Mellish v Boehm and Anor

[1995] QSC 91

IN THE SUPREME COURT

OF QUEENSLAND  

No. 1688 of 1992

Brisbane

Before Mr Justice G N Williams

[Mellish v. Boehm and Anor]

BETWEEN:

RAOUL MICHAEL MELLISH

(Plaintiff)

AND:

DAVID ANDREW BOEHM and JENNY-LEE BOEHM
  trading as JLB CONSTRUCTIONS (A Firm)

(Defendants)

JUDGMENT - G N WILLIAMS J

Judgment delivered 24/05/1995

CATCHWORDS:     NEGLIGENCE - plaintiff a subcontractor - duty on defendant to provide safe system - no breach proven.

QUANTUM - back injury - male aged 23 when injured - impaired working capacity - pain and disability - quantum $340,415

Counsel:Fleming QC and Hutton for the plaintiff

Sofronoff QC and A. Ryan for the defendants

Solicitors:Watts & Company for the plaintiff

Middletons Moore and Bevins for the defendants

Hearing Dates: 17 and 18 May 1995
IN THE SUPREME COURT

OF QUEENSLAND  

No. 1688 of 1992

BETWEEN:

RAOUL MICHAEL MELLISH

(Plaintiff)

AND:

DAVID ANDREW BOEHM and JENNY-LEE BOEHM
  trading as JLB CONSTRUCTIONS (A Firm)

(Defendants)

JUDGMENT - G N WILLIAMS J

Judgment delivered 24/05/1995

In this action the plaintiff claims that as a result of the negligence of the defendants he suffered a serious back injury which has significantly affected his life.  The defence raised a number of issues which are somewhat unusual, and it is desirable to refer to them at the outset. 
           Recently the defendants filed their own bankruptcy petition.  In consequence I granted the plaintiff leave to proceed with the action.  That is of some significance because the Workers' Compensation Board contends that it does not have to indemnify the defendants because the plaintiff was not a "worker" for purposes of the Workers' Compensation Act at the material time.  Indeed a claim made by the plaintiff for workers' compensation was refused on that ground, and that decision was upheld in the Industrial Court.   One of the issues raised by the defence is that at all material times the plaintiff was a subcontractor to the defendants and not a "worker" as defined for purposes of that legislation.  If the plaintiff were successful in the action, and the Board was not obliged to satisfy the judgment, further questions would arise as to the enforceability of the judgment in the light of the bankruptcy of the defendants.
           Counsel for the plaintiff contended that, even if the plaintiff was a subcontractor, the defendants owed him a duty of care, being a duty to provide a safe system of work; that submission was based on Stevens v. Brodribb Sawmilling Co. Pty ltd (1986) 160 C.L.R. 16. In consequence it is necessary to consider whether there was negligence on the part of the defendants whether or not the plaintiff was a "worker" as defined.
           The statement of claim alleges that the negligence of the defendants occurred on or about 6 February 1990, and the defence raises an issue as to whether or not the female defendant was then carrying on business as a builder.  The defence asserts that JLB Constructions did not commence carrying on business until 7 March 1990.  The plaintiff tendered a Business Names Extract with respect to JLB Constructions which establishes that both the male and female defendants were carrying on business as a builder under that name from 1 July 1989.  That evidence was not challenged during the trial, and in the circumstances I am satisfied that all material times the defendants were carrying on business as a builder under the name JLB Constructions.  The plaintiff was in February 1990 either an employee of the defendants or a subcontractor to them.
           On the whole of the evidence I find that the plaintiff at all material times was a subcontractor to the defendants.  The plaintiff was a qualified carpenter and he subcontracted to perform work for the defendants at the rate of $18 per hour.  He regularly submitted invoices to the defendants claiming what was due to him for the number of hours he worked in each week.  He had no entitlement to sick leave, holiday pay, etc from the defendants.  He acknowledged in his income tax returns that his income was derived from "subcontracting".  He was also as a subcontractor obliged to provide more tools and equipment than the tools an employee-carpenter would ordinarily be expected to bring with him to a job.
           There was not a great deal of factual dispute as to the relationship between the plaintiff and the defendants; the real argument was whether or not the degree of control exercised by the defendants was such that the plaintiff should be deemed in law to be a "worker" notwithstanding the apparent indicia to the contrary.  However, in my view, the evidence is so strong against the plaintiff on this issue that a finding should be made that he was a subcontractor.
           Indeed his initial reaction to the alleged injury was to make a claim against his own accident insurer, MLC.  It was only after that claim was rejected that the plaintiff sought to recover workers' compensation.  Only after the rejection of the workers' compensation claim did the plaintiff make allegations of specific negligence against the defendants.
           The plaintiff cannot identify a specific incident in the course of his work as being the cause of his back condition.  Principally his contention during the trial was that his back became sore whilst working for the first day on the erection of a log retaining wall at a Sunnybank work site.  In his evidence‑in‑chief he said:

