O'Reilly v Komatsu Forklift Australia Pty Limited

[2015] NSWDC 130

District Court

New South Wales

Medium Neutral Citation:

O’Reilly v Komatsu Forklift Australia Pty Limited [2015] NSWDC 130

Hearing dates:

17-18 June 2015

Date of orders:

18 June 2015

Decision date:

18 June 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Verdict and judgment for the plaintiff against the defendant for $727,686

Catchwords:

TORT – Negligence – Work injury damages – Whether plaintiff acted contrary to employer’s work practice directions – No practice direction given to plaintiff, direction not enforced – Vicarious liability for negligence of another employee

 

TORT – Negligence – Work injury damages – Whether contributory negligence – Momentary inadvertence/inattention/distraction

  DAMAGES – Vicissitudes – Pre-existing back injuries – Previous injury might require same surgical intervention as subject injury – Present injury accelerated need for further surgical intervention

Legislation Cited:

Motor Accidents Compensation Act 1999

Cases Cited:

Cotter v Huddart Parker Ltd (1941) 42 SR(NSW) 33
71   
Kallouf v Middis [2008] NSWCA 61
Naismith v London Film Productions [1939] 1 All ER 794

Texts Cited:

Glass, McHugh and Douglas, The Liability of Employers, (2nd ed) 1979, Law Book Company Limited

Category:

Principal judgment

Parties:

Sheridan O’Reilly (Plaintiff)
Komatsu Forklift Australia Pty Limited (Defendant)

Representation:

Counsel:
Mr A Lidden SC (Plaintiff)
Ms E Welsh (Plaintiff)
Mr D Benson (Defendant)

  Solicitors:
Brydens Compensation Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2014/240142

Publication restriction:

No

Judgment

1. HIS HONOUR: This is an action in the tort of negligence. The plaintiff claims work injury damages. The plaintiff was born in Ireland on 12 August 1966. He came to Australia as a baby in February 1967 with his family. His education was wholly in New South Wales. He left Sefton High School at the end of year 10, having obtained the School Certificate. He then obtained an apprenticeship as a motor mechanic. He completed that apprenticeship.

2. Since then the plaintiff has advanced his qualifications as a motor mechanic and gained skills necessary to pursue his career as a mechanic. He obtained a certificate as a trade mechanic, a certificate as a diesel fitter, an engineering certificate and other ancillary qualifications such as a forklift driver, a crane chaser, a dogman, a crane driver and eventually the highest grade of driver’s licence which allows him to drive the largest trucks with the largest number of trailers that can be towed in this country.

3. Between commencing his apprenticeship and 15 March 2007, the plaintiff has worked in his trade often doing very heavy work. He told me that, although he had a number of jobs, the longest period in which he was unemployed was two weeks. It is clear that the plaintiff has an excellent work ethic. He also has a wealth of experience in mechanics, mechanical engineering and diesel mechanical engineering. He has had many employers in different fields and has experience in many workplaces and in many different systems of work.

Liability

4. In the current proceedings the plaintiff relies upon an injury which occurred to him on 30 June 2011. It is convenient for me to discuss the question of liability first. The plaintiff commenced working for the present defendant on 6 December 2010. Komatsu Forklift Australia Pty Ltd has its workshop in Sydney at 7 Welder Road, Seven Hills. According to exhibit A, the defendant also has offices in Darwin, Cairns, Townsville, Rockhampton, Brisbane, Newcastle, Wollongong, Melbourne, Adelaide and Perth. It appears from the defendant’s stationery that it provides not only Komatsu forklifts but also PM truck mounted cranes and Baumann sideloaders.

5. The plaintiff obtained with the defendant the position of a field service technician. The evidence discloses that at the workshop at Seven Hills the defendant has three tradesmen technicians and two apprentices and employs ten field service technicians operating from the same premises. The plaintiff was provided with a vehicle by the defendant, a HiAce van which he used for the purposes of his occupation and was also permitted to use for his private use, that is, not only going to and from work but, for example, he could use it on weekends if he so wished. The plaintiff’s base rate of pay was $28 per hour. His normal working hours were 40 hours per week and he gave evidence of working about two hours’ overtime each week. He was also given a tool allowance which averaged $35 per week and a clothing allowance which averaged $12 per week. Those extra benefits amount to $47 per week plus the value of the plaintiff’s private use of the defendant’s vehicle.

6. The plaintiff would attend the defendant’s workshop regularly. He worked there one or two days on average each week repairing vehicles that had been brought from the field into the workshop. He also attended the workshop regularly to drop off invoices to the office and to collect from the store parts which he needed to effect repairs of vehicles in the field. The plaintiff would be advised of jobs in the field either on the mobile phone provided to him for use in the defendant’s business, but such use was restricted to work use, or he would be advised of jobs by facsimile transmission. No doubt he was also advised, from time to time, of other jobs in the field when he called in to the company’s office at the workshop.

7. The plaintiff drew a sketch plan of the relevant part of the defendant’s workshop. It is exhibit B. The office was on a second storey at the front of the workshop. Technicians such as the plaintiff parked their vehicles at the rear of the workshop, reaching there from an access road. At one end of the workshop was the spare parts store. The bulk of the ground floor of the workshop, besides containing the spare parts store, also contained bays in which forklifts could be repaired as well as an area where new machinery was parked, presumably prior to sale. There was marked on the ground floor of the workshop, within the area occupied by the bays for repairing forklifts, a walkway. That walkway was along a wall at one end leading from where technicians parked their cars, past the area where new machinery was stored, and then along a pathway, which was at a right angle to the other pathway, to the entrance to the spare parts store. This clearly was an “L” shaped walkway.

8. Photographs taken of part of the walkway, exhibit E, show the walkway to be marked with yellow paint. The photographs of the walkway before me were along the wall which separated the repair bays from the new machinery store. The photographs, exhibit E, were taken a day after the plaintiff’s injury on 30 June 2011. They clearly show the walkway to be at least partially obstructed, its being used to store things such as trolleys which would carry oxyacetylene bottles, hoses or cables, boxes, pieces of machinery or tools, items which may have been taken from machinery under repair, and a plastic post of the type often used to mark a danger.

