Nicholls v Marky Industries Pty Ltd
[2000] QDC 11
•23rd February, 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Nicholls v Marky Industries Pty Ltd [2000] QDC 011 PARTIES: NOEL RAYMOND NICHOLLS (Plaintiff)
v
MARKY INDUSTRIES PTY LTD (Defendant)FILE NO/S: 2499 of 1995 DIVISION: CIVIL JURISDICTION PROCEEDING: ORIGINATING COURT: DELIVERED ON: 23rd February, 2000 DELIVERED AT: BRISBANE HEARING DATE: 18th and 19th NOVEMBER 1999, 31 JANUARY and FEBRUARY 2000 JUDGE: BOULTON DCJ ORDER: CATCHWORDS: COUNSEL: R Oliver for Plaintiff; P Feely for Defendant SOLICITORS: Baker Johnson; O’Shea, Corser & Wadley
The plaintiff was born on 14th November 1955. He left school aged approximately 15 and worked in the canefields doing labouring work. After a couple of years he began working in the local mill on diesel locomotives and acquired a ticket to drive such locomotives. He can also drive tractors and forklifts.
In or about 1980 he began working with fibreglass moulding and around this time suffered a back injury which worsened to the point where he underwent a fusion of his lumbo-sacral joint in or about 1990. This was performed by a Dr Clark in Cairns. It seems that initially at any rate the surgery was successful in reducing his symptoms.
When asked in examination-in-chief about the state of his back following the fusion operation he described it as “good”. In answers to interrogatories he stated that subsequent to the surgery and prior to the incident of 1st July 1994 he “did not have any symptoms in his spine”. When pressed by Mr Feely in cross-examination on his pre-accident problems he described these as “nothing serious” and confined them to soreness after a long hard day’s work.
There was just an abundance of hospital and medical documentation to show that this was not so. He agreed with Mr Feely that he had been seeing a general practitioner, Dr Gillis, in late 1991, early 1992, for low back pain and numbness in his legs and was referred to Dr Clark in Cairns on 7th February 1992 with severe back pain. In 1993 when he came to Brisbane he gave a history to Dr Wong of chronic back pain and at this stage went on to sickness benefits. He also gave a history to an orthopaedic specialist at QEII Hospital in May 1994 of a lifting injury some 18 months earlier, which had caused his symptoms to recur following the fusion operation. He had been prescribed Mersyndol Forte. None of this history would seem to have been communicated by him to the orthopaedic specialists who examined him for medical reports in these proceedings.
He began working for the defendant in January 1994 and was put to work in what is described as the “gun shop section” doing very laborious work. He would seem to have been well motivated to work and is described by some as a willing worker but he had numerous absences from work and eventually had to ask his employer to be given lighter duties. In late May 1994 he was put into the RTM section. He was there about a month when the incident which is the subject of the proceedings is said to have occurred.
Despite his admirable efforts to cope with heavy physical work which simply proved too much for him, the plaintiff’s credibility has suffered from the relentless exposure of his complaints to doctors of serious back problems in the period from late 1991 to mid-1994. While it is not uncommon for plaintiffs to focus on their compensable problems it is difficult to resist the view that the plaintiff in the present instance concealed over a period of time the true nature of his pre-existing back condition. In drawing this conclusion I am mindful of the fact that the plaintiff is a man of limited formal education. He is a man though with a measure of practical ability as his work history demonstrates.
The consequences of his suspect credibility flow over into the area of liability because he is the only witness to describe the accident complained of.
It is clear that an accident occurred at work when the plaintiff’s hand was caught between the upper and lower sections of a concrete mould. A supervisor, Mr Radanovic, was nearby when the incident occurred and immediately activated the hoist which raised the lid of the mould releasing the plaintiff’s hand. It is suggested on behalf of the plaintiff that the incident occurred on 1st July 1994. This date would seem to derive from a report of a Dr Robinson which is exhibit 13. That report refers to a back injury at work on that day but the report does not speak of the circumstances under which the injury occurred. The Worker’s Compensation claim form, exhibit 14, was not completed until 24th August 1994 and says that the incident occurred on Thursday, 28th July 1994, and that he reported it to Mr Radanovic on 29th July 1994. The plaintiff had ceased work with the defendant on or about 20th August 1994.
