Mould v ABM Plastics

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

GENERAL DIVISION

Case No. CI-08-05651

Sean Mould	Plaintiff
v
ABM Plastics (Australia) Pty Ltd	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	24 – 31 August and 1 – 8 September 2010
DATE OF JUDGMENT:	28 October 2010
CASE MAY BE CITED AS:	Mould v ABM Plastics
MEDIUM NEUTRAL CITATION:	[2010] VCC 1346

REASONS FOR JUDGMENT

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Catchwords: TORT - NEGLIGENCE – Breach of statutory duty – Occupational Health and Safety Act 1985 – Occupational Health and Safety (Manual Handling) Regulations 1999 – injury to left hip – pre-existing degenerative changes – pre-existing right hand injury – contributory negligence – damages for pain and suffering – past loss of earning capacity – future loss of earning capacity

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Hore-Lacy SC	Holding Redlich
With Mr A. Pillay
For the Defendant	Mr R. Middleton	Wisewould Mahony
With Ms M. Tsikaris
HER HONOUR:

Introduction
1          Mr Mould brings an action against his employer, ABM Plastics, for damages for negligence and breach of statutory duty. He was employed by ABM Plastics as a printing machinist from 1990. On 2 September 2002, while performing modified duties, he alleges that he injured his left hip while attempting to realign a box of polymer sheets on a pallet which was being moved to the plate making room. His left hip was flush against the pallet and as he attempted to lift the box from a crouched position with his left hand, he twisted and felt a sharp pain in the groin area (“the incident”).
2          In essence, Mr Mould alleges that ABM Plastics failed to provide a safe system of work. In particular, he alleges that it failed to provide an adequate and safe system for the transport of boxes of polymer sheets into the plate making room. In addition, he contends that ABM Plastics failed to comply with the regulations made pursuant to the Occupational Health and Safety Act 1985 and the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the 1999 Regulations”) and/or the Code of Practice for Manual Handling, thereby exposing him to risk of injury.
3          The particulars of injury include: pain, tenderness and limitation of movement affecting the left hip and groin region; injury to the left hip necessitating surgical intervention in the form of hip replacement surgery; likely further hip replacement surgery; and psychological injury including anxiety and depression. Mr Mould claims that his capacity for employment has been significantly impaired by reason of his hip injury.
4          In its defence, the defendant denies any negligence and says that the plaintiff is not entitled to rely on a breach of the Occupational Health and Safety Act 1985 as giving rise to a cause of action. It also says that if there was any negligence by the defendant, there was contributory negligence by the plaintiff in: failing to take care for his own safety; failing to exercise common sense or to ask for assistance in relation to the performance of the task; failing to follow the return to work plan and/or restrictions in place by his treating practitioners; in performing a task inconsistent with the medical restrictions in place as a result of his right hand injury; in executing an action which was beyond his strength or capabilities and which exposed him to a risk of danger or injury which he knew or ought to have know could cause such injury; and, if assistance was required, or the system of work was unsafe, failing to notify the defendant of this.
Conduct of the trial
5          This matter was conducted as a trial by jury up to and including the final address on behalf of the defendant. After that address, I ruled in the interests of justice that the proceeding not continue before a jury, and I discharged the jury.[1] I then heard the balance of the matter as a cause. Mr Hore-Lacy made final submissions and, in the circumstances, Mr Middleton was given an opportunity to make any further submissions he would have made had the matter been conducted as a cause.
[1]            My reasons for discharging the jury are set out in Mould v ABM Plastics (Australia) Pty Ltd (Ruling 1) [2010] VCC 1474.
6          During the course of the trial, a number of the plaintiff’s co-workers gave evidence. Mr Graham Towart, a plate maker who was being assisted by the plaintiff in the plate making room in the weeks prior to the incident; Mr Peter Buswell, printing machinist, who saw the plaintiff directly after the incident; and Mr Zoran Josic, a printing machinist; gave evidence on behalf of the plaintiff. Mr Paul Bryan, and Mr Steven Angelis, printing supervisors, gave evidence on behalf of the defendant.
7          The plaintiff led evidence from a number of treating practitioners: Dr Kim Teo, general practitioner, who has treated him since July 2001; Mr Minoo Patel, orthopaedic surgeon, who performed an arthroscopy on the left hip in September 2003; and Mr Stephen McMahon, orthopaedic surgeon, who performed a left hip replacement on the plaintiff in January 2005; Dr Trevor Corran, clinical psychologist, who saw the plaintiff in January 2006 on referral from Dr Teo and on 20 subsequent occasions up until November 2007; and Ms Annie Rosenthal, psychologist (to whom he was referred by Dr Corran), who has been treating the plaintiff with relaxation therapy since August 2007.
8          The plaintiff called two medico-legal experts, orthopaedic surgeon Stephen Doig, and psychiatrist Professor Lorraine Dennerstein. The reports of Mr Garry Grossbard, orthopaedic surgeon, and Mr Paul Cashin, gastrointestinal surgeon, were read into evidence. The plaintiff also called Mr Gary Allan, forensic accountant, to give evidence about the earnings of printing machinists, teachers’ aides and the calculation of loss of earnings in the past and into the future. Finally, the plaintiff called Mr Mark Dohrmann, safety consultant, who gave evidence about the measures which could have been taken to prevent the risk of injury to the plaintiff.
9          The defendant led evidence from Dr Paul Sandhu, general practitioner, who treated the plaintiff on 2 and 4 September 2002 for a complaint of groin pain, when the plaintiff’s regular treating doctor was not available. Dr Sandhu suspected an inguinal hernia and referred the plaintiff to Mr Paul Cashin, gastrointestinal surgeon, who found that there was no inguinal hernia. The defendant also led evidence from Dr Michael Papasava, clinical psychologist, who treated the plaintiff between August 2002 and May 2003 in relation to the effects of his right hand injury.
10        The defendant also led evidence from Mr Paul Marsh, occupational therapist with Atkin Ergonomics, which was engaged to manage the plaintiff’s return to work plans in 2002 relating to the right hand injury sustained by the plaintiff in 1998.
11        The defendant relied on the evidence of two medico-legal experts. Mr Dunin, orthopaedic surgeon, gave evidence. The report of Mr Henry Byrne, orthopaedic surgeon, was read into evidence.
Issues in dispute
12        The defendant conceded that they owed a duty of care to the plaintiff and that the 1999 Regulations applied, but denied any negligence or breach of statutory duty.
13        The main issues in dispute were: the credibility of the plaintiff; whether there was negligence and/or breach of statutory duty by the defendant, whether the labral tear in the hip occurred during the incident or was part of pre-existing degenerative changes that would have made hip replacement surgery inevitable; the impact this would have on the damages to be awarded for pain and suffering; and different calculations for loss of earning capacity. I will deal with each of these issues in turn.
Credit of the plaintiff
14        The defendant submitted that the plaintiff’s evidence at trial concerning the hip injury ought not be accepted because he had allegedly given different histories and different versions of the incident of 2 September 2002 to various examining and treating doctors, and some of these doctors had described the incident as a trivial one which would occur anywhere. The plaintiff was criticised, along with Mr Buswell, for their evidence at trial which allegedly showed “a desire to implicate the use of the hip at the time”.[2]
Different versions of the incident to doctors
[2]             Transcript (T)957.
15        There was a general criticism made by the defendant of the differences in the description of the incident given by the plaintiff to various doctors. In relation to the minor differences in histories given to various doctors, I adopt the observations made by Ashley JA in Franklin v Ubaldi Foods Ltd [2005] VSCA 317 at p 9:
Concerning the history as recorded, two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly on one side or the other would run counter to experience. Second, in the present case, it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.