9. The mere fact that the walkway was partially obstructed on the day after the plaintiff’s accident indicates that the defendant did not ensure that the pathway was kept clear. In any event, the plaintiff told me that it was normal practice for him, and had been over the seven months he worked for the defendant, to walk through the repair bays to get to the spare parts store. He said that was the practice for him and for others. If the defendant required its employees to only use the walkway, then such a direction was not given to the plaintiff, and, if that were supposed to be the practice, it clearly was not enforced.

10. The plaintiff’s accident occurred at about 8.15 in the morning. His working hours commenced at 7.30. The plaintiff initially thought, when giving evidence, that his accident occurred some time between 11am and noon but he was clearly incorrect in that recollection. He was prompted by learned counsel for the defendant as to what he did that morning and the suggestion made was that he attended a toolbox meeting, a safety meeting, which was held in the lunch room, which has also been marked on exhibit B, the sketch plan, and was relatively close to the spare parts store, underneath the office, on the first floor of the defendant’s workshop.

11. It is clear from the evidence that the plaintiff must have made a number of journeys through the workshop before the journey on which he was injured. From where he had parked his van he must have journeyed through the workshop, one way or another, to get to the lunch room and must have returned, for some reason or another, to his van before then walking from his van through the bays where forklifts were repaired to go to the store. It was on that journey, which was obviously a third journey, that he sustained injury.

12. An apprentice, Mr Scott Williams, was working on a forklift. He had taken from the forklift its accelerator assembly. Photographs of an accelerator assembly similar to that on the forklift in question are exhibit C. They are captioned “An accelerator and speed limiter assembly similar to what the Claimant alleges he stepped on”. They were provided to the plaintiff by the defendant. Not clear to me is the extent of the accelerator assembly, but it appears to be mainly the accelerator pedal and a plate to which it was affixed.

13. Mr Williams placed the accelerator assembly, which he removed from the forklift on which he was working, on the floor of the bay in which the forklift was located. The plaintiff gave evidence on oath, which was not challenged, that Mr Williams was supposed to place such a vehicle part on a workbench. The position of workbenches is marked on exhibit B but that was at the commencement of a shift. That appears to be their usual storage place. The workbenches are portable and, when working on a forklift, the technician or apprentice moves the bench to be near him. That such parts were to be placed on a workbench is explicable in one of two or perhaps both ways. They are, firstly, that the part in question is not placed on the ground where it may be contaminated or soiled by rubber adhering to the floor or by oil or grease which has found its way onto the floor. On the other hand, it may be that the part which has been removed from the forklift is placed on the workbench in order not to contaminate the floor with any, for example, oil or grease which was adherent to the part. The floor of the workshop is of dark coloured concrete which has been painted with epoxy. Part of that floor can be seen on the photographs which are exhibit E. The epoxy coated floor appears to be some colour of off white in the photographs but clearly the epoxy has been obliterated in places or masked by things such as deposits of rubber, oil or grease.

14. The plaintiff was making his way to the spare parts store and walked near where Mr Williams was working. The plaintiff told me that Mr Williams greeted him by saying, “Hello,” and the plaintiff replied by greeting him with the same word. The plaintiff told me that Mr Williams asked him a question but that he, the plaintiff, kept walking and stepped at the time onto the accelerator assembly, causing him to fall. An almost contemporaneous description of the mechanism of the accident was taken by Dr Clarence Foo of the Wetherill Park Occupational Health Practice on 1 August 2011. Dr Foo records this:

“He slipped on the accelerator assembly next to the forklift, bending his right knee backwards, spun 90 degrees and then hitting the ground.”

Another history, which goes into detail of the mechanism of the accident, refers to the plaintiff striking the workbench as he was falling to the ground. The inference to be drawn is that the workbench which the plaintiff’s struck was that which was being used by Mr Williams.

15. In cases of this nature it is often necessary to remind oneself of well established law. I do so by referring to my copy of the second edition of Glass, McHugh and Douglas, The Liability of Employers, 1979, Law Book Company Limited. Chapter III considers the safety of premises in which an employee is required to work. Commencing at p 52, the learned authors say this:

“Under modern industrial conditions the place where an employee is required to work frequently exposes him to an avoidable risk of injury and actions for this type of breach of duty are very common. Thus, an action may be brought for injuries caused by a static defect in the premises, such as an unguarded hole or a raised projection; or by structural weakness such as a roof or floor which is insufficiently supported; or by some makeshift platform which proves to be insecure when stood on; or by some temporary obstruction over which the employee has tripped. Again, the action may allege that the place of work is unsafe because of some dangerous physical condition, such as oil or water or a live wire, which is superimposed on a surface normally safe. Or that it is unsafe because it exposes the employee to the danger of a fall over some unfenced drop or to the danger of being struck by some object which passes near the place of work, or to the danger or being attacked by a stranger.”

The next part of the chapter compares the employer’s duty to the duty of an occupier of land. The then law applicable to occupiers’ liability has now been “reformed” by the High Court of Australia. However, it makes clear that the employer owes “a duty to make the place of employment…as safe as the exercise of reasonable skill and care will permit”, relying upon Naismith v London Film Productions [1939] 1 All ER 794 per Goddard LJ at 798 and Cotter v Huddart Parker Ltd (1941) 42 SR(NSW) 33 per Jordan CJ at 37. The work then continues thus:

“The employer’s responsibility applies not only to the working site but to any premises which the employee uses in connection with, or in furtherance of, his employment, including approaches and means of access. It applies to the practice of maintaining a wooden box in position at the end of a platform as a means of access to it. It extends to all those parts of the premises where the employee may be reasonably authorised, required or expected to go. The expectation may be based not only on the normal course of conduct but also upon the exigencies of a particular isolated operation.”

