend after work on Friday to see his son who lived with his wife and return on Sunday or Monday morning in time for work which commenced at 7 a.m. He worked in the press shop during his first period of employment with the defendant, which concluded on 20 December 1991. The work at the defendant’s premises was seasonal with the busiest periods being spring and summer. The practice was to employ a core of permanent people supplemented by casual employees who were terminated just before Christmas. Casuals were again employed in early January and would be terminated by about Easter or early April.
The Plaintiff’s Employment on 27 March 1992
The plaintiff was re-engaged on 10 January 1992 and terminated on 2 April along with some 10 to 20 other casual employees. There is some disagreement as to where the plaintiff was generally deployed during this second period although there is no dispute that if he was injured at work it occurred on the paint line. I accept that for the most part the plaintiff worked on the paint line unloading painted parts during this second period. He was described by David Roden, who was the leading hand on the paint line, as a good, quick worker whom he was pleased to have working there.
The plaintiff said at the outset of his evidence that he was “no good” with dates, but could remember events. But as the trial proceeded it became apparent that his recollection of events was also flawed.
The emergence of the detail of the plaintiff’s account of what occurred when he was allegedly injured is of some significance. The plaintiff gave evidence at trial that on the day in question he had removed 9 large (340mm diameter) mower discs from the paint line with his right hand transferring each into his left hand. He was bent over, as depicted in photographs 9 and 10 in the report of Geoff McDonald (exhibit 53) having collected all the discs and then twisted and swerved to avoid colliding with a yellow post which supported the chain line (the posts can be seen in the sketch, exhibit 32 and some of the photographs). He then experienced severe pain in his thoracic spine such that he dropped the discs and staggered for support to a wall. This occurred about 15 minutes before the end of the shift at 3.30 p.m. The pain gradually radiated into his lumbar spine. For the first time at the trial he mentioned a fellow casual, a South American whose full name he did not know, also working on the paint line, who saw him immediately following the incident. He was not called to give evidence since insufficient was known about him for the defendant to locate him and the plaintiff had not earlier mentioned this possible witness to his legal advisers. The plaintiff had not made a claim for compensation until some 5 months after the event and said he did not consider the man as a “witness” and therefore wrote “Nil” in the part of the form relating to witnesses.
The plaintiff maintained throughout the trial that after a weekend of intense back pain he came to work on the Monday and Tuesday following, and finally had to ask for light duties on the Wednesday. It seems plain that the plaintiff did not come to work or ring in his excuses on those days. David Roden, when pressed by Mr Di Carlo who appeared for the plaintiff, said that there were 3 rumours in the workplace on Monday to explain the plaintiff’s non attendance, namely, that there had been a big party of motorcycle enthusiasts at Esk at the weekend and its effects were detaining the plaintiff; or that he had injured his back taking a motor out of a car; or that he had hurt his back digging fence post holes. These rumours, together with the failure to make a Workers’ Compensation claim until August 1992 caused the defendant to be suspicious of the claim that the injury was work related.
There does, however, appear to be a reasonable body of evidence to link the onset of the plaintiff’s severe back pain with the afternoon of Friday, 27 March 1992 at work. John Bonwick, a fellow employee and social acquaintance of the plaintiff said that he met the plaintiff at the clock-off point at work and the plaintiff complained that he had injured his back at work. Mr Bonwick said that the plaintiff looked to be in pain and said that he could not drive his car home. Mr Bonwick offered him a lift but he declined because it was uncomfortable to sit in a car. The plaintiff gave him the impression that he would walk home and, indeed, that was the plaintiff’s own evidence.
A joint birthday celebration had been planned for the plaintiff’s wife and her son, Shane, for the weekend of the 28/29 March at Esk to include the sons, their girlfriends and the plaintiff. The plaintiff telephoned his wife on Friday evening to say he would be unable to travel to Esk. Shane Carrington and his girlfriend stayed in the house at Mordant Street to look after the plaintiff and the party was cancelled. They recalled him being quite disabled because of his sore back and unable to get around. Neither Shane nor his girlfriend could recall whether the plaintiff was at work on Monday or Tuesday and agreed that until the evidence to the contrary had emerged in the trial, they had accepted that the plaintiff was indeed at work which was the plaintiff’s own strongly held view.
The plaintiff first approached the Workers’ Compensation Board to make a claim in Ipswich on 20 August 1992. He had seen Dr Leigh Atkinson, neurosurgeon, on referral from Dr S H Andrew in August who had raised the question of how the plaintiff was to pay for the proposed operation on his back and mentioned making a claim. The plaintiff was unsure of the date of his injury but after discussion with his wife and consulting diaries settled on 3 April 1992 - a week later than the actual date - and wrote on the claim form and in his statement that he returned to work on 6 April, the following Monday. Although the plaintiff corrected the date to 27 March in his statement to the Workers’ Compensation Board of 3 November 1992, nonetheless he still wrote that he reported the injury “first thing” on the following Monday morning to Eileen Facey, a clerical employee who was the trained first aid officer with the defendant.
Mr Tony Zandegiacomo, the manufacturing manager for the defendant, wrote a letter concerning the incident which was subsequently discovered in these proceedings in which he stated that the plaintiff returned to work on Monday, 1 April 1992. This was an error as Monday was 30 March. There is something in Mr Campbell’s submission that no doubt the plaintiff examined this document which aided, so he thought, his recollection that he returned to work on Monday.