Mr Radanovic provided a written statement concerning the matter on 9th March 1996. He also gave evidence in the proceedings and was cross-examined. It would have to be said that his evidence was extremely vague on most issues and would seem to have been the product of a good deal of reconstruction on his part.
In the course of his cross-examination Mr Radanavic somewhat unexpectedly mentioned an inspector. No other such reference occurred during the case. He was asked:
“When you inspected it – when did you inspect it?-- It was after – actually, when an inspector came, I believe, we went together and I think I jumped on to the mould and looked.
This is after Mr Nicholls’ incident?-- Correct.”
That was on 19th November 1999 when the case had to be adjourned. The actual hearing did not resume until 10th February 2000 and neither party would seem to have pursued the issue in the interim. In addresses Mr Oliver for the plaintiff made reference to the failure to pursue the matter but, in the circumstances, I can draw little from it. The plaintiff carried the onus of proof in the proceedings.
There are some aspects of the evidence which raise a doubt as to whether the incident with the mould hood was one and the same with the incident of 1st July 1994 referred to by Dr Robinson.
In his statement of 9th March 1996 Mr Radanovic referred to the incident with the mould:
“After the incident I thought that Noel made more of the matter in the next couple of weeks than he needed to. His major concern at the time of the incident was his hand, not his back.”
Furthermore, Mr Radanovic plainly thought that the incident with the mould occurred a very short time before the plaintiff ceased work. He was quite surprised in cross-examination when reference was made to the lapse of time between 1st July and 20th August:
“If it happened on 1 July ’94 and he finally left work on 17
August?-- Yeah. He came back for a short period with a physio or something to look at the benches and things but he stayed there three or four days, maybe half the week.I suggest to you that he stayed six weeks at work?-- Really?
Are you in a position to dispute that?-- No, I’m not because I don’t recall. It seemed like a very short time.”
The defendant’s work records do not reveal any time off work on or about 1st July. Mrs Nicholas was asked about the period July to August 1994 and responded:
“...On 13 July there’s a notation that says ‘sick’. On 14 July ‘sick’, no doctor’s certificate. And on 12 August he had ‘personal business’, it said, and I believe that was it until the accident.”
Mrs Nicholas was obviously referring to the plaintiff’s ceasing work which occurred on or about 20th August 1994. She also revealed that in the same period the plaintiff had worked a significant amount of overtime:
“Was there overtime worked between, say, 30 June and 20 August apart from those days, and if so did he work much overtime?-- Yes, there was overtime. Some weeks he’s worked around 10 hours, some weeks two hours overtime, some weeks five. There’s a substantial amount of overtime. Eight hours, 1.5, 2.5.”
The defendant maintained an accident record book. The plaintiff and Mr Radanovic were both aware of the instruction to enter details of work accidents in that book. A copy of the relevant pages in that book is exhibit 21. These contain no reference to such an accident.
The plaintiff’s action does not rise or fall on his being able to identify the exact date. However, there are puzzling aspects. If he did suffer a significant back injury on 1st July in the incident involving the mould there are some difficulties in reconciling this with his subsequent behaviour. On the other hand if the back injury of 1st July 1994 referred to by Dr Robinson relates to some other event then there is even more serious cause for concern.
Circumstances of the accident
Even more crucial to the plaintiff’s case is the actual description of the malfunctioning of the mould equipment. The plaintiff describes two hydraulic arms which were used to raise and lower the lid. He was asked:
“Can you tell us how they operate? How do the arms operate?-- Just like an air hose plugs into a line and there is a lever there, hit the lever and it filled the tank up with air and pumped the oil up through the hydraulic arm, to the arms which air lifted the top off.
