Popovic v ACN 098 054 678 Pty Ltd
[2012] VSC 498
•26 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. SCI 2011 00868
| ALEKSANDAR POPOVIC | Plaintiff |
| v | |
| ACN 098 054 678 PTY LTD (FORMERLY STRATEGY ONE RECRUITMENT PTY LTD) | First Defendant |
| and | |
| AB OXFORD COLD STORAGE PTY LTD (ACN 005 104 361) | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18-21, 24, 25, 27, 28 September, 1-3, 15-16 October 2012 | |
DATE OF JUDGMENT: | 26 October 2012 | |
CASE MAY BE CITED AS: | Popovic v ACN 098 054 678 Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 498 | |
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NEGLIGENCE – Breach of statutory duty – Personal injuries – First defendant employer – Plaintiff injured while hired to second defendant – Safe system of work – Plaintiff suffering aggravation of injury on return to work with first defendant – Damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Moore QC and Mr N Griffin | Zaparas Lawyers |
| For the First Defendant | Mr P Rattray QC and Mr B McKenzie | Lander & Rogers |
| For the Second Defendant | Mr T Casey QC and Mr C O’Sullivan | HWL Ebsworth Lawyers |
HIS HONOUR:
The plaintiff claims damages for injuries which he alleges he sustained in two incidents, in July 2007 and October 2007 respectively, in the course of his employment. At the time of each incident, the plaintiff was employed by the first defendant, which was a labour hire company. The first defendant has since been de-registered, but, at the time of the events with which this case is concerned, was named Strategy One Recruitment Pty Ltd. At the time of the first incident, the plaintiff had been hired by the first defendant to the second defendant, and he was working at the premises of the second defendant in Laverton North. At the time of the second incident, the plaintiff was working in the office of the first defendant at North Melbourne.
The plaintiff was born in Montenegro in February 1975. He migrated to Australia with his wife in September 1998. After completing an English language course, he worked in a number of different capacities until about 2002. For the next four years, he worked for two different employers as a security officer. In about July 2006, the plaintiff approached the second defendant for employment. The second defendant directed the plaintiff to apply for employment with Pitcon Recruitment. As a result, the plaintiff was employed, initially, by Pitcon Recruitment, and he was hired by that firm to work at the premises of the second defendant. After a few months, Pitcon Recruitment was replaced by the first defendant as the employer of the plaintiff. That change of employer did not alter the work, which the plaintiff was then performing with the second defendant.
The plaintiff commenced work with the second defendant in about August 2006 as a storeman. The second defendant conducts its business at a large site in Laverton North, at which it accepts into storage food which is to be frozen, and to be supplied to supermarkets and other businesses. The second defendant has twelve large warehouses for that purpose, each of which have a chilling room and a freezing area. The freezing areas are particularly large, and they comprise a number of different rows of goods, stored on pallets, to a height of approximately eight metres. The temperature in the freezer area was estimated by the plaintiff to be minus 20 degrees centigrade. The plaintiff at all times was working in warehouse number 12.
The first incident is alleged by the plaintiff to have taken place on Saturday, 14 July 2007. On the previous day, the plaintiff was requested by his supervisor to assist in conducting a stocktake in warehouse number 12. The plaintiff undertook the stocktake in company with a fellow employee. The plaintiff’s task was to stand on the platform of a mobile scissor lift, which was operated by the fellow employee. The plaintiff was required to read the barcodes of the stock contained on the pallets, and to record the reading on a sheet provided to him by the second defendant. The pallets were seven levels high, and were two rows deep. The plaintiff alleges that he was required to read the barcodes on the row of pallets closest to him, and also on the row of pallets behind it. He alleges that, in order to perform that task, he was required to move items of goods contained on the pallets in the front row, in order that he could satisfactorily read the barcodes on the goods contained on the rear pallets. He claims that that task involved him performing awkward bending and twisting movements, while trying at the same time to push stock, on the front row of the pallets, to one side. He alleges that, in doing so, he sustained an injury to his lower back.
As a result of that injury, the plaintiff was off work from 17 July 2007 until 26 September. His treating general practitioner, Dr Brophy, then certified him as fit to return to work on restricted duties for limited hours of work. For that purpose, the plaintiff worked performing light duties in the first defendant’s office in North Melbourne. After approximately three days, he alleges that, on 3 October, he was directed to move a number of boxes of files, which were on the floor of an attic space in the office. He alleges that he was required to perform that task in a confined space, particularly because the roof of the attic, on one side, sloped to the floor. The plaintiff alleges that, as a result of performing that task, he aggravated his injury to his lower back. As a result, the plaintiff has not returned to work.
The plaintiff claims that the injury, which he sustained in the first incident, was caused by the negligence, and by breach of statutory duty, of the first and second defendants, and that the further injury, which he sustained in the second incident, was caused by the negligence, and breach of statutory duty, of the first defendant. In turn, each of the defendants deny liability, and they allege contributory negligence against the plaintiff.
The trial commenced before a jury of six. However, after hearing the plaintiff’s evidence, it became apparent that there would be particular difficulties in adequately instructing a jury as to the relevant principles of causation, and of apportioning damages, in respect of the injuries alleged to have been sustained in the first and second incidents. As a result, Mr T Casey QC, who appeared with Mr C O’Sullivan, made an application, on the fourth day of trial, that I should discharge the jury, and hear the case as a cause. That application was supported by Mr G Moore QC, who appeared with Mr N Griffin for the plaintiff. Mr P Rattray QC, who appeared with Mr B McKenzie for the first defendant, did not oppose the application. The submissions made by Mr Casey confirmed the tentative view, which I had already reached, that it would not be possible to adequately instruct a jury as to the principles, which would apply to the issues of causation and apportionment. Accordingly, I acceded to the application that the jury should be discharged without verdict, and that I should hear the case as a judge sitting alone.
When the case was set down for trial, a direction was given by the judge in charge of the Major Torts List that, subject to the order of the trial judge, the proceeding be heard at the same time as a related proceeding brought by the Victorian WorkCover Authority against the first defendant for the recovery of compensation payments made to the plaintiff pursuant to s 138 of the Accident Compensation Act 1985. When the case came initially before me, Mr J Simpson, who appeared for the Victorian WorkCover Authority, informed me that, in conformity with the ordinary practice, he did not apply to participate in the common law claim by the plaintiff, and that the Victorian WorkCover Authority would to be bound by the verdicts of the jury in the common law action, and by the evidence given in it. After I discharged the jury, I gave Mr Simpson limited leave to cross-examine appropriate medical and other witnesses, in relation to those aspects of the evidence which concerned the calculation of factor “X” in the equation prescribed by s 138(3)(b) of the Accident Compensation Act. Pursuant to that leave, Mr Simpson cross-examined some of the medical witnesses. He also made short submissions in final address.
The issues
On the question of liability, in respect of each of the two incidents, the principal issues concerned whether, at the time at which the plaintiff sustained his lower back injury, he had been instructed to perform the particular tasks which he states he was then undertaking, and whether he was actually performing those tasks. In particular, the second defendant denies that, in undertaking the stocktake on 14 July 2007, the plaintiff was required to, or did, perform tasks which necessitated him bending or twisting, or moving stock on the front rows of pallets. In respect of the second incident, on 3 October 2007, the first defendant denies that the plaintiff was required to, or did, perform tasks involving the moving of boxes in the attic at its North Melbourne premises.
On the question of damages, there was only limited dispute as to the nature and the extent of the injury sustained by the plaintiff, namely, a left sided posterior disc prolapse at the L 5-S 1disc level compressing the left S 1 nerve root, with consequent lower lumbar back pain and left sided sciatica. The principal issues concerned, first, the contribution of each of the two incidents to the plaintiff’s injury and ongoing incapacity, and, secondly, the extent of the plaintiff’s incapacity to perform restricted employment duties.
The evidence in respect of the first incident (14 July 2007); summary of the plaintiff’s evidence
The only witness, called on behalf of the plaintiff, on the question of the tasks which the plaintiff was required to, and did, perform in carrying out the stocktake on 14 July 2007, was the plaintiff himself.
The plaintiff also called an engineer, Mr Lightfoot, to give opinion evidence in relation to the work which the plaintiff alleges that he was instructed to, and did, perform at the time of the first incident. However, the defendants accepted that, if I am satisfied that the plaintiff did perform the actions, described by him in his evidence, while carrying out the role of checker in the stocktake, both defendants would be liable for negligence and breach of statutory duty for any injury caused by that work to the plaintiff. Thus, it is not necessary for me to consider Mr Lightfoot’s evidence in this judgment.
The plaintiff, in his evidence, stated that from about 2002, he had performed security work for three or four years. In July 2006, he approached the second defendant for employment. He wanted a full time day (time) job, because the night work, involved in security work, kept him away from his family. The second defendant directed the plaintiff to apply to Pitcon Recruitment for employment with it. As a result, the plaintiff was employed by Pitcon Recruitment, and his services were hired by that company to the second defendant at its premises in Hume Road, Laverton North. The plaintiff worked at those premises in warehouse 12A from August 2006 until 17 July 2007.