Mr Roden recalled handing the plaintiff an “application for leave” form for the purposes of pay when he came to work on Wednesday, 1 April. It was a retrospective application and notes the first day of absence as 30 March and the date of return to work as 1 April. The reason for leave was described as a sore back. The form was filled out by the plaintiff (exhibit 25). Mr Roden specifically recalled the plaintiff not being at work on Monday and Tuesday because he was inconvenienced by his absence in the paint line, and recalled the rumours to which I have referred. Mr Roden asked the plaintiff whether he was well enough to continue with his duties on the paint line and he said that he was but by 11.30 a.m. complained of discomfort and was sent to see the first aid officer, Mrs Facey. She talked to the plaintiff for about 15 minutes to establish the level of his disability and how his injury had occurred. I accept that the plaintiff told her that he was not sure how the injury occurred and that it might have been caused by collecting discs from the paint jig or from digging fence post holes. Mrs Facey settled with the plaintiff what was to appear on the Workers’ Compensation Board Form 7 as follows:
“Worker has a sore back which he thinks has been caused by collecting discs from the paint jig, actually unsure how it was sustained.” (Exhibit 56)
The form is signed by the plaintiff. On the register of all injuries (exhibit 57) Mrs Facey wrote “collecting disc for [sic] paint jig” under the heading “How was injury sustained?”.
The plaintiff was laid off work on the Thursday and a few days later was driven back to Esk. The plaintiff (and his wife) said that he was severely disabled with back pain but did not seek medical attention immediately hoping that rest would be sufficient. However on about 14 April he collapsed on getting out of bed and was taken by ambulance to Esk. He consulted with Dr T Fitzgerald who admitted him to hospital for bed rest. The plaintiff told Dr Fitzgerald that he had injured himself at work. Although the defendant did not abandon its stance that the plaintiff had not discharged the onus that his injury occurred at work, it was not able to shake the plaintiff’s witnesses on essential matters in respect of an apparent back disability on Friday afternoon of 27 March 1991.
I am satisfied that the injury of which the plaintiff now complains became symptomatic whilst he was working at the defendant’s premises on Friday, 27 March 1992.
The Paint Line System
There was considerable controversy as to what system operated for clearing the large mower discs from the paint line and how the plaintiff performed that task.
Mr Roden had been employed by the defendant including his apprenticeship years for 14 years with a short break in employment. From 1986 to 1994 when he left to take up new employment he had been the leading hand on the paint line. He impressed as a conscientious employee and a careful witness. He had made changes to the paint line process particularly the way in which parts were stored after removal from the line which included a concern for worker safety. He appeared to be familiar with the system on the paint line and the changes that had occurred from time to time, but where he could not remember when changes were introduced said so. Where his recollection differed from other witnesses especially the plaintiff and Mr Miles, a fellow employee, I preferred Mr Roden’s evidence. As mentioned, the plaintiff gave accounts of how he carried out his task which, he says, led to his injury which tended to add more details as time passed. Although the plaintiff had a very likeable personality and more likely than not was sincere when he gave his evidence, in my view he has tended to reconstruct the work system and in particular the events of Friday afternoon which, in some respects are unlikely to have been as he described.
The defendant manufactured lawn mowers of different sizes at its premises. Parts to be painted were loaded on to hooks or frames or jigs which were suspended from an overhead conveyor system. The jigs from which the parts to be painted were hung were permanently positioned and were of different designs depending upon what parts were to be painted. Each jig was spaced about 4 feet apart. The conveyor passed through a powder paint room and then into an oven where the powder was baked on to the parts. The parts were then removed from the hooks or jigs and stacked on to trolleys or put into baskets or crates. The whole process from loading to unloading took 2 hours.
In March 1992 the large discs which the plaintiff says he was unloading at the time he was injured were hung from long hooks suspended from a horizontal bar in 3 rows of 3 discs. Each disc weighted approximately 1.8 kilograms. The smaller discs which then would be hung in a group of 12 were for a smaller mower. At one stage the plaintiff suggested that he had removed 12 discs, but not, it seems, of the smaller type. The arrangements for the discs can be seen in exhibits 35 and 36. The production of the large disc was about 50 or less per day in March/April 1992. Part of Mr Roden’s job was to program the number of different parts to be painted for the number of mowers to be assembled. Mr Roden would direct one Col Naylor (deceased), his second in command, as to the description and number of each part to be loaded. Mr Naylor always loaded and had another man to work with him. Mr Roden estimated that the configuration of the conveyor system was such that the loaders and unloaders were about 2 metres apart on opposite sides of the floor.
According to Mr Roden as at March 1992 a person unloading the large discs would place them into wire baskets on mobile trolleys or alternatively put them directly on top of a trolley. This latter method had some safety implications which will be mentioned later. When filled, the trolley would be wheeled to a double stacked pallet (the lower pallet constituting the base) which was the same height as the trolley (exhibit 35). The pallet had a removable front gate through which the baskets could be slid sideways from the trolley. Four baskets fitted into a pallet. There were 4 trolleys on the paint line at that time, 2 for the loaders and 2 for the unloaders, although both Mr P Miles, an occasional worker on the paint line, and the plaintiff said that at the time there were insufficient trolleys for their needs.
When Mr Roden first came to the paint line in about 1986 or so the large discs were put into pallets on the ground. Moving them proved very difficult for the operator of the fork lift who had to use a large grappling hook to drag the loaded pallet manually across the floor to the machine. Mr Roden and the man in charge of moving the pallets devised the system of the baskets sliding from the trolley into the double stacked pallets which could be removed more easily. Mr Roden was adamant that the system of placing the large discs into baskets or pallets on the ground had long gone by the time the plaintiff worked on the paint line. Mr Roden said that if too many discs were stacked on top of a trolley, as opposed to being placed into a basket on the trolley, a safety issue arose because the discs tended to slide off and might cause injury to a person nearby. Mr Roden said that if he saw that occurring he would stop the worker carrying out his task in that fashion. I infer from his evidence (particularly at t/s 411.l.20) that Col Naylor, as second in command, who could see the unloaders would also do so, or at least report it to Mr Roden.