16. At p 56 the authors turn to the question of foreseeability. The relevant part is this:

“Thus, the plaintiff must tender evidence which shows that, in the physical condition of the employer’s premises, there existed a possibility of injury which was reasonably foreseeable. The evidence of foreseeability may be defective because it does not appear from the facts proved that the unsafe place was one where the employees were required to be or could have been expected to be. Again, if it appears that the collapse of the structure was due to a latent defect, viz a defect not discoverable by the exercise of reasonable care, there is no warrant for a finding that a foreseeable risk of injury existed. Further, the issue of foreseeable risk will not be discharged if the plaintiff does no more than prove the existence of a danger at the time of his injury. If the evidence leaves open the question whether the danger has just come into existence or whether it has been present long enough to give the employer means of knowledge, there is nothing to show a risk foreseeable by the reasonably careful employer. The kind of situation being specifically referred to is where the danger has come into being as a result of wear and tear so as not to imply any human agency or knowledge. If, of course, the danger, the duration of which cannot be proved, is due to human intervention, such as a pool of spilt oil, the employer can be charged with vicarious liability for the casual negligence of the person presumably employed by him who created the hazard on the premises and left it.”

17. In this case, inter alia, the plaintiff relies upon the casual act of negligence of Scott Williams in placing the accelerator assembly on the floor of the workshop where others, such as the plaintiff, might step on it or trip on it. It is clearly contrary to the usual work practice. Mr Williams, as one who worked constantly in the workshop, must have known that people, such as the plaintiff, that is, other technicians and, indeed, the other apprentices, walked through the workshop bays. The plaintiff tripped because Mr Williams did what he did and did something which he was expected not to do, thus causing the plaintiff’s injury. This was a casual act of negligence for which the defendant is vicariously liable. Such is pleaded, in particular (g) of para 6 of the statement of claim:

“By its servant or agent leaving on the workshop floor an accelerator assembly for others to trip or slip upon.”

18. The parties agree that I need not bother to turn to the provisions of the Civil Liability Act, in particular ss 5B to 5E in light of the finding which I have just announced.

Contributory negligence

19. The remaining issue on the question of liability is contributory negligence. Contributory negligence is pleaded in the defence. The only particular of contributory negligence is “failing to keep any (or any proper) lookout”. In his submissions Mr Benson made no submission on the question of contributory negligence. That was adverted to by the learned senior counsel for the plaintiff, and that brought Mr Benson to his feet in reply. It clearly was a matter raised on the evidence. However, the law is clear that employees can, at times, conduct themselves with, what might be thought to be, a want of care due to momentary inadvertence or inattention. Indeed, that is why the law concerning the employer’s liability requires the employer to not only establish the safety of his premises but to maintain the safety of his premises, just as the employer is required to establish a safe system of work and to maintain that system of work. The system of work clearly was not being maintained by Mr Williams. The plaintiff was distracted, I infer, from the greeting given to him by Mr Williams, that must have caused him to look towards Mr Williams to return the greeting and perhaps he was listening to the question being asked of him when he trod on the accelerator assembly and fell. Furthermore, the plaintiff may have been distracted by keeping in his mind the list of items which he needed to recover from the store to which he was headed and in which direction he was obviously looking until he was distracted by Mr Williams’s greeting.

20. However, the system adopted by the defendant, to which the plaintiff deposed and upon which he was not cross examined, was that the parts taken from forklifts ought to be placed on the workbenches and not on the floor. In my view, this is not a case of contributory negligence but of having his attention diverted from looking at where he was walking in the expectation that the floor would not be obstructed by parts taken from forklifts under repair. I reject the submission that the plaintiff was guilty of contributory negligence.

Damages

21. I turn now to the question of damages. The extent of the plaintiff’s damages has been the main area of contention in the current proceedings. The plaintiff had a pre-existing, serious back injury.

Pre-existing back injuries

22. Between 2003 and 2006, the plaintiff was employed by WesTrac as a plant and diesel mechanic and crane operator. On, it was suggested, 24 October 2005 the plaintiff injured his back whilst working for that company. I do know that he attended upon the Wetherill Park Occupational Health Practice on 26 or it might be 28 October 2005 and saw either Dr Foo or one of his colleagues. A history is recorded that the plaintiff was hit by a truck bonnet which fell from a vertical position some 3 feet onto his back, causing pain which had increased overnight. The date of the event given in the notes was 25 October 2005. On examination the plaintiff was found to be tender in the low back between L1 and L5 in the midline and the paralumbar area. Straight leg raising was restricted on the right to 45 degrees and on the left to 50 degrees by a complaint of increasing lower back pain. However, sensation in both legs was thought to be normal and the reflexes appeared to have been equal and normal. An X-ray was ordered of the lumbar spine and the plaintiff was prescribed physiotherapy and Nurofen.

22. The plaintiff went back to the practice on 14 November 2005. He was found to be tender in the L4/L5 disc space. Straight leg raising on the right was limited to 60 degrees by increasing lower back pain. There was thought, however, to be no neural tension. However, the notes seem to indicate that the plaintiff had some complaint of paraesthesiae, that is, pins and needles, in his right leg.

23. The plaintiff attended the practice again on a date early in December 2005 when he said that he was getting worse. The plaintiff told the doctor at the Wetherill Park Occupational Health Practice that he had been seen by another doctor who prescribed a bone scan. The plaintiff was then on nonspecific anti-inflammatory drugs and analgesics. He complained of pain in his right leg and there was found to be some alteration of sensation in that leg. However, the reflexes appeared to be normal. The doctor noted that there was a reduction in pinprick sensation in the right L4 dermatome, indicating a problem with the L4 nerve root.

24. The plaintiff returned to the practice on 5 December 2005 and on that occasion was prescribed Tramal, I assume as a painkiller, and was referred to Dr Matthew Giblin, an orthopaedic surgeon. Unfortunately, no reports from Dr Giblin from that time are extant.

25. I have now had to rearrange the material before me because there are clearly notes made on 31 October 2005 and 7 November 2005 which were misplaced in the tender bundle. On 31 October 2005 straight leg raising on the right was restricted to 60 degrees, again by a complaint of increased low back pain but with no neural tension. On 7 November 2005 there is a complaint of right leg pain and paraesthesiae, which the plaintiff referred to as feeling like “a dead leg”. On that occasion, straight leg raising on the right was restricted to 60 degrees because of increased pain but, again, there was no neural tension sign. Straight leg raising on the left-hand side was normal.

