| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MORGAN -v- E M & M M COSTELLO TRADING AS WANNEROO SMASH REPAIRS PTY LTD [2002] WADC 168 CORAM : DEANE DCJ HEARD : 3, 6-10 AUGUST 2001 DELIVERED : 7 AUGUST 2002 FILE NO/S : CIV 3644 of 1999 BETWEEN : JOHN LEONARD MORGAN Plaintiff
AND
E M & M M COSTELLO TRADING AS WANNEROO SMASH REPAIRS PTY LTD
Defendant
Catchwords: Personal injury - Section 93D Workers' Compensation and Rehabilitation Act 1981 - Liability and assessment of damages - 42 year old spray painter - Whether injury at defendant's premises occurred as alleged - If so whether defendant negligent - Whether any contributory negligence on part of plaintiff - Nature and extent of any injuries suffered by plaintiff - Capacity of plaintiff to work since date of accident and in the future - Damages claimed for non-pecuniary loss past and future gratuitous services, past and future medical expenses and rehabilitation - Special damages
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Legislation:
Workers' Compensation and Rehabilitation Act 1981
Result: Damages assessed but plaintiff's claim dismissed as total future pecuniary loss falls below threshold of s 93D of the Workers' Compensation and Rehabilitation Act 1981 Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Leonard Cohen & Co
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Case(s) also cited:
Bowen v Tutte (1990) A Tort Rep 81-043
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18
Thomas v O'Shea (1989) A Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158
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Introduction 1 In this action both liability and quantum are in dispute. The plaintiff claims that an alleged accident on 18 March 1998 which occurred whilst he was working at the defendant's premises was caused solely by the negligence of the defendant. The plaintiff alleges that on the morning in question he attempted to pull and slide a large heavy door open and in building up momentum to cause the door to move, the door came off its lower guide rail or track thereby coming to a sudden halt, which in turn, given the physical position that the plaintiff claims he was in at the time, caused injuries to the plaintiff. 2 The plaintiff alleges that the defendant was negligent in that it failed to take appropriate action being aware that the door had a tendency to come off its tracks and that any repairs carried out to the door were inadequate to prevent this occurring. Essentially it is said that the system of work and workplace itself were unsafe. 3 The plaintiff claims that as a result he suffered a traction type injury to his right forearm and to the base of his neck on the right side, with accompanying subacromial bursitis. The alleged injuries are elaborated upon in the pleadings but specifically involve the right shoulder and arm as well as the right side of the neck. 4 Whilst denying liability, in the alternative the defendant asserts that nothing concerned with the task of sliding the door exposed the plaintiff to a foreseeable risk of injury and further that there were no practicable precautions which the defendant could or should have taken in those circumstances which would have lessened any alleged risk of injury. It is said that the injury loss and/or damage sustained by the plaintiff, if such occurred, were caused solely by, or alternatively contributed to, by the plaintiff's own negligence. 5 The defendant takes a further alternative position in that whilst it denies liability and any subsequent loss or damage as a result of the alleged accident at the defendant's premises, the defendant says that if any incapacity, loss or damage to the plaintiff is found to exist, then it was caused or materially contributed to by either an injury to the plaintiff's shoulder and neck on the preceding evening whilst he was playing indoor cricket, or as a result of a motor vehicle accident in which the plaintiff was involved after the alleged accident at the defendant's premises whilst
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the plaintiff was driving to a nearby doctor's surgery in order to seek medical treatment. Finally, the defendant's position is that if any incapacity, loss or damage was caused as a result of the alleged accident then it was of a transient and minor nature only and was not causative of any pleaded disability or incapacity alleged by the plaintiff. 6 In any event the defendant argues that the plaintiff has a retained capacity to work in a variety of occupations and he has failed to mitigate his loss and damage by seeking employment within those areas. 7 It is common ground in this matter that in order to obtain an award of damages, if the defendant is found totally or partially liable for the alleged accident, then the plaintiff must establish a future pecuniary loss in excess of $130,609 (as from 1 July 2002) pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 as it applied at the relevant time to this matter.
The plaintiff's personal circumstances and work history 8 The plaintiff is now nearly 42 years of age, having been born on 3 August 1960. He completed his schooling at the age of 15 before commencing an apprenticeship as a spray painter in 1975. According to the plaintiff's proof of evidence, Exhibit P1, he was very successful in this endeavour and worked in the industry as a spray painter almost continuously, save for two breaks that took to minimise his exposure to isiocyanate paints which are used in the spray painting industry and can cause health problems. During the two periods in question the plaintiff worked as a trades assistant for about 2½ years for O'Donnell Griffin in the early 1980's and as a nightshift moulder making concrete pipes for CSR Humes in the mid-1990's again for about 2½ years. 9 The plaintiff commenced work with the defendant on 8 September 1997 working from 8.00 am to 4.30 pm daily. According to the plaintiff, his duties as a spray painter were physically strenuous but it appears that he enjoyed the work which he carried out unsupervised due to his experience as a spray painter. His evidence was that he intended to work to 65 years of age. 10 The plaintiff is unmarried and is not in a permanent domestic relationship, although his evidence was that in the past, after the alleged accident, he was in a relationship with a woman for a short time but that came to an end. The plaintiff has no dependents and, as I understand his evidence, both his parents are deceased. He has six older sisters, one of
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whom, Mrs Baikauskas, from time to time after the plaintiff's alleged accident visited his home and carried out some limited domestic chores to assist the plaintiff. The plaintiff lives in rented premises and his evidence suggested that he shares those premises with a male housemate who also carries out some limited domestic duties. 11 Relevant to the circumstances of the accident the plaintiff said that he arrived at work on 18 March 1998 about 7.45 am and mixed some tinters in preparation for the day's work. According to the plaintiff's proof of evidence since the time he first commenced to work at the defendant's premises a large door on the righthand side of the paint shop as one looks at it (Exhibit D1) was defective in that it was difficult to open or would come to a sudden halt whilst moving along its guide rails and on some occasions, according to the plaintiff, it came off the rails altogether. The door was heavy in that the plaintiff estimated it weighed about 200 kg and was approximately 3.9 m long and 4 m high. He said the lower edge of the garage door was guarded by a piece of rectangular hollow section steel tubing, which was embedded in the concrete floor of the building. An inverted U-shaped piece of steel channel, attached to the bottom edge of the door ran on the guide rail and guide at the bottom of the door. This door when jammed would sometimes require a number of persons to pull and push it in order to cause it to open. The plaintiff's recollection was that on a number of occasions, prior to his alleged accident the door had come off its upper rail when he and others attempted to open it. 12 A number of witnesses were called by both the plaintiff and the defendant relevant to the state of the paint shop door prior to the date of the alleged accident. Mr Scarfetta, who had worked at the premises as a spray painter for approximately five years, said that the door in question was temperamental and it had to be shoved in order to open it and then one had to walk with the door effectively in front of one guiding it along. Unlike the plaintiff, Mr Scarfetta found the door easier to open from the inside rather than the outside but nonetheless he conceded that everyone at the premises opened the door in a different manner. His recollection was that there was, what he termed, a "tight spot" about halfway along the rails as one opened the door. This "tight spot" he said was not behind where the plaintiff was standing as depicted in photograph No 7 contained in Mr Apgar's report (Exhibit P6A). The doors of the shed are also depicted in Exhibits P3A and B. Mr Scarfetta's opinion was that the door in question is now easier to open than prior to the alleged accident because it has been fixed.
