Parr v Southern Colour (Vic) Pty Ltd
[2017] VCC 337
•6 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-04890
| MICHAEL JOHN PARR | Plaintiff |
| v | |
| SOUTHERN COLOUR (VIC) PTY LTD | First Defendant |
| and | |
| NATIONAL MUTUAL LIFE NOMINEES LIMITED | Second Defendant |
| and | |
| KNIGHT FRANK (VIC) PTY LTD | Third Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 23, 24, 27 and 28 February, 1 and 2 March 2017 | |
DATE OF JUDGMENT: | 6 April 2017 | |
CASE MAY BE CITED AS: | Parr v Southern Colour (Vic) Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 337 | |
REASONS FOR JUDGMENT
---
Subject: NEGLIGENCE
Catchwords: Duty of care – breach of employer’s duty of care – breach of occupier’s duty of care
Legislation Cited: Wrongs Act 1958
Cases Cited:Czatyrko v Edith Cowan University (2005) 214 ALR 349; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372; Wyong Shire Council v Shirt (1980) 146 CLR 40
Judgment: The first and third defendants have breached their duty of care as occupiers to the plaintiff. Division of liability of 75 per cent to the first defendant and 25 per cent to the third defendant. No contributory negligence on the part of the plaintiff for his accident on 14 January 2006. Plaintiff awarded general damages in the amount of $175,000, past loss of income in the amount of $290,510 and future loss of income in the amount of $242,488.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr I Fehring | Ryan Carlisle Thomas |
| For the First Defendant | Mr N Murdoch QC with Ms M Lang | Minter Ellison |
| For the Second Defendant | Ms M Tsikaris | HWL Ebsworth Lawyers |
| For the Third Defendant | Mr D McWilliams | Mills Oakley Lawyers |
HIS HONOUR:
Introduction
1 On 14 January 2006, the plaintiff fell through a piece of chipboard covering a drainage pit and was injured. At the time of this incident, the first defendant was the employer of the plaintiff. The first defendant was the occupier of the premises where the drainage pit was located. The third defendant/third party was the managing agent for the owners of the premises.
2 Some eleven years later, the matter comes on for hearing before this Court to determine who, if anyone, is liable for the incident and the resulting injury and damage to the plaintiff.
3 If there is a liable party, the next question is to determine the amount of damages to be awarded to the plaintiff.
Liability
4 At the commencement of the trial in this matter there were four parties to the proceeding. They were:
· The plaintiff: Michael John Parr
· The first defendant: Southern Colour (Vic) Pty Ltd
· The second defendant: National Mutual Life Nominees Limited
· The third defendant: Knight Frank (Vic) Pty Ltd.
5 After two days of preliminary argument and then negotiations between the parties, only two related proceedings continued in this trial:
(i) The plaintiff’s claim against the first defendant;
(ii) The first defendant’s contribution claim against the third defendant.
The factual matrix
6 The first defendant was operating a printing business at 2 Southpark Close in Keysborough from 1998 onwards.
7 In 1998-1999, the factory was extended in a southerly direction to its present dimensions.[1]
[1]Exhibit C and Transcript (“T”) 375, Lines (“L”) 18-20
8 At a time after the extension of the factory and prior to the plaintiff’s accident on 14 January 2006, a wire fence was constructed between the south-east corner of the factory and the eastern property line of the factory car park area.[2]
[2]Exhibit D1A, Photograph 2
9 At the foot of the fence, on the northern side near the factory wall, there was a concrete pit. The location of the pit is shown in exhibit D1A, Photograph 1, and exhibit A, the survey map dated 21 September 2016.
10 As at 14 January 2006, the concrete pit was covered by a piece of chipboard which had leaves and garden debris on it.
11 From 1 November 2000, the third defendant was the property manager of the premises at 2 Southpark Close, Keysborough.
12 Immediately after the accident on 14 January 2016, Mr De Silva of the first defendant requested Mr Jonathan Lumsden of the third defendant to fix or repair the cover for the concrete pit.[3]
[3]T380, L22-30
13 The repair to the top of the concrete pit was requested by the third defendant on 24 February 2006 and completed by 11 April 2006. The total cost was $1,078.00.[4]
[4]Exhibit D1F; T429
14 The covered pit is shown in exhibit D1A, Photograph 1, after the repairs were completed.
The evidence
15 The evidence on the issues of liability in this proceeding was given by the plaintiff and Mr Wayne Dalgliesh, Mr Ian Lechie, Mr Priyanth De Silva and Mr Jonathan Lumsden.
The background
16 The plaintiff commenced work with the first defendant in 2004. He was employed as a printer’s assistant. He worked in a team with Mr Dalgliesh, who was the qualified printer. The plaintiff and Mr Dalgliesh both lived in Cockatoo and travelled to and from work together. Mr Dalgliesh was the driver.
17 On 14 January 2006, the plaintiff and Mr Dalgliesh were at work at 2 Southpark Close, Springvale. It was a Saturday. The shift was for 12 hours, with 30 minutes for a lunchbreak.
18 The plaintiff ordered lunch of fish and chips for himself and Mr Dalgliesh by telephone. Mr Dalgliesh and the plaintiff travelled by car from the south car park at the premises onto Springvale Road and down to the fish and chip shop. At that time, and on that day, there was a fatal transport accident on Springvale Road and the police had blocked off the road. The access back to the work premises was blocked off for the plaintiff and Mr Dalgliesh on their return from the fish and chip shop.
19 Mr Dalgliesh and the plaintiff returned in the car to the car park which was to the east of the first defendant’s premises. This car park was at the back of the first defendant’s premises and was not part of the first defendant’s premises. The workers from the first defendant could access this rear car park by a bindery door in the back wall of the building. The workers accessed this car park area either to park there or to go to the lunch shops at Dingley Five Ways.
20 The premises occupied by the first defendant included an area of 2 to 3 metres in width east of the back wall of the printing factory. On this strip of land was an area for cooling tower equipment and a garden bed with trees and shrubs planted in it. At the southern end of the garden bed was a fence (approximately 1.8 metres high) which was connected to the south-east corner of the factory building and joined a north-south fence approximately on the eastern boundary of the first defendant’s southern car park. The effect of the fences was to enclose the car park area south of the factory.
21 In the trial, the first defendant described the fence as a barrier to access between the southern car park and the area east of the first defendant’s factory building.
The Plaintiff
22 The plaintiff gave evidence that on 14 January 2006, he and Mr Dalgliesh were unable to get back to work from the Springvale Road entrance because police had the road blocked off.[5] They then went to the car park at the rear of the factory. They went to the bindery door to get into the factory. It was locked. They knocked on the door but there was no response. The bindery door was generally open to allow cross ventilation in that part of the workplace.[6]
[5]T137
[6]T138
23 The plaintiff then told Mr Dalgliesh he had his swipe card and that he would jump over the fence and get into the factory and open the bindery door for him.[7] The plaintiff said he then walked down the back of the factory to the fence. The plaintiff said he went to the fence near the corner of the factory.[8]
[7]T138
[8]T138
24 The plaintiff described the accident in the following way:
Q:“So as you approached the fence, what happened?---
A:I remember seeing the fence in the motion to grab it and jump up and then just go over, and then I just disappeared.