The plaintiff described how goods were delivered to that warehouse in the chilling area. There they were placed on pallets, shrink wrapped, and stored in the freezing area. The temperature in the chilling area was about zero degrees centigrade, and in the freezing area, it was up to minus 30 degrees centigrade. His duties, as a storeman, involved five different tasks, namely: picking and packing (that is, picking frozen material from the storage system and packing it for dispatch); working in the receiving area (when goods came from the truck, scanning them and labelling them); driving the reach forklift (in the freezer area); dispatch (scanning the materials before they were transported); and loading and unloading the trucks. The plaintiff worked five days per week, from 6.00 am to 2.00 pm. Earlier in 2007, he had a minor episode of muscle pain between his shoulders, which settled down. Otherwise, he was in good health, and he did not have any time off for illness or injury.
On Friday 13 July, the plaintiff’s supervisor requested him, and other employees, to undertake a stocktake on the following day in the freezer area of warehouse 12A. He attended early on the Saturday, 14 July, and he and his fellow employees were explained their tasks by the supervisor. The plaintiff was designated the task of performing the stocktake, with another employee, in aisles P, Q and A. There were 45 rows of pallets along each aisle, and there were seven levels of pallets. At each level, there were two rows of pallets, a front row and a back row. The load on each pallet was shrink wrapped. On the outside of the shrink wrapping, there was a barcode sticker of the second defendant, and also a smaller barcode sticker of the supplier of the goods. The barcode sticker of the second defendant was supposed to be in the top right hand corner of the stack on each pallet, but that practice was not consistently adhered to. The plaintiff was required to perform his task on a scissor lift, which was operated by a fellow employee, who, previously, was unknown to him. The maximum height of the platform of the scissor lift, on full extension, was about eight metres.
The plaintiff had never previously participated in a stocktake for the second defendant. He was not given any instruction or training as to how to undertake the task. He was provided with a clipboard, a stock taking list, a torch and a pen. The full pallets were to be counted and ticked; if the pallets were not full, he was to count how many goods were on the pallet, and to write down the number of those goods.
On the day of the stocktake, the plaintiff was provided with insulated clothing, consisting of trousers, jacket and a balaclava. He had two pairs of gloves to wear. Each hour he was to take ten minutes out of the freezing area in order to attempt to warm up. He described how, when working in the freezing area, his hands, feet, face and ears became very cold.
The plaintiff described how his task was to identify, from the barcode of the second defendant, the items of stock which were present. In order to sight the barcode stickers, the scissor lift was positioned about 20 or 30 centimetres from the stacks. He first read the barcode on the front pallet, counted the product on it, and ticked the stock sheet if it was full, or counted how much was there, if it was not full. He then checked the rear pallet to see how much was on it. Although the second defendant’s sticker should have been on the top right hand corner of the rear pallet, sometimes it was not there, but it was somewhat lower. As a result, it was difficult to identify the product on the rear pallet. In order to see the sticker on the rear pallet, and to count the items of stock on it, it was often necessary to move the front pallet to one side, sometimes up to ten centimetres.
At first in his evidence the plaintiff stated that in order to be able to sight the barcode sticker, and count the number of goods, on the rear pallets, he needed to move the front pallets. Subsequently (after attending the view), the plaintiff stated that, in saying that, he had intended to convey that, for those purposes, he needed to move the goods on the front pallet, rather than moving the front pallets themselves. He said that in order to do that, he would brace himself against the railing of the platform of the scissor lift, to ensure that he could not slip. He would place his arm in a gap between the goods on adjacent pallets, and try to shift the products on the pallet to one side, in order to adequately sight the barcode sticker, and to count the number of goods, on the rear pallet.
The plaintiff explained that if some product had already been removed from the rear pallet, the Oxford sticker on that pallet was very low, and, in order to see it, he would need to push the front pallet to make a space to see the sticker on the rear pallet. In order to do that, he needed to reach down as far as he could over the railing of the platform. In doing so, he bent forward over the rail of the platform, which was at about waist height. He would lean at about a 45 degree angle, and, while in that posture, he would endeavour to manoeuvre the front pallet, in order to sight the barcode sticker and the number of goods on the rear pallet. The plaintiff stated that the physical effort involved in counting the goods in that way was very hard.
The plaintiff stated that for about 45 percent of the rear pallets, it was necessary to move the front stack in order to be able to adequately see the rear pallet. By the time he had completed his shift (at midday), his back was very stiff, and he was very cold. He went home and laid on the couch, with blankets on top of him. The next morning, when he woke up, he felt acute left leg pain, and pain in the back. He rested on that day (a Sunday), and he returned to work driving the reach forklift on the next day. However, his pain was becoming more severe. On the Tuesday, 17 July, he spoke to Mr Black, who encouraged him to remain at work. The plaintiff continued to work for about four hours. Ultimately, the pain became so bad that he left work, and attended upon his general practitioner, Dr Brophy, at the Werribee Plaza in Hoppers Crossing. Dr Brophy ordered a CT scan, which was undertaken on 18 July 2007. The plaintiff remained off work, pursuant to certificates provided by Dr Brophy, until late September. On 26 September, he returned to work, on light duties, with the second defendant.
In cross-examination by Mr Rattray for the first defendant, the plaintiff stated that, when he commenced employment with Pitcon Recruitment, he was provided with some written material concerning his duties. He did not perform any work directly for Pitcon, but, rather, he commenced work on the next day with the second defendant. He said that he regarded himself as an employee of the second defendant. After about three or four months, the first defendant replaced Pitcon Recruitment as the labour hire company which employed him. At that time, the plaintiff filled out documentation with the first defendant, which contained instructions concerning safe work practices and hazards. He agreed that he did not inform the first defendant that, on 14 July, the second defendant had required him to perform new duties, which he had not previously undertaken.
In cross-examination by Mr Casey for the second defendant, the plaintiff stated that, when he commenced work with the second defendant, he was required to fill out certain paperwork, but that he did not recall reading any of it. He explained how, before he was required to perform each of the five different duties involved in his role as a storeman, he was given instruction and tuition as to how to perform that work.
He agreed that the stocktake in freezer 12A on 14 July 2007 involved about forty employees of the second defendant. At the commencement of that day, the employees assembled in the office, and they were instructed by Mr Black as to what they were to do. He was initially assigned to work in aisles P and Q. However, in the course of the day, having completed those aisles earlier than the employees who were required to stocktake aisle A, the plaintiff and his fellow employee were also required to perform the stocktake for part of aisle A.
The plaintiff, in cross-examination, stated that it was necessary for him to sight the barcode sticker on the rear pallets, otherwise he would not know what kind of products were on those pallets. He denied that he had been instructed by Mr Black that he was only required to see whether a pallet was in the back row. The plaintiff stated that he was required to sight the barcode on the rear pallet, and also to count the items on it.
The plaintiff further stated that he had to write out the barcode, and count the items, on the front pallet. He had to count the products on the front pallet, even if they appeared to be complete. He was also required to count the amount of product on the rear pallet, but, if it was full, he was simply to place a tick on the stock sheet.
The plaintiff stated that he was instructed that if he could not see the sticker on the barcode of the rear pallet, he was to inform the driver of the reach forklift, who would then pull the pallet out. If he could not see a sticker on the rear pallet, he would leave a blank in the stock sheet. Although he was entitled to ask the driver of the reach forklift to remove the front pallet, in order that he could see the rear pallet, he was, first, required to try to see the sticker and count the products. Otherwise, the forklift would need to remove a large proportion of the pallets on the front row, which would be impracticable.
Mr Casey then cross-examined the plaintiff, in some detail, on the markings on the stock sheet (exhibit E) compiled by the plaintiff. That cross-examination revealed some inconsistencies between the plaintiff’s evidence as to how he was required to, and how he did, undertake the stocktake. In particular, the stock sheets contain a small number of entries recording the product code of the rear pallet, or the quantity of product on the rear pallet.
Notwithstanding those discrepancies, the plaintiff disagreed that, in respect of the rear pallets, he was only required to see whether there was a pallet there, and to put a tick if there was. He said the whole point of undertaking the stocktake was to count how much product was on each pallet. Even if he could see that the rear pallet was complete, he still had to count the products on it; if it was complete, he was to place a tick in the margin, rather than record the amount of stock on the pallet.
The plaintiff was reminded by Mr Casey that, before attending the view, he had stated in his evidence that it was necessary to move the front pallet, in order to be able to view the rear pallet; but, on the day after the view, the plaintiff had changed that evidence, by saying that it was only necessary to move the stock on the front pallet, but not the front pallet itself. The plaintiff denied that he had changed his evidence because, on attending the view, he realised it would have been physically impossible to move the whole of a front pallet. The plaintiff agreed that while undertaking the stocktake he did not complain to the driver that it was hard carrying out the work in the manner in which he did. When he took breaks during the day, he did not ask to speak to any of the supervisors about the work, in order to tell them about any difficulties which he was experiencing in performing it.
The plaintiff was cross-examined about the contents of an affidavit sworn by him in the preliminary serious injury application, and in which he did not state that, in performing the stocktake, he was required to handle any of the product. He was also cross-examined about his answers to interrogatories, in which, similarly, he did not state that he was pushing any of the product on the pallet. Mr Casey then cross-examined the plaintiff about his attendances on six doctors, none of whom recorded the plaintiff as having said to them that he had injured his back in the stocktake by moving or pushing products on the pallets.