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13 Mr Winters also worked at the premises at the time in question and described the righthand side door to the paint shop as being very heavy. It was his habit to open the door from the inside by using both hands and pulling it towards him before stepping in front of the door and pushing it away from him. His evidence was that the door had a tendency to stick in the bottom guide rail and for that reason one needed to push it with some force in order to keep it moving. When the door jumped out of the bottom guide rail as it did from time to time, it was Mr Winters' habit to kick it back into position or to employ a bar to lift it back into position which he did not consider to be an onerous or physically difficult task. His evidence was at odds with the plaintiff's recollection in that Mr Winters denied ever using a forklift in order to put forks or bars under the bottom of the door to lift it up and place it back onto or into the lower guide rail. He did, however, use the forklift to take the door off in order to place new runners or rollers within the structure and his recollection was that this was done about two or three months after the plaintiff's alleged accident. His recollection was that the door had a tendency to stick or get stiff about 1½ m from the opening point and he conceded that the greater the force used to push the door or pull the door open the more abruptly it would come to a halt, if it stuck in the guide rail or met an obstruction in the guide rail.
14 Mr Hutcheon was called on behalf of the defendant as he had been a foreman at the premises for approximately 11 years. He too gave evidence that the righthand side door to the paint shop was heavy and could be stiff and difficult to open at times. His habit was to push the door open with both his arms extended out in front of him. If it was stiff and came to a sudden half, or if it jumped out of its bottom runner or guide rail as it had a tendency to do on occasions, Mr Hutcheon dealt with this by placing his boot against the bottom of the door and using relatively gentle force in order to guide or push the door back into the runner or guide rail. On some occasions he would employ an instrument to jemmy the door back into position in the lower guide rail. His evidence was that the door would come off the bottom runner or guide rail on an average of two to three times per month. Maintenance was carried out on the door on occasions when someone would get into a specially constructed cage on a forklift in order to be lifted up so that the top runner in which the door sat could be greased to allow for easier opening of the door. 15 Mr Piper was a young man who, although he did not work at the defendant's premises in the workshop, happened to be there from time to time in 1998 over a period of months when he was allowed to use the premises in order to restore an old motor vehicle. It was in this way that
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he came to meet the plaintiff. Mr Piper's recollection was that the door in question was in poor condition and it had to be prised open on occasions. He believed it had a tendency to jam some 18 to 24 ins after opening but his evidence was at odds with many of the other witnesses in that he recalled the door having a tendency to jump out of its top guide rail creating a hazard whereby it had the potential to perhaps fall on persons working nearby or on cars in the immediate area. He recalled the door being opened by persons from the outside rather than the inside and on occasions those persons would gain leverage in order to push the door open by placing their foot against a nearby pillar and then pushing the door along which gave it increased momentum. 16 Mr Costello, on behalf of the defendant, gave evidence concerning a number of matters including the state of the door in question. He conceded that the door was heavy and had a tendency to jam or stick and jump out of or come off its lower guide rail. He said that it was impossible for the door to come off its top guide rail and to his recollection this had never occurred. He was a witness who believed that the door was generally opened from the inside and in that respect he took issue with the photographs numbered 5 and 6 in Mr Apgar's report showing the door being opened from the outside. He explained that maintenance on the door was carried out by using a forklift to allow a worker to clean and grease the upper channel but said that such lubrication was required to avoid wearing out the channels or runners rather than because there was any particular difficulty in opening the door. Unlike the other witnesses Mr Costello said that the door did not come to a sudden halt as such if it jammed but rather it had a tendency to move stiffly and so it was necessary to make sure that the lower guide rail was cleared of any obstructions such as small stones or pieces of bitumen. He was aware that the lower guide rail to the door was damaged but did not consider that the dents or damage in the lower guide rail or runner were an impediment to actually opening the door. He had never seen a forklift being employed to lift the door back into its lower guide rail or runner but said that in such a situation a bar was simply placed under the door in order to lift it up and in effect settle it more firmly into position in the lower guide rail. Since the alleged accident in March 1998 he said the relevant door had been adjusted and/or lubricated a couple of times. 17 The plaintiff was cross-examined at considerable length concerning the method he employed to open the righthand side door to the paint shed on the morning of the alleged accident. He first approached the door from the inside where the flap, according to him, was held in place with an item which he thought was a pair of scissors. He said he then put his hands on
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the edge of the door and pulled it ajar a short way and then went to the outside of the door either through squeezing through the opening or going through another door and then going outside. He placed both his hands on the edge of the door from the outside and placed his foot against the shed before proceeding to pull or wrench the door towards him with considerable force. The door then began to slide with building momentum, at which point the plaintiff said that he swung around, or attempted to swing around, to continue pushing the door and that was when it came off its lower track and came to an abrupt halt. The plaintiff said in effect he kept going and his right arm was wrenched or pulled out, after which he immediately felt a wrenching pain in his right shoulder accompanied by quite severe pain in the area between his right shoulder and neck. He said that initially his left arm and shoulder were against the door but at the relevant point both of his arms were extended with his fingers crooked around the edge of the partially opened door. His recollection was that the door travelled some three to four feet before jamming or coming to an abrupt halt. At that stage both his feet were on the ground and he had ceased holding the door with his left arm because of the movement involved with him swinging around to push the door. He claimed that his right shoulder was injured because his arm was extended away from his body as he was doing a turning or swinging motion to push the door in front of him. 18 Although the original statement of claim pleaded that the plaintiff was pushing the door it was put to him that in effect he was actually pulling the door. In the end, however, I do not think a great deal turns on whether one describes it as pushing or pulling the door. It is clear that a number of photographs taken by the expert Mr Apgar when he visited the premises in order to investigate the matter after the alleged accident, are somewhat at odds with the plaintiff's description of what happened on the day of the alleged accident. An acquaintance of the plaintiff is shown in some of those photographs apparently depicting what it is said the plaintiff did that day. Photograph No 6 in Mr Apgar's report shows a man with his right shoulder hard against the door pushing in order to make it open further. There was also some debate about where the plaintiff claimed the door came to a halt in his evidence and where it appears he was pointing in the photographs in order to demonstrate where the door came to an abrupt stop. He said that he had never shown, or attempted to show, Mr Apgar how he claimed he hurt himself and further that his acquaintance in the photographs was demonstrating to Mr Apgar the different positions in which the door could or would be opened. The plaintiff's recollection was that the door sat in a bottom runner or guide
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rail whereas it was guided by rollers in the top rail. He said that on occasions a forklift was used to lift the door back into position when it jumped out of position and that is how he understood that the bottom guide rail came to be dented or damaged. 19 Mr Hoy was just about to cease his employment with the defendant at the time the plaintiff commenced work there. He too said that the door in question was problematic and would stick on occasions when one attempted to open it and it then had to be levered back into position in order to make it run smoothly. He thought on one occasion Mr Costello arranged for some panel beaters to get onto the forklift in order to weld something on to the door to improve it but that was not successful. He thought this maintenance was carried out to the top of the door. 20 Mr Apgar, a forensic engineer, prepared two reports relevant to the investigation of the matter dated 21 November 2000 and 31 July 2001. His investigations revealed that about 8 kg of force were required to start the door moving in order to open it but on the day he attended the door stuck roughly a metre into opening and required about 21 kg of force exerted by two hands standing on the inside of the door in order to continue keeping it moving. When it was almost fully open it stuck again and on that occasion required approximately 25 kg of force to cause it to move again. In relation to photograph No 7, Mr Apgar said he did not know the significance of the dent portrayed relative to the force he was applying, as it was difficult to see under the edge of the door and all he was looking at were the locations where there was increased force and areas of damage done to the lower guide rail due to things falling onto it. He believed that he had the man depicted in the photographs pose according to what the plaintiff told Mr Apgar as to how he had opened the door. His recollection was that the plaintiff instructed his friend to take particular positions as depicted in the photographs. He understood that the plaintiff opened the door with his right shoulder against it at the point where the plaintiff was injured and he did not understand that on the occasion in question the plaintiff had both arms extended holding the door in order to cause it to move. The plaintiff indicated to Mr Apgar that the door was only opened a short way before the plaintiff was injured but he was not prepared to concede that photographs 7 and 8 in his report had nothing to do with where the door actually stuck on the day of the alleged injury. There seemed to be some confusion in Mr Apgar's recollection as to whether what was depicted in photographs No 5 and 6 was the usual procedure for opening the door as explained to him or the procedure that the plaintiff used on the day of the alleged accident. It must be appreciated, as was evident from Mr Apgar's evidence, that when he