Q:And what did you disappear into?---
A:A piece of chipboard which is what I thought it was at the start.
Q:What happened to your body?---
A:Left leg went into the hole, right leg stayed out, I hit my lower back and middle back and then my neck, I rested on it.
Q:Did your left leg when you came to rest, was your left foot on anything on the floor?---
A:No, I think I was crumpled up, like concertina’d, like that. (The witness demonstrated.)
Q:But was the sole of your left foot on anything, do you recall?---
A:I can’t remember.
Q:Roughly how big was the hole as you recall?---
A:Well, as I recall it I seen what I went through and there was - the piece of chipboard was there so I just assumed it was the size of the chipboard to be quite honest, I didn’t actually look.
Q:Do you recall the size of the chipboard?---
A:Yeah, that was like maybe 900 to a metre.
Q:Was it rectangular, round, what sort of shape was it?---
A:I think it was square.”
HISHONOUR:
Q:“That’s the chipboard?---
A:Yes.”
MRHARRISON:
Q:“And what shape was the hole, do you remember?---
A:No, I didn’t see too much of it.
Q:I think you already said but I will just ask you again in case you didn't, looking again at photograph 6 was the rectangular shape we see there in the top bit, was that … [there]?---
A:Was it … [there]?
Q:On that day?---
A:No.
Q:Okay. So you have told His Honour you go in, any recollection or did you see whether there was anything on top of the chipboard?---
A:There was just the normal leaves that I could see pretty much consistent with all the way along the back.
Q:How thick?---
A:Oh, if you scuffed your foot along, you know, it would only be about that thick. (The witness demonstrated.)
Q:I think the witness is indicating an old-fashioned inch or perhaps a bit more?---
A:M’mm.
Q:You had been over this before?---
A:Yes.
Q:In the same part?---
A:Yes.
Q:Had you ever seen the chipboard before?---
A:No.”[9]
[9]T139, L7 – T140, L19
25 The plaintiff gave evidence that he had climbed over the same fence on occasions prior to his accident in January 2006. He stated:
Q:“Because otherwise you couldn’t get around from that back car park into the factory, could I you?---
A:No, but we have got round quite a few times when we’ve come back from lunch and the bindery door’s been closed and we’ve gone over the fence.
Q: Do you say you went over the fence?---
A: Yes, not just me, other employees.
Q: And you say you saw others do that too?---
A: Yes.”[10]
[10]T174, L14-21
26 The plaintiff was challenged in cross-examination about his evidence of climbing over the fence. The plaintiff said:
Q:Is it perhaps the case, Mr Parr, that if you did go over the fence before the day in question, it was on a Saturday or a Sunday when there were no bosses around?---
A: No, during the week.
Q:Because you know that if a boss had seen you going over the fence they would have stopped you immediately, don’t you?---
A:No, I don’t know that because I was running a $12 million print machine that was worth a fortune every minute it was not running and our intention was just to get back in there and start the machine up, because that’s our responsibility, to do the work.”[11]
[11]T175, L20-30
27 The plaintiff stated the wire at the top of the fence was folded over the cross bar at the top of the fence because of how many people climbed over it.[12]
[12]T176
28 The plaintiff stated that on previous occasions of climbing over the fence he had not noticed the chipboard but assumed it must have been there.[13] The plaintiff agreed he must have walked on the chipboard but was not aware of it.[14] He stated that he always got over the fence at the corner near the factory.[15]
[13]T178
[14]T178
[15]T179
29 The plaintiff gave evidence the chipboard was covered by tan bark and garden mulch near the factory wall.[16] The plaintiff described the depth of the garden mulch as follows:
“If you scuffed your foot on the ground, you would go down to the clay. It was only about an inch deep.”[17]
[16]T181-182
[17]T198, L15-17
Wayne Dalgliesh
30 Mr Dalgliesh gave evidence that he commenced work with the first defendant in 1998 as a qualified plumber.[18] He stated the extension to the south part of the factory was built after 2000[19] and that prior to the extension of the factory, there was no fence at the end of the original factory.[20] Once the factory was extended, a fence was constructed from the south-east corner of the factory and along the north-south boundary enclosing the south car park of the premises.[21]
[18]T298
[19]T313
[20]T319
[21]T320
31 Mr Dalgliesh gave evidence that whilst he worked for the first defendant, he and the workers would use the bindery door to access the back car park, for going to lunch, and for easy access to go home from that car park.[22] He stated the bindery door was also used to access the cooling towers along the eastern wall of the factory for maintenance and that workers used the bindery door to go outside to have a cigarette.[23]
[22]T299-300
[23]T302
32 In the summertime, the bindery door was kept open for cross-ventilation in the factory.[24]
[24]T303
33 Mr Dalgliesh gave evidence that he had seen the plaintiff jump the fence on two occasions prior to the accident in January 2006.[25]
[25]T305
34 Mr Dalgliesh had jumped the fence himself on three or four occasions. He stated he had seen other workers jump the fence.[26]
[26]T305
35 Mr Dalgliesh described the events of 14 January 2006 in the following way:
Q:“Can I take you, please, to 14 January 2006, which I think it is common ground is the date he had his incident?---
A:Yes.
Q:That was a Saturday?---
A:Yes.
Q:What do you remember about that day?---
A:Everything.
Q:You were working day shift?---
A:Working day shift.
Q:The evidence is they were 12-hour shifts?---
A:12-hour shifts, yes.
Q:And about lunchtime - - -?---
A:Lunchtime, 12.
Q:And what was the plan?---
A:Go to Southern Colour - out of Southern Colour, go to the fish and chip shop in Dingley to get fish and chips. We used to ring up and order first because we only got half an hour, so we’d ring up and order first and then go and pick up and come back.
Q:So your car parked in the front carpark?---
A:Yes.
Q:So you ring up and order the chips?---
A:Yes.
Q:Do you both go?---
A:Yes.
Q:And it is your car?---
A:Yes.
Q:At this stage did Mick have a licence, to your knowledge?---
A:No.
Q:Did you used to give him a lift to and from work?---
A:Yes.
Q:Because you both lived in Cockatoo?---
A:Yes.
Q:So you go out, get your car, head off to Dingley?---
A:Yep, and as soon as we turn on to Springvale Road, which was left, we’ve turned, come over the little rise there just out of work and the traffic was stopped and there was a major accident and a car had gone into the back of a tray truck and a person was killed, so when we’ve come back, all the road was shut, so we thought we can’t get in, so the best thing to do is just go back around from the other shop, The Boulevard there, and come in behind the factory here and knock on the back door.
Q:So you park your car in the back carpark?---
A:In the back carpark.
Q:Get out?---
A:Get out, knocked on the door.
Q:Which door is that?---
A:The back door.
Q:Is that the bindery door?---
A:The bindery door, sorry.