26. Notes made on 12 December 2005 indicate that Dr Giblin prescribed a cortisone injection, which was to be carried out on 13 December 2005. On 9 January 2006 the plaintiff told the general practitioner that he was improving and he was between 30% and 40% better. He told the doctor that he was feeling more confident. By this stage straight leg raising on the right was only restricted to 80 degrees, the left leg being the normal 90 degrees.

27. On 14 January the plaintiff told Dr Foo or his associate that he felt good after an injection given to him by Dr Giblin, and there was a discussion between the doctor and the plaintiff about his long term prognosis. On 2 February 2006 the plaintiff told the doctor he felt a lot better but was still having some early morning pain. By that stage his painkilling medication had been reduced to Panadol.

28. On 17 February 2006 the doctor noted that the plaintiff was starting to attend a gymnasium on that day and had started taking Celebrex at the request of Dr Giblin. Straight leg raising on the right was restricted only to 80 degrees by that stage but, again, there was no suggestion of any neural tension. There were further attendances upon the Wetherill Park Occupational Health Practice on 17 February and 3 March 2006, and then, finally, on 20 March 2006 when the plaintiff told the doctor he had seen Dr Giblin and was fit for a trial of his normal duties commencing on 15 March 2006. Presumably the plaintiff had, by that stage, done a week’s normal duties. There was no further attendance upon the practice until after the plaintiff’s injury with another employer on 15 March 2007.

29. One can infer that the plaintiff was having some discal problem, perhaps at L4/5 or perhaps at L5-S1 with right sided sciatica after the injury of 25 October 2005. However, that problem seems to have resolved when the plaintiff returned to work on normal duties on 15 March 2006.

30. In 2006 the plaintiff commenced working for WSN Environmental Solutions as a workshop manager, truck driver, crane operator and diesel mechanic. He sustained a major injury to his low back on the Ides of March 2007. The plaintiff was struck by a large diesel engine which was on the end of a chain slung on a mobile crane. The swivel mechanism of the jib attachment of the mobile crane was said to be defective because it was stiff and jammed. The mobile crane was being driven by another employee of WSN Environmental Solutions. According to a pleading, the plaintiff was struck by the engine as the chains from which the engine was suspended wound and unwound. The plaintiff was struck on two occasions.

31. He was again referred to the Wetherill Park Occupational Health Practice, first attending there after this event on 22 March 2007. The plaintiff was again seen by Dr Matthew Giblin on re-referral by Dr Foo. Dr Matthew Giblin wrote a short report to Dr Foo on 10 April 2007. After thanking Dr Foo for referring the plaintiff to him, Dr Giblin said this:

“he had an acute exacerbation of his back pain once more with radiation down the right leg in the distribution of L5 and numbness in the big toe.”

Dr Giblin arranged for an MRI to be “repeated”, from which I infer that there had been an earlier one. Dr Giblin reported to Dr Foo that the more recent MRI showed desiccation of L4/5 and L5-S1 with quite a deal of facet arthritis. Dr Giblin thought that there was a small left sided L4/5 disc lesion with no significant nerve root pressure.

33. Dr Giblin carried out facet blocks. In a report of 14 May 2007 Dr Giblin told Dr Foo at the time of a recent facet block the L4/5 joint reproduced the plaintiff’s symptoms but the plaintiff did not get relief from the local anaesthetic or steroid injected into the L4/5 joint which made the investigation “a little unclear’. Dr Giblin then, on 25 May 2007, decided to investigate the L5-S1 disc space and foramina. He suggested rhizolysis, which is a cutting of the nerves.

34. The plaintiff was then referred by Dr Foo to Dr Balsam Darwish, a neurosurgeon. In a report of 22 June 2007 following upon examining the plaintiff on the preceding day, Dr Darwish said this:

“Today I explained to Sheridan that his symptoms in the right leg are most likely due to right L5 nerve root compression in the right L5-S1 foramen. The MRI scan was done in the supine position without loading and does not reflect the status when he is in upright position and carrying weight. I explained to him that decompressing the nerve in the foramen carries an 80% chance of improving his leg symptoms but probably will not have any effect on his back pain. I have advised him to continue with conservative treatment at this time.”

35. However, at review on 19 July 2007 Dr Darwish recommended lateral discectomy, facetectomy, right L5 rhizolysis and an L5-S1 fusion. The plaintiff accepted Dr Darwish’s advice. The surgery was practised at the Sydney Southwest Private Hospital on 20 August 2007. The fusion involved the application of pedicle screws in the plaintiff’s spine. On 19 September 2007 Dr Darwish reported to Dr Foo that that led to a complete resolution of the plaintiff’s right leg pain. By 9 October 2007 Dr Darwish noted that the plaintiff was keen to get back to work. Again, on 6 November 2007 Dr Darwish noted the plaintiff’s right leg pain had completely resolved and that, on examination, muscular power and sensation were normal in both lower limbs.

36. However, on 14 February 2008 the plaintiff told Dr Darwish that in the previous month or so he had developed a recurrent right leg pain reaching down to the right great toe. Dr Darwish said that it was in the right L5 dermatome. He thought that the recurrent leg symptoms were suggestive of scarring around the L5 nerve root. A further MRI done on 3 March 2008 was said to confirm that opinion. By that stage the plaintiff had started to go to a gymnasium.

37. On 22 May 2008 the plaintiff’s right leg pain had completely vanished again and Dr Darwish expressed the view that in the long term he thought the plaintiff should look for a physically less demanding job. On 11 September 2008 Dr Darwish noted that the plaintiff was back at work doing six hours a day driving a sweeper and was managing that work quite well. However, he still had lower back pain and stiffness at the end of a day’s work. He also complained of getting numbness in the right leg. In his report of 11 September 2008 Dr Darwish made this comment:

“Follow up lumbo sacral spine CT scan on 24 July 2008 showed bony fusion across L5/S1 level. He has minor anterolisthesis at L4/L5 level with a small disc bulge not causing nerve root or cauda equina compression.” [My emphasis].