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attended the premises and carried out his investigations the door in question had been repaired or adjusted since 18 March 1998. 21 Mr Apgar's report was to the effect that there was a clear indication that the door had come off its rails on many occasions and had dropped down and slid on top of the lower guide rail causing indentations and scrape marks to its surface. His view was that the damage to the lower guide rail clearly indicated that the door had not been properly maintained over a considerable period of time and he believed from the information available to him that it had come off its upper guide rail on a number of occasions which resulted in damage to the lower guide rail. 22 Mr Scarfetta, whose evidence has been mentioned earlier, said that on the morning in question the plaintiff had informed him that he had hurt his shoulder, as a result of which Mr Scarfetta directed him to the office in order to see the defendant. About 10 minutes later Mr Scarfetta went to the relevant door in the paint shop and noted that it was ajar some two to three feet and so he lifted it back on one corner to avoid lifting the whole weight of the door in order to place it back into the guide rail. Mr Winters said that the plaintiff also approached him that morning and informed him that he had hurt his arm opening the paint shop door and at that point Mr Winters noted that the plaintiff looked, in his words, "lopsided" in the sense that one of the plaintiff's shoulders was drooping down. The plaintiff did not report the alleged accident directly to Mr Hutcheon, however, relevantly at one point that morning Mr Hutcheon observed the plaintiff speaking to Mr Winters at which time the plaintiff was gesturing to one of his shoulders. 23 The plaintiff said that pursuant to the directions he had been given, he went to the office area of the premises where the receptionist, Ms Vladich, was working and he reported the matter to her. Ms Vladich's evidence was that in fact the plaintiff did come into the office that morning and inform her that he had hurt his shoulder and intended to seek medical attention. For that reason she gave him the address of Dr Wong to whom such accidents were usually reported. Her recollection was at the time the plaintiff showed her a swelling of what she described as a big muscle at the base of the right side of his neck. It was at that stage in the conversation that Ms Vladich recalled she saw the defendant Mr Costello arrive at work in his vehicle and so she directed the plaintiff to go and see him. She said that she actually saw Mr Costello driving through the main gates when she gave the plaintiff this advice.
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24 Finally, and relevant to the issue of damages, Ms Vladich's uncontradicted evidence was that the rates for spray painters, at least those employed by the defendant, were at the same rate at the time of trial as they were in 1998 because in 1998 the rates had been above the award.
25 Mr Costello's evidence as to what transpired at this point in time differs from that of both the plaintiff and Ms Vladich. His recollection was that on this morning he drove his vehicle into the carpark of the premises and sat in his car for a short time sorting out the mail which he had collected a little earlier. He said as he was about to go into the office the plaintiff walked from the paint shop up to Mr Costello and informed Mr Costello that he had been injured. This was when Mr Costello noted the plaintiff's shoulder was very swollen and so he said he offered to drive the plaintiff to seek medical attention. The next he knew the plaintiff had in fact driven himself off for that purpose. On this issue I prefer and accept the evidence of both the plaintiff and Ms Vladich as to the defendant's arrival time at the premises and what occurred immediately thereafter. 26 The plaintiff said that after reporting the alleged accident to Mr Costello, he was advised to obtain medical attention and for that purpose he drove his Suzuki Sierra vehicle along Wanneroo Road intending to attend the Joondalup Hospital. In the course of the journey he decided to stop at an x-ray clinic but he had neither a referral nor was the clinic yet open and for that reason nothing further was done in this regard. The plaintiff got back into his vehicle and continued driving down Wanneroo Road, at which point he said he was experiencing severe pain in his right shoulder and he felt the shoulder area seizing up so he stretched his arm out of the window to loosen the stiffness. At this stage he had difficulty turning his neck and said in his evidence that he was stretching his neck in the opposite direction away from his arm which was extended out the window and attempting in some way to rotate his neck to get some form of flexibility into it. He conceded that in the course of this manoeuvre he was not paying any particular attention to the surrounding traffic and as a result of that, at the intersection of Wanneroo Road and Ocean Reef Road in Wanneroo, when according to his proof of evidence and some answers to interrogatories, the plaintiff was travelling at about 60 km/h, he noticed a Toyota 4-wheel drive stopped about three to four car lengths in front of him. He collided with it travelling about 50 km/h. As a result he said he struck both of his knees on the dash and hit his nose on the sun visor, but did not experience any other significant painful symptoms except for those he had sustained in the alleged accident. He said the seatbelt which he was wearing across his right shoulder, left no
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marks as a result of the impact of the sudden collision. As a consequence the plaintiff sustained some damage to his motor vehicle which he claimed cost approximately $1,600 to repair. 27 The plaintiff's evidence was somewhat inconsistent with a number of answers he gave to interrogatories concerning the details of the motor vehicle accident on the way to Joondalup Hospital. In sworn testimony he denied in the answers to interrogatories that he saw the Landcruiser prior to impact and maintained that he was doing less than 50 to 60 km/h at the time despite his answers to interrogatories to this effect. He based this view on the amount of damage done to his motor vehicle, although it would appear that he told both Dr Wong and Mr Williams when he was reviewed by them that he was travelling at around 60 km/h at the relevant time. 28 After informing the defendant over the telephone about the motor vehicle accident, another employee collected the plaintiff and took him to see Dr Wong. Dr Wong issued the plaintiff with a first medical certificate having taken a history that the plaintiff was pulling a workshop gliding door which jammed causing pain to the right side of the plaintiff's neck, shoulders and chest wall. Reference was made to the motor vehicle accident on the way to Dr Wong's surgery by way of a rear end collision with another vehicle. 29 Dr Wong's diagnosis was of a minor upper jarring to the right upper neck and shoulder and chest wall muscles. He was unable to say which of those resulted from the incident described as having occurred at the defendant's premises and which were as a result of the motor vehicle accident. Dr Wong had nothing further to do with the plaintiff's treatment after this point, as he advised him to attend his own general practitioner, Dr Quinlivan. He did, however, order chest and neck x-rays as well as x-rays of the right sterno clavicular joint noting that the plaintiff was, in his opinion, fit for light duties at that date. 30 The plaintiff gave evidence that he did return to work after consulting Dr Wong but was unable to continue due to severe pain and as a result organised for a relative to collect him and take him home. He then made arrangements to attend Dr Quinlivan's surgery later that same day. 31 The plaintiff attended Dr Quinlivan's surgery on 18 March 1998 taking with him the x-rays ordered by Dr Wong. Dr Quinlivan's evidence as well as the evidence of the other medical practitioners that the plaintiff
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consulted or to whom he was referred over time, will be canvassed later in the course of these reasons. Relevant to that first attendance, however, the surgical notes from Dr Quinlivan's practice indicate that the plaintiff was pulling a big heavy sliding door which came off its tracks causing a sudden and severe pull on the muscles of the right shoulder and neck. The motor vehicle accident on the way to consult Dr Wong is noted as are x-rays of the neck, chest and a CT scan of the neck. It is also noted that the right shoulder and surrounds are deformed and there is limited movement and pain reported. An ultrasound of the right shoulder and a further CT scan were ordered and the plaintiff was diagnosed as being unfit for work.