Q:Any response?---
A:No response because with the machinery running, they obviously couldn’t hear us, so Michael has then said to me, ‘I’ll run over and jump the fence and come around and let you in’. At that stage I was standing at the bindery door waiting and he's ran up to jump the fence and that is when I heard him yell out my name and I’ve looked over and ran up and here he is in the hole with his right leg up like this and his arms like that (indicating) and he is down in the hole and then I had to grab him and lift him out. I then sat him down and leaned him up against the factory, I jumped the fence, went in the side door from the other carpark and come around, unlocked the door, come and got him and helped him back inside.”[27]
[27]T304, L8 – T305, L22
36 Mr Dalgliesh described the area of the accident as follows:
Q: “Do you see what he’s gone through?---
A: Yes.
Q: What has he gone through?---
A: A piece of chipboard.
Q: Can you describe, if you recall, the colour of the chipboard?---
A: Pretty old and faded.
Q: How did it compare to the surrounding dirt?---
A: It was probably the same colour.
Q: Did the shape of the chipboard look familiar?---
A: Yes.
Q: Why?---
A:We used to get those boards on top of our stock we got delivered which would protect the pallet itself.
Q: So did you recognise this shape of chipboard?---
A: Yes.
Q: As what?---
A: As a pallet top.”[28]
[28]T307, L7-17
37 Mr Dalgliesh stated the chipboard was about one-centimetre thick.[29] In cross-examination, Mr Dalgliesh conceded that when he saw the chipboard it was collapsed and folded into the hole. He did not look to see the dimensions of the chipboard but it was an old piece of chipboard.[30]
[29]T309
[30]T332 – T333
38 Mr Dalgliesh gave evidence that the area over the chipboard had one-and-a-half to two inches of tan bark covering it.[31] Mr Dalgliesh stated the area where the pit was, was camouflaged by the leaves and bark on the ground.[32] Mr Dalgliesh was not aware of the pit prior to the accident.[33]
[31]T308
[32]T325
[33]T325
39 Mr Dalgliesh stated that after the fences were constructed adjoining the factory wall, the first defendant’s workers still parked in the back car park and went in the back bindery door. In the summer he counted on the bindery door being open.[34]
[34]T320
40 Mr Dalgliesh gave evidence that on 14 January 2006, due to the transport accident on Springvale Road, he and the plaintiff went to the rear car park. They were hoping to get back in through the bindery door. If the door was closed, then to knock on the door and hope someone would let them in. He stated that jumping over the fence was the only way they could get back into work.[35] He stated there was no way he could access the factory from the front because of the road closure on Springvale Road.[36]
[35]T323
[36]T338
Ian Leckie
41 Mr Leckie was the business improvement manager at the first defendant company between 2004 and 2007. He described the plaintiff as a good worker.[37] At the time Mr Leckie started work with the first defendant, the extension to the factory was completed.[38] Mr Leckie was in charge of occupational health and safety matters for the first defendant.
[37]T356
[38]T355
42 After the plaintiff’s accident on 14 January 2006, an Injury Register Form was completed by Mr Leckie on 16 January 2006 (exhibit A). Mr Leckie conducted an investigation of the incident and an inspection of the area.
43 Mr Leckie gave the following evidence:
MR HARRISON:
Q:“Did you go and inspect an area of the easement where you’d been told something had happened?---
A:Yes, correct.
Q:What did you go and inspect?---
A:I went around to have a look at where Michael had said he’d fallen through, to find that there was no concrete lid or - a part of that is normally a concrete lip to hold that concrete slab on and that was also not there. There was a piece of timber with debris over it with a hole through the middle.
Q:Can you be more specific about the piece of timber? What sort of timber?---
A:It was chipboard.
Q:Was it entire or was it - whole or was it affected in any way?---
A:Obviously there was a big hole through the middle because that is where Michael had fallen through.
Q:On the occasion you saw it, were you able to form any view as to what, if any, material might have been over it at the time of the fall?---
A:There was just debris, leaves, probably a bit of grass - I can't recall exactly - maybe some dirt.
Q:It wasn't clean. It wasn’t like obvious that it was any incorrect surface on it at the time.
Q:In terms of its colour, how did it compare to the earth around it?---
A:It blended in because when chipboard is outside, it goes grey.
Q:In terms of the hole, or shaft, did you observe its depth?---
A:Yeah. What was explained to me by Michael as far as he fell - it made sense. He explained that it went up to around just below his armpits where he fell through, and that was roughly the depth just by looking down into the hole.”[39]
[39]T357, L23 – T358, L20
44 Mr Leckie’s evidence was that most staff used the bindery door to go to lunch at the shops to the rear of the business centre.[40] He was aware that some staff still parked in the eastern car park at the rear of the factory because it provided better access to Springvale Road.[41]
[40]T357
[41]T357
45 Mr Leckie gave evidence that he acted on the investigation straight away. He stated:
Q: “What do you mean when you say that?---
A:From the point of view, I generally would run and look after the OH&S on most of the plants I’m in charge of, or run, and the same in this case. I was looking after the OH&S. I’d basically written the OH&S policies in there, or fixed them up. So the first thing when you have an accident, you investigate it straightaway and act on fixing what may recur for anyone else if they were walking through there, in this case.”[42]
[42]T363, L15-22
46 Mr Leckie confirmed that at a company OH&S meeting conducted on 28 February 2006, he stated that Item 7 in the Action Required section was the applicable entry to this proceeding.[43] It read:
[43]Exhibit A
7 STORMWATER MAN-HOLE (Located near fence)
The cover is a piece of chipboard which is hidden by soil etc and recently broke when someone stepped on it. Needs to be replaced with a concrete slab before there is a serious injury.Ian Leckie
28/02/06Ian Leckie to take up with owner of building
47 Mr Leckie stated in his evidence that he could not recall the OH&S meeting and said there may have been a matter to take further action on repairing the area.[44]
[44]T368
Priyanth De Silva
48 Mr De Silva gave evidence that he has been the office manager at the first defendant from 2001 to the present time.[45] Mr De Silva believed the extension to the factory was completed in 1998 or 1999.[46] Mr De Silva was the person responsible for communicating with the third defendant to organise day-to-day operations and garden maintenance.[47] Mr De Silva did not give any instructions or directions to gardeners or maintenance people himself.[48] Mr De Silva gave evidence that he requested Knight Frank to remove a lot of dead tree branches in the same area along the back of the factory. He could not state exactly when this request was made, but it was a drought season.[49] Mr De Silva clarified the timing for clearing the trees to be one to one-and-a-half years ago.[50]
[45]T374-375
[46]T375
[47]T376
[48]T378
[49]T377
[50]T379
49 In respect to the plaintiff’s accident, Mr De Silva stated:
Q:“Do you recall, in relation to Mr Parr, you became aware of his accident? Did you take any action in relation to that?---
A:Yes. The first thing I had a look and then I talked to Jonathan and told him, you know, ‘Please take care of this one’, put some sort of concrete or something there.
Q:And what happened as a result, are you able to say?---
A:Yeah, after a while - I can't remember exactly - the following day or a month later, I can't remember exactly, but taken care of the situation.”[51]
[51]T380, L22-31
50 Mr De Silva gave evidence that the strip of land to the east of the factory wall was part of the premises leased by the first defendant.[52] He stated this area of land was not a common thoroughfare.[53]
[52]T381
[53]T382
51 Mr De Silva was asked what he saw on Monday, 16 January 2006 when he went to inspect the area of the plaintiff’s accident. He responded:
Q: “Was that on the Monday you first heard about it?---
A: Yep.