16        I do not consider that these matters weigh against the plaintiff’s credit.
Prior history of groin pain
17        The defendant placed particular emphasis on the clinical records of Dr Sandhu of 2 September 2002, where he recorded a “12 month history of groin pain”. I prefer the evidence of the plaintiff where it conflicts with that of Dr Sandhu for a number of reasons.
18        Firstly, the plaintiff denied having any groin pain in the twelve months or at any time prior to 2 September 2002 and denied telling anybody that this was so. He did say in his evidence that he had had back pain during that period.
19        Secondly, Dr Sandhu is the only doctor who records such a history. He was not the plaintiff’s usual treating doctor, and saw him only on two occasions, on 2 and 4 September 2002. On the other hand, in the year before 2 September 2002, the plaintiff saw his treating doctor, Dr Teo, on more than 20 occasions and Dr Teo said her notes revealed no mention of any prior hip problem before October 2002. Mr Paul Marsh, occupational therapist, who assessed the plaintiff’s work duties in relation to his hand injuries in March 2002, also received no complaint of groin pain.
20        Thirdly, Dr Sandhu agreed that the words used in his clinical notes, such as “left inguinal pain” would not have been used by the plaintiff, and that he “would have said hip/back area”. On this basis, it is possible that the word “groin” was not used by the plaintiff.
21        Fourthly, a history consistent with the plaintiff’s claim of no groin pain before September 2002 was given to a gastrointestinal surgeon, Mr Paul Cashin, on 13 September 2002, just days after the plaintiff saw Dr Sandhu. Mr Cashin took a history of an “injury to his left inguinal region while lifting at work” on 2 September 2002, but noted no prior history of groin pain. Mr Cashin wrote back to Dr Sandhu on 13 September 2002 and his note included the following sentence: “While at work recently, he also developed a sudden onset of pain in his left groin while pushing a reasonably heavy object. This pain has persisted and extends over the distribution of his ilioinguinal nerve”.
22        Finally, I note that the history given by the plaintiff to Mr Cashin is consistent with the plaintiff’s evidence at trial, and with the contents of the WorkCover Claim Form dated 13 November 2002 and signed by him.[3]
[3]             See Exhibit C.
23        I do not consider that the matters raised by the defendant weigh against the plaintiff’s credit.
Different versions of the incident on 2 September 2002
24        The defendant also submitted that the plaintiff had given different versions of the circumstances in which his hip injury occurred. In this regard, the defendant relied on the evidence of Mr Angelis that the plaintiff told him the injury occurred when he kicked a box open. In his final address, counsel for the defendant accused the plaintiff of embellishing his evidence at trial, and accused the plaintiff and Mr Buswell of conveniently tailoring their evidence, recently, to “implicate the hip”.[4]
[4]             T957.
25        I note that in his WorkCover Claim Form the plaintiff said that the injury to his left groin was first noticed on 2 September 2002 when he experienced sharp stabbing pain in the groin area as he was using his left hand to move a box. The form was witnessed by Mr Angelis. The form referred to Mr Buswell as a potential witness.
26        At the trial, Mr Buswell gave evidence that he came across the plaintiff shortly after he injured himself on 2 September 2002. He said that the plaintiff was limping badly. He asked the plaintiff what happened and the plaintiff told him he hurt his hip in the plate room bumping or ganging in a stack of plate material in boxes.
27        Mr Angelis gave evidence that he became aware that the plaintiff was injured when he noticed him limping. He said the plaintiff told him he got a groin strain when he was working in the plate room and used his leg to kick a box open and felt some pain. In cross-examination, the plaintiff’s answers in his claim for compensation form were read to Mr Angelis. He agreed that it was unlikely that the plaintiff would have told him something inconsistent with the document which the plaintiff had asked him to witness. He agreed that he could not really recall what was said, and agreed it was possible that the plaintiff could have told him he was pushing a box in, or kicking a box in. He agreed that it was not easy to kick a box open and that there was no reason why the plaintiff would want to use his leg to kick open a box that was on a pallet.[5] He agreed that it was possible that on occasion one box of plates would be out of alignment on a pallet and that someone would need to realign the box to get it through the door to the plate making room.[6]
[5]             T879.
[6]             T880.
28        The plaintiff’s evidence was that in the weeks prior to early September 2002, he was working in the plate making room, assisting the permanent print maker, Mr Towart to put images onto photo polymer sheets. The polymer sheets were fragile and cost about $800 per sheet. They were packed into cardboard boxes and were delivered on pallets to the door of the plate making room by forklift. The cardboard boxes were about 12 centimetres thick and were between 1.5 and 2 metres long and between 1.8 and 2 metres wide. Before being used, the pallets of boxes containing the polymer sheets were taken into the plate making room using a pallet trolley. The polymer sheets had to be removed from the boxes and subjected to temperature control inside the plate making room prior to being used.
29        The doorway into the plate making room was narrow, and the boxes on the pallets needed to be aligned so that the pallet trolley would fit through the door. It was not unusual for one of the boxes among a stack of five boxes to be misaligned. The plaintiff said that Mr Towart would usually use both hands to lift the other boxes while he pushed the offending box into line.
30        In the week prior to 2 September 2002, Mr Towart was away sick. The plaintiff spoke to Mr Bryan, printing supervisor, Mr Michael Wilson, factory manager and Mr David Bartholomew, production manager asking for help with labouring work so that he could do the photo negatives. Mr Bryan told him to wait and see if anyone would become available to help; Mr Wilson and Mr Bartholomew told him to plod along and do what he could until someone could assist him. No-one came and he did nothing for two days while he waited. He asked them for assistance three times in all.
31        On 2 September 2002, Mr Bryan did not give him any specific instruction not to lift anything heavy in the plate making room. There were six boxes of polymer sheets on the pallet, which was sitting outside the door to the plate making room. The fourth box down was about 20-25 centimetres out of alignment. Together, the top three boxes weighed around 90 kilograms. Nobody asked him specifically on that day to realign the misaligned box, but it was a normal everyday task, which he may have done a few times before. He did not specifically ask anyone at that time to come and help him realign the box. He could have done so. He did not think he needed help to realign the box, and did not think doing such a simple thing would cause him injury. He tried to realign this box on his own. He had to do this so that when the night shift came, they would have cooled polymer sheets to work with, and production could continue. He was also concerned that if the boss walked past and saw the boxes outside the plate making room, he would be angry.
32        The plaintiff’s evidence as to how the injury occurred was that he intended to lift the misaligned box a little with his left hand and push it with his left hip. From a crouching position, he used his left hand to lift the fourth box while pushing the box while twisting to push the box with his hip he felt a sharp pain in the groin area. He denied that he was kicking a box at the time. He denied that in doing this he was doing something contrary to the restrictions in the Certificate of Capacity. He dropped to the ground and then walked to the main factory. On the way, he saw Mr Buswell and told him what had happened. He spoke to Mr Bryan. He filled in an incident report. These were usually either given to the supervisor or left on the supervisor’s bench.
33        There was also medical evidence supportive of the plaintiff’s account of the mechanism of the injury suffered during the incident. Mr Patel, the treating orthopaedic surgeon who performed an arthroscopy in September 2003, gave evidence that he took a history from the plaintiff in June 2003 “of acute hyperextension of the hip while lifting a box”.[7] Mr Dunin said in cross- examination that the minor difference between the accounts of the incident given to him compared with another doctor did not matter, as the mechanism of the injury of the injury was the same in that the plaintiff was load-bearing, flexed, and changing position. He said that if the plaintiff was lifting a heavy weight and twisting at the same time, and felt sharp pain, it was entirely possible that he suffered a traumatic labral tear at the time. Mr Doig also gave evidence that the specific history of injury he received from the plaintiff was consistent with an acute labral tear having occurred at the time of the incident.
[7]             T274.
34        I found the plaintiff to be a reliable and credible witness. I also found Mr Buswell to be a reliable and credible witness. I prefer the evidence of the plaintiff and Mr Buswell to that of Mr Angelis. I therefore accept the plaintiff’s evidence that the incident in which he sustained injury to his left hip occurred on 2 September 2002 as he was lifting and twisting from a crouched position, while his left hip was flush against the misaligned box.
Negligence
Was the plaintiff required to move and/or realign the boxes?
35        The second major contention by the defendant was that there was no negligence because the plaintiff was not asked to realign the boxes on the pallet on 2 September 2002, and did so in contravention of the medical restrictions imposed by his own treating doctor, Dr Teo.
36        The defendant submitted that as a result of his right hand injury, the plaintiff was severely restricted in what he could do in the workplace, and was working in September 2002 under medical restrictions imposed by his treating doctor, Dr Teo in relation to the right hand. These restrictions included not lifting more than 5 kilograms. He was also receiving psychological treatment for post traumatic stress disorder and depression. The defendant contended that there was no negligence by it, because no one asked the plaintiff to realign the box on the pallet, and the plaintiff did this of his own volition, and against the medical restrictions which then applied to him.