"Well, from the first day on the log wall it just basically became sore and sorer and then by the end of the day it was extremely sore."

A fellow subcontractor who gave evidence for the plaintiff, C T Henderson, kept a diary, and he was able to say that work on the log wall commenced on 6 February 1990.  It is also clearly established by the evidence of the physiotherapist, C P Lillicrap, that the plaintiff sought treatment for a "lower back injury" on 7 February 1990.
           But the plaintiff has not been accurate in reporting an injury on 6 February.  He consulted Dr H A Douglas on 13 March 1990, and on that occasion said that he had sustained an injury to his back on 20 February 1990.  On 9 April 1990 he completed a claim form with respect to his MLC insurance and therein gave the date of the accident as 14 February 1990.  Under cross‑examination the plaintiff contended that he deliberately inserted a false date so that the defendants would not be bothered by the insurance company.  That answer is unconvincing because he also stated in that form that he ceased work on 13 March 1990.  That is broadly in accord with other evidence; it appears he ceased work for the defendants on 11 March.  He also admits that he lied in that claim form by saying that he received the injury when "lifting logs around the house".  Later on 5 July 1990 he completed a statement to support his claim for worker's compensation.  In that he referred to the date of the incident as 20 February 1990.  In the course of examining the plaintiff on 15 April 1993 Dr Whiteford, a psychologist, took a lengthy history from the plaintiff and therein recorded the plaintiff saying that the incident causing the back injury occurred on 20 February 1990. 
           The plaintiff gave no satisfactory explanation in the course of his evidence for the various dates which he gave with respect to the incident in question.  It has to be said that there is a deal of consistency in that he regularly referred to a day on which he was working on the construction of the log retaining wall.  Were it not for other matters to which I will refer it may be possible to conclude that he was simply honestly mistaken as to the date. 
           The plaintiff had fallen from a trestle when a first year apprentice in 1984 and that caused some minor injury to his back.  He appears to have consistently acknowledged that.  He has maintained that after a short period of time he had no symptoms from that particular incident. 
           What is, however, of more significance is that on a number of occasions when it could be regarded as important for him to have given a full history of any back injuries or symptoms he denied seeing a doctor between 1984 and 1990 with respect to his back.  In his evidence‑in‑chief he expressly denied having "any difficulty" with his back between the 1984 incident and 1990.  During his first consultation with Dr Douglas he did not refer to any back problem in 1988.  During a later consultation on 9 April 1990 he gave a history which included a reference to the 1984 incident; again there was nothing said about 1988.  Dr Cameron who first examined the plaintiff on 21 May 1993 recorded a history of the incident in 1984 but no other back injuries.  The rejection of his insurance claim against MLC was based in part on his failure to disclose back problems in 1988.
           Under cross‑examination the plaintiff was shown his statement dated 5 July 1990 to the Workers' Compensation Board wherein reference was made to "seeing my doctor once in 1988" with respect to a back problem.  His response to that was again not convincing.  He claimed he could not remember seeing the doctor but conceded he must have.  He thought it could have been back pain suffered whilst playing rugby union.  A little later this exchange occurred:

"Q. Then in 1990, in February, when you got a sore back, it was really no surprise to you because it was something that you'd suffered before, although this time it might have been a lot more painful than it had ever been; correct?  It didn't surprise you, did it?- A. It did for the time that the pain went for.  It was different to anything I'd ever - any pain I'd ever experienced before with my back."