Q:What did you see?---
A:It is like a timber-type thing, it is kind of like a hole there and clearly you can see that not a proper concrete cover there, and a little bit of dirt on top of that and you can see that it wasn't a proper job that time.”[54]
[54]T386, L3-8
52 Mr De Silva was cross-examined on the issue of inspection of the first defendant’s premises. The following evidence was given by Mr De Silva:
Q:“You said in answer to a question from His Honour that the following day you went out and had a look at this back area and you have described to His Honour what you saw?---
A:Yep.
Q:You'd been out to that back area before, I take it?---
A:From time to time, yes, you can see that.
Q: And why would you have been out there from time to time?---
A:Just to see - sometimes when you open the door and have a quick look, like before meetings, you do a site evaluation and then you just open the doors and have a quick look.
Q: So you have a bit of a wander around?---
A:Not a wonder around because that side nobody can’t go, a lot of bushes and branches, things like that.
Q:Would you have walked up to where the hole was previously, on some previous occasion?---
A:Not really. That is in the far corner of the building, not close to the doorway.
Q:So you would have been out the bindery door and had a visual look around?---
A:Yes.”[55]
[55]T386, L14-30
53 Mr De Silva stated that he had not been told workers jumped over the fence from the eastern car park.[56] Mr De Silva stated that in 2006, no-one was maintaining the area where the plaintiff was injured.[57]
[56]T387
[57]T389
54 Mr De Silva added this evidence to his earlier evidence about inspection of the back area of the premises:
Q:“When you were doing your quick look around, did you ever look out that door and see those pallets and the like there?---
A: Yep, yep.
Q: And they would just remain there?---
A: Yeah. Can I say something else in relation to that?
Q: Yes, sure?---
A:When I joined there in 2001, even today, if you see that - on the door, inside you can see it is emergency exit only. When you open the door, the alarm will activate. So that is the sort of, you know, idea, that if there is a fire or something, you go that side, somebody has access properly, and the most important thing is to get away from the fire. However, due to this hot weather and all, we need to make little bit of air ventilation, so decided to allow the bindery people to open that door. Then you can have air ventilation. So because of that, I remember somewhere in 2002 I organised the alarm security company to come and disarm that door so that people can open that, but even today you can only open it from inside, nobody can enter from outside, it is permanently locked. So what I’m trying to say is generally we expect people to go out from those doors only when there is an emergency, not to come to work or things like that, because there is no real reason to go that side. Even today still you can see that sign in one of the doors. It is very faded, but still you can read that. So that was the main reason we aren’t maintaining that area, because not intended to go there.”[58]
[58]T395, L12 – T396, L13
55 The disarming of the alarm to the bindery door in 2002 was clearly done by the first defendant to remove an impediment to people using that door to exit the premises. In 2002, the only reasons for persons to exit the premises through that bindery door were:
(i) to go outside for a cigarette;
(ii) to go to the shops at or near Dingley Five Ways;
(iii) to go to cars in the rear car park (east of the factory);
(iv) to allow cross ventilation.
56 The evidence clearly establishes the bindery door could not be opened from the outside or eastern side of the factory in 2016.
Jonathan Lumsden
57 Mr Lumsden was called to give evidence on behalf of the third defendant. Mr Lumsden was first employed by the third defendant in 2002.[59] He took over management of the portfolio of property which included the premises at 2 Southpark Drive, Keysborough in 2004.[60] He was in charge of the premises in 2006.
[59]T416
[60]T416
58 Mr Lumsden stated in evidence that he inspected the property but did not inspect the area east of the first defendant’s factory as it was “not visible”.[61] The inspections of the property would include walking around the property.[62] He would also do a random drive into the property to cast an eye over the external visuals.[63]
[61]T418
[62]T428
[63]T419
59 Mr Lumsden stated that he organised gardeners to do the maintenance work at the premises. The garden maintenance required mowing the grassed areas and maintaining the garden beds. The garden bed work did not include the garden bed area east of the factory where the plaintiff was injured.[64] Mr Lumsden’s evidence was that the reference to removal of dead trees in exhibit D1K does not refer to dead trees in the garden bed east of the factory building at the premises.[65]
[64]T421
[65]T425
60 In his time as manager of the premises, Mr Lumsden never inspected or went to the area east of the factory wall.[66] He did not know the employees of the first defendant parked their cars in the car park east of the factory.[67]
[66]T431
[67]T419
61 Mr Lumsden did not know that the drainage pit that the plaintiff fell into was on the premises.[68]
[68]T420
62 Mr Lumsden stated that he did not know the first defendant’s employees accessed the property east of the factory building.[69] He stated that he never organised or requested any maintenance to the garden bed east of the factory wall during his period of management prior to the plaintiff’s accident.[70]
[69]T430
[70]T434
63 Mr Lumsden stated he was advised by Mr De Silva that an employee of the first defendant was injured at the rear of the property when a lid over a pit had caved in.[71] Mr Lumsden gave evidence that he requested the drainage pit lid repair on 24 February 2006.[72] The construction of the concrete cap and lid to the drainage pit was completed by April 2006.
[71]T429
[72]T429
64 Mr Lumsden was cross-examined about the frequency and cost of the maintenance organised by him for the premises. He was referred to a document that was tendered as exhibit D1L dated 31 August 2005. The document referred to an OH&S audit by Marsh, the insurers for the premises. Mr Lumsden stated he received a copy of that audit document. He did not know where the document was now located.[73]
[73]T434
The Plaintiff’s claim against the First Defendant
65 The plaintiff’s claim against the first defendant is on two bases:
(i) breach of the employer’s duty of care; and
(ii) breach of the occupier’s duty of care.
66 The facts of this case lead to an overlap of the two duties of care referred to above. Nevertheless, the case against the first defendant is pleaded in the alternative and consequently, requires resolution in respect of both causes of action.
Was there a breach of duty by the First Defendant as the employer of the Plaintiff?
67 The duty of care owed by the first defendant to its employee, the plaintiff, was described by the High Court in Czatyrko v Edith Cowan University[74] as follows:
“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”
[74](2005) 214 ALR 349 at paragraph [12]
68 This was re-stated by the High Court in Leighton Contractors Pty Ltd v Fox:[75]
“… An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee. … .”
[75](2009) 240 CLR 1 at paragraph [21]
69 The risk of injury to the plaintiff must be identified with some precision before a breach of the first defendant’s duty can be determined. In this case, it was the risk of the plaintiff sustaining injury as a result of his requirement to safely access the place of employment in the circumstances of this case. The employer’s duty of care extends to providing its employees with a reasonably safe means of access to and from the workplace.[76]
[76]See ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 per Owen J
70 The first defendant conceded in argument that its duty of care to its employees, extended to safe access to and from the workplace.
71 The plaintiff must establish that the risk of injury was foreseeable, in the sense that it was not far-fetched or fanciful.[77] The risk of injury cannot be remote.
[77]See Wyong Shire Council v Shirt (1980) 146 CLR 40
72 The third factor in assessing a breach of duty is what, if anything, a reasonable employer would do when confronted with the risk, and then determining if the first defendant fell short of that response in this case.