37        The plaintiff’s evidence was that in spite of the medical restrictions imposed by Dr Teo in relation to heavy lifting with the right hand, he was not told by Mr Bryan not to do any heavy lifting, and in fact between 1999 and 2002 was directed by the defendant to perform duties which included some heavy lifting. This included operating the printing machines on a number of occasions and doing other heavy tasks involving heavy lifting. For example, when he was in the ink room he was required to remove 70 to 80 pales of ink weighing up to 18 kilograms in a day. A few times per day he was required to wheel drums of ink weighing up to 200 litres into the ink room. He also moved solvent tanks involved in plate making. The plaintiff said he believed that if he did not do all the tasks asked of him there was a chance he would be made redundant or be dismissed. He was also required to work in the plate making room. He said that he was one of only a handful of employees who knew how to make plates, and that when the permanent plate maker, Mr Towart, was away, he would make them.
38        Mr Towart said in his evidence that the plaintiff was in the plate room assisting him for a year before September 2002. Mr Towart said that everyone working in the plate room was required to move boxes into the plate room so that they could be cooled and be available when needed for production. Mr Towart said that he and the plaintiff had to bring the boxes into the plate room because if they did not “there’s no work done”.[8] There were other people at the factory who could make a plate if Mr Towart was not there, so as to keep production going. He said that he and the plaintiff moved boxes every time there was a delivery, which was every week or two. Even if boxes were not needed for plate making, they needed to be moved out of the area as the owner walked around everyday. He said that the boxes on the pallets had to be aligned so that the pallet would fit through the door.
[8]             T424.
39        Mr Towart said that when the boxes needed to be realigned, this would be done by the workers lifting the upper boxes with both hands and pushing the misaligned box in with their side, hip or leg. He said this technique was used for the whole time he was in the plate room which was around four years.[9] He said that his supervisors Mr Angelis and Mr Bryan had seen it done that way and knew it was done this way. He was unsure how much each box weighed but said it depended on their dimensions. He said that his job was a one-man job, and if a box on a pallet needed to be realigned, he did it himself. He was asked why he did not ask for help to lift each box up individually. He said it would take too long and if he walked over to his supervisor he would just be told to go and do it. He agreed that if he asked Mr Bryan or Mr Angelis for help they would generally help him, depending on what they were doing.
[9]             T430.
40 Mr Angelis gave evidence that when Mr Towart was away, his duties were given to the plaintiff,[10] and that the plaintiff was required to do whatever Mr Towart would have to do if he were at work.
Findings
[10]           T875.
41        I am satisfied that one of the plaintiff’s duties when he was filling in for Mr Towart in the plate making room, was to bring the pallet of boxes of polymer sheets into the plate making room. If a box on the pallet was misaligned, the system of work used by the Mr Towart and the plaintiff to realign it was as described above.
Was instruction given to employees about how to align boxes on pallets?
42        The plaintiff said in his evidence in chief that he was never given any instruction as to how to lift the boxes or realign any misaligned boxes on the pallet. He said that he was never told not to do such a task, and that Mr Towart’s practice of lifting the boxes with both hands and then pushing in the misaligned box was common practice.[11] He said that they were never spoken to about safe lifting practices, but were all issued with back braces.
[11]           T77.
43        Mr Towart said that he was not given any instructions on how to lift boxes or other heavy materials, and was never spoken to about lifting practices. He was not aware of any audit into lifting practices. He said that lifting was done “the best way you could do it”.[12] He said he was never told not to lift anything in the plate room on his own, as he was supposed to work on his own in the plate room.
[12]           See T419.
44        Mr Zoran Josic is a printing machinist who worked with the plaintiff at ABM Plastics from 1995 until 2005. He said that printing machine work there involved heavy lifting. He said that he was never given instructions on how to lift at the workplace, nor told what to lift or not to lift. He said that no one came around to talk to him and assess his lifting practices.
45        Mr Peter Buswell worked as a printing machinist at ABM Plastics from 1992 until 2005. He did not recall ever receiving any instructions on manual handling or lifting. He recalled that the employer did issue back braces to the workers. He said that if an activity hurt, he did not perform it.
46        Mr Steven Angelis worked as a printing supervisor at ABM Plastics from 1992 to 2005. He said that he recalled “outside people” being shown around the factory and thought they were attending in relation to the plaintiff’s modified duties after his hand injury. He agreed that after his hand injury, the plaintiff was not supposed to return to work on a printing press, although Mr Angelis knew the plaintiff wanted to work on the machine because of the overtime available. He agreed that when they were very short-staffed, the plaintiff might help out on the printing machines. He agreed that heavy lifting was done by workers in the printing room. He said: “ABM was not working towards best practice, I'd agree with you, yes. There was a lot of things there that could have been done better with a certain amount of investment in those areas and I won't deny any of that”.[13] Mr Angelis acknowledged[14] that neither the plaintiff nor Mr Towart were ever instructed not to realign the misaligned boxes in the manner they did.
[13]           T901.
[14]           T881.
47        Mr Angelis could not recall anyone coming to the premises to “do an audit of manual handling practices”. He acknowledged that there were employees with back problems and as “part of the solution” they were provided with back braces.[15] He said it was possible, as Mr Towart suggested, that he had been present when the boxes were being lifted and realigned in the manner described by Mr Towart and the plaintiff. He agreed that neither the plaintiff nor Mr Towart was ever instructed not to do it that way.[16] He said that if he had seen them do it he “probably did not pay any attention to what they were doing because they didn’t make any complaints about it”.[17]
Findings
[15]           T874.
[16]           T881.
[17]           T882.
48        The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.[18] It appears that the system of work at ABM Plastics was not prescribed by management but seems to have evolved as a matter of choice by the employees carrying out the work. That does not absolve the employer from what otherwise would amount to a breach of duty. It means either that ABM Plastics failed to establish a system of work or that it was content to acquiesce in the system of work adopted by the employees or that it failed to properly supervise its employees.
Did the defendant act reasonably in all the circumstances?
[18]           McLean v Tedman [1984] 155 CLR 306 at 313.
49        The third major contention made by the defendant was that the defendant acted reasonably and responsibly in considering the tasks and duties that the plaintiff was capable of doing after 1998 having regard to his injured right hand. In support of this submission, the defendant relied primarily on the reports and activities of Mr Paul Marsh, occupational therapist, who supervised the plaintiff’s return to work program after his right hand injury. Mr Marsh wrote a Worksite Assessment Report dated 13 March 2002 which dealt with the consequences of the hand injury. The defendant submitted that this report constitutes a risk assessment pursuant to the 1999 Regulations and demonstrates that the defendant acted reasonably and responsibly in considering the tasks and duties that the plaintiff was capable of doing with an injured right hand.
50        The Worksite Assessment Report noted that after the 1998 injury the plaintiff had a significant time off work but had returned to work on a graduated return to work program on both alternative duties and attempting to perform his pre- injury duties. In March 2002, the plaintiff was working on alternative duties 30 hours per week, and told Mr Marsh he was progressing well and hoped to increase his hours to 8 hours per day. He continued to have pain and sensory disturbance in the hand and was having a series of cortisone injections. The alternative duties included checking completed jobs, and plate making. Plate making involved picking up a light plastic sheet, cutting it, and transferring it to difference machines. The plaintiff told him he was able to do the tasks except that he had trouble cutting the sheets with Stanley knives and other employees did this for him. Mr Marsh recommended continuation of the program of alternative duties.
51        On 2 June 2003, Mr Marsh reported that he had conducted a review of the plaintiff’s return to work progress on 30 May 2003. He noted that the plaintiff’s right arm symptoms had slowly worsened, and the plaintiff was also experiencing groin pain after the incident in September 2002. He noted that the plaintiff continued to perform “various ad hoc tasks within various areas of the ABM Plastics factory which coincide with his treating practitioner’s medical restrictions”, which were: reducing the use of his right arm, not working on some machinery where the hand injury occurred, and no heavy lifting. The plaintiff told him he was happy with the alternative duties provided and could cope with the duties; if not, “he readily asks for assistance which is provided”. He noted that the employer was finding it increasingly difficult to provide the plaintiff with appropriate alternative duties and recommended vocational assessment with a view to canvassing alternative employment.
52        In his viva voce evidence, Mr Marsh said that he did not remember the plaintiff. He last saw him in 2004 and understood that he did not return to his pre-injury duties as a printing machinist, even though this had been the ultimate goal of the return to work plan he prepared in March 2002.
53        It is clear from Mr Marsh’s 2002 report that he was assessing suitable duties for the plaintiff in relation to his 1998 hand injury. There is nothing in his reports or evidence to suggest that he knew of or was assessing the manual handling task of realigning boxes on pallets outside the plate making room. I reject the defendant’s submission that the 2002 report or the 2003 review constituted a risk assessment under the 1999 Regulations of the manual handling task undertaken by the plaintiff which caused his hip injury on 2 September 2002. I consider that neither of these reports provides evidence that the defendant took reasonable care to prevent foreseeable risk of injury to the plaintiff from the manual handling task of realigning boxes of polymer sheets on a pallet outside the plate making room.
54        Where there is a real risk of injury to an employee, the employer must take reasonable care to avoid the risk. This involves developing a method that eliminates risk or provides adequate safeguards. The employer must take into account the possibility of thoughtlessness, inadvertence or carelessness.[19]
[19]           Czatyrko v Edith Cowan University (2005) 79 ALJR 839 [12].
55        To determine whether an employer has discharged his common law obligation the Court must take into account the power of the employer to prescribe, warn, command and enforce obedience to the commands.[20]
[20]           McLean v Tedman (1984) 155 CLR 306 at 313.
56        In Andar Trasport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 the plaintiff was injured when he was unloading a trolley from a truck owned by the defendant. The High Court said at paragraph 54:
The employer was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required the employer to develop, and maintain, a methodology or system which would achieve that result.