The medical evidence 32 It is convenient to begin with the observations and opinions of Dr Ruth Quinlivan who has been the plaintiff's general practitioner for approximately 26 years. At times he has attended her surgery and been seen either by another doctor or Dr Quinlivan's daughter, Dr Rosemary Quinlivan. The plaintiff therefore has an extensive history of attendances upon Dr Quinlivan's surgery, for a wide variety of complaints and ailments. Dr Quinlivan did not consider that any of these conditions prior to the alleged accident were very serious and she did not believe they necessarily affected the plaintiff's ability to work. She now considers that he cannot continue work as a spray painter and in her evidence she assessed the plaintiff as having a 20 per cent permanent incapacity to his right shoulder. She did not consider that the plaintiff was able to lift any weight over 2 kg and further that he should avoid using his right arm by means of using his left arm as much as possible. Nor did she take the view that the motor vehicle accident, which occurred on the way to Dr Wong's surgery, was in any way causative of the plaintiff's current complaints and incapacity but rather its source was the significant injury which the plaintiff claimed he suffered at the defendant's premises on 18 March 1998. 33 Dr Quinlivan's notes and her evidence revealed that for quite some period prior to the alleged accident, the plaintiff had suffered from bouts of gastritis, due in Dr Quinlivan's opinion, to alcohol abuse and binge drinking. Whilst from time to time this was described as an ulcer, in her view it was best described as an erosive condition of many years standing which was initially controlled by Zantac, but which is now more effectively controlled by Losec. The plaintiff also has a longstanding history of panic attacks and some anger management problems which
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would appear to be exacerbated by alcohol use. Although the plaintiff has presented on a number of occasions with chest infections and complaints of chest problems Dr Quinlivan did not believe that prior to March 1998 this would have prevented him from carrying out work as a spray painter. 34 In 1987 the plaintiff complained of severe headaches and investigations were carried out into whether or not he suffered a form of epilepsy. In the following year the plaintiff complained of insomnia or difficulty sleeping and was prescribed medication to assist with the problem. In looking at Dr Quinlivan's notes (Exhibit D13) insomnia, or at the very least sleeping difficulties, have been a fairly consistent complaint on the part of the plaintiff to his general practitioner. Somewhat unusually, given the plaintiff's rather regular attendances at Dr Quinlivan's surgery, he did not see her for some months after he was involved in a fairly serious motorbike accident on 10 October 1986. As a result of the incident the plaintiff was hospitalised for four days. 35 The plaintiff's evidence was that the neck pain from which he suffers arose as a result of that accident, after which time he had fairly regular Depomedrol injections to control the neck pain. He claimed these would alleviate his symptoms for about three months and the last of those injections prior to his alleged work injury, was in January 1998. He continues to receive these injections from Dr Quinlivan. 36 The plaintiff was also involved in another motor vehicle accident in 1990 when someone drove into the rear of his motor vehicle in Claremont. As a result he complained of back and neck pain with accompanying pain in the left rear chest area. He claimed that these symptoms lasted for less than 12 months and he did not require time off work. His claim in that regard was finalised in 1991. In March of 1991 the plaintiff complained of left shoulder and neck pain which arose in the course of spray painting with associated arm fatigue. 37 In April of the following year he presented complaining of chest pressure with associated breathing difficulties and hyperventilation for which he was prescribed a tranquilliser. According to Dr Quinlivan, the plaintiff's neck pain was exacerbated in August of 1992 when he struck his head and he was prescribed a further Depomedrol injection. 38 In February 1993 neck pain was noted at C4/5 for which a further injection of Depomedrol and Zylocaine was administered. At this time the plaintiff also complained of insomnia and irritability.
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39 Four months later in June of that year the plaintiff was again complaining of neck pain and a further Depomedrol injection was administered.
40 In April 1994 the plaintiff was again complaining of insomnia or difficulty in sleeping as well as presenting with wheezing and pharyngitis for which he was prescribed medication. 41 In February 1995 a further Depomedrol injection was given in response to the plaintiff's complaints of neck pain which was still persisting in August so another injection was given. At that point he was also complaining of pain to the right knee. For this reason he was referred to Mr Holt by Dr Quinlivan. 42 Given her longstanding association with the plaintiff as his general practitioner, it was evident to the Court that Dr Quinlivan was very supportive of Mr Morgan. She admitted that whilst she was in no way biased in his favour she nonetheless hoped that the plaintiff's situation would be resolved satisfactorily as far as he was concerned. In her view the plaintiff was someone who used to present himself to hospitals quite often if he had any complaints or medical difficulties. Given his medical problems, she did not consider that he was the ideal person to be a spray painter because of exposure to dust and fumes but nonetheless I did not understand her to say that prior to the alleged accident she did not consider the plaintiff could carry out this work. 43 On 27 March 1998 in Dr Quinlivan's view the plaintiff's neck pain seemed to be predominant, travelling towards his shoulder and into his right arm. She referred him to Dr Fitch regarding the complaints of pain. 44 In September 1999 as he was still complaining of right shoulder pain, Dr Quinlivan administered yet another injection of Depomedrol. The plaintiff of his own volition presented himself to hospital on 21 October 1999, where he remained for three days complaining of gastro intestinal pain, although the ultrasound which was ordered appeared normal. 45 In August of 2000, according to the notes from Dr Quinlivan's surgery, the plaintiff presented complaining of panic attacks and stress and advised that he had, according to the note taken, "packed in job" being a reference to his job as a driver with Truemix International. Later that month he presented with a chest infection for which antibiotics were prescribed.
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46 In May of 2001 he was given a further Depomedrol injection relevant to complaints of pain in both the left and right side of his neck.
47 Dr Quinlivan's evidence was at odds with that of the plaintiff in an area that I consider to be of particular importance and significance. In his proof of evidence the plaintiff said that he underwent a training course with Chubb Security to become a static security guard in February 2000. That course was of approximately one week's duration and there is no dispute that the plaintiff undertook and completed it without any difficulty whatsoever. According to the plaintiff's proof of evidence he did not apply for a licence as a security officer nor did he undergo the proposed work trial with Chubb Security. Part of the reason for this, according to the plaintiff, was that he has a criminal conviction. 48 Upon questioning at trial it transpired that the conviction was recorded many years ago when the plaintiff was in his early 20's and it would not seem to me to be of a nature which would preclude the plaintiff from obtaining a police clearance in February 2000. The major reason, however, that the plaintiff gave for not undertaking the work trial was that he claimed Dr Quinlivan advised him that work as a security guard was physically unsuitable for his condition. As a result of this advice the plaintiff said that he obtained a job working as a driver for approximately 12 hours per week with Truemix International in May 2000. He received about $12 gross per hour for this job, which entailed driving females around to promotional events in an Oldsmobile. This work came to end in August of 2000 and the plaintiff has not worked since. 49 Dr Quinlivan was most explicit in her evidence that she never advised the plaintiff that he could not undertake work as a static security guard and indeed she expressed considerable surprise that his rehabilitation providers did not pursue the plaintiff to take up this work. In her opinion he was physically capable of undertaking that work for about 15 hours per week when she reviewed him on 9 March 2000. Although she did not sign a document faxed to her by Active Injury Management under cover of letter of 2 March 2000, Dr Quinlivan has nonetheless ticked a box indicating that she had reviewed the work trial programme proposed and approved of it. Her restrictions are noted as applying. Dr Quinlivan stated in her evidence relevant to the form that she would have received it. She assumed that the rehabilitation providers would have telephoned her.