In re-examination, the plaintiff stated that, when he commenced employment with Pitcon Recruitment, he was not given any instruction by that company as to his work. When the first defendant took over his employment, he did not receive any training or instructions from the first defendant as to safe practices or as to occupational health and safety practices. While he was working at the premises of the second defendant, no employee of the first defendant visited the second defendant’s premises to inspect them, or to oversee his supervision there. The first defendant did not, at any stage, ask him how he was going or what work he was performing.
The plaintiff stated, in re-examination, that during his work shift, until its completion, he did not see anyone from management or any of the supervisors checking what he was doing. In particular, during his work shift, he did not receive any instructions from the supervisors as to the manner in which he was performing his work, or as to what he should or should not be doing.
The issue of liability in respect of the first incident: summary of evidence of the second defendant
In response to the plaintiff’s evidence, the second defendant called six witnesses.
The first witness was Mr Timothy Black, who is currently the client manager of the second defendant. At the time of the first incident, Mr Black was the store manager of freezer A12.
Mr Black explained that for the purpose of a stocktake, the employee, who is to check the stock, is given a stock sheet, on which the product code and the quantity of each pallet is left blank. The stock taker is required to record, on that sheet, the product code and quantity of the product on the front pallet; but the stock taker is not required to record the product code, or the quantity of the product, of the rear pallet. If the rear pallet appears to be full, the “quantity” column is to be given a tick; if, on the other hand, the rear pallet seems to be only partially full, the stock taker is required to write “P” in that column. The stock taker ordinarily hands in, to the office, part of the stock sheet after completing the stocktake on a particular aisle. The stock sheet is then checked in the office. If there appears to be any discrepancy, the reach forklift driver is instructed to remove the pallet, and record the details of the pallet on a note pad. That information is then transferred onto the stock sheet.
Mr Black stated that, although he did not have any specific recollection of the instructions which he gave on the morning of the stocktake on 14 July, his practice was to give a briefing to the staff, who were undertaking the stocktake, before it commenced. He said that, in that briefing, he would tell the staff that the product code and the quantity of products on the front pallet needed to be recorded on the stock sheet. If the rear pallet appeared to be full, a tick was to be placed on the stock sheet; if the rear pallet did not appear to be full, the stock taker was to write a “P” in the relevant column. That briefing ordinarily only took about five minutes.
Over the years, Mr Black has participated in a number of stocktakes. He said that, ordinarily, the stock taker is easily able to see the rear pallet through a gap, and to discern whether it is a full pallet or a partly full pallet. He reiterated that there is no need for the stock taker to observe the Oxford sticker on the rear pallets, or to count the product on the rear pallets. Thus, there is no need for a stock taker to reach out of the scissor lift, to stretch forwards, backwards or sideways, or to handle any of the product. Mr Black has never seen any person handling any of the product on the pallets during a stocktake. Further, he has never received any complaints, from staff involved in the stocktakes, concerning safety issues, concerning any difficulty involved in undertaking the stocktake, or concerning any injuries sustained while performing the work.
Mr Black stated that it would not be possible to shift any part of the product, which is on a pallet, by hand. The shrink wrap is tightly fitted over the product, so as to prevent movement of the cartons of product on a pallet, while it is in transit, or while it is in the warehouse. He stated that, during the stocktake, the supervisors would walk through the freezer to make sure that everything was alright.
In cross-examination by Mr Moore, Mr Black stated that most people, who participated in the stocktake on 14 July 2007, had previous experience in stock taking. Thus, on that morning the majority of the employees, to whom he gave instructions, were experienced stock takers. He said that he did not take any special care in giving any particular instruction to those employees who had not previously been involved in a stocktake.
Mr Black agreed that, in 2007, some of the Oxford stickers might have been fixed in the wrong position on the pallet. However, the stock taker only needed to see whether the rear pallet was full, and, if so, to give it a tick. There was no requirement to count the product on the rear pallet. In most cases, the stock taker would not be able to see the Oxford sticker on the rear pallet. He agreed that, in that way, the type, and quantity, of the product on the rear pallet would not be the subject of a check on the stocktake. However, he said that the manner, in which the stocktake was undertaken, conformed with the requirements of the client.
Mr Black stated that he thought there was little risk that the plaintiff would have misunderstood the instruction given at the briefing, even if he did not speak good English. The other person in the scissor lift, the driver, was experienced, and he would have advised the plaintiff if he was carrying out his role in an incorrect manner.
Mr Black stated that there are not a lot of partial pallets within the store at any given time. He agreed that he did not specifically instruct employees not to handle the stock, nor did he instruct them not to try to count the product on the rear pallet, if it was a partially full pallet. He said that he did not think that it was necessary to give such an instruction.
Mr Black stated that it was standard practice that the supervisors would go around the freezer, and check the employees during the day. He did not think that the plaintiff was correct in claiming that no-one had checked his work during the stocktake.
Mr Black said that it would not be possible to count the stock on the rear pallet, even if the checker did move the product on the front pallet a bit.
Mauro Selvo was the driver of the scissor lift on which, on 14 July 2007, the plaintiff carried out his stock taking duties. Mr Selvo has been employed by the second defendant for fourteen years. During that time, he has participated in approximately ten stocktakes. He stated that all stocktakes are conducted in the same manner. At the commencement of the day, the manager gives the staff a briefing in his office. The instruction given by the manager is that the stock checkers are to check the label on the front pallets, and to record, from the label, the product code, and the quantity, of product on the front pallet. The stock checkers are to view the rear pallet. If it is full, the checker should place a tick in the quantity column; if the pallet is only partly full, the checker should place a “P” in that column. The checkers are also instructed that, if there is any apparent anomaly, such as product being in the wrong place, the checker should put a question mark on the stock sheet, and the reach forklift driver will extract the pallet and check it.
Mr Selvo stated that the preliminary briefing takes about fifteen to twenty minutes. The instruction given to staff is straightforward. He said that there is no need for a stock checker to reach out beyond the platform of the scissor lift. Mr Selvo had never seen a stock checker, on a systematic basis, reach out and handle products in the rack. He said that while he is driving a scissor lift, the stock checker is within his field of vision. If the checker regularly leaned out of the scissor lift and put his hands on product, he would see it, and he would instruct the stock checker to desist from doing so. Mr Selvo further stated that he did not consider that a stock checker would be able to move product on the pallets, because of the shrink wrap around the product, and because a lot of the cartons on the pallets are quite heavy. He said he had never seen a stock checker trying to push product to one side on a pallet. He also said that it would be unnecessary for a stock checker to move any of the product, in order to sight the rear pallet. If the checker is unable to get a clear view of the rear pallet, he can ask the driver to adjust the position of the scissor lift, to enable him to see it.
In cross-examination by Mr Moore, Mr Selvo did not have any specific recollection of the stocktake on 14 July 2007, or of the plaintiff. However, he said that he had done quite a few stocktakes, and they are all conducted in the same way. He confirmed that the stock checker is not required to identify the product number, or the quantity of product, on the rear pallet. Thus, the stock checker is not required to see the sticker on the rear pallet. If the checker has a clear view of the rear pallet, or there is no front pallet in front it, then he would be able to sight the sticker on the rear pallet. Mr Selvo accepted that shrink wrapping can vary in its tensile strength. He himself has never attempted to move the top section of a pallet. However, he did not consider that he would be strong enough to do so. He reiterated that if he had seen the plaintiff putting his hand between the stacks, and trying to push the product on a pallet, he would have told the plaintiff to desist from doing so.
Nitsami Redzepi, who was then the assistant store manager in freezer 12A, participated in the stocktake on 14 July 2007, and he was present when Mr Black gave instructions to the people who were to conduct the stocktake.
Mr Redzepi stated that the instructions, which Mr Black gave, were that the staff were to check the front pallets, and to write down the product number and the quantity of the product on the front pallets. The checkers were to count the product on the rear pallet, if they were able to see it; otherwise, they were to place a tick in the “quantity” column if it was a full pallet, or a “P” if it was a part pallet. The briefing only took two or three minutes. Shortly after the stocktake commenced, the staff in the office, including himself and the supervisors, went into the freezer area, to ensure that the stock takers were carrying out their tasks correctly.
Mr Redzepi stated that once the stock checkers had completed one side of an aisle, they generally returned the stocktake sheet to the office, where it was checked. If the checker had placed a question mark on a stock sheet, a driver of a reach forklift would be requested to remove the pallet from the rack, check it, and count it.
Mr Redzepi has undertaken a number of stocktakes, both as a driver of the scissor lift, and also as a checker. He said that some checkers sit down to carry out their task. Mr Redzepi has never received any complaints from those involved in a stocktake. He said that the checkers are not required to adopt any particular posture to be able to undertake their work, nor are they required to handle any of the product. Mr Redzepi has never seen a stock checker try to push the top product on a pallet out of the way in order to be able to see the rear pallet.
In cross-examination, Mr Redzepi confirmed that the preliminary briefing of staff only takes three or four minutes. He agreed that the if the stock checker was able to see the Oxford label on the rear pallet, he would write down, on the stock sheet, the product code and the quantity noted on the sticker. However, a checker would not be able to see the sticker on most of the back pallets. Mr Redzepi confirmed that there was a sufficient number of people in the office to follow up on the checkers as they did their work.