57        The defendant was under a duty to take reasonable care to avoid foreseeable risk of injury to the plaintiff from the manual handling tasks undertaken by employees in the plate room, particularly the task of getting the pallet of boxes into the plate room and re-aligning them on the pallet for that purpose. I consider on the evidence that a reasonable and prudent employer in the circumstances would have foreseen there was a risk that the type of injury which was suffered by the plaintiff could occur when lifting boxes and realigning other boxes on the pallet, using the system of work that was common practice, and could have taken measures to try to avert it.
58        The measures which could have been taken by the defendant to avoid the risk of injury to the plaintiff were identified by Mr Dohrmann, an engineer and safety consultant. Mr Dohrmann said that well before 2002 information concerning the risk of musculo-skeletal strain from lifting was widely available to employers. The information included industry information on safe lifting published by the Department of Labour and distributed by unions, a WorkSafe Code of Practice, and the 1999 Regulations.
59        Mr Dohrmann identified a number of measures that could have been taken by the defendant. A competent risk assessment of the plate making work area could have been conducted. Such an assessment could have identified the possibility that boxes of plates would be misaligned on pallets and that workers would try to reposition those boxes, and then formulate a plan to avoid this risk. The assessment would involve either a staff member going around to take notes about potential risks, or a consultant being brought in at a cost of between $500 and $2000 to assess a small to average size workplace. The assessor would need to have some knowledge of forces/directions. A second measure would be to reassess how boxes are being delivered and to ensure that when put down on the pallets by forklift they are aligned. A third measure would be to adopt the Worksafe Code of Practice where manual handling is being undertaken and to provide supervision to ensure safe lifting practices were followed. A fourth measure would be to provide training to employees on lifting techniques but particularly on risk identification. A fifth measure would be to provide instruction that, when the boxes are not properly aligned, one person should not undertake the task alone but rather two people should lift off each box one at a time, realign the crooked box, then put the other boxes back.
60        On the authorities, the compliance or non-compliance with the 1999 Regulations is relevant to, but does not conclusively answer, the question of whether or not the defendant took reasonable care.[21] The 1999 Regulations may be seen as setting a standard of care that an employer in the position of the defendant could be expected to know and to follow. In this case, however, there is evidence of negligence apart from the breach of a regulation. On the evidence, the defendant knew that the plaintiff had a hand injury and assigned him to work in the plate making room. The defendant had control over the manner in which polymer boxes were delivered to it by the supplier. The defendant knew that the door to the plate making room was narrow and could not accommodate a pallet loaded with boxes of polymer sheets unless the boxes were aligned. The defendant knew that misaligned boxes on the pallets were being realigned in the manner outlined by Mr Towart and the plaintiff so that the pallet could be taken into the plate making room and the boxes unloaded and the sheets removed for cooling prior to use. No instruction was given to the plaintiff or Mr Towart as to how the boxes were to be lifted in order to be realigned. No direction was given, either prior to or on 2 September 2002, that the boxes were not be realigned by the plaintiff in the manner outlined above, nor that they were not to be realigned by the plaintiff on his own.
Findings
[21]           Sibley v Kais (1967) 118 CLR 424.
61        I consider that the defendant should have been aware that it should consider whether the manual handling task in realigning boxes of polymer sheets on pallets was dangerous and should have taken steps to assess and eliminate risks of injury from such tasks. On the authorities, where the means of guarding against the risk would involve little difficulty or expense, the failure to adopt such means will in general be negligent.[22]
[22]           See Gibbs CJ in Turner v State of South Australia (1982) 42 ALR 669.
62        I am satisfied on the balance of probabilities that a reasonable and prudent employer in the position of the defendant would have foreseen that the system of aligning boxes employed by the plaintiff so as to get them through the door to the plate making room posed a risk of injury to the plaintiff as employee, and would have taken steps such as those identified by Mr Dohrmann to try to eliminate that risk.
63        I am therefore satisfied that ABM Plastics breached the duty imposed at common law, which breach was a cause of injury to him.
Breach of statutory duty
64        In his statement of claim, the plaintiff alleged that the injuries he suffered as a result of the incident at work on 2 September 2002 were caused by a breach of the statutory duty imposed upon it by the 1999 Regulations.
65        Regulations 13 to 16 of the 1999 Regulations are relevant. Regulation 13 provides that an employer must ensure that any task undertaken by an employee involving hazardous manual handling is identified before any task involving such handling occurs for the first time, or if new information about the risks involved come to light, or if a worker suffers a musculoskeletal disorder at work.
66        I consider that the task undertaken by the plaintiff fits the definition of “hazardous manual handling” in Regulation 13. Once such a task is identified, Regulation 14 requires an employer to ensure that a risk assessment is made to determine whether there is any risk that a musculoskeletal disorder affecting an employee may occur “as a result of that task”[23]. This risk assessment must be reviewed or revised where appropriate. If the risk assessment determines there is a risk of musculoskeletal disorder affecting an employee, the employer must ensure that the methods used to assess the risk and the results of the assessment are recorded and retained.
[23]           The likelihood of injury must be a real or not remote chance or possibility, but does not require satisfaction on the balance of probabilities: See Martin v Henderson Industries Pty Ltd [2004] VSCA 19.
67        Regulation 15 requires an employer to ensure that any risk of a musculoskeletal disorder affecting an employee occurring is either eliminated or, if it is not practicable to do so, is reduced as far as is practicable. The employer may only use information, training or instruction in manual handling techniques as the sole or primary means of controlling risk where it is not practicable to use the other ways of controlling risk, such as altering the workplace, or the systems of work, or changing the object used in the task, or using mechanical aids. Regulation 16 requires an employee to cooperate with an employer who is taking action under Regulations 13, 14 and 15.