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50 Furthermore Dr Quinlivan's evidence was that she considered the work that the plaintiff undertook as a driver for promotional events to be trivial and not a form of proper work for him.
51 There was additional conflicting evidence on this point because on 9 May 2000 the rehabilitation providers were informed by the plaintiff that police security licensing had lost the plaintiff's letter from Chubb Security which they required in order to give him a clearance to undertake the work trial. It was my impression that the plaintiff was rather vague and somewhat evasive in his evidence regarding the events of April 2000 or thereabouts with respect to undertaking the work trial, but it would appear that in May 2000 the plaintiff further advised Active Injury Management that he had a job with Truemix International and did not require other work to be provided. It does not appear that he ever informed his rehabilitation providers that as far as the plaintiff was concerned Dr Quinlivan had advised him not to undertake the work trial as a security guard. If he had done so of course this would have been entirely contradictory to Dr Quinlivan's attitude on the matter. 52 The plaintiff first saw Mr Holt, a specialist in knee and shoulder surgery, in January 1998 and again in July 2001. He gave a history from the time of the alleged accident of increasing stiffness in the right side of the neck towards the right shoulder. Mr Holt initially believed that the plaintiff was suffering a cervical problem as he appeared to have a full range of shoulder movements with no impingement. X-rays did not reveal any pathology. The plaintiff was not complaining of any sterno clavicular pain and as Mr Holt's speciality does not relate to necks or the cervical region he referred the plaintiff back to Dr Quinlivan. It should be noted that Mr Holt saw the plaintiff with respect to a left knee injury sustained playing volley ball in 1996 as a result of which he underwent surgery. 53 In April 1998 a return to work programme was arranged for the plaintiff. On 29 April 1998 he carried out approximately four hours work involving masking a vehicle, paint and putty knifing but his shoulder swelled as a result of carrying out these lighter duties and he ceased work. The following day Dr Quinlivan certified the plaintiff unfit for work for a further two weeks. That was the last occasion upon which the plaintiff worked for the defendant. 54 The plaintiff then undertook some physiotherapy and was referred to Dr Fitch, a sports physician, on 27 May 1998. Dr Fitch saw the plaintiff on a number of occasions in 1998 and prepared reports (Exhibit D10A, B,
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C & D) relevant to his examinations of the plaintiff. He considered initially that the plaintiff had ruptured the short head of the biceps which is a somewhat unusual injury. As a result the plaintiff was sent to Dr Breidahl who did not confirm Dr Fitch's diagnosis because an ultrasound revealed that the area in question was normal without injury or inflammation. 55 Dr Fitch injected the plaintiff's right shoulder with local anaesthetic which gave the plaintiff some temporary relief. Dr Fitch was somewhat perplexed by the changing signs and symptoms exhibited by the plaintiff on various reviews, which included complaints of pins and needles in the arm. He noted that the plaintiff's right shoulder exhibited a good range of movement, although there was some weakness in the biceps. He resisted the plaintiff's request to undergo surgery and took the view that the plaintiff should in fact consult an occupational physician. He did not consider that as the plaintiff had worked for a number of years as a spray painter that subacrominal changes such as the plaintiff exhibited were unusual. The type of injury Dr Fitch diagnosed relevant to the plaintiff was in his view often the result of what he described as wear and tear and he certainly did not recommend subacrominal decompression by way of surgery. He had some misgivings as to how serious the plaintiff was in his desire to return to work. 56 On 10 August 1998 the plaintiff consulted an occupational physician, Dr Clarke, who reviewed the plaintiff on three occasions between 1998 and September 2000. On the history he obtained Dr Clarke was not aware that the plaintiff had, or had complained of, a pre-existing neck injury. The plaintiff described a type of traction injury to the right forearm and base of the right side of the neck, with pain radiating into the upper anterior chest. His main symptoms related to the base of his neck in the super clavicle region with some discomfort vaguely around the shoulder joint itself. 57 Dr Clarke did not notice any substantial symptoms in the right arm and took a history that the plaintiff could dress without restriction and carry out light housework, although he could not hang out washing and suffered from sleeplessness. 58 On the occasion of the second review in November 1999 there appeared to be a change to the plaintiff's symptoms in that he was then relating them to the right shoulder. Given the history of the motor vehicle accident on the way to Dr Wong's surgery, Dr Clarke believed that the impact was moderately severe and on the strength of that considered that
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some component of the plaintiff's symptoms related to the motor vehicle accident but he was not precise about this. As to the plaintiff's medical history, Dr Clarke said he considered it would have been relevant for him to know that the plaintiff had had a number of Depomedrol injections for neck pain prior to being referred to him. 59 As an occupational physician Dr Clarke considered that although one could not generalise, it was unusual for persons to work in a manual capacity in the spray painting industry until they were 65 years of age. He considered this situation to be applicable to a variety of manual trades, where less than 25 per cent of persons or employees in his experience worked to that age. He had an opportunity to review the notes from Dr Quinlivan's surgery and in the light of that very detailed material he considered it unlikely that the plaintiff would have worked to 65 years of age as a spray painter. That, however, was an opinion which he conceded would require further investigation before he could firmly commit to it. Nonetheless his evidence was that the plaintiff has a generally good prognosis for recovery, especially if he avoids lifting or work above shoulder height. His evidence was also that there is no reason why the plaintiff cannot undertake full-time driving duties such as a taxi driver or courier, albeit subject to the above restriction. 60 The plaintiff was then referred to Dr Janes, an orthopaedic surgeon, in August 1998. In that month he underwent an x-ray and an MRI of the right shoulder. Dr Janes saw the plaintiff on three occasions between August 1998 and October 2000 and prepared a considerable number of reports which became Exhibit P1. Mr Janes gave de bene esse evidence on 24 July 2001. Having reviewed photos of the damage to the plaintiff's vehicle after the accident on the way to see Dr Wong, Mr Janes considered that if it was a low velocity impact it would pale by comparison to the alleged accident at the defendant's premises. His diagnosis was one of soft tissue injury with the mechanics of the right shoulder remaining intact. He considered that the plaintiff's progress had been disappointing and in fact was somewhat negative in his prognosis for his future recovery. He took the view that the plaintiff has developed a pain syndrome, which is now somewhat entrenched and it is the pain rather than any significant formal restriction of movement that is the cause of any incapacity of which the plaintiff complains. 61 When he reviewed the plaintiff there was no complaint of impingement in neck movement, but rather the complaint was of pain around the right shoulder girdle radiating into the neck, the source of which was difficult to localise. The mechanism of injury as described to
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him by the plaintiff would in his view have resulted in a wrenching force to the shoulder. 62 Mr Janes, similarly to Dr Clarke, was not told anything by the plaintiff of the previous Depomedrol injections he had received for his neck pain from Dr Quinlivan and in fact the plaintiff informed Mr Janes that prior to the alleged accident he had been in good health. Mr Janes noted that the plaintiff had osseoacromiale, which is a lack of proper formation of the shoulder bones that occurs in only about 1 per cent of the population and which can become symptomatic on trauma. 63 Dr Janes was also unaware of the motor vehicle accident of 18 March 1998, until shortly before he gave evidence. In his view the cause of the plaintiff's symptoms was subacromial bursitis which he assumed to be as a result of trauma, although he conceded that it could possibly have resulted from an injury earlier than 18 March 1998. 64 Dr Janes performed three lots of surgery to the plaintiff's right shoulder, the first being a day procedure on 23 September 1998. The plaintiff complained of a clicking noise in his shoulder area after surgery and said his right arm began to lock up, so he was referred for further physiotherapy and given medication. 65 The plaintiff continued to complain of pain and a catching in the top of his right shoulder upon elevation of the arm, however injections to relieve pain gave only temporary relief. As a result Dr Janes performed further surgery to the right shoulder on 10 February 1999 whereby the subacromial space was further decompressed and tissue debrided. Once again this was a day procedure. 66 In 1999 Dr Janes ordered a further ultrasound of the right shoulder and gave the plaintiff another injection for pain relief. On 4 September 1999 Dr Janes performed an arthroscopy on the plaintiff's right shoulder after which he advised the plaintiff that he could no longer work as a spray painter and should undergo retraining. Dr Janes further injected the plaintiff's right shoulder on 25 November 1999 after he had undergone physiotherapy, hydrotherapy and a gym programme. 67 Dr Janes was clear in his evidence that the plaintiff is fit to undertake a variety of occupations. On 20 January 2000 he considered that the plaintiff was fit to undertake work as a static security guard and further he considered that the plaintiff could undertake work as a driver, if he avoided heavy lifting above the shoulder. He also considered that the plaintiff was physically fit to undertake work as a sales representative