James Muscat has been employed by the second defendant for twelve years, and he has participated in six or seven stocktakes during that time. He said that at the commencement of each stocktake, the staff meet in the office of the freezer. They are informed of the identity of the person with whom they will be paired for the stocktake, and they are given the necessary paperwork and a torch. At the commencement of each stocktake, staff are given instructions. Those instructions are that the stock checker is to record, on the stock sheet, the product code and the quantity of the product on the front pallet, which are noted on the label on the front of the pallet. The checker is to place a tick in the “quantity” column, if the rear pallet appears to be full; but if it is a part pallet, he is required to write “PP” in that column. The checker generally uses a torch to see the rear pallet. In the stocktakes, in which he has participated as a checker, Mr Muscat has never needed to lean over the side of the scissor lift, and he has never handled or moved the product on the pallets. Nor has he needed to twist his body in order to see either the front pallet or the rear pallet. He described the stocktake as a physically simple task.
In cross-examination, Mr Muscat stated that the briefing at the commencement of the stocktake would take ten or fifteen minutes. Most of the people, who were to participate in the stocktake, would have had previous experience. However, the supervisor, giving the instruction, makes it clear so that everyone could understand what they were to do. At the preliminary meeting, the staff are instructed that it is desirable to record as much information as possible on the stocktake. Sometimes you can see the Oxford label on the rear pallet, but if you cannot, you are only required to write “PP” if the pallet appeared to be partially full. He said that if there was some discrepancy in the product on a pallet, it was the task of the reach forklift driver to check the pallet.
Mr Muscat stated that staff are not supposed to push on the product, or to move the top layer of the product.
Farouk Ibraimoski has been employed by the second defendant for nine years, and is currently a supervisor. He has participated on a number of stocktakes.
Mr Ibraimoski stated that, at the commencement of each stocktake, the staff would assemble in the office. The manager, or one of the supervisors, would give instructions. In particular, staff are instructed to record the product code and the quantity of product on a front pallet; but, for the rear pallet, the staff are only required to see if it was full, and, if so, to place a tick on the stock sheet; if it is a part pallet, staff were required to write “P”. If the rear pallet is not visible, staff are required to place a question mark alongside the item, so that it can be checked by the reach forklift driver.
Mr Ibraimoski stated that the checker is able to obtain the information, as to the product number and the quantity of the product on the front pallet, from the label on the pallet. For the rear pallet, the checker is only required to see if it appears to be a full or a part pallet. On occasions, when the label on the rear pallet is visible, the checker is able to record the relevant details on the label. Otherwise, if the checker is unable to see the label on the rear pallet, he is to place a tick if it is full, and write a “P” if it is not full.
Mr Ibraimoski stated that, in performing stocktake checks, he has never been required to lean out from the scissor lift, and he has never needed to handle any of the product with his hands. He said that the stocktake work is not physically demanding.
In cross-examination, Mr Ibraimoski stated that the instruction at the preliminary briefing has always been the same for each stocktake in which he has participated. The stocktake requirements for each customer are the same. He agreed that sometimes the Oxford sticker is not in its correct position on the pallet, and, in those circumstances, it is more difficult to see the sticker, particularly if it is on a rear pallet. He said that is the reason why staff are told not to check the sticker on the rear pallet, and only to record the details on it, if there is a clear view of it. He said that, on most occasions, the sticker on the rear pallet is not visible.
Ambel Getahun has been employed by the second defendant for eight years. He also has participated in a number of stocktakes.
Mr Getahun confirmed that at the commencement of each stocktake, the store manager gives instruction to the staff. The instruction is to record the product code and the quantity of product on the front pallet. If the rear pallet is full, the checker is to tick the relevant column; if it is partly full, the checker is to write “PP”. The details of the product code and quantity are obtained from the sticker on the pallet. Mr Getahun stated that, in the course of the stocktakes which he has undertaken, he has never needed to lean out over the scissor lift to check the front or rear pallet, or to twist his body. He has never been required to handle, or move, any stock while standing on the platform of the scissor lift. He said that stock taking is not a physically difficult job.
In cross-examination, Mr Getahun stated that the instruction given by the store manager was clear and simple, and that it is not necessary to have a perfect understanding of the English language in order to be able to comprehend it. He said that the label on most of the rear pallets is blocked by the front pallet, and thus it is not visible. He agreed that when the label on the rear pallet is visible, the checker records on the stock sheet the product number and the quantity stated on the label.
The first incident: submissions and issues
In final address, Mr Casey conceded that if the second defendant’s system of undertaking the stocktake required the checker (that is the plaintiff) to lean out from the scissor lift and push upon a pallet or product on a pallet, in order to see the Oxford sticker on the rear pallet, or to count the product on the rear pallet, that system of work was negligent, and in breach of the Occupational Health and Safety (Manual Handling) Regulations (“the Regulations”). Mr Casey also conceded that if the plaintiff performed the stocktake in the manner described by him in his evidence, as a result of an honest misunderstanding by him of the instructions given to him by Mr Black, the defence of contributory negligence would not succeed. In addition, Mr Casey also conceded that if the plaintiff chose to perform the stocktake in the manner in which he described, notwithstanding the instruction given to him, and understood by him, the defence of contributory negligence would not succeed. For, in such a case, Mr Casey accepted that the repeated failure of the plaintiff, over a six hour period, to comply with the instructions given to him, would bespeak a lack of sufficient supervision of him by the second defendant.
Conversely, in final address, Mr Moore, on behalf of the plaintiff, conceded that if the evidence of the second defendant was accepted, namely, that the plaintiff was not required to, and did not, repeatedly lean out and move product on pallets in the course of his stock taking work, the plaintiff’s cause of action in relation to the first incident would fail.
Thus, the critical factual questions, arising from the evidence which I have just summarised, are, first, whether the second defendant’s system of undertaking the stocktake, as instructed to the plaintiff, required the checker to view the sticker, and to count the product, on the rear pallet. The second issue is whether the plaintiff, in performing the stock taking work as a checker, regularly leant out from the platform of the scissor lift, and, while doing so, pushed product on the front pallet to one side, in order to view the sticker, and count the product, on the rear pallet.
Mr Casey submitted that I should accept the evidence of the second defendant’s witnesses that the system of undertaking the stocktake, as instructed to the plaintiff, did not involve viewing the sticker on, or counting the product on, the rear pallet. He further submitted that I should not be satisfied that, in performing his role as checker during the stocktake, the plaintiff did repetitively lean out from the platform of the scissor lift and move product on the front pallets, as described by the plaintiff in his evidence.
In support of those submissions, Mr Casey relied on a number of matters, including the following:
•The evidence demonstrates that the second defendant has conducted a highly professional and well organised operation at its premises at Laverton North. The plaintiff was given thorough instruction and training in respect of each of the roles which he had performed as a storeman. The evidence establishes that the second defendant had a commitment to occupational and health safety for its employees.
•For a number of years, the second defendant has undertaken annual stocktakes at its premises for each of its customers. No other employee has ever complained of any lack of safety, or difficulty, involved in participating in such a stocktake, or of any injury sustained by him or her in performing the stocktake.
•The second defendant called six witnesses, each of whom are thoroughly familiar with the system of stock taking, and each of whom have participated in a number of stocktakes at the second defendant’s premises. The evidence of each of them was that the system of work, in which they were instructed, did not involve being required to view the sticker, or count the product, on each of the rear pallets. None of those witnesses had ever personally undertaken the type of movements which the plaintiff described in his evidence. Nor had any of the witnesses seen any other employee of the second defendant perform the work as checker in the manner described by the plaintiff.
•On the other hand, the plaintiff did not call any witness to support his version of the system of work, which he described in his evidence, or to give evidence that he (or she) carried out the role as checker in the manner described by the plaintiff.
•English was not the native language for two of the second defendant’s witnesses - Mr Ibraimoski and Mr Getahun – but neither of them had any difficulty in understanding the instructions which they were given about the second defendant’s system of work.
•If the plaintiff had been regularly leaning out from the platform of the scissor lift in order to view the sticker and to count the product on the rear pallet, his movements in doing so would have been observed by Mr Selvo. Mr Selvo was a first aid officer in freezer number 9. He would have readily perceived that the plaintiff, in performing those movements, was placing himself, and indeed Mr Selvo, in a dangerous position, and he would have demanded that the plaintiff desist from doing so. In addition, if the plaintiff was performing those actions for about 40 percent of the rear pallets, the process of carrying out the stocktake would have been considerably slower than it ought to have been. Yet, the plaintiff stated, in his evidence, that he and his partner completed their stocktake early, and therefore were asked to assist with aisle A.
•A number of the witnesses stated that it would not be physically possible to move product on the front pallet, in the manner described by the plaintiff. The product was kept in place by shrink wrap which was designed for that purpose. A number of the defendant’s witnesses expressed strong doubt as to whether it would be physically possible for them to move any product on the rear pallet by pushing it with one arm.