73 I am satisfied that both before and at the time of the plaintiff’s accident, the first defendant knew that its employees left the factory by the bindery door to go to lunch and to use the eastern car park. The bindery door was left open in the summer for cross ventilation in that part of the factory. The employees went out the bindery door to smoke. The servicemen for the cooling towers situated along the eastern wall of the factory gained access by exiting the bindery door and going along the garden bed area east of the factory wall. The alarm for the bindery door was deactivated on the instruction of Mr De Silva to accommodate its use.
74 It was also known to the first defendant that the factory could not be accessed from the eastern side if the bindery door was shut. If staff went to purchase lunch at the shops to the rear of the factory, which was known to the first defendant, then unless the bindery door was open, access to the employees was denied.
75 I accept the evidence of the plaintiff and Mr Dalgliesh that they and other employees gained access to the workplace by climbing over the fence near the factory wall to get back to work. Mr Leckie did not give evidence on this point. Mr De Silva said he did not know employees climbed over that fence.
76 I find, on the balance of probabilities, that employees did climb over the fence at or near the south-east corner of the factory when they were unable to gain access to the factory through the bindery door. The first defendant knew its employees went out of the premises to use the car park or to go to lunch through the bindery door.
77 I find that it was not fanciful or far-fetched that the employees of the first defendant would climb over the fence to gain access to work after lunchtime. There was no evidence that the employer banned or instructed workers not to climb over the fence. On the evidence in this case, the overwhelming inference is that the management of the first defendant was aware that workers, on occasion, did climb over the fence to return to work.
78 The injury to the plaintiff occurred when he stepped on the chipboard covering a drainage pit. The evidence is that there were leaves, mulch and tanbark on top of the chipboard. The first defendant submitted the danger of the drainage pit was hidden from view by the garden mulch. I accept the evidence of the plaintiff that the tanbark mulch and leaves was only about an inch deep and if scuffed with a boot, would go down to the clay. It is clear on the evidence of Mr Lumsden and Mr De Silva that there was no maintenance of this garden bed at any time prior to the accident and after the construction of the factory extension. The maintenance was limited to the garden beds on the southern side of the fence and elsewhere on the premises.
79 Mr De Silva gave evidence that his inspection of the eastern garden bed was a quick look around from the bindery door. There was no evidence of any inspection of the eastern garden bed, which was part of the first defendant’s premises, at any time before the plaintiff’s accident.
80 The drainage pit was approximately 900 millimetres long by 600 millimetres wide and approximately 3 to 4 feet in depth. The hearing involved a view and I detailed my observations at the view. At the time of the view, the fence had been removed and the pit had a proper concrete cap and lid constructed over it. In reality, the view was of little utility except for an observation of the dimensions of the pit itself (the plaintiff could fit in it) and the relative location of the pit to the fence and the factory wall.
81 I find that if the first defendant had conducted an inspection of the eastern garden bed at any time after the fence adjoining the south-eastern corner of the factory was constructed, the drainage pit would have been located and a proper concrete cap and lid installed over it. If the chipboard had been placed over the drainage pit, it would also have been located after a proper inspection and the risk or danger of the drainage pit would have been discovered. The appropriate construction of a cap and lid would have taken place.
82 Similarly, if the eastern garden bed was maintained in the same manner as the remainder of the premises was maintained, the drainage pit would have been located and remedial action taken. I accept the plaintiff’s evidence there was more tanbark and mulch south of the fence than in the eastern garden bed. Maintenance in the eastern garden bed would have necessitated a proper assessment of what was required and, in that process, the danger of chipboard over a drainage pit of that dimension would be obvious, discovered and fixed.
83 Once the plaintiff was injured, the action taken by the first defendant and third defendant was practical and inexpensive. The drainage pit was fitted with a concrete cap and lid for a relatively small amount of money. If the drainage pit had been fitted with the proper cover prior to the plaintiff’s accident, he would not have been injured.
84 The fact that the circumstances of the transport accident meant the plaintiff and Mr Dalgliesh could not access the front of the employer’s premises after they had gone to collect their lunch does not change my finding that the employer has breached its duty of care to the plaintiff. As I have found, the first defendant was aware the rear part of the premises – ie the eastern garden bed – was used by the employees to access the workplace and it had a duty to make sure it was safe for them to do so. It failed in that duty by failing to inspect and maintain the eastern garden bed of the premises.
85 The first defendant abandoned its allegations of contributory negligence on the part of the plaintiff.
86 I am satisfied that the injury to the plaintiff’s low back and neck were caused by the negligence of the first defendant. I am not satisfied the shoulder injuries now complained about by the plaintiff were caused by this accident. I have set out my reasons fully in the damages section of this judgment.
Duty of First and Third Defendants as occupiers of the premises
87 The first defendant conceded that it was an occupier of the premises including the eastern garden bed adjacent to the factory wall. The strip of garden bed was approximately 2 metres wide and described as the flat area above a sloping embankment leading to the eastern car park. The sloping embankment and eastern car park was not part of the first defendant’s premises.
88 The third defendant conceded it was an occupier of the premises which included the eastern garden bed area adjacent to the factory wall. The third defendant was the managing agent for the premises and by virtue of the operation of PART IIA of the Wrongs Act 1958, is an occupier by law.
89 The first and third defendant owe a duty of care to persons who entered land under their control and management. The duty of care is to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the area. A risk may constitute a foreseeable risk even though it is unlikely to occur but it must be real, not fanciful.
90 In this case, the risk of injury to a person arose from the state of the premises. In particular, the state of the cover for the drainage pit located at the foot of the fence at the south-east corner of the factory. The fence was the southern boundary of the eastern garden bed. The drainage pit was covered with a piece of chipboard of approximately one-centimetre thickness. The chipboard had leaves and mulch over it. The concrete pit was approximately 900 millimetres by 600 millimetres in size and approximately 3 to 4 feet in depth. The pit was big enough for a person to fall into. After the plaintiff’s accident the chipboard was observed to be greyish in colour. To any fair-minded person, the covering of a pit of this nature with a piece of chipboard open to the elements is “an accident waiting to happen”.
91 The factory was extended to the area of the south fence and put in in 1998-1999. The extension was completed when the first defendant was in occupation. The third defendant was the property manager.
92 It is a reasonable inference to conclude that the first and third defendants ought to have known that the drainage pit was located in the position of the corner of the factory at the foot of the fence. The duty of care requires both of them to ensure that that drainage pit is adequately and properly covered to avoid the risk of injury to persons lawfully coming onto that part of the property. It is not an adequate response to say there is no evidence to conclude who put the chipboard over the drainage pit, where the chipboard came from, or who constructed the drainage pit. The fact remains that on 14 January 2006, the first and third defendants owed a duty of care to lawful visitors. On that day, the plaintiff was a lawful visitor.
93 It is common ground that the statement of Mason J in Wyong Shire Council v Shirt[78] correctly states the principles to be applied in determining whether there had been any breach of duty of care. In that case, his Honour stated:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remains to be considered with other relevant factors.”
