Peachey v MIM Ltd

[1997] QSC 214

IN THE SUPREME COURT

OF QUEENSLAND

No. 660 of 1995
Brisbane

Before Justice Byrne

[Peachey v MIM Ltd]

BETWEEN:

IAN GEORGE PEACHEY

Plaintiff
AND:

MOUNT ISA MINES LIMITED

(ACN 009 661 447)

Defendant

CATCHWORDS:     Breach of statutory duty - the plaintiff, a blacksmith's striker, suffered from the foot condition plantar fasciitis - whether hard-soled work boots significantly contributed to his symptoms - whether the plaintiff would have eventually experienced the same symptoms in any event - assessment of damages.

Counsel:Mr M. Grant-Taylor for the plaintiff

Mr R.A.I. Myers for the defendant  

Solicitors:Nicol Robinson & Kidd as town agents for Boyce, Garrick for the plaintiff

Thynne & Macartney for the defendant            

Hearing Dates:  11 - 13 November 1997

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 24 November 1997

Plantar fasciitis is a degenerative condition that usually becomes symptomatic from about the mid 40s until about age 60. Typically the onset of symptoms is related to prolonged weight bearing on the plantar fascia or to repetitive traction in that region. With rest and conservative treatment, in most cases the symptoms gradually resolve over a year or two. In about one case in 20, however, the condition causes chronic pain.

In September 1992, when the plaintiff was 49, he experienced manifestations of plantar fasciitis that were painful enough to cause him to see a nurse at the Mt Isa mine where he was employed by the defendant. Over the ensuing months, the condition worsened. The plaintiff now suffers pain so disabling as to make him permanently unemployable.

On the plaintiff's case, a cause of his condition was the defendant's breach of the statutory duty inherent in s.9(1) of the Workplace Health and Safety Act 1989, by which “an employer who fails to ensure the health and safety at work of all ... employees, except where it is not practicable for the employer to do so, commits an offence ...”. The plaintiff's case is that the defendant provided him with boots which, mainly because of their hard soles, brought to light symptoms of an underlying, previously asymptomatic, condition of plantar fasciitis. The employer has not pleaded that it was not practicable for it to have ensured the plaintiff's health at work. Accordingly, as the effect of s.9(1) has been explained in Rogers v Brambles Australia Limited, C.A. 189 of 1995, 8 November 1996, the sole issue in relation to the case on liability founded on breach of statutory duty is whether the boots significantly contributed to the symptoms.

The plaintiff was about 13 when he started work. From then until employed at the mine in September 1989, he worked in jobs where he wore firm-soled boots like those supplied by the defendant. In this more than 30 year period, the plaintiff had no particular trouble with his feet. When he began at the mine in 1989, he was a labourer. Then he became a blacksmith's assistant, eventually being promoted to blacksmith's striker. As a striker he worked with mechanical hammers, cut up and carried steel (some of which weighed 30 kg) to make bars, and spent most of his working day on his feet, walking on dirt and concrete surfaces.

The plaintiff had been a striker for about 2 years when he first reported to the nurse complaining of painful feet. She gave him felt to put over the inner soles of his boots. (This was not his first sensation of painful feet. In the fortnight ending 17 May 1992, the plaintiff took a day away from work because his feet were painful.) Soon after consulting the nurse, the plaintiff took 2 weeks annual holiday to rest at home. After returning to work, his feet gave further trouble; so he took more time off work, finally returning in January 1993 to be placed on light duties. In October 1993 he was dismissed. He has not worked since.

The medical evidence establishes a causal connection between boots and symptoms.

Dr Saxby, an orthopaedic surgeon, acknowledged that hard soles of boots can make plantar fasciitis “worse”, at least while unsuitable footwear is being worn. Other medical practitioners were more definite in their views that work boots of the kind the employer supplied to the plaintiff can contribute to the onset of symptoms of plantar fasciitis. Dr Packer, another orthopaedic specialist, thinks that such boots can act as an “aggravating factor”, leading to symptoms in people who “have a propensity” to develop the condition. Speaking of the particular relationship between the plaintiff and his boots, Dr Packer expressed the view that the boots had played a part in bringing to light symptoms of previously asymptomatic plantar fasciitis. In re-examination, Dr Higgins, the defendant's insurer's senior medical officer, also identified a likelihood of a causal relationship between the boots and the symptoms. Dr Low, an orthopaedic surgeon who treated the plaintiff, believes that the boots contributed to the aggravation of the “underlying condition” of plantar fasciitis, “which is very common at Mr Peachey's age”. Dr Fraser, an orthopaedic surgeon who examined the plaintiff in April 1996, said that the hard soles of the boots “may have contributed to the onset of symptoms” (see also p.3 of his report dated 23 April 1996, Ex.14). Dr Olsen, a consultant occupational physician, wrote in July 1995, (Ex.4, p.4):

“Safety boots with hard or rigid inner soles tend to offer poor protection for a person standing or walking on very hard surfaces. If walking and standing is accompanied by lifting and carrying then that increases the stress on the plantar fascia and when unprotected by suitable footwear is a strong provoking factor in causing the condition. In my opinion therefore the cause of the plaintiff's disorder is excessive stress to the plantar fascia caused by a combination of the type of footwear worn, the nature of the work which includes standing and walking on hard surfaces while carrying or lifting heavy weights, at least from time to time.”