•An examination of the stock taking sheets completed by the plaintiff – exhibit E and exhibit E 1 – demonstrates that the plaintiff, only on a small number of occasions, filled in the product code in respect of the rear pallet, and on only a few occasions filled in the quantity of product on the rear pallet. Those documents are not consistent with the plaintiff’s evidence that his task, as a checker, required him to view the sticker on the rear pallet, to note the product code on the stocktake sheet, and to count the quantity of product on the rear pallet.
•The plaintiff’s account as to the movements, which he performed while carrying out the stocktake, is inconsistent with a number of accounts which he gave to doctors. It is also inconsistent with the affidavit which he swore in support of his serious injury application, and with his answers to interrogatories.
On the other hand, Mr Moore, on behalf of the plaintiff, submitted that I should accept the evidence of the plaintiff that, before the stocktake was commenced, the system of work, in which he was instructed, involved viewing the sticker, and counting the product, on the rear pallet. Mr Moore also submitted that I should accept the evidence of the plaintiff as to the actions, which he said he performed in endeavouring to ascertain the product number, and count the product, on the rear pallets. In support of those submissions, Mr Moore made the following points:
•The plaintiff was a candid and credible witness, who described the circumstances, in which he was required to work with the second defendant, in a lucid and coherent manner.
•The stocktake system of the second defendant, as described by the witnesses called on behalf of the second defendant, was quite unusual. It was not a stocktake in the true sense. Thus, there was scope for an employee, who had not previously undertaken a stocktake, such as the plaintiff, to have understood that he was required to do more than that which the second defendant’s system in fact required him to.
•The instruction given to employees, before the stocktake commenced, was not adequate. There were between thirty and sixty workers present. The briefing only took a few minutes. Most of the employees present had participated in previous stocktakes. In giving the instructions, Mr Black did not make any allowance for the fact that there were, amongst those present, employees who had not participated previously in a stocktake. There was no adequate follow up or check to ensure that such employees as the plaintiff properly understood how they were to carry out their work.
•The system, by which the stocktake was undertaken, was such as would invite a conscientious worker to engage in the type of actions which the plaintiff stated he performed in carrying out the stocktake. In particular, Mr Redzepi agreed that if the Oxford sticker could be sighted on the rear pallets, the workers would record, on the stock sheet, the details stated on the sticker.
•In addition, the list of employees, who performed the stocktake, indicates that there were only three drivers of reach forklifts available for more than fifty employees. In those circumstances, it is understandable that an employee, such as the plaintiff, might seek to ascertain, for himself, the details of the rear pallet, rather than calling on the reach forklift, on numerous occasions, to assist in that task.
•The stocktake sheets filled out by the plaintiff (exhibit E and exhibit E 1) contain entries, in which the plaintiff noted the product code, and the number of products, on the rear pallets. Further, it is clear from exhibit E 1 (the stocktake sheet in respect of aisle A) that another worker, who performed part of that stocktake, did identify some of the product on the rear pallets.
•The evidence, that a torch was supplied to the checkers, further supports the proposition that the checkers were required to sight the sticker on the rear pallet.
•It was possible to move product on the rear pallet. There was some evidence that ice formed between the items of products on the pallets which would have facilitated moving a row of product. Mr Black conceded, in cross-examination, that the tensile capacity of the shrink wrapping over the products on the pallet varied, and that any variation in the tightness of the shrink wrapping might allow movement of a layer or layers of the stock.
•Mr Selvo had no recollection of the stocktake on 14 July 2007, and he had no recollection of the plaintiff at all. He would not accept that, in undertaking the stocktake, the checker would identify and record the Oxford sticker on the rear pallet if it was possible to view the sticker. In that respect, his evidence is not consistent with the evidence of Mr Black and Mr Redzepi, who conceded that stocktake checkers might do their best to identify the Oxford sticker on the rear pallet. In cross-examination, Mr Selvo did concede the possibility that the plaintiff acted in the manner in which he described.
•The fact that the plaintiff sustained a rupture of his disc at the L 5-S 1 level at that time supports the proposition that he was subjecting his lumbar spine to axial loading, which Mr Brownbill stated would have caused his injury.
•The different descriptions recorded by the doctors as to how the plaintiff sustained his injury do not affect the credibility of the plaintiff’s evidence. Those histories were taken by the doctors, whose primary function was to medically examine the plaintiff, and to provide their views as to diagnosis and prognosis. According to Dr Brophy, the plaintiff is not a particularly verbal person, and he does not volunteer information.
The first incident: conclusions
For the reasons which I shall set out below, I am not satisfied that, in performing the stocktake on 14 July 2007, the plaintiff was required to, or did, perform repeated or regular movements of leaning, bending or twisting from the platform of the scissor lift in order to sight the sticker, or count the product, on the rear pallets. Nor am I satisfied that the plaintiff was required to, or did, move or attempt to move product on the front pallet in order to sight the sticker, and count the product, on the rear pallets. Indeed, on all the evidence, I am satisfied, on the balance of probabilities, that the plaintiff did not perform, and was not required to perform, any of those movements as described by him in his evidence.
The evidence of the six witnesses, called on behalf of the second defendant, makes it plain that the long standing system of the second defendant, in undertaking a stocktake, does not require the checker to perform repeated or regular movements involving leaning, bending or twisting from the platform of the scissor lift. Nor does it require the checker to move, or attempt to move, the product on the front pallet in order to sight the sticker, or count the product, on the rear pallet. The uncontested evidence, of the witnesses called by the second defendant, was that the same system of conducting stocktakes had been implemented, annually, at the second defendant’s premises, for some time, in respect of each of the second defendant’s customers. In particular, that system required the checker to record the product code and quantity of the product on the front pallet. If the front pallet is full, those details could be obtained from the sticker on it. If the front pallet is not full, the checker is required to count the product on the front pallet. On the other hand, the system of the second defendant has always been that the checker only needs to note whether the rear pallet is present. If the rear pallet appears to be full, the checker is to put a “✓” in the quantity margin; if it is not full, the rear checker is to put a “P” in that column. The evidence of each of the six witnesses, called on behalf of the second defendant, was that the second defendant’s system of stock taking did not require the checker to sight the sticker, and to count the product, on each of the rear pallets.
Certainly, some of the second defendant’s witnesses did state that, where it is possible to see the sticker on the rear pallet – for example where the front pallet was missing, or where there was only a small amount of product on the front pallet – the checker would note the details on the sticker on the rear pallet and, in some cases, count it. That evidence is consistent with the stocktake sheets filled out by the plaintiff on 14 July 2007, to which I shall refer below. However, and with that exception, it is clear from the evidence that the system of the second defendant, in undertaking the stocktake, did not require the checkers to sight and record the details on the sticker, or count the product, on the rear pallets.
I am also satisfied that the system, which I have just described, was consistently explained by the relevant supervisor to those employees who were to participate in the stocktake, before the commencement of the stocktake. In particular, I am satisfied, by the evidence of Mr Black, that the instruction which he gave to the employees of the second defendant, on 14 July 2007, was to the effect, which I have just described.
I am further satisfied that the system, which I have just described, has been consistently implemented by employees of the second defendant, who have been instructed in relation to it, in the stocktakes which have taken place over many years. The uncontradicted evidence was that the second defendant had not received any complaint by any employee of any particular physical difficulty in undertaking the stocktake. Nor had the second defendant received any complaint or report of injury to an employee in performing a stocktake at the second defendant’s premises.
It is clear from the evidence that the second defendant had a sophisticated and professional system of storing and managing very large quantities of stock at its premises. I am also satisfied on the evidence that the second defendant had an appropriate commitment to workplace safety and to implementing safe systems of work. The evidence to that effect was reinforced by the view which took place early in the trial. While the view occurred some five years after the incident with which this case is concerned, there was no suggestion that, since then, the second defendant has relevantly upgraded its processes, or improved its workplace safety practices, particularly in undertaking stocktakes.
The instruction, which was given by Mr Black to the employees of the second defendant on 14 July, was expressed in simple terms which could be easily understood. None of the six witnesses, called by the second defendant, had ever seen any checker conduct a stocktake in the manner described by the plaintiff. It would therefore seem that, if the plaintiff somehow misunderstood the instruction given to him by Mr Black on the day in question, by doing so he belonged to a very small minority of employees with the second defendant.
It is true that the plaintiff’s English is not perfect. It is also probable that his facility with English has improved over the last five years. Nevertheless, when he arrived in Australia, he undertook an English course of some 500 hours. During the next seven years, he worked in a number of different employment situations. In doing so, he gained a number of licences, including a forklift licence, a motor vehicle licence, a heavy vehicle licence, a first aid certificate, a crowd controller diploma and licence, and a certificate from an alcohol serving course. The plaintiff spent some time in the witness box. It was my perception that he is a reasonably intelligent person. All those considerations make it unlikely that the plaintiff would have so radically misunderstood the instruction given to him by Mr Black, as to perform the stocktake in a manner which was so significantly inconsistent with the system by which it is ordinarily carried out.
In final address, I pointed out to Mr Moore that the evidence of the plaintiff was difficult to reconcile with the evidence of Mr Selvo. I consider that Mr Selvo was a most impressive witness, and I have no hesitation in accepting the evidence which he gave. Indeed, his credibility was not put in issue in the case. In evidence in chief, he stated that he had never, in all his years of employment with the second defendant, seen a checker regularly reach out from the scissor lift, and attempt to move the stock on the front pallet. He said that if a checker working on the scissor lift driven by him had, on a regular basis, attempted to perform such actions, he would be likely to have seen the checker carrying out such an action, and he would have told him not to do it.