Dr Darwish recommended a further scan to assess the progression of the anterolisthesis.

38. On 28 October 2008 the doctor noted the plaintiff had left leg pain; however, the distribution of pain was in the L5 dermatome, that is, it came from the L5-S1 disc. At that stage the plaintiff was working driving a sweeper six hours a day, five days a week. An MRI scan done on 17 November 2008 was said to show no evidence of nerve root or cauda equina compression at the L4/5 disc, although it remained desiccated.

39. The left leg symptoms appear to have disappeared by 10 February 2009. The plaintiff was then seeing a psychologist, which Dr Darwish thought was a good idea, to help the plaintiff develop strategies to deal with “chronic back pain”. The plaintiff told me that he was diagnosed as a paranoid schizophrenic at a relative young age and has been constantly treated for that condition ever since. One can understand that with chronic back pain that condition itself could be destabilised. On 21 April 2009 Dr Darwish noted the plaintiff was working 30 hours a week and “coping very well with that”.

40. However, on 21 July 2009 the plaintiff told Dr Darwish that three weeks earlier he had an exacerbation of his lower back pain and developed right sided sciatica again and he had been off work for three weeks. Dr Darwish noted that the plaintiff’s pain specialist wanted to investigate the L4/5 disc and Dr Darwish supported that investigation. However, that investigation appears to have shown no obvious nerve root or cauda equina compression at the L4/5 level.

41. As ought be clear from what I have earlier said, the plaintiff commenced proceedings in this Court, claiming damages under the Motor Accidents Compensation Act 1999. For that purpose he was sent to see a number of medical practitioners by his own solicitors and the solicitors acting for the then defendant.

42. The first report following upon such examinations that I have is a report of Dr Peter Giblin of 20 November 2007 commenting upon his examination of the plaintiff on the preceding day. Dr Peter Giblin took a history of the injury in October 2005 erroneously recorded as November 2006 and the told Dr Giblin that he made a “95%” recovery from that injury and was able to get back to normal duties. Under the heading “Prognosis” Dr Giblin said this:

“This gentleman has a poor prognosis. He has the perennial and insoluble problem of a blue collar worker with a bad back which, is only going to deteriorate in a post traumatic fashion.

He will be subject to a domino phenomenon whereby the adjacent anatomical level to the [L5/S1] fusion, that is, L4/5, will progressively deteriorate and in due course, require surgical intervention. This may take the form of either a discectomy, or decompression/fusion.”

The current defendant lays much stress upon that opinion.

43. The plaintiff was sent to see, by the then defendant, Dr James Bodel, a well known and respected orthopaedic surgeon. Dr Bodel first saw the plaintiff on 21 January 2008 and more recently on 10 November 2010. At his first examination Dr Bodel thought the prognosis was uncertain. When the plaintiff last saw Dr Bodel, that is, on 10 November 2010, the plaintiff was back at work for WSN Environmental Solutions. The relevant part of the history is this:

“He is now back at work following his back surgery and is currently working five hours a day, four days a week but is hopeful that with some further strengthening in the gymnasium he will be able to upgrade to five days a week. He is working in workshop activities only but in a different workshop although still at the same landfill site. He does not have to go onto the uneven ground or down into the landfill area.”

Dr Bodel noted the plaintiff’s then complaints as these:

“This gentleman has a constant dull aching pain in the lower part of the back. Prolonged sitting or bending and lifting aggravates the pain; and he has pain that radiates into the right leg and this is aggravated by prolonged sitting, bending, twisting or lifting. There is also numbness and tingling in the leg.”

Dr Bodel noted that the plaintiff was still continuing to take painkilling medication and was doing a home based exercise program. Dr Bodel expressed the opinion that the plaintiff would remain “incapacitated for his pre-injury work indefinitely”. He attributed that incapacity solely to the event of 15 March 2007.

44. On or about the same day the plaintiff saw Dr Leonard Lee, a consultant psychiatrist, for the then defendant. Dr Lee’s report is of little assistance to me.

Settlement of an earlier claim

45. The plaintiff settled his action against WSN Environmental Solutions. Judgment was entered by a judge of this Court but, unfortunately, the date of the entry of judgment has not been recorded on the documentation before me. Mr Lidden SC dated his signature on the terms of settlement on 30 November 2010. Counsel for the defendant did not endorse the date of his signature. It was suggested to the plaintiff and accepted that he settled the proceedings on 1 December 2010. The case was clearly settled some time between 10 November 2011 and the date of Mr Lidden’s signature being 30 November 2010, although judgment was probably entered a short time thereafter, when the matter came on for hearing.

46. It is important to bear in mind that the damages were claimed under the Motor Accidents Compensation Act 1999. Damages were recoverable for non-economic loss as well as economic loss, that is, for pain and suffering and loss of amenity of life, for out-of-pocket expenses both in the past and in the future, for past and future economic loss and a claim had also been mounted for past and future domestic assistance and/or attendant care and for loss of superannuation. The judgment entered was for $650,000 inclusive of costs but clear of workers compensation payments made to that date. Of course, it is impossible to separate out what part of that agreed lump sum was for what particular head of damage. The only thing that one can say is that there would have been some significant allowance for both past and future economic loss.

Plaintiff’s problems in 2010

47. In 2010, the year in which the plaintiff both settled the earlier proceedings in late November and when he commenced working for the current defendant in early December, it is important to note the plaintiff’s complaints. That is why I have set out the complaints recorded by Dr Bodel. The plaintiff was still attending upon the Wetherill Park Occupational Health Practice and seeing, in particular, Dr Foo. It was suggested to the plaintiff that he saw Dr Foo on 40 occasions during that year; that suggestion probably contained hyperbole. Indeed, in submissions, Mr Benson reduced the number of attendances to 35, but even that appears to me to be hyperbolic. There are a number of entries recorded but a lot of them are merely for administrative purposes and recording things such as a nonattendance, and many of the attendances are upon a physiotherapist. Some of the attendances appear to be merely for the creation of documentation.