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subject to that particular restriction. On the history available to him, Dr Janes considered that the plaintiff's injury and symptoms were related to the alleged accident at the defendant's premises, but he considered that his neck problem is the likely cause of his current symptoms. He assessed the plaintiff in January 2000 as having a 20 per cent disability at or about the level of his right elbow. 68 As a result of the plaintiff's continuing complaints of pain he was referred to Dr Salmon, a pain specialist. In April 1999 Dr Salmon took a history from the plaintiff who felt at that time he was coping. Dr Salmon's opinion was that the plaintiff's right neck, right shoulder and right upper arm pain related to a mid to lower cervical segment disturbance and that the shoulder joint pathology was not a major contributor to the plaintiff's pain state. He did, however, consider that restriction to the plaintiff's right arm prevented him from carrying out spray painting and he referred the plaintiff for physiotherapy. 69 In June 1999 he administered a right C5 sleeve injection to address the pain state but this was unsuccessful in the long term. Further injections were administered and in December 1999 the plaintiff seemed to undergo significant pain relief to his right shoulder with an ultrasound showing no nerve impingement. 70 In January 2000, although the plaintiff had not experienced any significant changes relevant to the pain in his right shoulder and neck, Dr Salmon felt that he was fit to undertake the security guard course which was proposed at that time. 71 On 20 October 1999 the plaintiff consulted Mr Williams, another orthopaedic surgeon, who ordered a scan to the plaintiff's right shoulder. His diagnosis was one of rotator cuff problems which seemed to be directly related to the alleged work injury given the history provided to him by the plaintiff. He considered that this type of shoulder problem did not commonly arise as a result of a motor vehicle accident, which was more likely to cause neck injuries or problems. He did not recall being given a history of the plaintiff suffering from prior problems to his neck. He conceded that the material contained in the notes from Dr Quinlivan's surgery contained a far more detailed history than that provided to him by the plaintiff. 72 When he reviewed the plaintiff in February 2001 Mr Williams considered that there had been a significant improvement to his right shoulder as reflected by an increased range of movement. He considered
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the neck problem to be a soft tissue injury, which he believed would settle over time. As to the plaintiff's work capacity Mr Williams was of the opinion that he could not return to work as a spray painter and would have to undertake a lighter form of employment avoiding heavy lifting and repetitive duties. He considered that the plaintiff could undertake a driving job, although there may be some limitation in the number of hours to be worked. As a form of rehabilitation he recommended swimming. 73 The plaintiff saw Dr Fong, a rehabilitation specialist, initially on 7 February 2000 and again in July 2001. In Dr Fong's opinion the plaintiff is fit to carry out light duties such as driving, but he cautioned that redeployment or retraining in some areas may be limited due to the plaintiff's lack of formal skills and education. In addition he said that if the plaintiff exhibited symptoms of anxiety, stress or anger management then this may narrow the options available by way of alternative employment, as it could affect his suitability for contact with members of the public, for example in the occupation as a sales representative. He considered that the plaintiff could carry out security work, providing he did not lift heavy objects or engage in restraining people. He did not view the plaintiff's current age as being an obstacle to retraining and redeployment. 74 Chronicity of symptoms detailed after 1990 did not in his opinion prevent the plaintiff working full-time and being productive up until 18 March 1998. For that reason he did not consider that any cervical pain the plaintiff suffered was disabling. Nor did he consider that the plaintiff's various problems and ailments outlined in Dr Quinlivan's notes, were disabling insofar as they did not prevent the plaintiff from working. 75 Dr Fong was not prepared to agree in evidence that the initial problems of which the plaintiff complained were more related to his neck than his right shoulder, although it was apparent that he had not been given a full history when he saw the plaintiff because he did not know of the motor vehicle accidents in 1986 and 1990. He considered that the plaintiff's main difficulty remains with his right shoulder and did not believe that the motor vehicle accident on the way to Dr Wong's surgery aggravated the difficulty with his right shoulder. 76 Dr Fong saw no reason why the plaintiff could not undertake a work trial as a security guard and was unaware that a three month work trial had been organised for the plaintiff with Chubb Security for this purpose. He considered that any problems the plaintiff currently suffers with his knee or knees are minimal and further that on the history available to him, the
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plaintiff could possibly have worked as a spray painter until 60 years of age rather than 65 years of age. 77 The plaintiff underwent a further ultrasound of his right shoulder in late November 2000 and was seen by Professor Skirving, another orthopaedic surgeon, on 21 December 2000. Professor Skirving specialises in shoulder complaints and injuries. He noted that the plaintiff had an ability to rotate both inwards and outwards that was equal in both arms. On review he noted the right shoulder joint to be normal and considered that the plaintiff's problem appeared to be in the muscle tendon units or nerves, although he also considered the possibility that the plaintiff was simply inhibited by a pain state. In the end he was unable to be precise or definitive as to the cause of the pain complained of by the plaintiff. He noted no real signs of degeneration in the shoulder but equally said there was no evidence to suggest that the plaintiff's problems and complaints were not the result of the incident he described as having occurred at the defendant's premises on 18 March 1998. Being unable to make a clear diagnosis of the problem with the plaintiff's right shoulder Professor Skirving said he had to accept Mr Janes' observations of clinical features of impingement, although he was somewhat surprised that three lots of surgery had failed to result in any significant improvement on the plaintiff's history. Speaking of the plaintiff's physical rather than vocational abilities to undertake alternative employment, Professor Skirving considered that he had a very significant alternative work capacity and could carry out work as a salesman in the paint industry or a range of jobs of driving motor vehicles, providing he avoided repetitive activity above shoulder height. He assessed the plaintiff as having a 25 per cent loss of function of the right shoulder at or about the elbow. 78 Mr Yeo from Active Injury Management gave evidence and through him a very large number of reports being Exhibit D3(1 – 35) were tendered. These cover the involvement that the organisation had with the plaintiff between 17 April 1998 and 29 June 2000 with a view to assisting him to return to work and recover from his alleged injury. It is unnecessary to detail the contents of all of these reports save to note that this organisation appears to have worked most persistently and consistently aiming to assist the plaintiff in his rehabilitation with the objective of rejoining the workforce in some capacity. I do not consider that the plaintiff has been as cooperative or as forthright with his rehabilitation providers as he should have been for example with reference to the earlier comments regarding Dr Quinlivan's opinion as to his ability to undertake the static security guard work trial and his failure to advise them of the true situation.