Mr Moore endeavoured to reconcile that evidence with the evidence of the plaintiff, by conceding that the plaintiff may not have carried out the actions in moving the product on the front pallet, but simply leant and twisted and bent in the manner in which the plaintiff claimed in his evidence. Mr Moore submitted that Mr Selvo did not, expressly, state that if the plaintiff had simply performed those movements, on a regular basis, he (Mr Selvo) would have attempted to stop him.
There are, I consider, a number of responses to that proposition made by Mr Moore. First, in his evidence in chief, Mr Selvo stated that there is no need for the checker to stretch forward or lean out or stretch back while performing his role. It is clear that if the plaintiff had carried out such actions (even without attempting to move the product on the front pallet), Mr Selvo would have easily seen him doing that, and would have told him not to do it. For, in such circumstances, the checker would have been endeavouring to carry out the stocktake in a manner in which he was not required. In their evidence, Messrs Black, Muscat, Ibraimoski and Getahun each stated that the task of a checker did not involve, or require, any bending or twisting movements. Indeed Messrs Redzepi, Selvo and Black each stated that some checkers chose to perform their role sitting down on a chair on the platform of the forklift. It is clear, from that evidence, that if the plaintiff had been attempting to lean, twist and bend in the manner he claimed (even without moving the product on the front pallet), Mr Selvo would have readily perceived that he was attempting to perform the stocktake in a manner which was highly unusual, and which was contrary to the second defendant’s system.
It is true, as Mr Moore points out, that Mr Selvo has no specific recollection of the stocktake performed in July 2007. On the other hand, it was submitted that the plaintiff had a clear recollection of it, as he sustained an injury on that day. However, I do not consider that that evidence, in any way, detracts from Mr Selvo’s testimony. I am well satisfied that if Mr Selvo had been working in tandem with a checker who was carrying out the type of movements described by the plaintiff, Mr Selvo would have well recollected such a stocktake, since it would have differed so radically from the system to which Mr Selvo was accustomed.
I am also satisfied that if the plaintiff was carrying out his functions in the manner in which he has described – by leaning out, bending and twisting, and by attempting to move stock on the front pallet - he would have been readily observed doing so by the second defendant’s supervisors. The plaintiff did not see anyone who appeared to be supervising his work on the day of the stocktake. However, the evidence of Mr Black and Mr Redzepi, which I accept, is that, as a matter of practice, supervisors attend in the freezer shortly after the commencement of the stocktake, in order to ensure that it is being carried out properly. In my view, it is most unlikely that there would not have been any supervision of the plaintiff in performing his work. It was in the interests of the second defendant to ensure that the stocktake was carried out in accordance with its system. The fact, that the plaintiff did not see any person supervising him, may well be explained by the fact that, contrary to the plaintiff’s assertion, the plaintiff was performing his work in accordance with the normal system implemented by the second defendant, and, in doing so, he was not performing the bending, leaning and twisting movements, or try to move stock on the front pallets, as he has claimed.
The plaintiff’s evidence, as to the manner in which he performed his role as a checker in the stocktake, suffers substantially from inconsistency, both internally, and also inconsistency with previous descriptions of those actions given by him.
In his evidence in chief, on the second day of the trial, the plaintiff stated that, in order to be able to sight the rear pallet, he had to move the front pallet to one side. He said that he attempted to do that by pushing with his hands to try to move the front pallet. On the following day, a view was conducted at the premises of the second defendant, at which the plaintiff attended. On the resumption of his evidence, the plaintiff stated that, in his earlier evidence, he had mis-described the action which he had performed. He said that he did not attempt to move the front pallet, but, rather, he attempted to move product on the front pallet.
The plaintiff’s account, and in particular his claim to have moved, or attempted to move, product on the front pallet, is not consistent with a number of histories which he has given to doctors after 14 July 2007. In particular, he told Dr Brophy (on 17 July 2007) that he attributed his painful lower back to prolonged standing in the freezer room. He told Mr Russell (on 24 September 2007) that he hurt his back while standing still and leaning with his back against the railing of the scissor forklift. He gave a similar account to Dr Andrianakis on 29 April 2008. In May 2008, he was recorded by Dr Douglas as stating that he injured his back while leaning against a shelf of ice. It is probable that Dr Douglas mis-recorded the object against which the plaintiff claimed he was leaning. However, it is less likely that Dr Douglas totally mis-recorded the circumstances in which the plaintiff described how he suffered his back injury.
It was not until the plaintiff saw Dr Piperoglou, in July 2009, that he described sustaining his lower back injury by carrying out bending and lifting. Thereafter, on three occasions – when giving a history to Dr Barton in August 2009, to Dr Rigby in December 2010, and to Mr Hunt in November 2011 – the plaintiff attributed his back injury to actions such as leaning or bending over a side rail of the platform.
In the affidavit sworn by him in support of his serious injury application in February 2009, the plaintiff stated that, if the front pallet was full, or nearly full, it was difficult to see the back pallet. In those circumstances, he said “I would usually have to lean over the side rail of the platform to do this”. Again, in that affidavit, the plaintiff did not depose that, in performing the stocktake, he was required to, or did, move or attempt to move product on the front pallets. In a similar manner, in his answers to interrogatories sworn on 13 October 2011, the plaintiff deposed that if the stock on the front pallet was higher than the stock on the rear pallet, in order to sight the stock on the rear pallet, he had to “… twist and look around the side of the pallet to the stock on the pallet behind”. Again, in those answers, he did not claim to have moved, or attempted to move, stock on the front pallets.
It is clear that the plaintiff, thus, has been quite inconsistent in the manner in which he has described the circumstances in which he sustained his lower back injury. I accept that caution must be exercised in comparing, too literally, histories recorded by medical practitioners on the one hand, with the evidence given by a plaintiff in court. I also accept that some care must be taken in comparing answers given by a litigant to interrogatories, with the litigant’s viva voce evidence in court. However, the totality of the inconsistencies, to which I have referred, is significant. In particular, it militates, strongly, against the reliability of the evidence of the plaintiff, that in performing his role as a checker he was required to move the stock on the front pallet, in order to be able to see the products on 40 percent of the rear pallets. If the plaintiff had been required to perform such a difficult movement on such a regular basis in performing his role as a checker, it is inexplicable that he would have failed to state that when giving his history to at least a majority of the doctors, and in describing the manner in which he sustained his injury in his answers to interrogatories, and in his affidavit in support of his serious injury application.
In addition, it is clear from the evidence of the second defendant’s witnesses that it would be most difficult, if not impossible, to move stock when it is stored on a pallet, because in that situation the stock is tightly shrink wrapped. The plaintiff sought to explain his ability to do that by stating that, on some occasions, ice formed between the surfaces of the packages on the pallet. That evidence was put in dispute. There is no need for me to resolve the dispute. Even if I were to accept that, in some instances, ice formed in the manner described by the plaintiff, that could not account for the plaintiff’s claimed ability to move products on such a large amount of front pallets in the course of the stocktake.
As I stated, no doubt recognising the difficulties with that aspect of the plaintiff’s evidence, Mr Moore submitted that I should accept the balance of his evidence, namely, that, in performing the stocktake, he was carrying out movements which involved regular or repeated bending, twisting and leaning. As I have already noted, that evidence is quite contrary to the evidence of each of the second defendant’s witnesses, which I accept, that it was not necessary to carry out any of those movements, in order to undertake the role as checker. Further, as I have already stated, if the plaintiff had been performing those movements, I am satisfied that Mr Selvo would have observed him doing so, and would have told him to stop doing it. In addition, it was clear from the manner in which the plaintiff gave his evidence, that his claim that he was required to, and did, move a significant amount of product on the front pallets, was not an incidental part of his evidence. The plaintiff gave a detailed description of the type of movements which he had to perform in order to move product on the front pallets. When challenged in cross-examination, he adhered to his assertion that he did carry out such an repeated action in performing his role as a checker. His claim in evidence, that he had to bend and twist, was, to a not insignificant extent, connected with his claim that, while doing so, he was trying to move the product on the front pallet. The lack of credibility of the plaintiff’s claim, that he was trying to move product on the front pallet, necessarily casts a significant doubt over the reliability of his evidence that, in performing his role as a checker, he carried out movements such as repeatedly bending, twisting and leaning.
The plaintiff’s evidence is also not consistent with the stock sheets, which he filled out, and which became exhibit E and exhibit E1. Those stock sheets were analysed in some detail in the trial. An analysis of them reveals that the plaintiff recorded the product code and the quantity of product in respect of most of the front pallets. By contrast, he only recorded the product code, in respect of a rear pallet, on a handful of occasions. He ticked the “quantity” column for a large majority of the rear pallets, and he only wrote the quantity of product, on the rear pallets, on a small number of occasions.