At some time, more probably than not after the plaintiff left the defendant’s employment, Mr Roden devised a system of removable lugs welded on to the top of the trolleys which allowed the unloaders to stack the discs on to the trolley top without risk of them sliding off. This did away with the need for wire baskets, pallets, and fork lift handling and the trolley could be wheeled directly to the assemblers, a process which had not occurred previously. It was also part of a more wide ranging revision of the parts system which Mr Roden devised as part of a team in the factory (the “canban” system).
Mr Roden said that the unloaders would generally take 20 to 30 seconds to unload 9 large discs from the hooks, 3 or 4 at a time starting from the top and would place them in the wire basket or on top of the trolley and would push the trolley along to keep pace with the line if necessary and remove the next lot of discs. He said that he had never seen anyone, including the plaintiff, take all 9 off the hooks by transferring them from one hand to the other before putting them on the trolley.
He had no experience of the yellow poles which support the conveyor line and which are clearly to be seen in numbers of the photographs, causing any difficulty for anyone working on the paint line and he had never heard of any problem. He doubted that there would be any need to move suddenly to avoid a pole when unloading because of the speed of the conveyor line and had not heard of such a difficulty. It is now necessary to consider the plaintiff’s description of the system.
The plaintiff said that he was being trained in the welding bay at the defendant’s factory and was called across to the paint line to help unload a backlog of parts just before the end of the day. Mr Roden recalled that the plaintiff was working for him full time on the paint line, at least from some time in his second period of employment with the defendant, that is between 10 January and 2 April 1992. Mr Roden was puzzled at the suggestion that the plaintiff was being taught to weld in the welding bay as part of his employment duties since the plaintiff was not a welder and the bay had only skilled welders and one labourer who ground off the welds to improve the appearance of the parts. The plaintiff said that when he got to the paint line there were already two men working unloading but because of the speed of the line and the backlog of parts he was needed to help. The plaintiff estimated that the line moved at a speed of between 3 and 5 km per hour. This seems a wholly unlikely estimate of the speed. Mr Roden said that it was “highly unlikely” that a third person would have been required to unload on a Friday afternoon particularly in view of the speed of the line which was set at 6 feet per minute. Mr Roden was in charge of setting the speed on the line. According to him the only occasion when more than two men were needed to unload was on some Saturdays when a lot of small parts were run on the line and there would be three or four men unloading the parts and throwing them into a basket. The line would then go up to a maximum of about 8 feet a minute. The speed of the line is of considerable significance since the plaintiff’s case is that because the line was going so quickly there was no opportunity for him as unloader to take the discs off in small numbers and place them in a waist high trolley. Instead he said he needed to remove all the discs and move quickly to place them in a large basket on the ground. It was part of this process of requiring him to move very quickly which the plaintiff says brought him into near collision with the yellow post so that he had to twist in an awkward fashion to avoid it whilst carrying the discs in his left hand and so causing his back injury.
A video was taken of the paint line (exhibit 62) about a week before the trial. It showed Mr Zandegiacomo and another clerical employee removing discs from the paint line and stacking them on a trolley. The plaintiff and Mr Miles said that they had never seen the line moving so slowly. It was quite clear that it was a speed which enabled those clearing the discs, albeit a different hanging system from that which was in existence in March 1992, with comfort. Mr Roden seemed to suggest that the line looked as though it was going slowly and although he did not say in so many words, implied that things could be deceptive on video. What is important is that the actual speed at which he set the line as a matter of course is nowhere near the speed which was estimated by the plaintiff and which was the basis upon which Dr I Low, a specialist in occupational medicine, based his opinion. Further, Mr Geoff McDonald, an engineer who routinely investigates workplace incidents, attended at the premises of the defendant in the course of a normal working day accompanied by the plaintiff. He took a number of photographs, including a demonstration by the plaintiff of how he carried out the task but observed of the paint line:
“The conveyor system was observed to be travelling at a relatively slow speed, equivalent to a very slow walking speed, or probably slower than a slow walking speed.” (Exhibit 53 p.2).
Mr McDonald gave evidence by telephone link and was unable, therefore, to be shown the video. However, when asked by Mr Di Carlo, he said that his recollection of the speed of the conveyor belt on the day that he was there was that it was fairly slow, slower than walking pace, (t/s 198). The plaintiff had instructed Mr McDonald that he estimated that he would take 12 discs off the frame in about 10 to 15 seconds. Mr McDonald said that this was a somewhat ambitious estimate and agreed with Mr Campbell’s calculation that at the speed of the line which he had observed, in 10 to 15 seconds the line would move a matter of a yard or two.
It appears that initially the plaintiff instructed that he removed some 12 discs from the hooks and had either transferred the twelfth to his left hand or was about to do so when he twisted and turned and sustained his injury. This appeared in the further and better particulars dated 15 June 1994 where each disc was said to weigh 1.8 kilograms and that the plaintiff was “expected to carry 12 discs at a time, weighting a total of 21.6 kgs”. In the letter of instructions dated 4 August 1993 to Dr Low, the plaintiff’s solicitors stated that the plaintiff had taken off between 9 and 12 discs but qualified this by saying “he thinks it may have only been 9 - he is not sure” each of which weighted approximately 2.5 kgs. As late as 1997 when Mr McDonald was given instructions about the incident the plaintiff told him that he was taking 12 discs from the frame which he identified and which Mr McDonald had measured at 245mm with a weight of 21 kgs. Although the plaintiff’s evidence has by no means been consistent it may be accepted that he was removing the large discs when he felt pain in his back and that they were arranged in 3 rows of 3 discs, each of which weighted 1.8 kgs.