What, in my view, compounds the problems raised by the matters to which I have recently referred is that over a period of weeks before and after 6 February the plaintiff was submitting his back to a variety of stresses.  As already noted he continued working with the defendants up until about 11 March.  Subsequently to 6 February he worked on the retaining wall, and thereafter performed carpentering tasks including work with roof trusses.  He claimed there was some difficulty with the latter, but nevertheless he was able to do the work.  Also, it appears that during the period in question he was regularly rowing.  In his evidence he spoke of rowing three to four times a week for a number of hours on each occasion.  He described it as "casual until I hurt my back".  He expressly conceded under cross‑examination that he continued rowing after 6 February.  That also appears clear from Dr Douglas' notes of the history given on 13 March and Dr Douglas' later observations to colleagues about the relevant history.  Certainly it appears that when he first consulted Dr Douglas he regarded both his work activity and his rowing as contributing to the back pain.
           The plaintiff played both rugby union and touch football.  He had played rugby during the previous winter season, but could not expressly recall whether or not he was playing touch football around February 1990; he could not deny that as a possibility.
           I should also record here that when the plaintiff ceased working for the defendants he made no complaint to them about having injured his back in the course of his employment.
           It is now necessary to look at what was involved in the erection of the log retaining wall on 6 February and the ensuing period until the job was completed.
           The work in question was the construction of the log retaining wall which is depicted in the photographs, ex. 13. The total length of the wall was about 60 metres, and it, as evidenced by the photographs, varied in height from about 5 foot to 7 foot.  The logs in question were described as copper treated to prevent termite attack.  The average diameter of the logs was about 150 millimetres.  The logs were, on the balance of probability, about 2.5 metres in length.  I make that finding in view of the conflict in the evidence as to whether or not the logs when positioned horizontally spanned one or two spaces between the uprights.  The plaintiff and Henderson said they spanned two spaces whilst Hurren said that each log only took up one space.  It may well be that in some instances the logs were cut so that they did in fact only span the one space between uprights, but certainly many, if not most, extended across two spaces.  That is not of critical importance because the evidence is that the logs weighed at most between 30 and 40 kilograms.  According to the plaintiff some were heavier than others because of their water content.
           After the logs were cut and trimmed they had to be positioned behind the uprights and that on occasions involved some manoeuvring given the space between the uprights and the earth.  All witnesses agreed that when it could be done the logs were positioned by manoeuvring them behind the uprights.  Hurren could not recollect any being laid in position by being lifted over the top of the uprights, but the plaintiff's evidence was that at least some were positioned in that way.  He said that "over 10 logs" were positioned by lifting them over the top of the uprights.  What is more important in my view is that, having regard to the whole of the evidence from the plaintiff, Henderson and Hurren, most if not all lifting of the logs was done by two workmen.  There was no need for any one person to lift a log and if that was done it was that person's own decision.  All agreed that one only had to ask for assistance and a second person would have immediately assisted in the lifting or manoeuvring of the log.  Given that the weight was less than 40 kilograms that could not be said to be an excessive or unreasonable weight for a person to handle.  Henderson described the work as "strenuous" but quite a deal of work usually undertaken by workers in the building industry could be so described.
           In his evidence the plaintiff spoke of his being involved in the manoeuvring of some 50 logs over 2 days. 
           There was no mechanical lifting device available to assist the workers.  Given the weight that was involved I am not convinced on the evidence that the situation called for the utilisation of mechanical lifting devices.  The loads were clearly within the normal capacity of two able bodied men.  Further, the balance of evidence strongly suggests that the space confines within which the work was being carried out would not have permitted the use of a mechanical lifting device. 
           Shortly before 6 February 1990 the plaintiff had attended a "risk management course" which dealt, inter alia, with the risks involved in heavy lifting.  His attendance at that course was paid for by the defendants.  Generally it appears that whilst he appreciated what he was told during that course he considered most of it to be impractical.
           I turn now to the allegations of negligence contained in the statement of claim.  When considering them it must be borne in mind that the plaintiff's case is that his back injury was the product of repetitive lifting and manoeuvring the logs rather than some specific incident.  The first particular is:

"Failing to warn the plaintiff against the dangers of attempting to lift logs without assistance and contrary to Regulation 89(3) of the 'Workplace Health and Safety Regulations 1989'."

In the course of his final address senior counsel for the plaintiff conceded that he could not "argue effectively in relation to warning".  I agree with that concession.  Particularly given the fact that the defendants had caused the plaintiff to attend the risk management course, and given the simple nature of the lifting task and the weight of the logs involved, the evidence does not establish any failure to warn when a warning was called for.
           The second particular alleged is:

"Failing to provide the plaintiff with any or any adequate instructions as to the performance of his task."