So the hydraulic arms operated with oil?-- It was oil and you had to hook the air hose into them.
How did you know it was oil?-- I topped it up a couple of times. ...”
He described the failure of the system on earlier occasions:
“Before 1 July how many times do you say it failed?-- On two occasions.
Two occasions?-- Before that, yeah.
On both occasions did it fall so far that it was going to crash on to the bottom part of the mould?-- No. The first time it did it I was told it needed oil. I didn’t know nothing about it, so I topped it up and it was right.
Where do you put the oil in?-- Into the cylinder on the side.
Does that cylinder have any hoses that go to the hydraulic rams?-- Yeah. Yes, it did have.
Yes. All right. Before 1 July, how many times did you fill the oil container?-- The first time I topped it up, I don’t know, a few days later there was oil all over the ground. It spewed oil out, for some reason, on the floor. It did that on two occasions.”
In answers to interrogatories the plaintiff deposed to these earlier malfunctionings occurring in March 1994 and of their being reported to Radanovic and Rehfeld at that time. I have already adverted to the fact that the plaintiff was not even working in this section until late May. However, the plaintiff’s evidence concerning a hydraulic hoist leaking oil and malfunctioning as a result is, on the evidence which I accept, simply wrong. The hoist in question was a pneumatic hoist. It is not mechanically feasible to combine hydraulic and pneumatic propulsion in the one unit. Furthermore the description of the oil is not of hydraulic oil but of clear machine oil. Dr Grigg was the only expert who was briefed with the relevant information. He observed in his report, exhibit 10:
“It is noted that air-powered hoists are fitted with lubricators for their motor and it is possible that oil could drop from such a lubricator without affecting the safety of the hoist.”
Mr Radanovic was the only other person in the vicinity at the time of the incident. He did not see the incident occur. I have already referred to his confusion concerning the state of the mechanism at the time. He seemed to take the view that the hydraulic arms that were fitted to the sides of the unit were not operating at the time and had been fixed. The actual lifting unit was a pneumatic hoist. He was shown by counsel the photograph attached to Dr Grigg’s report, exhibit 10:
“I might show the witness the photographs attached to Dr Griggs’ report, Your Honour, Exhibit 10?-- Yeah, that’s the hoist.
Sorry?-- That’s the hoist, yes.So the hoist shown in those photographs is the hoist that we are talking about in this incident; is that right?-- Yes, I believe so, yeah.
You are quite certain of that?-- Yeah.
I suggest to you that that is a pneumatic hoist?-- Okay, well, I
can’t-----Do you accept that?-- I can’t dispute it.”
Mr Radanovic claimed to have seen the machine behaving erratically prior to the incident but was unable to give any details. He had made no such mention in his 1996 statement. He agreed that the proper procedure in such an event would have been for him to notify Mr Rehfeld. Mr Rehfeld is quite definite that he received no such complaint from Mr Radanovic or the plaintiff. I prefer Mr Rehfeld’s evidence on this issue to that of Mr Radanovic and the plaintiff.
There was some speculation from Dr Grigg in the closing stages of the evidence that the hydraulic rams, if operated on compressed air, might tend to jam if the supporting frame did not remain perfectly horizontal. That might have explained a spasmodic descent of the kind mentioned by the plaintiff. However, there is simply no evidence that this was the method being used at the time or that the frame was jamming in the way that Dr Grigg described. I accept that the hoist being used was the one referred to in the report of Dr Grigg and that this was a pneumatic hoist. No defect in the operation of that hoist or its suitability for the task has been identified.
I am therefore left with no confidence at all that the incident occurred in the way that the plaintiff said it did. There would seem to me to be a distinct possibility that the plaintiff got his hand caught through inadvertence or carelessness. However, this was not the shape of the plaintiff’s case and I could make no finding on the balance of probabilities that this is what actually occurred.