Mr Roden was asked by Mr Di Carlo to mark on the sketch plan, exhibit 32, where the wire baskets shown in exhibit 29 were in relation to the paint line. It was suggested by the plaintiff that he had a practice of placing the discs into those baskets on the ground. Mr Roden did so at t/s 411. l.45 but was quite certain that no discs were put into the baskets shown in the photograph which were for smaller parts. He drew a trolley with a wire basket on top near the paint line to demonstrate what was used to hold the large discs in March 1992.
Mr Roden did not dispute that the plaintiff may have taken off 9 discs at once but his response in cross examination is illuminating:
“MR DI CARLO: He walks up to the line and for the sake of balance, he starts at the top. He starts here, and he takes one disc off and he puts it into his left hand, he takes a second disc off and puts it into his left hand; is that correct? - Yes, Yes, you can do that.
He takes the third disc off and puts it in his left hand? - Yep.
He goes down and takes the fourth disc off and puts it in his left hand? - Why didn’t he put it in the trolley?” (T/s 412.ll.47-60).
Mr Roden further suggested that it was unlikely that the plaintiff would hold all the discs or, at least, not for too long because they were still hot at 60C having come from the oven (t/s 427.l.4).
Whilst accepting the possibility of unloading 9 discs at once Mr Roden was quite clear that the plaintiff would not have been putting the discs into containers however described on the ground, even less using a hook to move them himself as the plaintiff had suggested, since that system had been abandoned well before the plaintiff commenced work on the paint line. In any event, moving the containers along the ground when it had occurred was not the job of an unloader. Mr Roden said that if he were in error recalling when the system described by the plaintiff ceased, he would have stopped the plaintiff doing the task in that fashion because it would have caused “poor old Warren [the worker responsible] some trouble” t/s 415.l.15. A real difficulty for the plaintiff was that he had not visited the factory for many years when he attended with Mr McDonald in 1997. The photographs, in so far as they show the frames upon which the parts were hung, had changed by that time and the racks and storage bays Mr Roden said were quite different from when he was there. I conclude that it is likely that the plaintiff has reconstructed what occurred without any clear recollection of the system and his part in it.
As far as safety training was concerned, Mr Roden said that he was concerned about lifts of heavy parts by the workers on the line. In addition to their general training, which occurred away from the paint line, he directed and showed them how to deal with heavy items such as a mower chassis. He was not concerned about the discs, he said, because they were not heavy at 1.8 kgs each and he had not seen anyone taking more than 3 or 4 from the line at a time.
Mr Peter Miles had worked at the defendant’s premises for nearly 6 years from September 1991 until August 1997. He had helped unloading on the paint line about 6 times for 1 or 2 hours on each occasion during the whole of his employment. He was shown the video where the discs were unloaded one at a time on to a trolley and said that the line appeared to be going much more slowly than he recalled but that the method utilized was one that was in operation when he worked on the line depending upon whether a trolley was available. Mr Miles suggested that in 1992 there were insufficient trolleys available on the paint line because sometimes a trolley would have been wheeled to the assembly line. He said that 4 were needed, 2 for the loaders and 2 for the unloaders. This was also Mr Roden’s evidence but he said that in March 1992 sufficient were available. Where there were insufficient trolleys Mr Miles said that the parts would be carried over and placed in the yellow pallets. Mr Roden suggested that the trolleys were only taken to the assembly line after the new system (the “canban”) adopted after the plaintiff had left was introduced. Mr Miles accepted that it was introduced then. He said that he had seen others unloading more than 3 discs at a time but that he was comfortable only with 3 or 4 and would make a few trips. He did not see anyone stop the unloaders holding more than 3 or 4 discs at a time on the occasions when he was working on the paint line. He was of the view that there could be a build up of parts because the line went too fast.
The plaintiff has been shown to have quite a poor recollection of events involving this incident. Mr Campbell submitted that this includes his recollection of how the incident occurred. Dr Fitzgerald has written that the plaintiff complained of soreness in the lumber region of his back after lifting at work, not in his thoracic spine which he now says was where he immediately felt a sharp pain. He apparently told Dr Fitzgerald this was similar to earlier episodes of pain which he had experienced in his work as a car salesman in Ipswich and when throwing melons on a local farm near Esk. Dr Fitzgerald makes no mention of twisting or avoiding a pole and the plaintiff did not suggest that he had mentioned that to Dr Fitzgerald.
In the Workers’ Compensation Board Form 4 the plaintiff describes that the injury occurred “whilst bending down to pick up discs and experienced severe pain in back resulting in loss of strength” (exhibit 39). In the more detailed statement on the same day he wrote:
“I suffered a lower back injury on Friday 3/4/92 while bending down to pick up steel discs. I do this job numerous times each day. I put the injury down to twisting and lifting.” (Exhibit 40).
On 3 November when correcting the error as to the date in a fresh statement, he wrote:
“I injured my back at Rover Mowers on 27/3/93 and not as shown on my application for compensation. I suffered the injury to my back while picking up disc plates for mowers. I had bent over to pick up a disc and as I picked up the discs, I felt my back go.” (Exhibit 41).