68        On the authorities, provisions requiring an employer to take specific precautions for the protection of employees will generally, in the absence of some good reason to the contrary, be held to give a private cause of action.[24] Where the injured person can prove a breach of duty and injury of a type that breach of the provision might be expected to cause, and so against which the provision is probably directed, this may be sufficient to justify an inference that the accident was in fact caused by the breach.[25]
Findings
[24]           Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36, 49-50 per Williams J; O’Conner v Bray (1937) 56 CLR 464.
[25]           Betts v Whittingslowe (1946) 71 CLR 637,649 per Dixon J.
69        There is no evidence that an assessment of the risks posed by the task of realigning the boxes of polymer sheets on pallets was ever undertaken by ABM Plastics. If such an assessment had been undertaken, ABM Plastics would have been alerted to the risks posed by the method employed to realign the boxes. ABM Plastics should have devised a system of work responsive to those risks in accordance with Mr Dohrmann’s evidence.
70        I consider on the evidence before me that the task which the plaintiff was doing when injured on 2 September 2002 carried a risk that the defendant had a duty under the Regulations to eliminate as far as was practicable. I have found that the defendant did not undertake a risk assessment of the manual handling task involved in realigning boxes of polymer sheets on the pallets, and I am satisfied that the defendant breached Regulation 15 in failing to ensure that the risk of musculo-skeletal disorder was not eliminated or reduced as far as was practicable. I consider on the evidence that the breach of the regulation was a cause of the injury to the plaintiff on 2 September 2002.
Causation
71        The defendant relied on the reports of Mr Byrne, Mr Dunin and Mr Grossbard who found that the plaintiff had pre-existing degenerative change in the left hip. The existence of significant pre-existing degeneration including a labral tear would affect the assessment as to whether, or the extent to which, any future need for hip replacement is causally related to the events of 2 September 2002.
72        The defendant submitted that if the history given by the plaintiff to Dr Sandhu of 12 months of groin pain prior to 2 September 2002 is accepted, those pre- existing degenerative changes were already symptomatic. The defendant submitted that this should be taken into account on the question of general damages, along with the fact that his hip replacement surgery was successful and that he complains only of intermittent discomfort but no longer takes analgesics for pain relief. Moreover, a number of doctors indicated that on the basis of the pre-existing degenerative changes he might, even without this incident, have required surgery to the left hip.
73        Mr Byrne opined in February 2003 that a lumbar spine x-ray of 11 November 2002 “showed very little but what I could see of the top of his left hip I thought might show early osteoarthritis”. X-ray of the left hip in late February 2003 was reported as showing “narrowing of the weight bearing joint space, some sclerosis and a degenerative cyst in the upper lip of the acetabulum consistent with early osteo-arthritis.” He concluded that in the incident the plaintiff “probably stressed his left hip”.
74        Mr Patel, the treating orthopaedic surgeon who performed the arthroscopy in September 2003, said at trial that the complaint of left groin pain was consistent with a labral tear, which typically occurs in a hyperextension injury or with a twisting mechanism. He said that labral tears are quite painful and would interfere with work capacity. He said that in September 2003 the osteoarthritic changes he observed at arthroscopy were not advanced. He said his pictures of the arthroscopy showed that the remainder of the hip cartilage was intact and there was no evidence of articular damage.
75        In his report,[26] Mr Grossbard, orthopaedic surgeon, felt that there may have been some degenerative change in the hip joint at the time of his injury in 2002, “which has undoubtedly been exacerbated by the labral tear and subsequent arthroscopy and debridement.”
[26]           The report dated 25 October 2007.
76        Mr Stephen Doig, orthopaedic surgeon, concluded in November 2009 in his report that the plaintiff sustained the labral tear in the incident on 2 September 2002. In his viva voce evidence, he was taken to the opinion of Mr Byrne relating to what Mr Byrne saw on a lumbar spine x-ray in 2002. Mr Doig said it was inappropriate for an experienced clinician to make a diagnosis of degenerative change in the left hip from an x-ray of the lumbar spine because the x-ray did not focus on the hip joint and did not show front on and side on views of the hip. Mr Doig said without an initial set of hip x-rays immediately after the 2002 injury, it was impossible to state how long any degenerative change had been present.
77        Mr Doig felt that given the specific history of the incident, the labral tear was most likely to have been traumatic. It could have occurred whether he was bending down to lift the box, or while lifting and twisting from the crouched position.
78        Mr Anthony Dunin, orthopaedic surgeon, provided three medico-legal reports at the request of the defendant’s solicitors. As I have accepted the plaintiff’s evidence that he had no groin pain in the year prior to 2 September 2002, it is only necessary to deal with those parts of Mr Dunin’s reports and oral evidence which are based on that history. Mr Dunin felt that as at 2 September 2002 the plaintiff had osteoarthritis of the left hip, and that the labral tear was “almost certainly present” prior to the September 2002 incident but was rendered symptomatic by the incident. Mr Dunin reached this conclusion because he said that the x-ray report of May 2003 showed “moderate osteo-arthritic change in the left hip joint with narrowing of the cartilage joint space and sclerosis of the articular surfaces. Localised subchondral cyst formation is also noted laterally in the roof of the acetabulum”. Mr Dunin said these changes usually take years to show up on x-ray. He said his finding was reinforced by the MRI scan finding of labral cysts in June 2003. Mr Dunin said that these cysts take months to develop and are part of the degenerative process.
79        However, at the trial, Mr Dunin conceded the possibility that the labral tear occurred in September 2002 and that the incident accelerated pre-existing degenerative changes. On this basis, he felt it was “certainly possible” that the claimed injury brought forward the symptoms of osteo-arthritis, and therefore the need for hip replacement surgery, at a much earlier date than would have occurred had the incident not occurred.
Findings
80        I prefer the evidence of Mr Patel, the treating surgeon, and Mr Doig to that of Mr Dunin and find that, as at 2 September 2002, the plaintiff had some degenerative changes in his left hip which were not advanced and which were asymptomatic. Mr Patel and Mr Doig found that these changes became symptomatic in the context of the traumatic incident of 2 September 2002, in which the labral tear occurred. At trial, Mr Dunin conceded the possibility that the labral tear occurred in September 2002. I am satisfied that the labral tear is likely to have occurred on 2 September 2002 and that, but for the incident, the plaintiff might never have needed left hip arthroscopy and/or a left hip replacement.
Contributory negligence
81        The onus is on the defendant to establish contributory negligence. This issue must be approached on the footing that the employer failed to discharge its obligation to take reasonable care for the worker.[27] The evidence will not support a finding of contributory negligence where a worker performed his duties according to “his habitual and longstanding practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work”, and where he was not acting contrary to any rule, instruction, advice or practice, given or established by the employer or in his own interest or for his own convenience.[28]
Findings
[27]           Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202 at [30].
[28]           Davies v Adelaide Chemical and Fertilizer Company Limited [1946] HCA 47; (1946) 74 CLR 541.
82        In this case, I am not satisfied that the plaintiff’s action in attempting to right the misaligned box on 2 September 2002, which was a cause of his hip injury, was in disregard of a direction or order from the defendant. I consider on the evidence that he was doing what he had done before, and what he had done with Mr Towart, and that it was part of the unsafe system of work adopted by the workers in the plate making room when attempting to get boxes of polymer sheets on pallets through the door to the plate making room.
83        I accept that Dr Teo imposed restrictions on the plaintiff’s use of his right hand and that the defendant was aware of these restrictions. However, I have also accepted that the plaintiff was given duties which included some heavy work. In any event, I note that the plaintiff’s evidence was that on 2 September 2002 he performed the lifting manoeuvre with his left hand, not his injured right hand.[29]
[29]           At T76 the plaintiff said “I used only my left hand to lift the – approximately the fourth box, and from a crouching position, with my left side slightly against the stack of boxes, as I lifted and twisted, I just felt
84        I accept the plaintiff’s evidence that he made numerous requests for assistance in the days prior to 2 September 2002. I accept his evidence, which was corroborated by Mr Towart, that it was not unusual for boxes to be misaligned on the pallet and to require re-alignment. Mr Towart said he worked by himself in the plate room and was never instructed not to lift anything in that room by himself. The plaintiff also said that he was never instructed not to do so while working in the plate room during Mr Towart’s absence.
85         The plaintiff said30 that he did not think of going to get some help to right the misaligned box because he did not anticipate that righting it himself would cause him injury. The effect of his evidence was that he felt that it was necessary to re-align the boxes so that the pallet could be taken into the plate room and polymer sheets cooled to be made available to the production process, which went on 24 hours per day. Both he and Mr Towart said it was not part of their system of work for the boxes to be left outside plate making room for significant periods. That evidence was not contradicted by any of the defendant’s witnesses.
86        In all the circumstances, I am not satisfied that the plaintiff’s action amounted to anything more than mere inattention, inadvertence or misjudgment and I therefore conclude that there was no contributory negligence on the part of the plaintiff.
Damages
Pain and suffering
Submissions
87        Mr Hore-Lacy submitted on behalf of the plaintiff that a sum of $250,000 would be an appropriate amount of damages for pain and suffering.

a short, sharp pain through my groin area”.

T73-74.