Workplace Health and Safety Act (1989) s.9
As recently as last Friday the Court of Appeal handed down its decision in Schiliro v Peppercorn Childcare Centres Pty Ltd appeal number 9640 of 1998 in which it was held that s.9 of the Workplace Health and Safety Act (1989) gives rise to a civil cause of action. A number of earlier cases had proceeded on the assumption that this was so but the point had not been conclusively resolved until the decision in Schiliro. However, s.9 cannot avail a plaintiff in the present situation. As de Jersey CJ pointed out in Queensland Corrective Services Commission v Paul Francis Gallagher C.A. 7588/98, 18.12.98:
“...the allegation of breach of statutory duty adds nothing to the strength of the case of the plaintiff in circumstances like these. None of those, or other decisions to which we referred, obviates the need to demonstrate a causal link between a plaintiff’s condition and the deficiency in the workplace and that evidence was in this case lacking.”
The cases referred to by His Honour included Rogers v Brambles and other cases referring to the application of s.9 of the Workplace Health and Safety Act (1989).
Quantum
It is necessary that I proceed to assess damages for the assistance of an appellate court should that become necessary. It is difficult, having regard to my distrust of the plaintiff’s account to arrive at a secure basis upon which to calculate such damages. I propose to accept for the purpose of the exercise that the plaintiff suffered an aggravation to his lumbar spine in the incident when his hand was trapped between the upper and lower sections of the mould, whether that occurred in early or late July 1994.
I accept that the plaintiff’s long standing problems, which had been greatly alleviated by the 1990 fusion, reasserted themselves in the 1991-1992 period and continued to cause him serious problems, particularly when he was working from January 1994 to the end of May 1994 in the gun shop. Despite a number of absences from work he was quite unable to cope. If he had not been given lighter work it would seem inevitable that he would have been forced to resign and to have gone back on the disability pension.
It is reasonable to assume, however, that the plaintiff would have continued to work for some time in the resin and moulding section if he had not suffered further injury. I do not accept the evidence of Mrs Nicholas that his services were about to be terminated because of absences from work. That may have been the case when he was working in the gun shop, but the records show that, from the time that he commenced work in the moulding section, his attendance record was greatly improved. Relevant to this aspect is the evidence that he was regarded as a willing worker.
It is desirable that I review briefly the specialist medical evidence. There were four specialist doctors who gave evidence in the proceedings. Their reports are as follows: January 1995 – Dr James Downes, exhibit 3; 1 July 1998 – Dr John Pentis, exhibit 4; 5 March 1999 – Dr Francis H Tomlinson; 10 December 1997 – Dr John Fraser, exhibit 12.
The first three of the above were called to give evidence on the part of the plaintiff. Doctor Fraser gave evidence on behalf of the defendant. All had been given by the plaintiff a history which failed to mention in any satisfactory fashion his serious problems from late 1991 to mid-1994. Only Dr John Fraser would seem to have been given the QEII and Cairns Base Hospital records and other medical records relevant to this period. While Dr Fraser saw reason to distrust the plaintiff as an accurate historian, he did not fasten on the many complaints reflected in the abovementioned documents. It seems very likely that Dr Fraser, when confronted with quite voluminous material, did not read the hospital records in particular with the level of detailed analysis that would have enabled him to note the inconsistencies. On the subject of the history given to him by the plaintiff, he commented:
“Mr Nicholls has a long history of low back pain dating back to 1982. He underwent a spinal fusion procedure in 1990 and this appears to have achieved a good result in relieving his symptoms at that time. He does admit to some paraesthesia in the left leg between 1990-1994, but denied any back pain.”
The response of the doctors, when confronted with the real history, was varied. Doctor Pentis adopted a rather non-judgmental approach observing drily:
“It means you are having more problems than what you volunteered”.