The plaintiff had some photographs taken of the premises and sent under cover of instructions by his solicitors to Dr I Low on 4 August 1993. The weight of each disc as stated is clearly incorrect (2.5 kilos) and, as I have concluded, so is the speed of the line at 3 to 5 kilometres. The instructions were:
“He was still in a bending position moving forward and at the same time turning to avoid the yellow post depicted in the photograph.
Something went in his back, and he has had major complications ever since.”
(Exhibit 60).It is worth noting that in the instructions given to Dr Low the discs were said to be placed on trolleys and not into baskets on the ground.
The plaintiff in his evidence said that he had taken the discs off in this fashion “hundreds of times” previously without mishap. It was his practice to warm up before he started work removing items from the paint line. His wife said that that was his normal practice at home before he did any physical activity and he was clearly proud of his physical prowess prior to his injury. He then engaged in a range of martial arts activities. It was clearly an exaggeration on the plaintiff’s part to say that he had removed the large discs in this way hundreds of times. Even if it be assumed that he is referring to both the large and the small discs the likelihood that the limited period of time during which he worked for the defendant on the paint line together with the production numbers given by Mr Roden would suggest that this could not be so. On the other hand there is no reason to disbelieve the plaintiff that he chose to remove the discs in this fashion.
Dr Low had relied only upon the letter of instruction from the plaintiff’s instructing solicitors when making his report. He had not inspected the premises nor had he interviewed the plaintiff. His observation that twisting actions are particularly hazardous and are often associated with the onset of sudden back pain adds little to what might be regarded as common knowledge. Dr Low gave oral evidence and was shown the photographs included in Mr McDonald’s report of the plaintiff’s re-enactment of the circumstances in which he sustained his injury. Dr Low said that he was influenced in his opinion that taking off 9 or so discs from the jig, putting them into one hand, bending over and avoiding an encounter with the yellow post depicted in photographs 7 and 8 was hazardous was strongly influenced by the speed of the conveyor belt. He was shown the video and thought that it was going very slowly. Although he had not done the calculations himself, from the instructions given to him he accepted that a speed of 3 to 5 kilometres per hour was between 50 and 83 metres per minute and also accepted that if the speed of the conveyor was, as Mr Roden had said, set at between 1.5 and 2 metres per minute that was some 30 to 40 times slower than he had been led to believe. He conceded that he had presumed that the belt was going at a speed which made it difficult for an unloader to keep up. He agreed that if it took an unloader as long as a minute to remove the 9 discs and the conveyor belt was moving at 2 metres per minute then the unloader would only need to travel up to 2 metres to unload. In that circumstance he agreed that the positioning of the yellow posts as indicated on the photographs would not come into play as a hazard for an unloader.
When Mr McDonald prepared his report the plaintiff had instructed that he had removed 12 discs. Those were weighed by Mr McDonald at 21 kgs. His assessment of the risk of spinal damage by reference to acceptable loads published in the occupational health guides of the National Health and Medical Research Council of Australia was based on this figure. Mr McDonald was able to rework his figures in cross-examination on what was now the evidence of the plaintiff that he had removed either 8 or 9 discs from the jig. Mr McDonald identified the major risk as arising when the load, assumed to be 14.4 kgs, was held out from the body in one hand with asymmetric twisting of the spine whilst still in the bent position. Significantly, he said that he would not expect a 40 year old male of average fitness and strength to be injured by a lift of that magnitude. He had concluded his written report as follows:
“The major difficulty with the unloading task came from the stacking of the components into the left hand after they had been unloaded by the right hand.
This work method was necessary because of the speed at which (plaintiff) had to unload. In order to overcome this problem it is desirable to have a trolley on to which the unloading could occur and to organise the work so that there was not the time pressure required for the unloading. This may involve giving a larger distance over which the unloading could occur or slowing down the pace of the chain. While such unloading of multiple components could occur, the use of trolleys to unload on to would simplify the loading involved in the taking of the components from the frames and also in transferring them to their storage areas.” (Exhibit 53 p.8).
That was the system which was, as I have found, in operation on the paint line at the time when the plaintiff was injured. Mr McDonald observed of the yellow post that the unloader might be concentrating on the task of removing the discs and suddenly became aware of the post “in their peripheral vision” and “they can react to that sudden visual presentation rather than the speed of the chain, itself,” (t/s 205.l.50 et seq). He did not suggest that the plaintiff described that as the scenario which confronted him.
I have concluded that the system of work for unloading the large mower discs which was in place at the defendant’s premises in March 1992 and which the unloaders were expected to utilize was safe. The conveyor proceeded at an appropriate pace which allowed the unloader to take off 3 large discs, place them in a nearby trolley (with or without a wire basket), move the trolley along, if necessary, and similarly remove the other discs. The yellow poles holding up the line would constitute no impediment to carrying out this task. If for some reason, a trolley was unavailable for use by the unloader, the double stacked yellow pallets were sufficiently adjacent to the unloading line which, together with the speed of the conveyor, still permitted the unloader to remove the discs 3 at a time and be placed directly into the pallet.
I have accepted that the plaintiff utilised a somewhat different method of unloading discs at least on this occasion, probably on other occasions but not necessarily on every occasion, but I am not persuaded to the necessary degree that the line was passing so quickly that he was compelled to carry out the task in this manner which exposed him to the risk of injury when twisting to avoid one of the yellow poles. The plaintiff asserted that he cleared the discs in 10 to 15 seconds but this is probably an exaggeration although I accept, as Mr Roden said, that the plaintiff was quick at his work. Whilst I accept that the plaintiff experienced a painful episode in his back whilst carrying out the task of unloading, I am not persuaded that this involved twisting to avoid a pole. It occurred more likely that not as the plaintiff wrote on 20 August 1992 when making his application for Workers’ Compensation, namely, that the episode was triggered whilst he was bent over either having completed the removal of the discs or was in the process removing the discs on the bottom row.