48. On 8 January 2010 the plaintiff discussed with Dr Foo his medication. He was told to stop taking Panadeine Forte before there was to be a nerve ablation; that was carried out on 15 January 2010. On 25 January 2010 the plaintiff was again put back onto Panadeine Forte. On 2 February 2010 the plaintiff saw Dr Stephen Woolnough who noted that Dr Manohar, a pain specialist, had cleared the plaintiff to return to work. The plaintiff attended Dr Foo on 4 February 2010 and told him that the pain in his right leg had gone and the pain in the back was much the same as before and that the plaintiff could work four hours per day, five days per week.

49. On 15 February 2010 Dr Foo referred the plaintiff to a swimming pool for hydrotherapy. On 15 March 2010, the third anniversary of the injury of 15 March 2007, the plaintiff told Dr Foo that he was a little better, had become more mobile since undergoing hydrotherapy and he had taken no medication for the previous three weeks. The doctor increased the number of hours in which the plaintiff could perform restricted duties. On 29 March 2010 Dr Foo noted that the plaintiff had improved overall, that he was sore after hydrotherapy in the morning but that that soreness was relieved by a warm shower. There was no leg pain, although the plaintiff’s sleep was still affected by pain, and the plaintiff was to undergo further sessions of hydrotherapy to be following by a gymnasium program.

50. The plaintiff attended again upon Dr Foo on 12 April and told the doctor that he was in a lot more pain and was not feeling the best, but the doctor’s further comments of “no fever, no shiver” indicate that the plaintiff’s condition may have been thought to be medical rather than surgical. There was an attendance on 17 May 2010 but that was for pleurisy. On 2 June 2010 the plaintiff told Dr Foo that he was to start working at the gym in the following week and that his back was still sore, and the plaintiff’s assessment of the nerve ablation was that it had not helped him. On 24 June 2010 Dr Foo noted the plaintiff had gone to Melbourne on a holiday. The only thing that occurred on that day was a prescription of Panadeine Forte. The plaintiff had some form of assessment on 8 July 2010 which had caused the plaintiff soreness for a week. It appears that, during the assessment, the plaintiff hurt himself. On 28 July 2010 the plaintiff told the doctor that he was going to continue with his gymnasium program, together with the tissue massage, although he did not like massage itself. The doctor suggested the plaintiff try acupuncture and physiotherapy. There was an attendance on 5 August 2010 being merely to renew the script for Panadeine Forte.

51. On 5 August 2010 the plaintiff started seeing Mr David Wei, a physiotherapist at the Wetherill Park Occupational Health Practice. Many of the notes recorded thereafter relate to attendances upon Mr Wei and often nonattendances upon Mr Wei. On 18 August 2010 Mr Wei appears to have commenced deep needle technique physiotherapy, or some form of therapy of a like nature, and that appeared to cause problems at times. There was an attendance upon Dr Foo on 30 August 2010 that merely concerned rehabilitation. Dr Foo noted the plaintiff was to resume physiotherapy and his gymnasium program.

52. On 27 September 2010 the plaintiff saw Dr Foo and told him that he did not want any more physiotherapy. The plaintiff told the doctor that his view was his back would be the same with or without it and he would just learn to live with his problem, which he referred to as “not too bad”. On 17 October 2010 there was a complaint that the plaintiff felt as if he had been hit by a bus but that was because of the flu. On 21 October 2010 the plaintiff told the doctor that he was not bad, that he wanted to get back to working for 20 hours a week that he had again started his gymnasium program, and that he had lost his script for Panadeine Forte, which needed to be replaced.

53. An attendance on 5 November 2010 indicates that the gymnasium program was causing soreness. On 18 November 2010 the plaintiff told Dr Foo that the gym and weather had increased his pain and that it took him a while to get out of bed and that he needed a medical certificate. Dr Foo then told the plaintiff to obtain a back brace for support and warmth. On 26 November 2010, around the time of the settlement, the plaintiff told Dr Foo that he felt as if he was “going backwards”; that appeared to be because of soreness undergoing the gymnasium program. The plaintiff did not then attend upon Dr Foo again until after the injury with which I am dealing, that of 30 June 2011.

47. The evidence is that the plaintiff worked for the defendant for the best part of seven months from 6 December 2010 to 30 June 2011 without losing any time from work, without there being any complaint about his work as such, and there was no complaint made to him by anybody in authority about his work habits or work practices or the adequacy of his work, which was clearly heavy at times.

48. The plaintiff maintained that he had made a complete recovery. I have to take that with a grain of salt because of the complaints recorded in 2010. What I do take literally, however, is the fact the plaintiff had recovered sufficiently well to be able to return to his normal work as a diesel mechanic/forklift mechanic/motor mechanic/field service technician. The fact that the defendant called no evidence about the plaintiff’s work performance or lack of it, and did not cross examine the plaintiff about his work attendance, indicates that I should accept entirely that the plaintiff did his normal work without any problem for the best part of seven months and almost seven months at that.

Effect of this accident on plaintiff’s back

56. The plaintiff then had this injury with which I am dealing. Again, he was initially taken by those in authority at the defendant’s premises to Dr Knapik, who organised for a CT scan. He was then sent to see the Wetherill Park Occupational Health Practice where he saw Dr Foo on 1 August 2011. The plaintiff was referred back to Dr Darwish. According to Dr Darwish’s report of 25 July 2011, the recent MRI scanning showed a rupture of the previously desiccated L4/5 disc with compression of both the L4 nerve roots in their foramina, that is, compression both on the left and the right-hand sides. Dr Darwish recommended laminectomy, discectomy and extension of the fusion to involve L4/L5, that is, he wanted now to fuse the level above L5 S1. The insurer of the defendant authorised that surgical procedure. It was performed on 2 September 2011. With the benefit of hindsight it can be seen that that surgical procedure has failed, in that the fusion at the L4/5 level has not been realised.