In that way, the stocktake sheets, filled out by the plaintiff, are consistent with the established stocktake system as explained by the second defendant’s witnesses, namely, recording the product code and quantity of product on the front pallets, and only recording the product code and quantity of product on the rear pallets, where they could be easily discerned. If, as the plaintiff maintains, he leant, bent and twisted, and moved product on the front pallet, in order to ascertain the product code on the rear pallet, and to count the amount of product on the rear pallet, there is no acceptable explanation why he has only been able to record the product code, and the quantity of product, for the rear pallets, on a small number of occasions. The plaintiff was cross-examined in some detail as to the contents of the stock sheets filled out by him. He did not endeavour, in cross-examination or re-examination, to explain the discrepancy by claiming that, although he tried to see the sticker, and count the product, on each of the rear pallets by performing the actions he claimed, he was only successful in doing so in a rare number of instances.
In cross-examination, the plaintiff agreed that at no time during, or after, the stocktake, did he make a complaint to any of the supervisors that he was finding it difficult to perform the stocktake, because of the physical actions which he was required to carry out in order to do so. Further, and more significantly, if the plaintiff was carrying out the type of actions which he has described – even without trying to move stock on the front pallets – the process of carrying out the stocktake would have been considerably slower than it should have. Yet, as Mr Casey pointed out, the plaintiff stated that he and his partner managed to complete their stocktake earlier than other teams of stock takers, and, accordingly, they were asked to assist in performing the stocktake in aisle A.
Mr Moore attempted to mount an argument that the fact that the plaintiff injured his back, and in particular that he suffered a rupture of the lumbo-sacral disc, on 14 July 2007 in the course of the stocktake, supported the plaintiff’s account as to the activities which he was performing on that day. In particular, Mr Moore pointed to those parts of the evidence of Mr Brownbill in which he implicated, as a cause of the plaintiff’s injury, the plaintiff’s claim that he was endeavouring to move products on the pallets at the second defendant’s premises while he was bending and twisting.
However, none of the doctors, and in particular Mr Brownbill, gave evidence that in order to sustain the injury which the plaintiff incurred on that date, it was necessary for him to perform the type of physical activities, which the plaintiff described in his evidence, on a repetitive basis. Indeed, in cross-examination, and re-examination, Mr Brownbill did accept that a prolapse might occur in the context of one event of bending or twisting. Thus, while the fact that the injury does lend some support to the plaintiff’s account, it does not overcome the heavy weight of the other factors, to which I have already adverted, and which persuade me that the plaintiff was not carrying out the types of actions which he has described in his evidence while performing his role as a checker during the stocktake.
Based on the matters to which I have referred above, I am not satisfied, on the balance of probabilities, that in performing his role as a checker in the stocktake on 14 July 2007, the plaintiff was required to, or did, carry out actions involving regular or repeated bending, twisting or leaning, or actions which involved him moving or attempting to move product on the front pallets at the second defendant’s premises. Indeed, the combination of the matters, to which I have referred, persuade me, on the balance of probabilities, that the plaintiff was not performing any of those actions, particularly on a repeated or regular basis. Accordingly, as conceded by Mr Moore, it follows that the plaintiff’s claim, against the first and second defendants, arising from the work which he performed in the stocktake at the second defendant’s premises on 14 July 2007, must fail.
The evidence in respect of the second incident (3 October 2007)
As I stated earlier, the principal issue on the question of liability, in respect of the second incident, was whether the plaintiff, after his return to work, was instructed to move boxes in the attic at the first defendant’s North Melbourne premises, and, indeed, whether he actually performed that task.
The plaintiff gave evidence on the question of liability in relation to the second incident. In response, the first defendant called two witnesses, Mr Barry Dixon and Mr Jason Laing.
In his evidence, the plaintiff stated that after he was injured on 14 July, he was prescribed physiotherapy treatment, and, subsequently, pilates. By September 2007, his back had improved a little. On 16 September, Dr Brophy gave him a certificate to return to work on limited hours with restricted duties. In particular, in his certificate, Dr Brophy specified that the plaintiff should not undertake any tasks which involved bending or lifting weights in excess of five kilograms, and that he was to avoid prolonged sitting or standing.
In accordance with that certificate, the plaintiff returned to work at the office of the first defendant in North Melbourne on 26 September. He commenced by performing light duties, such as putting pamphlets in envelopes and putting stamps on them. After a few days, he did some photocopying. He was performing that work in a large area outside the two front offices. On the morning on which he was undertaking that task, the first defendant ran out of photocopying paper. The plaintiff told the manager, Jason Laing, that there was no more paper. Mr Laing made a telephone call to Mr Barry Dixon, the occupational health and safety officer of the first defendant. Mr Laing then told the plaintiff that he should go to the attic in the premises and move boxes of files which were stored there. The plaintiff told Mr Laing that he was not supposed to do that work, that the boxes looked heavy, and that he should not be bending and moving them. Mr Laing responded, “That is your job”.
The plaintiff then commenced working in the attic. That room was about six to eight metres wide and about three metres deep. The entrance door was on the wall of the attic, which was about two and a half metres high. From there, the roof sloped down to the floor level. The plaintiff could only stand upright when he was against the wall near the doorway. There were about fifty boxes scattered throughout the attic, each of which weighed about ten to fifteen kilograms. The plaintiff’s task was to sort the boxes into date order.
The plaintiff stated that as he was performing that task, he felt his back becoming more painful. He carried out the work for about four hours, and he then ceased. In the meantime, at one stage when he took a break, Mr Dixon arrived. The plaintiff complained to Mr Dixon, who went into the attic and saw the plaintiff moving the boxes. He advised the plaintiff to take a break. Having done so, the plaintiff continued performing his task for another twenty minutes or so. By that time, his back was painful and stiff, and he ceased work.
On the next morning, the plaintiff found that he could not stand on his left leg again, and, in his words, his back had gone “back to square one”. He had a shooting pain in his back. He saw Dr Brophy on Sunday 7 October, who certified him off work, and referred him to a neurosurgeon, Mr Lo. The plaintiff has not returned to work since 3 October 2007.
In cross-examination, the plaintiff stated that Mr Dixon was stationed at Dandenong, and that he was not present in the North Melbourne office all the time. The plaintiff’s main point of contact was with the manager, Mr Laing. The plaintiff denied that the work, which he was undertaking, consisted of placing paperwork and files into boxes in the front office. Rather, the plaintiff maintained that, until he was given the task in the attic, he was performing light duties in the main area behind the two front offices. In response to a suggestion that he did not work in the office, the plaintiff insisted that, on his return to work, he was required to, and did, perform work involving the moving of boxes in the attic area at the North Melbourne premises.
The first defendant called two witnesses in respect of the issue of liability relating to the second incident, Barry Dixon and Jason Laing. Mr Dixon commenced work with the first defendant approximately eight years ago as an occupational health and safety officer. He stated that, in formulating the plaintiff’s return to work plan in September 2007, he relied on the medical reports provided by the plaintiff’s doctor. Mr Dixon adjusted the plaintiff’s work duties to accommodate those limitations. The plaintiff’s return to work was to take place in the North Melbourne office rather than the Dandenong office, in which Mr Dixon worked, because the North Melbourne office was closer to the plaintiff’s home.
In his three reports, which were tendered in evidence, Mr Barrett consistently expressed the view that the plaintiff remained “… clearly unfit to return to work even to light and limited work”. As I have already noted, Mr Barrett considered that the plaintiff’s prognosis was poor. In cross-examination, he said that, even if the plaintiff had the two level fusion recommended by him, he could not guarantee that the plaintiff would get back to even light work. He stated that any work would have to be very light work, and he would not advise such work, particularly because the plaintiff has serious injuries to his two lower discs, which have persisted for a long time. In effect, Mr Barrett considered that, since the second incident (in October 2007), the plaintiff has had, and will continue to have, no residual work capacity.
Mr Brownbill expressed similar, but less pessimistic, views. In his report (dated 7 August 2012), which was tendered in evidence, Mr Brownbill stated that the plaintiff should avoid any activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He said that while, from a physical neurosurgical point of view, the plaintiff may be regarded as capable of attempting work avoiding those actions, in realistic terms, he considered, on probability, that the plaintiff would have difficulty performing work for which he was suited in an ongoing and reliable fashion. In cross-examination, Mr Brownbill stated that he felt that the plaintiff was capable of trying to return to light work, but he was unsure that any such attempt would succeed. In particular, any return to work would have to be under particularly close medical supervision.
In re-examination, Mr Brownbill stated that he did not consider that the plaintiff has a capacity to return to work on a regular basis. While it would be reasonable to try to build up his work, he did not consider the plaintiff would be able to undertake employment in a regular or reliable manner. He might be able to return and do a bit of work, and then go off work for some time whenever his back flared up, and then return to work for some time. However, given the plaintiff’s inability to work in a regular, ongoing fashion, Mr Brownbill did not consider that, realistically, an employer would retain him in his employment for any period of time.
On the other hand, in his three reports, which were tendered in evidence, Mr Dooley expected that the plaintiff would be able to carry out light physical work and clerical duties, such as surveillance monitoring security type of work, shoe repairing, and electronic instrument maintenance. He considered that, for the plaintiff’s own wellbeing, it is imperative that the plaintiff attempt to return to suitable work, and that there was no orthopaedic reason preventing him from doing so.