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79 There were a number of short video surveillance films shown by counsel for the defendant during the course of the trial. It is not necessary in my view to detail the contents of each of those short pieces of film in the course of these reasons but taken as a whole, I consider that they clearly indicated the plaintiff functions at a higher level and with less significant physical restrictions than he would have had the Court believe. For that reason, relevant to the evidence and in particular with reference to the video surveillance evidence, I have no hesitation in accepting the thrust of the proposition put forward on behalf of the defendant that the plaintiff is not as disabled as he suggests in his evidence or as he portrayed to various medical practitioners by whom he was reviewed over a number of years. For example, relevant to the surveillance video of 4 June 1998, (three months after the plaintiff's accident) he was seen riding his motorbike. In his evidence he claimed that this was the only occasion between that date and the date of trial that he ever rode his bike and in that instance he rode it only a short distance to the shop before being severely compromised by pain. It is difficult to accept that it just so happened that the only day on which the plaintiff ever rode his motorbike after the accident also happened to be an occasion when he was under surveillance. This is too great a coincidence to accept as fact in my opinion.
80 Ms Larson was called on behalf of the defendant to give evidence as to the availability of employment for the plaintiff, relevant to both the state of the labour market and the issue of future economic loss. After being appropriately qualified, her evidence was she carried out labour market research with respect to a number of occupations including those of taxi driver, courier driver, chauffeur and sales representative. The source of her labour force estimates came from the Australian Bureau of Statistics which publishes this type of information quarterly. The material as to the question of industrial awards was obtained from the WA Industrial Gazettes. 81 Essentially her evidence was there are approximately 4,000 automobile drivers in Western Australia, the bulk of whom drive taxis. Just under half of these positions are occupied by males and about 2,000 employees work on a full-time basis. Given the nature of the industry and the range of persons that it employs, as well as the variation in terms and conditions of employment, I do not consider that Ms Larson could have been any more specific or clear in her evidence than she was. Her report became Exhibit D11.
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82 Mr Caffery has been employed by the Chubb training group for approximately 13 years and currently holds the rank of senior instructor with that organisation. His evidence suggested that a static security guard might be employed outside a bank, at or in a chemist shop or perhaps at a public carpark. It requires only a basic skill level to gain entry to the position but there is training which can lead to upgrading within the employment package. There are also police requirements that must be met, for example, the individual must obtain a police security clearance before employment is offered. Mr Caffery's evidence, which I accept, is that in such an occupation the scope for promotion is considerable, depending on one's ability and commitment. It is the case, as he pointed out, that different levels within the security industry require different skills from the individual employed. Through Mr Caffery the defendant tendered Exhibit D16 a wage schedule for Security Officers (Western Australia) Interim Award 1996 (Federal) applicable from 18 June 2000. I accept the evidence, which was not really challenged, that most static security officers employed by Chubb earn a minimum of $439.60 per week, but this is often supplemented by penalties which range in increments from a 15 per cent penalty relevant to afternoon shift up to a 150 per cent penalty where one works on public holidays. In addition there is a torch allowance of 46 cents per shift and site allowances which are specific to individual areas.
83 Although the issue was pressed with Mr Caffery in cross-examination he remained firm and unshaken in his evidence that static security guards and indeed security guards in general employed by Chubb, are trained and instructed that it is their duty to observe, record and report. It is emphasised in training that it is not the individual's responsibility to tackle and arrest any would be offender or any person who is creating a nuisance. The emphasis is on being non-aggressive and non-confrontational. Restraint is not the focus of the industry, albeit where a security officer is employed in a crowd control situation I understand that the occasion to exercise restraint would arise on occasions. There was not and never has been any suggestion in the evidence that the plaintiff should undertake, or could undertake, work as a crowd controller. It is implicit that an individual working in the security industry must exercise a degree of discretion, self-control and have some ability to deal with the public relations aspect of the job.
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Findings on the evidence
84 After hearing and reviewing all of the evidence in this matter I find that the defendant was negligent in that it failed to take appropriate action in the light of its knowledge that the door in question was stiff, difficult to move and had a known history of this as well as coming off its lower track on occasion. The repairs that were carried out to the door clearly were not adequate to address these problems and prevent a repetition of the difficulties encountered by various employees in opening the door. For this reason it constituted a safety hazard in the work place. In my view there were practicable precautions which the defendant could have undertaken to address the problem, which would at the very least have lessened the risk of injury to the plaintiff. I consider that on the whole of the evidence the plaintiff was in no way responsible for the accident that occurred at the defendant's work place on the morning of 18 March 1998, nor did the plaintiff's behaviour relevant to opening the door contribute to the injury he subsequently sustained to his right shoulder and arm. I do not take the view that the discrepancies in Mr Apgar's report and his understanding of the events of 18 March 1998, as well as the photographs the subject of evidence, adversely reflect on the plaintiff's recounting of events at least insofar as they relate to the manner in which he opened the door and sustained his injury. 85 There is no persuasive evidence before the Court that any incapacity, loss or damage sustained by the plaintiff was caused or materially contributed to by any injury sustained whilst the plaintiff was playing indoor cricket. In this regard I take note also of the evidence of Mr Peterson who used to play indoor cricket with the plaintiff. It was Mr Peterson's understanding that the plaintiff ceased playing indoor cricket because he hurt his shoulder at work. He and the plaintiff were playing indoor cricket in the same team early in 1998 and at that time, over a period of about 10 games, Mr Peterson saw no sign of the plaintiff exhibiting or complaining of shoulder and/or neck problems prior to the plaintiff ceasing playing the game for the reason given above. There is nothing in the medical evidence that supports the proposition that the injury was caused, or even contributed to, by the plaintiff engaging in playing indoor cricket. 86 There is conflicting evidence as to the precise manner in which the motor vehicle collision involving the plaintiff occurred in the course of the driving to Dr Wong's surgery. Whilst I consider the plaintiff's sworn evidence as to this matter to be in contradiction to a number of his answers to interrogatories, in the final analysis I take the view that there is
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nothing in the medical evidence, taken as a whole, which would support the proposition that the injury to the plaintiff's right shoulder in particular and the right side of his neck in general was in any way substantially caused by his involvement in that collision. 87 Despite the plaintiff's statement in his evidence that he intended to work to 65 years of age I do not consider that this intention would have come to pass. The work in which the plaintiff was engaged on his own admission was comparatively physically strenuous. His medical history as far as Dr Quinlivan's notes reveal, indicate that he was someone who suffered considerably prior to the accident on 18 March 1998 with a variety of physical ailments, including neck pain and breathing problems. There is also the issue, which arises on the plaintiff's own evidence, of health concerns which could well occur if an individual works continuously for many years in an industry where there is regular exposure to chemicals which are believed to contain a degree of toxicity. In my view this would be very likely to shorten the working life of an individual such as the plaintiff, who clearly is prone to chest infections and associated breathing problems as well as having a pre-disposition to psoriasis. In addition the strong impression from the bulk of the medical evidence was that it would be most unlikely for someone in the plaintiff's circumstances and in the occupation of spray painter to work beyond 60 years of age in that capacity. For this reason I consider that the plaintiff, all things being equal, would have worked to 60 rather than 65 years of age. He did not give evidence that it was his intention to move into a supervisory role within the industry. 88 On all of the evidence I have no difficulty in accepting the argument put on behalf of the defendant that the plaintiff has a retained capacity to work in a variety of occupations. 89 It is of some concern that the plaintiff at the time of trial had not sought employment as actively as he may have done given his retained capacity. His only occupation has been driving for 12 hours per week for three months in 2000 which even Dr Quinlivan felt hardly tested his ability to work. According to the plaintiff's evidence he had applied for 15 jobs and sent off three résumés but there was not a great deal of detail supplied regarding these efforts. He specifically advised his rehabilitation providers in May 2000 that he had a driving job and did not require any other employment. In the light of all of the evidence, including the medical evidence, I totally reject the plaintiff's contention that he is too stressed to carry out 40 hours work of a lighter nature per week.