Plaintiff returns to work with the defendant

57. The plaintiff, with his usual devotion to his work, returned to work, he told me, in October 2011, one month after this major surgical procedure. He told me that he initially returned to restricted duties in the storeroom. He worked himself up from restricted hours on a restricted number of days per week to eight hours per day, five days per week. However, he had lifting and bending restrictions. He was then allowed to “go back onto the tools”, that is, to do a mechanic’s work, and he did so until August 2012 when he resigned. He resigned to go to Queensland. The decision of the plaintiff and his wife to go to Queensland was not due to “sea change” but because the plaintiff perceived that going to a warmer climate might assist him in recovering from the effects of his back injuries.

58. The plaintiff last worked for the defendant on 7 August 2012. I know from Dr Foo’s notes that the plaintiff was cleared by Dr Darwish to return to working seven hours a day, four days a week, with a lifting restriction, on or about 4 June 2012, the date of Dr Foo’s consultation. However, the plaintiff told Dr Foo on that occasion that he was moving to Brisbane. The plaintiff had been on OxyContin, a morphine based medication. It was reduced on that day. On 4 July 2012 Dr Foo noted the plaintiff had been on holiday for three weeks and found a job in Brisbane and would be starting there in a few months’ time. The plaintiff told Dr Foo that Naprosyn was helping him and it had no side effects and he wanted to continue on that medication. The plaintiff told Dr Foo that he had “no problems”. The doctor then noted that the plaintiff hoped to be cleared for his pre-injury duties after next seeing Dr Darwish.

59. On 16 July 2012 the plaintiff told Dr Foo that he had seen Dr Darwish who permitted him to work for five days a week for eight hours a day. On 8 August 2012 the plaintiff told Dr Foo that he was leaving for Queensland on 9 August and that he had resigned his work with Komatsu. The doctor decreased the number of Panadeine Forte that the plaintiff needed to take at that consultation.

60. I have omitted to state what would be obvious to most lawyers, that it was a term of the plaintiff’s settlement withWSN Environmental Solutions that he resign his employment. He did. On 1 December 2010 he commenced the process of obtaining work with the defendant which he commenced on 6 December 2010.

61. Not only was 9 August 2012 the date when the plaintiff was to move to Brisbane, it is also the date on which he saw Dr Michael Fearnside, a neurosurgeon, for his current solicitors. One part of Dr Fearnside’s history is this:

“After the operation he was off work for about six weeks. He then returned to work and has been able to upgrade to full time. When seen, he had recently resigned from Komatsu but until his resignation, he was working eight hours per day, five days per week with no overtime. Previously, he had relied on overtime to supplement his income. His wife did not work.

As a forklift mechanic, Mr O’Reilly worked ‘on the road’ frequently and was able to divide his tasks and if the pain was severe, he could stop the car if he was driving and walk around and have a stretch. He had resigned from Komatsu on 8 August 2012 and was moving to Queensland, a warmer climate where he hoped that his back pain would improve. He was intending to live with his family in Queensland and had been able to obtain work with another forklift family, Linde Forklifts. He noted that his symptoms were very much worse in cold weather and was hoping for a fresh start in Queensland.”

62. It has to be borne in mind, when considering the plaintiff’s return to working 40 hours per week in his pre-injury job with the defendant, that he had only been working 40 hours for the defendant since he was cleared for 40 hours by Dr Darwish in July 2012. In other words, the plaintiff only worked his normal duties for 40 hours a week for about a month before he resigned from the defendant’s employment to move to Queensland.

Work in Queensland

63. The move to Queensland has not proved to be the success the plaintiff had hoped. The plaintiff worked for Linde Forklifts Australia as a field service technician between 13 August 2012 and 26 February 2013. The plaintiff found the work for Linde to be getting harder and harder to perform. He needed to take more and more painkilling medication and he was taking time off work. He left that employment in circumstances not favourable to himself. He then obtained work with Metro Lift as a crane operator and dogman. He worked for that company between 4 April 2013 and May 2013.

64. The plaintiff told me that he could not perform the duties asked of him which required, essentially, a long period sitting in the one chair. He resigned because he was unable to do the work. Later in May 2013 he obtained work with Clarke Equipment as a plant mechanic. He told me he worked there for four weeks. He was taking time off work and left “by mutual agreement”. That was, probably “resign or be sacked”.

65. The plaintiff then obtained work with Qube Logistics as a nightshift supervisor. He thought he could do work as a nightshift organiser but, in fact, he was required “to do work with tools”. He was given two warnings about his work performance and asked to leave. He was unable to do work with tools as a mechanic. The plaintiff then obtained work with Bribie Island Coaches as a diesel fitter. He worked for that company between 8 July 2013 and 28 July 2013 but was unable to do that work and resigned.

66. His penultimate work in Queensland was with Cleanaway, which he obtained through a recruitment agency known a Zippa. That work was as a diesel fitter. However, the work period was short, a period commencing in August 2013. The plaintiff thought he had been hired as a leading hand but, in fact, he was required to work as a mechanic. He took a lot of time off work and had to resign because he was not able to do the work. The work ceased in October 2013.

67. The only other work the plaintiff attempted was a work trial with Torque Toyota at North Lakes as a “service advisor”. He was required to stand in the showroom of that car dealer to meet and greet customers and to drive them home when so requested. The plaintiff said that he lasted only four days in that work. The work was “not too good”. It required long standing which made the plaintiff’s symptoms worse. That four days’ work was done in June 2014. The work trial was arranged by the insurer of the defendant. It clearly was unsuccessful. The plaintiff has been unemployed since that time and has been paid weekly payments of compensation.

Failure of fusion at L4/5

68. The medical evidence, in particular evidence from the plaintiff’s current treating neurosurgeon in Queensland, Dr Richard Laherty, is that the fusion at L4/5 has not taken. He recommends a further operation to revise the fusion in the hope of making the fusion take, that is, to make the fusion solid. In a report of 20 November 2013 Dr Laherty expressed this view:

“I would take the opportunity to remove the existing metalwork and re site screws in L4, L5 and S1, and in doing so use the new screws to facilitate reduction of the spondylolisthesis, I would plan to remove the cages which are in situ at L4/5. This surgery has previously been done as midline open procedure and I would use the same wound, although I have spoken to Sheridan about the muscle trauma related to this.”