[78](Supra) at 47-48
94 The risk of injury to a lawful visitor is foreseeable if that visitor was to step on the chipboard cover to the drainage pit. The fact that the chipboard is covered by leaves, mulch and tanbark means the risk is not obvious to the visitor; in this case, the plaintiff. This does not relieve the first and third defendants of liability for the plaintiff’s injury.
95 The first and third defendants have breached their duty of care as occupiers to the plaintiff in the following manner:
(a) Both defendants owed a duty to ensure that at the completion of the extension construction process the premises was safe for lawful visitors. This duty would reasonably include a proper concrete cap and lid be installed over the drainage pit;
(b) Both defendants should have inspected the eastern garden bed on a regular basis to ensure it was not a risk to lawful visitors by its state of repair or disrepair. Neither Mr Lumsden nor Mr De Silva inspected this area of the premises prior to January 2006.
(c) Both defendants were required to maintain the eastern garden bed. The defendants maintained the garden beds on the remainder of the premises but did not do any maintenance on the eastern garden bed prior to January 2006.
96 If either the first or third defendant inspected or maintained the eastern garden bed properly, the state of the cover to the drainage pit would have been known and repaired.
97 I accept the plaintiff was lawfully on the premises on the day of his accident on 14 January 2006. I accept he was injured when he stepped on a piece of chipboard covering the drainage pit. I find the first and third defendants breached their duty of care to the plaintiff by failing to ensure the drainage pit had a proper and safe cover.
98 The two defendants quickly and simply rectified their omission of the cover to the drainage pit after the plaintiff’s accident in January 2006.
Relative responsibility between the First and Third Defendant
99 The first defendant has a duty of care as an employer and an occupier to the plaintiff. The duty of care as an employer is non-delegable. The first defendant carries the larger share of the responsibility for the injury to the plaintiff in this case. The reasons are:
(i) the first defendant is the employer;
(ii) the first defendant has control over the workplace and the plaintiff’s activities at the workplace;
(iii) the first defendant has or is in a position to have knowledge of how the plaintiff comes and goes from the workplace at lunch or the start and end of work;
(iv) the first defendant can control the access and egress from the workplace by the plaintiff;
(v) the first defendant is at the premises and in control of the premises on a full-time basis;
(vi) the first defendant can and did request maintenance works from the third defendant.
100 The third defendant has breached its duty of care to the plaintiff. The third defendant:
(i) was the manager of the property;
(ii) was the entity in control of the gardeners and other maintenance people for the premises;
(iii) was responsible for inspecting and maintaining the grounds and gardens at the premises;
(iv) never inspected the area of the eastern garden bed at the premises.
101 In balancing up the respective duties, levels of control and breaches of the respective duties, an appropriate division of liability is 75 per cent to the first defendant and 25 per cent to the third defendant.
102 I find there is no contributory negligence on the part of the plaintiff for his accident on 14 January 2006.
Credit of the Plaintiff
103 It was submitted on behalf of the first defendant that the plaintiff was not a credible witness. The submission relied on a number of matters. The first was that the plaintiff had been imprisoned for a year in the past. This was to be seen in the context of the plaintiff’s evidence that he drove whilst being unlicensed.[79] It was submitted the plaintiff was a person who did not respect the law.
[79]T169
104 The second matter was that after the accident, the plaintiff stated he received first aid from Mr Dalgliesh. The plaintiff said that his leg was iced.[80] The Injury Form written by the plaintiff stated “no first aid”. Mr Dalgliesh did not give evidence of providing first aid or ice to the plaintiff.
[80]T140
105 The third matter was the plaintiff’s evidence that the shoulder injuries were a result of the accident. The first real complaints and treatment for the shoulders occurred after the plaintiff’s assessment by Mr Kossmann in 2011.[81]
[81]T149
106 The fourth issue was the evidence given by the plaintiff about his loss of weight as a result of the accident. The detail of the evidence was a reduction of 98 kilograms to 62 kilograms.[82] The plaintiff was weighed at 71 kilograms at a pre-employment assessment in January 2004, some two years prior to the accident.
[82]T203
107 The fifth issue was a challenge to the plaintiff as a person who consistently sought and obtained employment. The defendant disputed the plaintiff actively sought work on a regular basis.
108 On the whole, I accept the plaintiff was honestly trying to give an accurate account of the events surrounding his accident and injury. He was frank about his transgressions with the law. I do accept he exaggerated some of his symptoms and complaints to doctors but overall, I accept the plaintiff was an honest and reliable witness.
Damages
General damages
109 General damages are an assessment of the pain and suffering, both past and in the future, and loss of enjoyment of life for the plaintiff as a result of the negligence of the defendant. The assessment of general damages is not capable of mathematical precision or estimation. The assessment is to determine an appropriate sum that is fair and reasonable compensation.
110 In this case, the first defendant and the plaintiff made submissions on the appropriate range for general damages in this case. The plaintiff submitted the appropriate range for general damages was $150,000 to $200,000.[83] The first defendant submitted the appropriate range for general damages was $150,000 to $175,000.[84]
[83]T513
[84]T488
111 The plaintiff is now fifty-four years old. At the time of his injury, he was forty-three years old. The plaintiff continued to work for the first defendant after his accident. After a period of time on light duties, the plaintiff ceased work with the first defendant in December 2007.[85] The plaintiff then had a short time working as a forklift driver at Nature’s Organics between 5 February 2008 and 25 March 2008. He ceased that employment due to his injuries and on medical advice.[86] The plaintiff has not worked since March 2008.
[85]T143
[86]T145
112 The plaintiff was educated to Form 5 level. He has worked in labouring and semi-skilled employment from age fourteen, while still at school, until 2008. The plaintiff has worked in markets, abattoirs, transport, production-line manufacturing of windows and doors, and the printing industry. In 1982, he served a sentence of twelve months’ imprisonment for assault.[87] He has also worked as a shed fixer, plasterer and a machine setter. He has worked in a wide range of labouring and semi-skilled occupations. Prior to March 2008, when he ceased work altogether, he had shown a willingness and an ability to obtain paid employment.
[87]T120
113 The plaintiff had some time out of the workforce. This included a period of two years, while he was looking after his children.[88] He also had short periods of unemployment between jobs and a further period of two years out of work due to a transport accident in May 1999.[89]
[88]T122
[89]T121-22
114 The plaintiff commenced employment with the first defendant in January 2004.[90] He had worked for the first defendant for two years as a printing assistant to Wayne Dalgliesh prior to the accident. He continued working with the first defendant until December 2007. He continued working for the first defendant after Wayne Dalgliesh left this employment in August 2007.[91]
[90]T166
[91]T311
115 The plaintiff commenced his relationship with Ms Etherington in 2007.[92]
[92]T340
116 I accept that at the time of the accident in 2006, the plaintiff’s work and domestic life had settled into a stable routine. In his younger days, his work history had some periods of interruption through childrearing, imprisonment and recovering from injuries in the transport accident of May 1999. I find that by the time he had commenced work at Southern Colour in 2004, the plaintiff had commenced a period of stability at work and at home.
117 The matters for consideration in assessing general damages are the injuries and symptoms the plaintiff suffers as a result of the accident at work in 2006. It includes the loss of his primary employment resulting in a negative impact on his enjoyment of life. I accept that the medical practitioners that treat him are of the opinion that he cannot return to his pre-injury employment or heavy manual labour.