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90 I also do not accept that by reason of temperament and lack of impulse control the plaintiff is unsuited to carrying out an occupation that places him in a position whereby he is required to deal with members of the public. He did not present in this way during the course of giving his evidence. He has generally had steady and consistent employment in the past which indicates he has no significant problems in interacting with people.
91 Furthermore he has played team sports and had no difficulty in participating in his driving job for Truemix International, which had distinct public relations features. Mr Winters, with whom he used to work at the defendant's premises, recalled in his evidence that the plaintiff would have a social chat to him before commencing work on most mornings once more indicating in my view that the plaintiff is capable of positively interacting with others in the workplace. 92 On occasions in the past the plaintiff has experienced episodes of loss of temper (usually associated with excessive consumption of alcohol). There is, however, no evidence before the Court of any formal psychological or personality problems that would in reality prevent him from undertaking the type of work many of the treating medical practitioners say he can do. 93 On balance I do not consider that the plaintiff would find this type of work more difficult to obtain than others of similar age and background.
General damages 94 The plaintiff has clearly suffered some pain and ongoing discomfort as a result of the injury to his right shoulder. He has also suffered some restrictions in lifestyle in that his ability to participate in certain recreational activities has been diminished or come to an end. In addition his ability to carry out a very limited range of some domestic activities has been restricted to a degree. He is not able to play volleyball nor is he able to play golf which he used to participate in approximately four times a year according to his evidence. He no longer plays indoor cricket which he used to play once a week. Nor does he lift weights in the gym or attend motor cross events which he used to do every couple of weeks. Although the plaintiff used to engage in boxing, his evidence was that he ceased this activity in 1995 or 1996 which was well prior to the accident. Whilst he can undertake most domestic chores hanging washing on the line is somewhat problematic and he has certainly been advised to avoid
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lifting above shoulder height or engaging in any repetitive activity with the right arm. 95 Whilst he is not able to drive for lengthy periods of time without a break, he can still drive to the Gnangara pine plantation area in order to watch motor cross events and he admitted in cross-examination that he had on about three occasions since the accident travelled to that area in order to do "doughnuts" in his vehicle on the mud flats. He last did this about one week prior to trial. This is an activity which the plaintiff indicated that he found was enjoyable. Later in re-examination he claimed that in fact on the last occasion it was his girlfriend who drove the car to Gnangara and did "donuts" for 7 – 10 minutes only. I do not accept this change of recollection as being reliable or credible. 96 The plaintiff's panic attacks and insomnia have been present for a number of years predating the accident as has his neck pain for which he received fairly extensive treatment prior to the accident. The plaintiff also suffered a variety of conditions such as gastric reflux and headaches well prior to the accident and I cannot see any evidence which suggests that the result of the accident has been to worsen these conditions or to contribute to them in any significant way. The plaintiff has been assessed by a number of doctors as essentially having about a 20 to 25 per cent disability of the right shoulder. 97 In viewing the video surveillance tapes and in considering the plaintiff's evidence, I cannot see that his general social life is unduly restricted by pain or any other condition which might be said to be a result of the accident. The plaintiff has undergone three lots of surgery to his right shoulder area with associated injections and physiotherapy. It must be noted of course that each surgical procedure carried out by Mr Janes was a day procedure. In all of the circumstances I consider that an award of $18,000 by way of general damages is appropriate to reflect the above matters.
Gratuitous services 98 The evidence as to the provision of gratuitous services to the plaintiff was somewhat vague and lacking in specific detail. 99 One of the plaintiff's sisters, Mrs Baikauskas, gave evidence that as the plaintiff was her younger brother she took a sisterly interest in his welfare and when he was indisposed, for example, after surgery she would visit him and do some washing for him and change the household linen.
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She said that this was not a regular attendance and that in fact it did reduce after the plaintiff had overcome the immediate effects of surgery. At one point she said she perhaps attended the plaintiff's house to visit him and help him out due to sisterly concern by vacuuming, doing a few dishes and chatting to him to cheer him up about 9 or 10 hours per month. My impression was this was a somewhat vague estimate on her part. She said she took it upon herself to do that sort of activity depending on when she had the time available. At best Mrs Baikauskas said that she currently might assist the plaintiff for a couple of hours every three weeks or so, but again it was not particularly definite. 100 The plaintiff said his sister helped him to clean the house, for example, the bathroom once a week, but this did not seem to be Mrs Baikauskas' precise recollection. There was no detail given as to what help the plaintiff's housemate renders other than he assists generally. The plaintiff admitted that he can vacuum albeit slowly and indeed do most things about the house including the dishes. As at November 1999 the plaintiff indicated to Dr Clarke that in fact he was looking after himself and made no particular mention of any need for assistance in the domestic area to any of the medical practitioners that he consulted. 101 I do not believe that the plaintiff's past claim for gratuitous services can be dealt with by way of precise mathematical calculation and at best in my view a global figure of $2,000 would appropriately reflect the limited assistance he has been given in the past. 102 As to future gratuitous services again there is no specific evidence as to the plaintiff's requirements regarding household assistance other than a claim relating to monthly lawnmower hire. I certainly do not accept that the plaintiff would require anything more than one hour a week by way of domestic assistance within the home and even then I do not believe that would be in any way constant or consistent. At the moment it would appear that the plaintiff's sister assists the plaintiff on an extremely intermittent basis when she has time. Overall I believe an award of $1,000 is adequate to cater for the plaintiff's future requirements in this regard.
Future special damages 103 In relation to this aspect of the claim, given the very limited material before me, I do not consider that there is a basis for awarding an amount by way of damages. This is particularly so given that in November 1999 the plaintiff informed Dr Clarke that he could mow his own lawn which
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was small. No receipts or documentation was referred to by the plaintiff in his evidence to substantiate this aspect of his claim.
Past economic loss 104 In the light of all of the evidence I accept the submissions made on behalf of the defendant relevant to this category of damages. The loss from 18 March 1998 to 18 March 2000 when the plaintiff was fit to undergo a fully funded work trial with Chubb Security, with the very distinct probability of permanent employment thereafter can be calculated as follows; $33,800 per annum = $650 gross per week or $512 net per week. $650 gross per week (to include the allowance pursuant to Fox v Wood (1981) 148 CLR 438) x 104 weeks = $67,600. Thereafter the loss from 18 March 2000 to trial in August 2001 is 72 weeks at $50 net per week = $3,600. 105 Total past economic loss is therefore $71,200. It should be noted that counsel for the plaintiff conceded that the workers' compensation payments to the date of trial had met the plaintiff's past economic loss.
Past loss of superannuation 106 I accept once again the submission on behalf of the defendant that this figure should be calculated on the past loss of $67,600 added to which should be the figure of $5,000 which reflects effectively the gross earnings of $3,600 net. $72,600 at 7.5% x 70% = $3,815. 107 Interest on past loss of superannuation calculated at 3 per cent is therefore: $3,815 x 3% x 176 weeks = $387.
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Total workers' compensation payments pursuant to the Act to trial Future medical expenses 108 Once again there was very little precise evidence on this issue. As has been noted for a considerable number of years prior to the accident the plaintiff had been taking a range of medication including Losec, Zantac, Voltaren, Normasin and Sinequan. There is no firm evidence to suggest that approximately 50 per cent of the medication which the plaintiff continues to take is required due to the legacy of the accident whilst he was employed by the defendant, as was suggested on behalf of the plaintiff. None of the medical practitioners speak in any great detail about the exact amounts of medication the plaintiff will require to take in the future or for how long he will require such medication. There was no clear evidence as to how often he will have to visit his general practitioner or to consult any specialist in the future relevant to his injury and there was no real suggestion of a need for future surgery or physiotherapy. |