The issue then becomes whether, in permitting the plaintiff to carry out the task in this manner, the defendant failed in its obligation to provide a safe system of work for him. I accept that the plaintiff was not observed to be loading the large discs in this fashion by Mr Roden, Mr Naylor or anyone else who would have been concerned or responsible for the safe conduct of the work. It should be remembered that there were many different parts to be unloaded as the photographs make clear. Mr McDonald considered that a single handed load of 14.4 kgs was not unsafe for a fit 40 year old male. Even had he seen him, Mr Roden would not have prevented the plaintiff unloading in this fashion since he was aware of the weight of the discs and did not consider that to do so gave rise to a safety issue. That he was aware of safety issues with respect to lifting was clear from his answers about lifting and moving the mower chassis. This was not in my view a situation to which the well known passage in the judgment of the majority in McLean v Tedman (1984) 155 CLR 306 at p 313 relates, namely:
“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; see Fleming, Law of Torts, 6th ed. (1983), pp.480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”
The very fact that the plaintiff himself did not, until Dr Atkinson raised with him the question of Workers’ Compensation in August 1992, consider that there was anything untoward in the workplace situation lends some support to the conclusion that the episode of pain occurred in circumstances where there was no challenge to the plaintiff from the system of work or the plaintiff’s idiosyncratic manner of removing the discs.
I have concluded that there was no failure on the part of the defendant to discharge the obligation imposed upon it by law to take care for the safety of the plaintiff. It follows therefore that the allegations based upon breach of the Workplace Health and Safety Act 1989 does not arise.
As is the practice, if I am found to be in error on the question of liability, I will assess the plaintiff’s quantum of damages.
Quantum
The plaintiff immediately experienced serious disabling pain in his thoracic spine and then in his lumbar region. As has been mentioned, this continued for the next few days. He attempted to return to work but was unable to carry out his normal duties. After he returned to Esk he expected that the pain would resolve with rest but it did not. He had experienced not dissimilar episodes of lumbar pain in the past while working in Ipswich and tossing melons on a farm, but those episodes responded to conservative treatment after a few days.
As I have mentioned about two weeks or so after the symptoms appeared the plaintiff collapsed on getting out of bed one morning and was taken by ambulance to Dr T Fitzgerald in Esk. He was admitted to hospital for bed rest for some days and treated with analgesics and anti-inflammatory medication. He returned to his wife’s property at Slaughter Road near Esk and she continued to care for him. He felt encouraged that he would recover his health since the pain abated when he rested. When he attempted to carry out more strenuous activities helping on the property, for example chopping firewood, he experienced pain. He attempted to mobilise by walking and on occasions achieved distances of 10 km. Despite much rest he was not recovering and in August was referred to Dr Atkinson.
Dr Atkinson noted that the plaintiff was in distress and had lumbar and thoracic muscle spasms. Disc protrusions were shown on CT scans. On 6 November 1992 the plaintiff underwent a lumbar discetomy at L4/5 and L5/S1. Thereafter Dr Atkinson described the plaintiff as having made a slow recovery and then experiencing severe pain between the shoulder blades. He underwent a thoracic exploration and discetomy at T4/5 and T7/8. The plaintiff continued to experience distressing lumbar pain which extended down into his leg as well as upper back pain. A further MRI was carried out in August 1993 which showed a small central disc protrusion at T4/5 and T5/6. There was no suggestion that the plaintiff should engage in further surgery.
Whilst the plaintiff says that he has good and bad days, he experiences significant pain in the thoracic and lumbar areas of his spine particularly on bending, lifting, jarring impact and prolonged sitting. The pain is constant and radiates into his right thigh and calf. He prefers standing to sitting and can walk for some distance without undue discomfort. His sleep is interrupted by pain and it affects most of his daily activities. His enjoyment of sexual relations with his wife with whom he became reconciled in the course of her looking after him has been impaired. He has been able to ride his motorcycle for some longish journeys but this has resulted in significant pain. He has sold his Harley Davidson motorcycle, it appears, though, for financial reasons. He and a partner started a tourist business operating Harley Davidson tours in the local district, but he was unable to continue because his painful symptoms made him unreliable.
The plaintiff came under the care of Dr Alan Freed, a psychiatrist, because of symptoms of depression and aggressive outbursts associated with his frustration with his physical deficits and his pain. He has been treated with pain killers, anti inflammatory drugs and anti depressants, as well as the use of a TENS machine. He has used marijuana in the past and continues to use it for relaxation and pain relief.
The plaintiff was recorded by the specialists as being optimistic about his prognosis, and his prospects of working from time to time and especially in the earlier years following the onset of his symptoms. The plaintiff had some plans to work as a shot firer for miners and had studied to that end successfully whilst in the defendant’s employ, completing the theory and practical components of a course through the Ipswich College of TAFE (exhibit 46). In 1996 he was employed as a cook with a seismic crew in country Queensland for some months. He needed assistance with lifting and the other men on the team made allowance for his physical deficits. This seems to have been something of a one-off job.
Suggestions were made to him from time to time by the specialist medical practitioners that he engage in rehabilitation programs but the plaintiff was reluctant to leave his rural lifestyle and go to a city for that purpose. He has embarked upon knife-making, without commercial success, and more recently, making country style outdoor furniture which appears to be very much a slow hobby type activity which gives him some remuneration. He is hampered in all of these attempts at self employment by his need to rest as well as by being dispirited at his lack of progress.