118 On the day of the accident, 14 January 2006, the plaintiff did not receive any medical attention. He reported the incident and completed an Injury Register Form on 16 January 2006 (exhibit A).
119 I accept the plaintiff’s evidence that his roster meant that after four days off work, he returned to work his normal 12-hour shifts. I accept that he had help to perform his work from colleagues.[93] He continued with his work until 20 February 2006.
[93]T217
120 On 20 February 2006, the plaintiff suffered further symptoms in his lower back while rolling a 44-gallon drum with a colleague.
121 On 21 February 2006, the plaintiff attended Dr Long, the work doctor, with a twinge to his lower back.[94] The plaintiff’s symptoms at that stage, were knees, hips and lower back.
[94]T143
122 The plaintiff had physiotherapy treatment for his lower back from 21 February 2006 for a couple of months.[95] The initial treatment was to the plaintiff’s lower back.
[95]T143
123 In March 2006, an x-ray of his lower back was performed.
124 In July 2006, the plaintiff was put on restricted duties with a 10-kilogram lifting limit.[96]
[96]T220-222
125 On 23 July 2007, a CT scan of the plaintiff’s low back was performed. The plaintiff was placed on light duties after this test for a limit of 5 kilograms.[97]
[97]T222
126 In or about the end of 2007, the plaintiff’s employment with the first defendant was terminated. The plaintiff tried work as a forklift driver but was unable to continue due to his symptoms and was advised by his doctor to seek alternative employment.
127 In May 2008, the plaintiff was referred to a psychologist, Brian Strubel. The plaintiff received counselling for three to four months.[98]
[98]T145
128 In June 2008, the plaintiff’s symptoms in his neck had resulted in a referral for an MRI scan of the cervical spine on 12 June 2008.
129 By October 2008, the plaintiff attended Mr Clements, a rehabilitation specialist. The plaintiff attended a pain management course at Victorian Rehabilitation Centre between March and May 2009.[99]
[99]T147
130 The plaintiff attended Mr Craig Timms, neurosurgeon, in October 2009.[100] An MRI scan of the lower back and neck was performed on 2 December 2009. The reported findings were disc bulges at L3-4 and L4-5, with right L4-5 foraminal stenosis. An annular tear was found within the C3-4 intervertebral disc. At C5‑6 level, foraminal stenosis was detected on the right and left side. At C6-7 level, a left foraminal stenosis was detected. Dr Kossmann referred to these findings in his evidence, and formulated his opinion.[101] Dr Kossmann could not find any neurological signs in the plaintiff’s arms or legs which relate to his neck or back.[102] Mr Kossmann diagnosed the plaintiff as suffering pain and movement restriction to his neck and low back, based on the radiological findings. Mr Kossmann’s opinion was the plaintiff’s prognosis was poor and that he would continue to suffer ongoing neck and lower back pain as a result of the 2006 accident.[103]
[100]T147-148
[101]T280
[102]T292
[103]T285
131 Dr Christopher Madden gave evidence in this case. Dr Madden has been the plaintiff’s general practitioner since 2012. Dr Madden gave evidence that the plaintiff has degenerative changes in his neck and low back, with a bulging disc in his lower back.[104] Dr Madden diagnosed the plaintiff as suffering from complex chronic pain which flares up with manual tasks.[105] The current prescriptions for pain relief include Tramadol, Panadol Osteo and Lyrica.[106] Dr Madden’s opinion is the plaintiff is unable to perform any paid part or full-time work.[107] Dr Madden also stated the plaintiff is unable to do any manual tasks around the house.[108] This opinion is different from the evidence of the plaintiff and Ms Etherington.
[104]T229
[105]T230
[106]T232
[107]T230
[108]T231
132 Dr David Barton, consultant occupational physician, examined the plaintiff on behalf of the first defendant. Dr Barton prepared two reports, dated 10 October 2008 and 23 January 2017. Dr Barton’s opinion was the plaintiff has developed a chronic pain problem with a strong illness belief and sense of injury.[109] Dr Barton’s opinion was that the physical problem for the plaintiff had resolved.
[109]Exhibit D1H
133 Dr Hillol Das, psychiatrist, examined the plaintiff for the first defendant. Dr Das prepared two reports dated 5 September 2009 and 16 January 2017.[110] Dr Das’ opinion is that the appropriate diagnosis is that the plaintiff has the condition of Chronic Adjustment Disorder with Depressed Mood of mild to moderate severity, present co-morbidly with Chronic Pain Disorder relevant to the accepted physical injury. Dr Das’ opinion is that the plaintiff’s condition will improve after the Court case is finalised. In Dr Das’ opinion, the plaintiff’s psychiatric condition is not affecting the plaintiff’s work capacity.
[110]Exhibit D1J
134 I accept, on the balance of probabilities, that the plaintiff injured his neck and low back in the accident on 14 January 2006.
135 I accept that the plaintiff suffers pain in both his neck and lower back, requiring pain-relief medication on a constant basis and into the foreseeable future. I accept the plaintiff’s evidence that the pain has been suffered by him from the day of the accident to the present time.[111] I accept the plaintiff has been to a psychologist[112] and a pain management course[113] to try and get better. The plaintiff’s ability to perform physical activities have been limited, including:
[111]T145
[112]T145
[113]T147
(a) splitting wood;[114]
(b) water skiing;[115]
(c) trail bike riding;[116]
(d) requiring assistance to perform duties at Southern Colour;[117] and
(e)being placed on restricted duties,[118] and then light duties,[119] at Southern Colour.
[114]T153
[115]T154
[116]T155
[117]T217
[118]T220-121
[119]T222
136 The plaintiff now has difficulty travelling in a car for more than an hour without a break.[120] He has limited capacity to play with his grandchildren.[121] The plaintiff has difficulty getting to sleep and, on occasion, is disturbed during the night by pain.[122]
[120]T157
[121]T158
[122]T343
137 The plaintiff has retained the capacity to perform the following tasks even though he has been injured:
(a) mow the lawn;[123]
(b) use a chainsaw to clean up a fallen tree;[124]
(c) carry the shopping and put the rubbish bins out for collection;[125]
(d) do the bulk of the housework and clothes washing;[126]
(e)perform home maintenance work, repairing doors and other carpentry-type work on the house.[127]
[123]T253
[124]T253 and T341
[125]T340-341
[126]T254 and T344
[127]T341
138 Ms Etherington describes the plaintiff as a proud man, trying to get better.[128] She describes him as changing from a charismatic-type person to someone who is vague, grumpy and generally not happy.[129] The two of them enjoy a quiet social circle.[130]
[128]T342
[129]T342
[130]T344
139 Ms Etherington, in her evidence, stated:
“I don’t ask him to do lots of things any more. Clean the guttering, things like that. He manages to maintain the housework, or the house – we’ve got a pretty clean house – seeing I’m working full-time. He takes his time to do things, so – I know he can do the dishes. I’m not really sure what he can’t exactly do, but I know that - I know he does what he can.”[131]
[131]T344
140 Ms Etherington stated that the plaintiff keeps the house fairly tidy and usually gets dinner organised.[132] Finally, Ms Etherington stated that “we are getting there”.[133] She explained that she and the plaintiff were coming to terms with the plaintiff’s pain, its management and the changed situation for him due to his injuries.