I cannot really see how this particular can be differentiated from the first.  In any event two men were available to participate in each individual lift which involved a total weight of less than 40 kilograms.  The task was a simple one and in all the circumstances was not such as required specific instructions as to its performance.
           The third particular of negligence alleged is:

"Failing to provide the plaintiff with any or any proper equipment to assist in lifting the said logs."

I have already pointed to the fact that two men were available to lift each log and that was not unreasonable given the fact that the weight did not exceed 40 kilograms.  Further, on the evidence it would have been difficult, if not impractical, to use some form of mechanical assistance.  This particular is not made out on the evidence.
           The final particular alleged is:

"Allowing the plaintiff to position logs in such a manner that it was likely to cause him injury viz. reaching across to position logs behind upright supports in contrary to the action limit as to define by NIOSH."

This particular is not made out on the evidence.  The plaintiff does in a vague way refer to lifting some logs over the top of the uprights, but his evidence is not specific enough to establish that positioning logs "in such a manner that it was likely to cause him injury" was in fact the cause of the back pain he experienced on that day.  The evidence, at best for the plaintiff, does no more than establish that after lifting and manoeuvring logs on 6 February his lower back was sore.
           Therefore, applying the law in the light of the decision in Stevens v. Brodribb, it cannot be said that the evidence establishes that the defendants failed to provide a safe system of work for the plaintiff in relation to the construction of the retaining wall.  Given the weight of logs, the fact that two men were available to lift each log into position, and the simple nature of the task at hand, I am not satisfied that the evidence establishes that there was an unsafe system of work for which the defendants were responsible.
           But even if the proper finding on the evidence was that there was an unsafe system of work I am not satisfied that it was the cause of the plaintiff's ultimate back condition.
           Lillicrap, the physiotherapist, treated him for a "lower back injury"; what is significant is that he did not record any finding during his period of treatment until 2 March 1990 of any specific disc involvement or any nerve involvement.  As already noted Dr Douglas first saw the plaintiff on 13 March 1990.  At that time he considered that the plaintiff had some soft tissue trauma.  A plain x‑ray of the lower spine taken on that day was within normal limits.  There were no neurological signs.  Dr Douglas' provisional diagnosis of lumbar back strain appears to have remained his view until about June 1990.  In late April 1990 Dr Douglas carried out the first acupuncture treatment and that lasted for some weeks. 
           Ultimately on 21 May 1990 Dr Douglas referred the plaintiff to an orthopaedic surgeon, Dr Pentis; ex. 20 relates to that referral.  No report or evidence from Dr Pentis was forthcoming, but reference is made in Dr Douglas' reports to the results of CT scans carried out by Dr Pentis on or about 4 June 1990.  According to Dr Douglas' report that scan revealed "minor prolapse at the L4/L5 and L5/S1 levels with no nerve root pressure".  In order words there was no diagnosis of any disc lesion until 4 June 1990.  It has to be accepted that the plaintiff was complaining of continual pain from 13 March 1990 until June when that CT scan was carried out.
           The question is whether or not the evidence establishes that the plaintiff's back condition revealed by the CT scan in June 1990 was caused by the work he did for the defendants on 6 February.  When consideration is given to the facts that the plaintiff had some previous history of back pain (the 1988 visit to the doctor and the answer quoted above from his cross‑examination), that he was not forthright in admitting to doctors and others early in 1990 that he had experienced previous back pain, that he continued doing reasonably heavy building work from 6 February to 11 March, that he continued rowing some days each week for a number of weeks after 6 February, that when asked to give an account of the incident causing the onset of back pain he referred to various dates (6 February, 14 February, and 20 February), that he did not inform the defendants that he had suffered some specific back injury whilst working on the Sunnybank site, that he lied to MLC in making an insurance claim with respect to his back, and that he is unable to refer to any specific incident causing an onset of pain, I am not satisfied on the balance of probability that the condition revealed by the CT scan in June 1990 was caused by his work with the defendants on or about 6 February 1990.