Another report suggests that the “hardware” in the plaintiff’s back may be impinging upon his musculature, causing part of the problem and that the revision surgery proposed by Dr Laherty may remove that problem. The defendant, by its insurer, has refused to pay for that revision surgery which the plaintiff would like to undertake. The plaintiff cannot pay for it himself. He would have to borrow further moneys on his mortgage which he has grave difficulty in paying off at the current time. The plaintiff must support his wife and three children who are currently aged 13 years, 10 years and 1 year. I accept that the plaintiff cannot afford to have the treatment nor can any award of damages I make to him give him that money. Damages are limited under the legislation to economic loss only and not to out-of-pocket expenses either in the past or the future. The insurer’s refusal to pay for the surgery is perhaps best explained by Dr Michael Fearnside who believes the plaintiff should only have conservative treatment, doubts that the removal of the hardware in plaintiff’s back would help the plaintiff’s symptoms and believes that further surgery might unmask a hidden instability.

69. There is currently some weakness of dorsiflexion and inversion of the right foot, altered sensation in the right L5 dermatome but no limb wasting and both ankle and knee reflexes are normal. The plaintiff has clearly had a recurrence of his L5 sciatica. That may have been caused by the second surgical procedure performed by Dr Darwish or be a consequence of a failure of the fusion or a further slipping of the L4 vertebra over the L5 vertebra, allowing the L4/5 disc to be exposed.

Plaintiff unable to work

70. The plaintiff now cannot do any of the work which he has been trained to do or has trained himself to do. The plaintiff recently had a nervous breakdown but has recovered somewhat from that. I accept that the plaintiff is well motivated and would work if he could. He cannot. No one in the current proceedings suggested to the plaintiff any form of work which he could do, neither learned counsel for the defendant, not even I. The plaintiff left school with a school certificate some time ago. He has no clerical or computer skills. The best sort of work for the plaintiff would be work where he could sit or stand at will, move about at work at will, perhaps some form of clerical work, but that is not any work for which the plaintiff has been trained.

71. Kallouf v Middis [2008] NSWCA 61 is authority for the proposition that the defendant bears at least an evidentiary onus to prove what an injured plaintiff could do as far as work is concerned and that such work is reasonably available to him in the labour market. The defendant itself can advance no suggestion as to what work the plaintiff can now do and what work the plaintiff has available to him, either if he had remained living in Sydney in Glenmore Park or what work is available to him where he currently lives in Rothwell in Queensland.

Economic loss - Past

72. The plaintiff’s past economic loss has been assessed as being $147,256. That is calculated on the basis that the plaintiff’s pre accident income was $930 per week net and by accepting that the earnings of a comparable employee have, from 1 July 2011, been $1,000 per week net and that sum has been increased for each financial year since by the changes in average weekly earnings. Considering the fact the plaintiff’s net earnings were $930 per week, together with the $47 in two allowances I mentioned at the commencement of this judgment and the use of the company vehicle for private purposes, I accept that $1,000 is an appropriate sum to consider that the plaintiff would have earned but for injury between 1 July 2011 and 30 June 2012. I accept that it is reasonable also to increase that amount by changes in average weekly earnings since that time.

73. The plaintiff’s net earnings since 1 July 2011 have been averaged. That explains exhibit Q. I accept the plaintiff’s wage loss to date has been $147,256. I believe that to be the appropriate sum to award the plaintiff. There is no evidence that he is shirking or taking lesser paid work. I accept that he has done his best to mitigate his loss and I accept that, in essence, the plaintiff has actually been unfit for his pre-injury work since 1 July 2011.

74. The plaintiff’s past superannuation loss is 11% of that sum, $16,262. It is agreed that the Fox v Wood component is $20,990. Workers compensation paid to date is no longer a pro tanto defence but will be deducted in any event from any judgment that I enter for the plaintiff by the defendant’s insurer.

Economic loss - Future

75. The question remains, what should I allow the plaintiff for the future? The plaintiff claims $875 per week net until the age of 67 years. The multiplier is 646.2. The plaintiff does not claim that which is shown in exhibit Q as the comparable earnings at the current time, $1,075, but the sum of $875. The plaintiff has discounted the claim for future economic loss by $200 per week. That is a discount of 19.37%. If one includes the usual 15% discount for vicissitudes, the plaintiff is seeking a discount, in essence, of 35%. I accept that that is a reasonable way to proceed in this case.

76. I cannot but comment that the observations made by Dr Peter Giblin in his report of 20 November 2007 to the plaintiff’s then and current solicitors, Messrs Brydens, is something that this Court regularly sees: that, if one operates at, say, L4/L5 and a patient continues to perform heavy work, that the level above will quickly degenerate, what Dr Peter Giblin described as the “domino phenomenon”. This is what has happened to the plaintiff.

77. However, if the plaintiff had not returned to working for the defendant in his pre-injury work that would not have occurred or may have occurred at some much later age, such as age 64 or 67. The defendant must take the plaintiff as it finds him. It is clear from exhibit F, a preplacement medical examination questionnaire and report, that the defendant had drawn to its attention the fact the plaintiff had a lumbar surgical scar from lumbar spinal surgery. The plaintiff admitted to a “minor back injury” and the plaintiff accepted that he sought to downplay his condition in order to get the job, but the fact remains that the medical practitioner who examined the plaintiff on 1 December 2005 accepted there was a “crush of L5”, which may have intended to mean a crushing not of the fifth lumbar vertebra but of the lumbosacral disc. There is also a reference made by the practitioner to pain radiating at least as far as the right iliac fossa, which could indicate sciatica.

78. In the circumstances there must be some further discount on the usual 15% because the plaintiff may ultimately have found himself in the position he currently finds himself, but when I look at a total discount of 35% I believe that to be reasonable. Future economic loss calculated on that basis is $480,611. Future loss of superannuation on that sum, 13% of it, is $62,479. The total of those sums is $727,686.

Order

79. For those reasons I give verdict and judgment for the plaintiff against the defendant for $727,686.

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Decision last updated: 23 July 2015