The estimates of percentage loss of function are expressed differently by the specialists who have ventured to do so, for example, Dr E Reye, orthopaedic specialist, has assessed the plaintiff’s permanent work related incapacity at 15% “of total body capacity”. Dr Atkinson considered that he had “a permanent impairment of the whole person of 15%”. Dr J Pentis, orthopaedic surgeon, estimated “a 30%-35% loss of efficient function of his spine” in 1994. Dr M Coroneos, consultant neurosurgeon, considered that the plaintiff had “permanent impairment in the efficient function of the thoracic spine in the order of 20% and in the efficient function of the lumbar sacro spine of the order of between 25 and 27.5%”. Dr P Boys, orthopaedic surgeon, estimated a 15% impairment of bodily function in 1995 of which one half was referable to the incident at work and the resulting operations and the balance being to pre-existing degenerative changes. Of all the specialists Dr Boys gave greatest attention to pre-existing degeneration in the plaintiff’s spine. Dr Reye similarly thought there was pre-existing degeneration. However, there is insufficient evidence to conclude that in any event the plaintiff would have experienced symptoms of whatever kind or severity at some quantifiable time in the future such as to impact upon the assessment of his losses.
The plaintiff’s evidence concerning the effect upon him of his symptoms of pain were supported by the evidence of his wife, which I accepted. The plaintiff appeared to be a man who enjoyed physical fitness, an essentially physical lifestyle and the comradeship of other men, particularly motor cycle enthusiasts. He was unable to do a whole range of rural domestic tasks as a consequence of his disabilities, such as chopping firewood, using the outdoor shower, and digging the latrine which was necessary on Mrs Maynard’s property.
I accept that the plaintiff suffers significant pain from time to time and a constant dull pain for much of the time. Since his interests appear to be mainly physical his losses are considerable. He still has activities which he enjoys such as walking, but his social life is much curtailed and is wholly overshadowed by his painful symptoms, and his motor cycling reduced.
I assess the plaintiff’s damages for pain and suffering and loss of the amenities of life for the past and into the future at $55,000. He has received $10,902 for permanent partial disability from the Workers’ Compensation Board. That amount should be deducted from the award leaving an amount of $44,098 for the purposes of interest which I allow at 2% per annum on 2/3 of that amount for 7 years. That amounts to $4,115.81.
Special Damages
These damages have been agreed between the parties, with the exception of the cost of a special bed. They are:
·Hospital expenses paid by Workers’ Compensation Board $ 4,240.00
·Medical expenses paid by Workers’ Compensation Board $ 4,219.16
·Other expenses paid by Workers’ Compensation Board $ 942.11
·Rehabilitation expenses paid by Workers’ Compensation Board $ 250.00
·Pharmaceutical expenses paid by the plaintiff $ 180.00
·Travel expenses paid by plaintiff $ 2,866.40
Total $12,697.67
The plaintiff said that the double bed which he and his wife had had since their marriage was too saggy and in order to alleviate some of the symptoms of pain he purchased a new bed for which he paid between $600 and $800. He was unable to produce any receipt but I accept that this occurred. He has retained the old bed. I accept the plaintiff’s need for a firmer base for the alleviation of some of his symptoms. There is a real prospect that he would have obtained a new bed in the course of his marriage in any event, but it may not have been as expensive as the bed that he was required to buy because of his symptoms and which he was required to buy perhaps earlier than otherwise would have been the case. I will make a general allowance of $300 to reflect these factors. The amount then allowed for special damages is $12,997.67. Interest is allowed on the amount paid out of pocket by the plaintiff being $3,346.40 at 5% per annum for 7 years. That amounts to $1,171.24.
Past and Future Economic Loss
There are no income tax returns available for the plaintiff before July 1989. Prior thereto the plaintiff tended to find his early employment in butcher shops. At some time, probably in his twenties, he became addicted to heroin over about 5 years and did not work during that period. He spent time in prison including, he told Mrs Helen Coles, occupational therapist, 3 months in a Thai prison. He conquered that addiction and subsequently worked as a salesman as I have mentioned. His 1990 income tax return indicates a taxable income of $12,346 for that financial year. Of that amount $9,289 was for unemployment benefits and the balance from actual employment. In the following year to 30 June 1991 a taxable income of $12,038 was declared. Unemployment benefits accounted for $11,137 of that amount. There is no further record of any remunerative employment until the plaintiff commenced with the defendant on 5 August 1991. 60 There was some controversy at the trial as to whether the plaintiff would have been re-employed by the defendant but for his injury. I accept that the plaintiff was terminated on a seasonal basis by the defendant and there was a real prospect that he would not be re-employed when the spring/summer casual labourers were taken on later in 1992. He was not in the first batch of casuals re-employed after the Christmas break in 1991/1992. Although his work was entirely to Mr Roden’s satisfaction, the plaintiff had an unsatisfactory attendance record and Mr Roden did not control the hiring. Nonetheless I should take into account that he may have gone back. This would also have depended upon how his relationship with his then estranged wife had progressed. She explained that much of her unhappiness about the relationship related as much to factors personal to herself as to the plaintiff’s conduct.
The plaintiff may have obtained employment as a shot firer. There was little evidence about the availability of such work particularly for a person coming to it later in working life and neither was there much evidence about the likely remuneration of such a position. But it was the kind of non urban situation with a group of men in the bush which the plaintiff seemed to like and he did take on the work with a seismic team as a cook in 1996. The plaintiff agreed that the lifestyle that he enjoyed did not require him to be in regular remunerative employment. His financial needs appeared to have been able to be met by his wife’s employment (although that regular employment in Ipswich with a pathologist had ceased on a regular full time basis prior to his departure for Brisbane) his unemployment benefits, and casual farm work picking produce and similar activities.