88

Mr Middleton did not put forward any figures. He submitted that the plaintiff’s hip replacement surgery was technically successful, and has left him with modest complaints of pain but without the need for pain relieving medication. Mr Middleton relied on the evidence of Mr Dunin that, even without the hip injury in 2002, the plaintiff might have ended up having surgery because of the pre-existing degenerative changes in the hip. Moreover, he has been left with a capacity to work full-time doing light physical work or as a teacher’s aide. It was submitted that the 1998 hand injury was more important than the hip injury in causing psychological problems for the plaintiff.
Plaintiff’s evidence
89        The injury was at first wrongly diagnosed as a hernia problem, but when symptoms persisted he had further investigations which showed a labral tear in the left hip. He worked on the printing machines off and on when required from 2002 until 2004 and also did other duties. He had an arthroscopy in September 2003 which relieved his pain for a few months, but the pain persisted and he underwent a hip replacement in early 2005. While he was in hospital, the defendant went into liquidation.
90        Although his hip replacement surgery was successful, he has daily discomfort in the hip with occasional pain if he sits or drives for too long. He has trouble sleeping on his left side. He can still run, but not fluidly as before 2002. He can only sit for long periods if he shifts his weight around. On long drives he has to stop and walk around. He is disheartened that he cannot play some games with his children. He takes glucosamine and condroitin for his hip as recommended by Dr Teo. He does his own exercises (given to him by a physiotherapist) and hydrotherapy. He is still able to play social cricket and can play squash with his left hand. He has been told that he may need two or three further hip replacements in his lifetime.
91        The plaintiff said that the psychological effects of the hand injury had receded by September 2002 and he was very social. After the 2002 incident he felt much more depressed and he isolated himself. He became depressed about everything going wrong. He felt useless as a person. He started to abuse alcohol and to use marijuana for pain relief. He lost his libido. He feels that the injury in 2002 contributed to the breakup of his marriage. Prior to his hip injury, he had planned to continue working as a printing machinist for the rest of his working life. He is upset that he cannot do this job, or other heavy work, due to his hip injury.
Medical evidence concerning the need for further surgery
92        The medical evidence concerning the need for further surgery was to the effect that the plaintiff will require further hip replacements in the future. Mr Grossbard was unable to say how long the hip replacement would last, but felt that they should last 15 to 20 years. Mr Dunin agreed that the plaintiff was very young to have osteoarthritis and to have a hip replacement but that it was difficult to say how long it would have taken before the plaintiff would have needed surgery if the incident had not occurred.
93        Mr Doig concluded in late 2009 that if the incident in September 2002 and the labral tear had not occurred, it may be that he would never had required a hip replacement, particularly as there was no evidence of degenerative change present in the right hip. Mr Doig felt that even if the plaintiff had pre-existing degenerative change in the left hip there was only a greater chance, rather than any strong likelihood, that he would eventually required hip surgery. In the light of the incident in September 2002 and the labral tear, Mr Doig said that the plaintiff would probably need at least one or two further hip replacements in the future, and that each round of surgery is not as successful as the earlier one because of scarring and a higher infection rate.
Findings
94        I am satisfied that the occurrence of the incident and the labral tear on 2 September 2002 contributed significantly to the need for hip replacement surgery in early 2005. On the evidence, the life span of the hip replacement is such that I consider it likely he will require at least one or two further hip replacements in the future.
Expert evidence on the psychological consequences of the hip injury
95        The plaintiff was treated by a clinical psychologist, Dr Papasava, between August 2002 and late May 2003, for the consequences of his 1998 hand injury. In late 2002, Dr Papasava reported that the plaintiff was suffering from severe post-traumatic stress disorder (“PTSD”), a major depressive disorder, a panic disorder, an obsessive-compulsive disorder and a chronic pain disorder associated with the injury to his right hand. The report also noted some marital problems after 1998 associated with the hand injury. He felt that ongoing treatment was required and that the plaintiff would retain some significant residual psychological incapacity and would be vulnerable to developing episodic exacerbations of his depression and anxiety in future.
96        Dr Trevor Corran, clinical psychologist, saw the plaintiff in January 2006 at the request of Dr Teo, and provided a report dated 29 January 2006 to the plaintiff’s solicitors. At the trial, Dr Corran said his report related to the both the 1998 hand injury and the 2002 hip injury, but was unable to say whether the questionnaires answered by the plaintiff upon which he based his opinion related to his hand pain or his hip pain or both. In the light of this concession, I consider that his opinion is of little assistance.
97        In October 2007, Mr Grossbard took a history from the plaintiff that he had been depressed before the hip injury but his depression became more severe after the hip injury.
98        Ms Annie Rosenthal, counselling psychologist, has been treating the plaintiff regularly since August 2007 with relaxation therapy to deal with his hand pain and hip pain. She provided a report dated 20 July 2010 to the plaintiff’s solicitors. At the trial she said that the 2002 hip injury exacerbated the PTSD he suffered after the hand injury in 1998. She agreed that the plaintiff’s perception was that the first injury caused his marriage breakup.
99        Professor Lorraine Dennerstein, psychiatrist, provided a medico-legal report in August 2009 to the plaintiff’s solicitors. She noted that after having some time off work after his right hand injury, he continued working on light duties in the same factory, even though he had psychological symptoms. She noted an improvement in these symptoms prior to September 2002. She noted that immediately prior to September 2002, he was working full-time in spite of right hand pain and psychological symptoms of PTSD. He was married with two children and shared the shopping cooking and laundry with his wife; he went to church on Sundays; and he had a fairly full social and domestic functioning in spite of his symptoms.
100       After his hip injury, he told her that his marriage broke up, he was no longer in paid work, he did no housework or gardening, lost contact with his previous friends, stopped going to church, and was binge drinking on occasions. He had retrained as teacher’s aide, but his life had contracted totally, and his children had to remind him to shower in the morning.
101       Dr Dennerstein diagnosed pre-existing PTSD which was exacerbated by the 2002 injury. At the trial she said the 2002 incident confirmed his vulnerability and he was re-experiencing events in the form of nightmares and flashbacks the content of which changed to include the 2002 accident. After 2002 he had more pain, in the form of hip pain, was more withdrawn and more sad and tearful and more depressed. He lost a lot of weight and by 2004 he was being treated for major depression. He separated from his wife in 2004 and they divorced in 2007. Dr Dennerstein also diagnosed major depressive disorder. She said she would have expected him after the 1998 injury to have some symptoms of an adjustment disorder. Dr Dennerstein felt this probably evolved into a depressive disorder when his hip did not improve and when the symptoms affected his ability to lead his life. She noted that his depressive symptoms had improved since he had been taking Cymbalta from 2007, but she felt that he still had quite significant symptoms in 2009. She disagreed with Dr Papasava’s diagnosis of four separate conditions and said that psychiatrists would treat anxiety and panic attacks as part of the PTSD.