[132]T345-6
[133]T347
141 In this case, there was a significant amount of evidence directed to establishing that the plaintiff’s shoulders were injured in the accident on 14 January 2006. I am not satisfied, on the balance of probabilities, that the injury to the plaintiff’s shoulders were caused by the accident at the first defendant’s premises on 14 January 2006. The reasons for this finding are:
(a)The plaintiff did not mention left shoulder discomfort to Dr Lange on 21 February 2006;
(b)The Injury Report Form completed on 16 January 2006 did not mention the shoulders as an area of injury;[134]
(c)The plaintiff did not complain to Mr Kossmann of shoulder injury in 2011;[135]
(d)Investigations and examination by treating surgeons of the shoulders occurred in 2011, some five years after the accident;
(e)Mr Kossmann’s opinion was there would be immediate pain in the shoulders of most people as a result of trauma in an accident with mechanism of injury in 2006;[136]
(f)Dr Madden, general practitioner, could not say if the shoulder injuries were or were not caused by the accident in January 2006;[137]
(g)Dr Madden first diagnosed shoulder pain for the plaintiff in 2012;[138]
(h)Dr Madden would expect immediate significant pain if the shoulders were injured by a partial tear of tendons.[139]
[134]Exhibit A
[135]T286
[136]T289
[137]T239
[138]T239
[139]T239-240
142 I have assessed the appropriate figure for general damages to be $175,000.
Economic loss
143 The parties have agreed the following figures apply to an assessment of economic loss damages:
(1) Past Loss of income $382,259.00
(2) Future loss of earning (age sixty) $236,195.00
(age sixty-five) $378, 877.00
144 These figures were based on a figure of $894.00 a week, including superannuation. There was no assessment or allowance made for contingencies or vicissitudes.
Does the Plaintiff have a residual capacity to earn income?
145 The plaintiff submits that he has no residual capacity to earn income due to the injuries he suffered in the accident on 14 January 2006. The first defendant submitted the plaintiff had retained a third of his pre-injury earning capacity.
146 The plaintiff was able to return to work for his next shift some four days after the work accident. I accept that the plaintiff was assisted in his work by Wayne Dalgliesh and other printer’s assistants, when he returned to work at the first defendant’s premises. The plaintiff was working on light duties at the first defendant’s business when he was terminated at that employment in or about December 2007. The termination of employment occurred because the plaintiff took unauthorised leave from his job with the first defendant, not because of his injury status. The plaintiff, to his credit, then tried a forklift-driving job. He had to stop that work due to its heavy nature and his injuries.
147 It is accepted by all the tendered medical opinions, including Dr Madden, Mr Kossmann, Mr Baker and Ms Katrine Green, that the plaintiff could not return to his pre-injury heavy duties work due to his injuries.
148 Mr Kossmann, in his evidence, stated:
Q: “Let’s just take an example. Do you drive a car, Mr Kossmann?---
A: Sure.
Q:So occasionally you go to a petrol station and you fill your car up with petrol?---
A: That’s correct.
Q:And you go in to pay for your petrol and there is a person behind the desk who takes your credit card, or whatever it is, and you pay?---
A: That’s correct.
Q: And they try and sell you some extra lollies, or whatever it is?---
A: That’s correct.
Q:Mr Parr, for example, might be able to do a job like that person is doing behind that desk, do you think?---
A:If he has no pain at this point, if he has the changes like this and no pain, yes.
Q:And he could maybe sit down and stand up as he needs to through the course of the shift?---
A:We can try, in a return-to-work program, to explore this, if this is possible.
Q: It is perhaps the sort of job that he might be able to do?---
A: That’s correct.
Q: But it is all contingent on his pain levels, you’d say?---
A: That’s correct.”[140]
[140]T296
149 I accept that Mr Kossmann was of the opinion the plaintiff could perform some light duties-type work subject to the limitations of pain. The plaintiff is on medications for pain.
150 Dr Madden was not cross-examined about alternative employment. Dr Madden gave evidence the plaintiff was:
“… restricted in relation to social, domestic and recreational activities in that, due to chronic pain, he is unable to do manual tasks around the house, meaning most domestic chores need to be done by others. He is unable to do any recreational activities, other than light walking, and due to pain on driving, for more than – due to pain, cannot drive for more than 10 kilometres. He rarely gets out to socialise with friends or family.”[141]
[141]T231
151 These findings and opinions are not consistent with the evidence of the plaintiff or Ms Etherington.
152 Based on the opinion of Mr Kossmann and the accepted evidence of the plaintiff and Ms Etherington as to the plaintiff’s retained capacity to perform domestic tasks and chores around the house, I assess a residual income earning capacity of 20 per cent of his pre-injury earning capacity. The assessment of 20 per cent is based on the fact that the work would be part time and light duties in nature. The example of a service station attendant in Mr Kossmann’s evidence is an appropriate example of the type of work the plaintiff could have performed in the past and could do so in the future.
153 The applicable vicissitudes rate for the past is to take into account illness or injury probabilities in the past. The plaintiff has had a couple of periods of unemployment or non-earning periods. The plaintiff had two years out of paid employment while he raised his children. He had a year in prison. He had a two-year recovery period after his transport accident in 1999. By 2006, the plaintiff, through his friend, Mr Dalgliesh, had started a good job with the first defendant. He had also entered a stable relationship with Ms Etherington in 2007. All the indicators at 2006 were that the plaintiff had settled to a stable routine and employment situation. The only negative factors affecting him between 2006 and the present would be illness, injury or unemployment. Taking all these matters into account, I assess the appropriate rate of 5 per cent discount to reflect the past vicissitudes.
154 The future assessment for vicissitudes is based on the fact that the plaintiff is now fifty-four years old and has been unemployed since early 2008. He suffers from degenerative changes to his neck and back. He also suffers from shoulder injuries not related to this claim. The plaintiff is multi-skilled, but not in a formal employable manner; that is, he has no qualifications. Prior to his injury in 2006, and as late as 2008, the plaintiff has shown a desire and expectation to be gainfully employed. I have assessed his discount for vicissitudes into the future at 20 per cent, taking into account the aforementioned matters, the increased risk of illness and unemployment. I accept the plaintiff’s evidence that his intention was to work at least to age sixty-five years.
The calculations
Past loss of income
Agreed total loss of income $382,259
Less 20 per cent residual capacity $305,800
Less 5 per cent vicissitudes $290,510
Total Past Loss of Income $290,510
Future loss of income
Total future loss of income to age sixty-five $378,887
Less 20 per cent residual capacity $303,110
Less 20 per cent vicissitudes $242,488
Total loss of future income $242,488
________
TOTAL ECONOMIC LOSS $532,998
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155 The Court’s finding in respect of damages is:
(a) General damages $175,000
(b) Past loss of income $290,510
(c) Future loss of income $242,488.
156 I will hear the parties on the appropriate orders and costs, including reserved costs.
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