The plaintiff was earning $320 net per week with the defendant. The period since he ceased work is approximately 350 weeks during which time he has received $16,112.20 in income. He has likely made some net figure in respect of his craft activities but no evidence allows me to make precise assumptions. The past loss based on a figure of $320 net per week for 350 weeks is $112,000 from which $16,112.20 should be deducted which leaves an amount of $95,887.80. Mr Campbell submitted that a 50% discount should be made and Mr Di Carlo a 15% discount to reflect the plaintiff’s past employment history. I will discount this figure by 40% to reflect the likelihood that the plaintiff would not have remained in full time employment during that period or anything like it. This amounts to $57,532.68 which is allowed.
The plaintiff has received Workers’ Compensation payments and Department of Social Security payments in the sum of approximately $40,000 to trial. This amount should be deducted for the purpose of interest, ($17,532.69) which is awarded at 5% per annum for approximately 5 years since the Workers’ Compensation payment ceased. This amounts to $4,383.17 which is allowed.
The Fox v Wood Component is $4,835.55 which is allowed.
The calculation of the plaintiff’s loss of future earning capacity is dependent on two matters: the plaintiff’s likely utilisation of his capacity to earn income had he not been injured and what, if any, residual earning capacity he has now. The pattern of the past would most likely have been reflected in the plaintiff’s future employment with some further tapering off as the plaintiff got older. However, as mentioned, the chance of well paying work from time to time as a shot firer should not be overlooked. The calculation is necessarily impressionistic but I approach the plaintiff’s future loss on the basis of approximately half his pre injury earnings from the defendant at $320 nett per week to age about 62. I propose then to utilise a figure of a net loss of $150 per week for 15 years. The plaintiff has some residual earning capacity which he has utilised from time to time. He will probably potter at his hobbies of woodworking and assist his wife in her modest nursery business. He continues to suffer from depressive episodes which will require monitoring from time to time and I accept that his pain is constant with serious episodes of disabling pain. He is not required to relocate to some urban centre in the hope of finding some work. His best prosects are to continue to produce craft work where he can work at his own pace. There is no evidence of what the plaintiff can earn from this but I propose to reflect it in a general way in the figure of $130 per week loss. Using the 5% tables gives a figure of $72,150, which I allow.
Past and Future Care
I accepted Mrs Maynard’s evidence that for the first year or so particularly initially and around the periods of the operative procedures the plaintiff needed a great deal of support in his day to day living which she provided. They were residing at her property at Slaughter Road which was, relatively speaking, primitive, requiring him to use, inter alia, an outdoor bush shower with a bucket which he was unable to raise. Their household arrangements in the past had involved him helping considerably with domestic tasks. He was unable to assist with the washing which was performed manually by Mrs Maynard. She assisted him with dressing, toileting and his meals. This gradually tapered off as the plaintiff learnt to manage his disabilities and they moved to more comfortable accommodation. Further, when the plaintiff worked away from home as a cook he was able to manage for himself. He now needs some assistance with respect to basic domestic tasks involving heavy lifting should he be required to live alone.
The parties have agreed on a rate of $10 per hour over the whole period. The calculation is unable to be precise and the evidence shows that sometimes the plaintiff felt better and was able to make a bigger contribution to the domestic arrangements than on other occasions. He was away for some months in his employment as a cook and occasional trips. I propose to allow 14 hours per week from March 1992 to November 1993, approximately 90 weeks, which is an amount of $12,600 and from December 1993 to the present time at 2 hours per week, a period of some 212 weeks which gives an amount of $4,240. The total amount of past care I allow at $16,840. Interest is allowed on that amount at 2% per annum for 7 years which amounts to $2,357.60.
The plaintiff’s future needs are for some assistance with heavy lifting and sweeping and could be discharged by the provision of assistance for 2 hours per week for 30 years at $10 per hour. That amounts to $16,440.
Lost Superannuation Benefits
The plaintiff claims a global sum for lost superannuation benefits. I would allow that in the sum of $5,000.
Future Medical Expenses, Recurring Expenses
The plaintiff, in his counsel’s submissions, seeks an amount of $5000 for these expenses. There was no evidence as to the cost or the specific requirements of the plaintiff in this regard. However, I do accept that he has need for things such as anti-inflammatory and anti-depressant drugs, and general pain killing medication from time to time. There is little assistance from the past since those figures were absorbed by the Workers’ Compensation Board but I propose to allow an amount of $2,500 to reflect this need.
In conclusion the plaintiff’s damages had he been successful on liability come under the
following heads:
Pain and suffering and loss of the amenities of life past and future
$55,000.00
Interest thereon
$ 4,115.81
Special damages
$12,997.67
Interest on $3,346.40 for 7 years at 5%
$ 1,171.24
Past loss of earnings
$57,532.68
Interest on $17,532.68 for 5 years at 5%
$ 4,383.17
Loss of future earning capacity
$ 72,150
Fox v Wood
$ 4,835.55
Past gratuitous assistance
$16,840.00
Interest thereon
$ 2,357.60
Future care
$16,440.00
Lost Superannuation Benefits
$ 5,000.00
Future Expenses
$ 2,500.00
TOTAL
$255,323.72
LESS refund to WorkCover
$54,489.24
NETT Total
$200,834.48
Orders
There will be judgment for the defendant against the plaintiff.
I will hear submissions as to costs.
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