102       She was aware that he wanted to return to work but felt that in the light of his poor concentration and anxiety, the way he drinks at weekends to help him talk to people, his poor self-care, and insomnia that he was capable only of working part-time doing a job that was not very demanding. She said that if he improved he would be capable of full-time work as a teacher’s aide, but she was concerned that his anxiety could affect his ability to work in schools, which can be stressful environments. She suggested he try two hours per day, once or twice per week initially.
Findings on pain and suffering
103       I consider the weight of the evidence to be to the effect that prior to sustaining his hip injury, the plaintiff’s psychological condition which resulted from the 1998 hand injury had improved somewhat. Most importantly, notwithstanding his hand injury and the psychological sequelae of it, he was able to work full- time doing alternative duties, which included fairly heavy work. I consider that as a result of the hip injury, he suffered an exacerbation of his depression and of his PTSD. Importantly, notwithstanding the optimism of his treating surgeon as to the technical success of the hip surgery, Dr Teo and other surgeons opined that the hip injury was a factor in the plaintiff no longer being able to work as a printer or in similar heavy occupations. The hip injury was a material contributing factor to the plaintiff’s inability to continue doing the work which he loved, for which he was qualified, and in which he had earned a considerable income over the years prior to 2002.
104       I am satisfied that due to his hip injury, he now suffers ongoing discomfort, attends hydrotherapy weekly, has trouble sleeping, cannot run as he used to, has trouble driving long distances and cannot play with his children as he used to. He has been drinking too much. The hip injury is one cause for the ongoing need for anti-depressant medication. The plaintiff considers that the hip injury and its sequelae is one of the factors which led to the breakdown of his marriage. Importantly, the hip injury has resulted in the need for hip replacement surgery and there is a real prospect of further replacement surgery being needed every 15 years or so. In a man aged only 43, the pain and suffering consequences of the hip injury are going to be felt for a relatively long period of time.
105       I accept that the plaintiff was rendered vulnerable to further psychiatric injury by the psychological sequelae of the 1998 injury to the right hand. However, in this regard, the defendant takes the plaintiff as it finds him. In determining the appropriate amount to award for pain and suffering I have confined myself to considering the sequelae of the hip injury alone.
106       The assessment of damages in this category is not a process of arithmetic calculation, nor is it one based on speculation. The general damages awarded must properly take into account and compensate the plaintiff for his past pain and suffering, his loss of enjoyment over the past eight years, and the future disability and loss of enjoyment which he will suffer permanently.
107       In all the circumstances, I consider that the appropriate sum of damages to compensate the plaintiff for his past and future pain, suffering and loss of enjoyment of life is the sum of $150,000.
Loss of earning capacity
Legal principles
108       The plaintiff is entitled to be compensated for loss of earning capacity caused by the defendant’s negligent acts.[31]
[31]           Malec v Hutton (1990) 169 CLR 638 at 642-643.
109       However, in determining the amount of that loss, both from the date of injury to the date of trial and into the future, a court is required to take into account other events unrelated to the subject injuries which would have, regardless of the subject injuries, limited or eliminated his capacity to earn income. It may be necessary to make deductions for contingencies in respect of both the past to trial and the future.[32] A rigid mathematical approach is not required.[33] Where there is a pre-existing condition, the court must determine whether there was a chance that this condition would reduce the plaintiff’s capacity to work, and, if so, what allowance should be made for that chance.[34]
Evidence concerning the plaintiff’s capacity for employment
[32]           Freudhofer v Poledano [1972] VR 287 (FC) at 290-3.
[33]           Malec v Hutton at 317; Waribay Pty Ltd v Minter Ellison [1991] 2 VR 391; Adams v Jenkins, unreported, 19 May 1992.
[34]           Wynn v NSW Insurance [1995] 133 ALR 154 at 163.
110       The medical evidence concerning the plaintiff’s capacity for employment can be briefly summarised.
111       In February 2003, Mr Henry Bryne, orthopaedic surgeon, reported that the plaintiff’s hip injury did not prevent him from continuing his alternative duties with the defendant.
112       In August 2005, the plaintiff’s treating general practitioner, Dr Teo, reported that the plaintiff was not fit to return to alternative duties in the printing industry because of a combination of his weakened left hip, right hand injury and degenerative lumbar spine. She recommended that he be retrained for work not requiring use of heavy machinery, prolonged standing, bending, heavy lifting or repeated heavy use of the right hand.
113       In June 2006, Dr Teo reported that he was fit to train as a health services assistant with restrictions including no lifting over 5 kilograms and no prolonged sitting or standing.
114       In July 2006, the plaintiff’s treating orthopaedic surgeon, Mr McMahon, reported that the plaintiff could return to his pre-injury duties as long as he did no repetitive lifting and avoided high impact activities.
115       In November 2006, Dr Teo reported that the plaintiff was fit to work as a sales or inquiry clerk. At the trial, Dr Teo said the plaintiff was physically capable of working full-time as a teacher’s aide provided he can move around and not sit or stand for long periods.
116       Mr Doig reached a similar conclusion in his report of 23 November 2009. Mr Doig also reported that the plaintiff would not be able to return to a heavy job.
117       Mr Dunin reported in July 2010 that the plaintiff is fit for full-time light manual work and is also fit to work as a teacher’s aide.
Current earnings of printers
118       There was evidence from lay witnesses concerning the current earnings of printers. Mr Towart said he earns about $72,800 per year gross ($1,400 per week).[35] Mr Josic said he earns $100,000 gross per year[36] including overtime. Mr Buswell said he earns around $87,000 gross per year with no overtime.[37] Mr Angelis said he earns between $100,000 to $120,000 per year with overtime.[38]
Past loss of earning capacity
Legal principles
[35]           T432.
[36]           T681.
[37]           T688.
[38]           T885.
119       Although generally the contingency that the plaintiff would not have continued to work until the date of the trial may be so minimal as to justify it being disregarded, in some cases a deduction from the amount claimed is appropriate.[39] In the past, courts have discounted damages for loss of pre-trial earning capacity for contingencies including: the need of a working parent to take time off to cope with family illnesses; the prospect of time off for pregnancy and care of an infant;[40] a sporadic employment history;[41] unavailability of work for an older plaintiff;[42] and periods of unemployment occasioned by a pre-existing psychiatric disorder.[43]
Plaintiff’s work history up until trial
[39]           Harold Luntz, Assessment of Damages for Personal Injury and Death, 4th Ed, 2002, p311.
[40]           Freudhofer v Poledano, 1972 VR 287.
[41]           Parkinson v Keuhnast (Fed Ct of A, FC) 20 December 1996, unreported, BC9606433).
[42]           Whitaker v Rogers (1990) Aust Torts Reps 81-062 (NSW SC) at 68,331.
[43]           City of Brimbank v Halilovic, VSCA 12 at 26.
120       Mr Mould is now 43 years old. He came to Australia from South Africa in 1981 and completed HSC here in 1986. He worked in the holidays for the defendant and then did a printing apprenticeship. He started work with the defendant as a printing machinist in 1990. In August 1998 while working for the defendant he suffered a crush injury to the right hand, resulting in the loss of the middle finger and injuries to the adjacent two fingers. He had three operations on the hand and returned to work on modified duties in early March 1999. He was still performing modified duties on 2 September 2002 and was assisting in the plate making room when the he injured his hip in the incident the subject of these proceedings.
121       I note that the plaintiff said in his evidence that in the year ending 30 June 2001 when he earned $75,000 gross, he was not able to cope with the work he was doing, but did it anyway. In the year ending 30 June 2002, he earned $49,643. He acknowledged that he had some time off work during that year due to problems with his right hand but said that the main reason for the drop in his income was that the defendant started using unqualified assistants to run the printing machines because it was cheaper. He said that but for the injury to his left hip he would have continued to work as a printer.
122       The plaintiff effectively lost his position when the defendant’s business went into liquidation in early 2005 while he was having his hip replacement surgery. He followed Dr Teo’s advice to retrain.
123       He worked at Dandenong Hospital for eight months in 2008 as a personal services assistant, but found the work too physically demanding, as he was required to do a lot of walking and getting patients into wheelchairs. From January to May 2008 he completed a Certificate in education. In 2008 and 2009 he did some voluntary work at Noble Park primary school, 4-6 hours per week assisting teachers with children with reading or behavioural problems.
124       From August to December 2009, he worked at Breadwinners doing stock maintenance between 24 and 30 hours per week. Although he did not have to lift heavy loads, he had to repeatedly lift boxes or trays of bread and this repetitive work led to an aggravation of his left hip symptoms and he could not manage the physical work. He has not worked since 31 August 2010.
125       I am satisfied that the plaintiff made very concerted efforts after his hip injury to retrain as a personal services assistant and then as a teacher’s aide and to seek relevant employment within his physical restrictions.
126       Mr Mould said that if he had not been injured in September 2002, he would have continued to work as a printer for the rest of his working life. Up until now, he had been applying for jobs[44] that he now realises are too physical for him, such as checking gas meters full-time. Most recently, he has been dropping his resume off at primary schools, looking for work as a teacher’s aide. He plans to work full-time in that capacity. He has been accepted into a Diploma of Counselling course, which takes 12 months.
Submissions
[44]           He said he had applied for between 30 and 40 such jobs.
127       Counsel for the defendant proposed the following process for calculating past loss of earning capacity. The plaintiff’s taxable earnings for the year ending 30 June 2002 were in the sum of $49,653. The present value of that figure (allowing for a 38% increase in average weekly earnings proposed by the forensic accountant, Mr Allan, in his evidence) is $68,500. The average of those figures yields an annual gross figure of $59,000 which roughly equates, on a weekly basis, to $900 net weekly wage. To this figure he added $100 for the weekly employer superannuation contribution, producing a figure of around $1,000 per week.
128       The period from 2 September 2002 to April 2006 (when Mr McMahon reported that the plaintiff could return to work as a printer) is a period of 183 weeks. For that period there was 100% disability. On the basis that in 2008 the plaintiff worked 28 hours a week for a period of eight months, the defendant submitted that for the remainder of the pre-trial period of 230 weeks it was reasonable to assess a 25% loss of earning capacity, or a loss of $250 per week, which, when multiplied by 230 gives the sum of $57,500. To the sums of $183,000 and $57,500 must be added the agreed Fox v Wood component of $10,000. This produces a sub-total of $250,000 from which his actual earnings of $96,000 are deducted, leaving a total past loss of earning capacity of $154,500.
129       In his brief reply, counsel for the defendant submitted it was appropriate to discount this figure for vicissitudes, on the basis of the evidence of Mr McMahon and Mr Doig supported the conclusion that any physical incapacity to work as a printer stemmed from the pre-existing right hand injury, and not the hip injury, and most doctors felt he had the capacity to work full-time.
130       The plaintiff suggested three different possible net annual amounts to represent his earning capacity as at the date of the hip injury, with those figures represented in today’s terms. The middle figure proposed ascribed to the plaintiff an earning capacity of $60,000 at injury (and $83,000 now). On this basis, his net potential earnings to the date of trial would have been roughly $420,000 after tax and inclusive of superannuation. No amount was deducted for past vicissitudes. In his final address, counsel for the plaintiff conceded that a global reduction of 15% of vicissitudes ought to be made. Deducting 15% from $420,000 produces the figure $357,000. To that figure is added the Fox v Wood component of $10,000. This produces the total of $367,000 from which actual earnings of $96,000 must be deducted, leaving a total past loss of earning capacity in the order of $271,000.
Decision on past loss of earning capacity
131       I consider it appropriate to take the starting figure proposed by the plaintiff, as it is roughly the average of the $75,000 earned in 2000-2001 and the $50,000 earned in 2001-2002. However, I consider it inappropriate to simply multiply the weekly figure by the 413 weeks to the date of trial, as was done by the plaintiff. This suggests a continuous total loss of capacity occasioned by the hip injury for the whole period. I consider it appropriate to make a substantial discount for past vicissitudes in this case in the light of a number of factors: the plaintiff’s pre-existing hand injury; the clearance given to him in 2006 by his orthopaedic surgeon to return to his pre-injury modified duties; the opinion of Dr Teo in 2007 that part of the reason for his inability to return to work as a printer lay in his unrelated and pre-existing hand injury and degenerative back; and the period between his recovery from his hip surgery (early 2006) and 2008 when he appeared to be unemployed and underwent some retraining as a personal services assistant.
132       In all the circumstances, I consider it appropriate to substantially discount the plaintiff’s past loss of earnings. I therefore propose to deduct 30% from the figure of $420,000 proposed by the plaintiff. Doing so produces a figure of $294,000. The agreed Fox v Wood component of $10,000 must be added to this figure, producing the sum of $304,000. From this amount I deduct the amount actually earned of $96,000 leaving a total past loss of earning capacity of $208,000.
133 Although counsel did not address me on this point, it is necessary, on the authorities,[45] to add damages in the nature of interest for past loss of earnings.
Future loss of earning capacity
Legal principles
[45]           Casey City Council v Helen Kohn [2006] VSCA 82.
134       The assessment of future economic loss must take into account a variety of considerations, including sickness, accidents, unemployment and industrial disputes.[46] Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account.[47] Assessments of an appropriate discount for contingencies are founded on hypothetical valuations and defy precise calculation. At best they can be a matter of impression.[48] It is permissible to discount past and future income loss by different factors or percentages, as different kinds of possibilities may need to be taken into account in assessing the past compared with the future.[49]
Evidence
[46]           Wynn v NSW Insurance [1995] 133 ALR 154 at 161.
[47] Ibid 162.
[48] Ibid 154 per Dawson, Toohey, Gaudron and Gummow JJ.
[49]           City of Brimbank v Halilovic [2000] VSCA 12.
135       In their viva voce evidence, Dr Teo, Mr Doig and Mr Dunin said that the plaintiff is fit to work full-time as a teacher’s aide.[50] Mr Dunin also felt that the plaintiff was fit for light manual duties. Mr Doig said that if there was no heavy lifting, crouching or lifting under load that the plaintiff could even return to work as a printer. I note that Professor Dennerstein felt that from a psychological perspective he is not yet fit to work full-time as a teacher’s aide because the school environment is very stressful. I note the plaintiff’s evidence that if he had not suffered his hip injury he would have intended to continue working as a printer until the age of 65.
Submissions
[50]           Dr Teo and Mr Doig said that this was provided he can move around at will and not sit or stand for long periods.
136       On the basis that the plaintiff can work 30 hours per week into the future, the defendant says that the future loss of earning capacity is around $185,000. This is calculated on the basis of a current earning capacity of $68,500, which is $1317 gross per week, and $1023 net of tax ($294). When superannuation of $118 per week is added to $1023, the weekly figure is $1,141. The defendant says that 30 hours per week represents a 75% capacity for work, or a loss of $285.25 per week, which, when multiplied by the multiplier of 645.5 produces the figure of $184,290. From this figure the defendant says 15 to 20% should be deducted for vicissitudes. Deducting 20% would produce a figure of around $147,000.
137       The plaintiff says that on the basis of the earning capacity of $60,000 at injury and $83,000 now, his future lost earnings would be roughly $890,000. In the future, working as a teacher’s aide working 20 hours for 40 weeks at $16.60 per hour until age 65, he could earn roughly $180,000. The difference between what he would earn in the future as a printer and what he would earn in the future as a teacher’s aide, is in the order of $630,000. The plaintiff agreed that a discount in the order of 15% for vicissitudes was appropriate. The deduction of $ 94,500 for vicissitudes would produce a figure of $535,500 for future loss of earning capacity.
Decision on future loss of earning capacity
138       Notwithstanding that the plaintiff has retrained twice (once as a personal services attendant, and a second time as a teacher’s aide) and now seeks full-time employment as a teacher’s aide, it is clear that the hip injury is a material cause of the substantial and permanent impairment of his ability to undertake the career of his choice as a printer. On the other hand, he is reasonably well-educated and has been able to retrain. However, as Mr Allan indicated in his evidence, it may be hard to find full-time work, 30 hours per week as a teacher’s aide, and that work if it is available in schools is likely to be available only during the school year, that is for approximately 40 weeks per year. Whilst Mr Allan noted the award hourly rate was $14.40 per hour, he said that he has seen advertised hourly rates for such positions in the order of $20 per hour.