When asked if he had been too generous in ascribing a 10% loss of function in the spine due to the accident Dr Pentis replied that “you might have to cull it a bit.” He was then asked:
“So, in those circumstances, is it possible it attribute 2 per cent, 5 per cent, something less than the 10 to this accident?-- Well, it is very hard to give you a figure because it does vary. Even though you may say you will have to cull that back, it is hard to say what you cull it back to. If you assume if you did a fusion previously eventually you would end up with problems in your spine, if you get anywhere from 25 to 30 per cent of efficient function of your spine, so still with the problems he is having he is somewhere around that 25 to 30 per cent mark, so you can do your sums and work out what’s what from that.”
Doctor Pentis was being rather charitable because if one subtracts 25 to 30% from 25 to 30% it is fairly clear that one arrives at a figure of zero.
Doctor Downes had described in his report the result of the July 1994 accident as “a substantial contribution to his present pain.” He assessed the plaintiff’s permanent partial disability as 20% of normal lumbar spinal movement.
When acquainted with the plaintiff’s pre-accident history Dr Downes was much less charitable than Dr Pentis:
“...If that is the history I have to accept it. In fact, it is – I would put out to the Court I consider my history taking to be awful if that is the case. It alters my opinion completely.
What is your opinion now?-- If that is the case we are talking about a man whose ongoing problems with the back haven’t been cured by the surgery.
Would you accept the proposition this accident has made little or no difference to his back condition?-- I do accept that if that is the correct history.”
Doctor Tomlinson would seem to have enjoyed some advance warning of the sort of history that would be put to him in cross-examination. He refused to be overly concerned and returned repeatedly to the theme that the plaintiff had returned to strenuous work in 1994 and that this was itself cogent evidence of a degree of recovery. When asked as to the level of disability he commented:
“...He has a disability of at least 20 per cent which would allow him to, you know, go on a disability pension. I think you’ve got to be 20 per cent, 25 per cent. And at the time of his accident he was working and therefore I figured he had a disability of maybe 10 per cent, so just trying to acknowledge that there was a pre-existing, you know, problem and that this has been exacerbated by it.”
Doctor Downes refers to a CT myelogram performed by Dr Morgan. That may have been the myelogram of 6th October 1994 referred to by Dr Fraser. Doctor Fraser also referred to a CT scan of the lumbo-sacral spine on 18th August 1994 and the comments of Dr David Weston. Doctor Tomlinson refers to two CT scans of the lumbo-sacral spine on 19th November 1998 and 4th March 1999, plain radiographs of the lumbo-sacral spine of 4th March 1999 and a bone scan of the same date. These investigations would seem to support the view that no discrete injury was caused by the incident in July 1994 but rather there has been an exacerbation of the plaintiff’s condition accelerating the deterioration in his lumbo-sacral spine by a period of time. That accords with the reasoning of Dr Tomlinson. The original three year period mentioned by Dr Fraser in his report seems overly generous, even allowing for the fact that Dr Fraser’s estimate was arrived at after having taken a very sceptical view of the incident. Doctor Fraser sought to resile from it. However, it seems appropriate to make some such allowance. I propose to allow half of that period and to find therefore that the result of the incident was to accelerate the deterioration in the plaintiff’s lumbo-sacral spine by some 18 months.
Under the head of pain and suffering and loss of amenities I assess his damages in the sum of $12,000. I allow interest on that sum at 2% over a period of four years, which produces a figure of $960.
I allow lost income at $350 per week net over a period of 18 months. That produces a figure of $27,300. However I do not allow interest on that sum because of the weekly compensation payments and disability settlement referred to in exhibit 8.
The Fox and Wood figure is $2,868.50 and the special damages figure $3,719.67. Both these are reflected in exhibit 8. There is no case made out for Griffiths v Kerkemeyer damages. There is nothing awarded under the heading of future economic loss or future expenses. The total sum is $43,979.67. The repayment to the Worker’s Compensation Board is $32,600.87. The net figure is therefore $11,378.80 and I assess his damages in that amount.
I dismiss the claim. I order that the plaintiff pay the defendant’s costs of and incidental to the action to be taxed.
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