The boots were a cause of the symptoms. Liability is therefore established. However, the evidence also suggests that, had there been no fault on the part of the defendant, ultimately the plaintiff would have experienced symptoms of the same nature and severity.

Dr Olsen, who did not examine the plaintiff, apparently considers that, if softer-soled footwear had been provided, the likelihood of injury would have been greatly reduced. In his testimony, Dr Olsen expressed the opinion that it is more likely than not that if the plaintiff had not been wearing the boots “he would have escaped the condition completely”. Dr Olsen, however, is alone in this assessment of what the future would have held for the plaintiff had suitable footwear been provided. On the other medical evidence, the plaintiff would in time have been reduced to the same state of chronic pain and disability had appropriate, soft-soled, footwear been used. The boots have merely hastened the inevitable, to adopt the language of Windeyer J in Purkess v Crittenden (1965) 114 CLR 164, 170.

Dr Higgins, who also has not examined the plaintiff, was fairly sure that, had the plaintiff not worn his boots, he would nonetheless have experienced the same symptoms “in the foreseeable future” after the actual onset. Asked for his best estimate of the acceleration of symptoms attributable to the boots, Dr Higgins, acknowledging that the task was difficult, said “a year or two years, or something like that”. Dr Packer considered that there was a “strong possibility” that the plaintiff would have suffered the same symptoms  even if he had not worn the boots. Dr Low, who treated the plaintiff, believes that the plaintiff would eventually have experienced his symptoms even if he not gone to work for the defendant in 1989. Dr Fraser thought that the hard-soled boots had accelerated the onset of symptoms by about 2 years, although he acknowledged a possibility which, largely because of the severity of the symptoms, he appears to have regarded as slight, that the plaintiff may have remained asymptomatic until age 60 were it not for his “work conditions”. 

Despite Dr Olsen's impressive qualifications, I prefer the evidence of those medical practitioners who consider that the plaintiff would in the fullness of time have suffered the same symptoms as those he has actually experienced even if he had worn the softer-soled footwear identified by Dr Olsen as appropriate.

The weight of numbers aside, two considerations tend to support the notion that the plaintiff would have experienced much the same symptoms sooner rather than later had he continued to work at the mine as a blacksmith's striker but worn suitable footwear. First, the work and the conditions under which it was performed -things about which no complaint is made - imposed material stresses. The plaintiff spent most of his working day on his feet; he carried heavy loads; and he walked about on hard surfaces, including concrete. The medical evidence demonstrates that such things have real potential to aggravate underlying plantar fasciitis. Secondly, as Dr Fraser said, the severity of the symptoms actually experienced indicates that this plaintiff “was very prone to develop the condition” regardless of the “work practices” in the blacksmith’s shop.

The extent of that acceleration could be more or less than 2 years. It is impossible to know precisely. However, especially in view of the evidence of Dr Fraser and, to a lesser extent, that of Dr Higgins, in my opinion, sufficient allowance is made for the less than substantial chance that the acceleration has been appreciably greater than 2 years, and for the prospect that the acceleration was less than that, by calculating the damages on the assumption that, were it not for the boots, the symptoms would have been postponed for 2½ years: cf Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, 645.

The plaintiff's feet are painful. He walks slowly, with the aid of a walking stick. He used to be a fit man who played sport, including touch football and bowls. Since late 1992, he has lost the enjoyment of his sporting pursuits. His temperament has altered. Once “happy go lucky”, as he said, the plaintiff is now “crabby”. His marriage is under strain. His symptoms adversely affect the quality of his life in other ways. Driving a car is troublesome. His sleep is frequently disturbed. He must take pain-killers. The distress associated with his condition has made him depressed and highly anxious: see the report of Dr Wiltshire, a clinical psychologist, Ex.3 p.7.

It was suggested for the plaintiff that $6000 per annum could be allowed for pain and suffering and loss of the enjoyment of the amenities of life. In my opinion, this approach is appropriate.  This component of the claim is therefore assessed at $15,000.

In estimating economic loss, a discounting is needed of the wages the plaintiff would have received had the onset of symptoms been postponed for 2½ years. Account must be taken of such contingencies as that he might have lost his job and not immediately obtained equally remunerative employment elsewhere, and that another injury or illness could have impacted on his earnings. The prospect of the loss of his job as a striker was high. The mine's blacksmith shop was closed in or about 1994. The plaintiff was not highly regarded by his employer and may well not have been given another job at the mine. And it is not at all certain  that, had he succeeded in obtaining other employment, it would have been as remunerative. The diminution in earning capacity should therefore be calculated by awarding somewhat less than the wages he would have earned had the symptoms been postponed for 2½ years. A reduction of 10% seems appropriate.

There is no substance in the limitation defence. The writ issued in April 1995. Within the previous 3 years, the plaintiff suffered symptoms attributable to boots he wore as a result of a continuing breach of statutory duty. No evidence was adduced in an attempt to disentangle those symptoms the plaintiff  has suffered as a result of a breach of duty occurring within the limitation period from any which may perhaps be related to a statute-barred cause of action. The defendant has therefore failed to discharge the burden of proof on this issue.

Special damages are agreed, and the parties are content to attend to the other calculations.