           It follows that I am not satisfied on the evidence that the plaintiff has made out a case for recovery of damages against the defendants.
           Nevertheless I must assess quantum.
           The defence did not seriously dispute any of the medical evidence relating to the plaintiff's physical condition after June 1990, save that it was contended that the plaintiff was neither as disabled nor in such constant pain as he made out.  On 31 October 1990 an anterio‑lateral spinal fusion of the L5/S1 vertebrae was performed.  Thereafter he was in a fibreglass spiker for approximately three months.  There was, naturally, quite a deal of discomfort associated with that.  There was some immediate reduction in pain but after about six months the pain level was again at the pre-operation level.  Doctors then had the plaintiff on analgesics for pain relief, but he became quite depressed and needed psychiatric counselling.  A second operation was performed on 1 December 1991 when a posterior L5/S1 lumbo spinal fusion was carried out.  This time he was in a spiker cast for more than three months.  Post-operation the pain continued and the plaintiff remained on analgesics and anti-depressants.  Then in August 1993 he underwent a fusion at L4/5.  Again there was pain relief for a short period but after some months his condition was the same as it was before the operation.  Then in September 1993 he experienced some right-sided sciatic symptoms.  On this occasion pain was severe.  In consequence he underwent a fourth operation in November 1993 during which metal screws were removed.  That relieved his sciatic symptoms. 
           The plaintiff, in consequence of the surgical procedures, now has restriction of back movement in all directions.  He still experiences discomfort and/or pain.  He claims he is unable to sit in the one position for long periods and has difficulty getting in and out of a motor vehicle.
           I had the opportunity to assess the plaintiff during the period of time he was in the witness box.  I must say that he did not exhibit the obvious discomfort which I have frequently seen with plaintiffs complaining of back disability.  As was mentioned by counsel during the course of his evidence he constantly swivelled around in his chair whilst in the witness box, and I never saw any indication of specific pain and discomfort.  On some occasions whilst he was in the witness box he used a back support in the chair, but on at least one occasion he was without it for a reasonable period of time. 
           The plaintiff is currently sharing a house with his girlfriend and he gave detailed evidence as to things he could not do around the home.  There is no doubt that he cannot bend over to pick up something from the floor.  Often he uses his toes to pick up an object on the floor, but he could probably squat with a straight back to retrieve something if necessary.  Obviously he is able to do quite a lot around the home.  Often he is at home on his own all day, and he manages quite well.  His girlfriend is concerned for him on such occasions, but nothing has happened to indicate that he cannot cope.  Interestingly when cross‑examined about his ability to get to the telephone quickly he replied:

"Yeah, but if I'm hanging clothes out in the backyard and the phone rings it's not really worth my while to go racing up the back steps because I'll miss it.  So I just let it ring out."