139       I consider it appropriate to take the starting figure of $60,000 at injury, which was the middle figure proposed by the plaintiff. In today’s terms, that figure is $83,000, which is $1596 per week gross, and $1212 net of tax and $1321 after adding the 9% employer superannuation contribution. Working as a teacher’s aide 30 hours per week at $16.60 per week would produce gross weekly earnings of $500 gross, $448 net and $488 after adding superannuation. The plaintiff’s undiscounted loss of future earnings is $833 multiplied by the agreed multiplier of 654.5, that is, the sum of $545,198.
140       Although the standard discount rate of 15% for future vicissitudes is sanctioned by the High Court[51] I propose in this case to make a greater discount for a number of reasons. This is not the usual case where it is easy to conclude that, but for the hip injury sustained in September 2002, the plaintiff would have worked as a printer until the age of 65. Rather, there was a considerable chance in my view that the previous hand injury as well as the degenerative back condition (which was not the subject of much medical evidence at trial but was one of the bases on which Dr Teo concluded that the plaintiff was not capable of returning to his pre-injury duties) and the previous psychological injury associated with the hand injury would detrimentally affect the plaintiff’s future earning capacity.
[51]           Wynn v NSW Insurance [1995] 133 ALR 154.
141       Unless the chance that the plaintiff’s pre-existing injuries would have reduced the plaintiff’s capacity to work in any event is taken into account and allowed for in the calculation of future economic loss, the defendant would be held responsible for loss which was not causally related to the injury suffered in September 2002, and that is not permissible.[52]
[52] Ibid 163.
142       In the light of employment patterns for teacher’s aides, and the fact that he has not yet secured ongoing employment of this kind, I consider there is a considerable chance that the plaintiff would not secure 30 hours per week of work to the age of 65. I also consider that psychological sequelae of the pre- existing right hand injury has made him vulnerable to further psychological problems which may affect his employability for the remainder of his working life.
143       In all the circumstances I consider it appropriate to make a discount of 30% for future vicissitudes in this case. Deducting 30% from $545,200 produces a figure of $381,640.
Conclusion
144       There is judgment for the plaintiff in the sum of $150,000 for pain and suffering; $208,000 plus interest for past loss of earning capacity; and $381,640 for future loss of earning capacity. I reserve the question of costs.

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Citations

Mould v ABM Plastics [2010] VCC 1346

Cases Citing This Decision

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20

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Mould v ABM Plastics Pty Ltd (Ruling 1) [2010] VCC 1474

Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317

Smith v Broken Hill Pty Ltd [1957] HCA 34

[2010] VCC 1346

28 October 2010