That certainly suggests that he is able to do quite a bit around the home when he has to. 
           The plaintiff was educated to Grade 12 and initially obtained a TE score of about 750.  He then completed a four‑year apprenticeship before qualifying as a carpenter in 1988.  Later he did some Year 12 subjects as an external student to upgrade his TE score.  He managed to have the score upgraded to approximately 850.  By about February 1990 he was contemplating undertaking university studies to improve himself.  He initially enrolled for a manual arts teaching course at Griffith University but found because of his back problems he was unable to sit during lectures or undertake the practical training courses.  Subsequently he decided to enrol in quantity surveying at QUT.  That had to be deferred because of the various operations, and he did not undertake study until second semester 1994.  At some stage, probably late 1992, he had sat for and passed the Public Service Examination.  In about January 1993 he was offered a place in the Department of Workplace Health and Safety.  He did not take up the job.  Apparently he spoke to someone on the telephone and asked how many hours were involved.  When he was told it was full‑time he decided he would not be able to cope with the work.  It is probably fair to say that at about that time he was in a fairly depressed psychological state.
           On the evidence I have no doubt that the plaintiff is capable of working in the Public Service, for example, in the Department of Workplace Health and Safety where he would be able to use his trade knowledge and skills.  Evidence from witnesses such as Mrs Coles and Dr Cameron clearly establishes that he has a significant earning capacity, though he could no longer actively work in the building industry.  If he is serious he should attain a degree in quantity surveying and be able to work in that field.  He has a significant future earning capacity.
           There is no doubt that the plaintiff was unable to work during the periods he was undergoing surgery on his back.  A convenient cut‑off point which is not unrealistic on the evidence is to hold that he was unemployable up to the date of trial because of his back injury.  But, on the evidence, he is now capable of earning in the fields I have indicated.  Whether he would again be offered a position in the Public Service, say for example in the Department of Workplace Health and Safety, is uncertain.  But he clearly has a capacity to do that work.  The fact that he was able to give evidence over a number of hours without obvious discomfort clearly shows that he would be able to handle clerical type jobs where he was, if necessary, able to move around from time to time.
           His girlfriend, Ms Bayntun, gave evidence that she has in the past spent at least 7 hours per week in doing things for the plaintiff because of his disability.  She referred to housework, assisting him in dressing and moving around, and massaging his back.  They were not living in the same house in 1990, and the evidence does not clearly establish for how long they have been living together.  By inference it seems that they have been together for at least the last 3 years and I will allow something under the Griffiths v. Kerkemeyer head for services rendered by the girlfriend during that period of time.  In all the circumstances it is not unreasonable to allow 7 hours per week on an average. 
           But for the reasons already given I am satisfied that so far as the future is concerned the plaintiff will be able to do all that is necessary in his day‑to‑day living.  He will always have difficulty in bending and lifting anything that is heavy.  But there will always be ways and means of getting around those difficulties without incurring a liability under the Griffiths v. Kerkemeyer principle.  I will not allow anything for the future under that head.
           So far as pain and suffering is concerned the plaintiff has experienced quite a deal in the past, particularly immediately after the various operations.  He will always have some pain and discomfort and limitation of movement.  The limitation of movement has restricted his ability to enjoy sport, and that has adversely affected his enjoyment of life.  There was also mention in the evidence that he finds sexual intercourse uncomfortable, and therefore not as enjoyable as it should be.  In all the circumstances I will allow $60,000 for pain and suffering and loss of amenities.
           Because of the pain associated with the operations which have been in the past I will allow $30,000 for past pain and suffering.  Interest should be allowed on that at 2 percent per annum for 4 years namely $2,400.
           The plaintiff's income tax returns up until the time he ceased work were tendered.  They indicate that often he did not work for a full year, and they showed a reasonable earning capacity as a carpenter.  It is probably true to say that he was still working his way up the ladder and that his income as a carpenter would have increased from year to year.  Having considered the income tax returns, and the other evidence relating to his earnings, I have concluded that economic loss to date of trial (on the basis that he was totally unemployable) should be calculated on an earning capacity of $400 net per week.  It was agreed that the relevant period was 274 weeks.  In consequence I allow $109,600 for past economic loss. 
           The plaintiff has received Social Security payments totalling approximately $31,000 which should be deducted before interest on past earnings is calculated.  I allow interest in the sum of $20,000.
           So far as future economic loss is concerned it must be calculated on the basis that the plaintiff has an earning capacity as I have indicated above.  He had ambitions to become a builder, and he has clearly lost the capacity to work in that field.  As a builder he may have been able to earn significantly more than he would as a wage earner employed in one of the capacities now available to him, but there would be risks associated with that.  In those circumstances it is difficult, if not impossible, to quantify future economic loss in terms of a particular amount per week.  The plaintiff is still a relatively young man (he was born 27 October 1966) and in the circumstances it is appropriate to award $75,000 as a global figure for future economic loss. 
           Special damages totalling $48,000 were claimed.  The only item disputed by the defence related to the number of visits to Dr Douglas.  The contention was that these were "comfort visits" rather than visits necessary for treatment.  In the circumstances I am not persuaded by the defence contention and I will allow the $48,000 as claimed. 
           It was agreed that interest should be allowed on $17,000 of that figure at 6 percent; I allow interest in the sum of $4,080.
           So far as the Griffith v. Kerkemeyer claim is concerned I will not allow anything for the future as indicated above.  I will allow an amount under the Griffith v. Kerkemeyer head for past services amounting to 7 hours per week for a period for a period of 3 years.  It was agreed that $9 per hour was the appropriate rate to use.  I allow $9,828 under this head.
           A claim for $1,507 for past medication, and $5,000 for future medication was not disputed; they will be allowed.  A claim was also made for $5,000 for future medical care and that was not disputed.  I will allow it.
           Total quantum will therefore be assessed in the sum of $340,415.
           The action should be dismissed with costs.