Dr Rigby expressed the view that, from a psychiatric point of view, the plaintiff is not capable of employment. His level of depression is such that his motivation, level of fatigue, and sleep disturbance would render him not capable of carrying out any employment. Dr Rigby stated that the plaintiff’s good days are so few and far between that he could not anticipate the plaintiff’s depression lifting sufficiently to enable him to carry out any worthwhile work. He said that the plaintiff’s depression is sufficient to prevent the initiation by him of action, the continuation of action, and the completion of tasks. He therefore considered that it would not be practical for a person to employ the plaintiff, except for a very altruistic reason. In cross-examination, Dr Rigby considered that it would be dangerous to encourage the plaintiff to return to work, because the risk of failure could be serious. A premature return to work, resulting in failure, could have a severe impact on the plaintiff.
From the foregoing evidence, it is clear that as a result of the plaintiff’s injury in July 2007, which was exacerbated by the work which he performed with the first defendant at its North Melbourne office in October 2007, the plaintiff has sustained a permanent and severe injury to his lower back. That injury has occasioned, and will continue to occasion, the plaintiff to suffer a significant degree of pain and disability in his day to day life.
It is also clear from the medical evidence that the plaintiff will permanently suffer significant disability and pain as a result of the injury to his lower back. The medical experts differ as to whether an operation would assist to alleviate some of those symptoms, and to reduce the degree of incapacity which the plaintiff currently suffers. However, it was not suggested that the plaintiff’s refusal to undergo such an operation constitutes a failure by him to mitigate his loss. In light of the mixed views of the medical practitioners as to the advisability of such an operation, it could not be said that the plaintiff has acted unreasonably in refusing that course of treatment.
As a result, it is common ground that the plaintiff will suffer significant restriction in his employment capacity. In particular, he will need to avoid activities involving lifting, repeated bending, or prolonged standing or sitting. Even if the plaintiff is careful to abide by those restrictions, the medical evidence satisfies me that he will continue to suffer variable bouts of lower back pain, some of which will be quite debilitating.
In addition, the plaintiff has suffered a significant psychiatric injury, and in particular depression, secondary to his organic pain and disability. Dr Rigby accepted, in cross-examination, that the ongoing litigation involving the plaintiff is impeding the success of psychiatric treatment which might assist to alleviate some of the plaintiff’s symptoms. Indeed, Dr Brophy’s notes reflect an unusual focus by the plaintiff on the current litigation, and on his financial expectations from it. It was not put by the defendants that the plaintiff has been deliberately exaggerating his symptoms, or that he has been endeavouring to exploit his injury to maximise his financial gain from these proceedings. Nevertheless, it is clear that the plaintiff’s focus on this litigation has been unusually significant. Dr Rigby accepted that when the litigation concludes, he would be more hopeful of being able to successfully treat the plaintiff, and to get him to a position where, from a psychological point of view, he might be able to try to return to work.
Based on the evidence which I have summarised, I am satisfied that, since October 2007, the plaintiff’s work capacity has been significantly reduced as a result of the injury which he suffered at the premises of the first defendant in North Melbourne. Nevertheless, I am satisfied that the plaintiff does, and will continue to, retain some residual capacity for gainful employment, albeit on a part time basis performing restricted light duties. Indeed, notwithstanding the more pessimistic views of Dr Andrianakis and Mr Barrett, Mr Moore, realistically, accepted that the plaintiff does, and will continue to, retain some residual income earning capacity. That concession, and my conclusion, is supported by the opinion of Mr Brownbill, who expressed the view that it would be valid for the plaintiff to attempt to return to work, performing restricted light duties, in a situation where he could sit and stand as he wished.
Thus, in assessing the plaintiff’s damages for loss of future earning capacity, I shall take into account that the plaintiff does retain some, albeit limited, capacity for restricted light work on a part time basis. In doing so, and in particular in determining the value to the plaintiff of that residual work capacity, it is necessary to be realistic. Clearly, as Mr Moore pointed out, it would be difficult for the plaintiff to find regular part time light work, with the type of restrictions prescribed by Mr Brownbill and the other medical practitioners. It would also be quite difficult for the plaintiff to be able to retain that employment, with any single employer, on a regular basis, for a particular period of time. On the other hand, as pointed out by Mr Rattray in final address, the plaintiff did have an established work record before his injury in July 2007. He had managed to obtain, and retain, employment with a variety of different employers. In doing so, he obtained a number of licences, to which I have already referred. As I have already remarked, I consider that the plaintiff does have a reasonable intelligence. I am therefore satisfied that the plaintiff does have the ability, with appropriate re-training, to acquire the necessary skills and knowledge to undertake light restricted office work which would comply with his physical restrictions.
Conclusions as to injury caused by second incident of 3 October 2007
As a result of my findings on the issue of liability, it is necessary for me to form conclusions as to the extent to which the exacerbation of the plaintiff’s injury in October 2007, while working at the premises of the first defendant, has contributed to the plaintiff’s injuries.
The principles in such a case are well settled. For the purposes of the present case, they may be stated in the following propositions:
(1)Where, as here, a plaintiff has a pre-existing condition or injury, which predisposed him, or made him more vulnerable, to further injury, a defendant may not avoid liability by contending that the injury to the plaintiff would not have occurred, or would have been less serious, if the plaintiff did not suffer from such a pre-existing condition or injury.[1]
(2)On the other hand, a defendant is only liable for the injury which the defendant has caused to the plaintiff as a result of the defendant’s negligence.
(3)Where – as in this case – the plaintiff has established that he suffered injury because of the negligence of a defendant, the evidential onus shifts to that defendant to introduce evidence that the plaintiff’s condition, or the extent of his condition, was wholly, or partially, the result of the plaintiff’s pre-existing injury or condition. In other words, in this case, the first defendant bore the evidential onus of introducing evidence, whether by evidence in chief or by cross-examination, to “disentangle” the nature and extent of the plaintiff’s pre-existing injury, from the further injury sustained by the plaintiff as a result of the negligence of the first defendant.[2]
(4)Where the first defendant has discharged that evidential onus, it is the plaintiff who bears the legal onus of establishing the nature and extent of the injury and incapacity suffered by him as a consequence of the negligence of the first defendant. In other words, in this case, the plaintiff bore the legal onus to prove, on the balance of probabilities, the extent to which the negligence of the first defendant aggravated the injury, from which he was already suffering before he was required to move boxes at the premises of the first defendant on 3 October 2007.[3]
(5)In assessing damages, and in particular damages for future economic loss, it is necessary to take into account the possibility that, if the defendant had not acted in breach of its duty of care, the plaintiff might, nonetheless, because of his pre-existing condition or predisposition, have suffered an exacerbation of his existing injury, either wholly or partly, in any event. In other words, in assessing damages, it must be taken into account that, because the plaintiff had sustained a prolapse of his lumbo-sacral disc in July 2007, he was, thereafter, vulnerable to exacerbation or deterioration of that injury, even if he had not suffered an aggravation of that injury when working at the premises of the first defendant in October 2007.[4]
[1]Dulieu v White & Sons [1901] 2 KB 669, 679 (Kennedy J).
[2]See Watts v Rake (1960) 108 CLR 158, 160 (Dixon CJ); Purkess v Crittenden (1965) 114 CLR 164, 168-9 (Barwick CJ, Kitto J, Taylor J).
[3]Ibid.
[4]Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, 642-3; Wilson v Peisley (1975) 7 ALR 571, 574-5 (Barwick CJ), Seltsam Pty Ltd v Ghuleb [2005] NSWCA 208, [105]-[107] (Ipp J); Clark v Tieman Industries Pty Ltd [2011] VSC 500, [136]-[139] (Kyrou J).
The question, of the extent of the contribution of the second incident of 3 October 2007, to the plaintiff’s injury and disability, was canvassed in the evidence of a number of the medical practitioners.
In evidence in chief, Dr Brophy stated that the plaintiff’s back injury had been obviously exacerbated by the nature of the duties which he was given in October 2007. In cross-examination, he said that in September 2007 he considered the plaintiff was capable of attempting office duties on limited hours, but there was no guarantee that that trial of light work would be successful. He said that, at that time, the plaintiff was cooperative of the suggestion that he return to work, and he wanted to go back into the workforce. By contrast, after the plaintiff re-injured his back on 7 October, he was quite upset because he had been required to do inappropriate duties. Dr Brophy stated that it was only after the plaintiff had re-injured his back at work that he began to exhibit signs of anxiety and depression. Thus on 13 February, the plaintiff requested to consult a psychiatrist because of his depression.
Mr Barrett, in his report (which was tendered in evidence) stated that he considered that the plaintiff’s history and radiological features clearly demonstrated a deterioration of his lumbar spinal injuries following his return to work in October 2007. In evidence in chief, he stated that the plaintiff’s injury had been initiated by the original incident on 14 July, in which the lumbo-sacral disc was split. That injury to the disc was permanent. The work which the plaintiff carried out on 3 October 2007 made the initial injury worse. In cross-examination, Mr Barrett agreed that once the annulus of the disc was torn, it does not repair. It remains weak and predisposes the plaintiff to ongoing problems. Thus, the plaintiff was vulnerable to further protrusion and future split in the annulus, particularly in performing tasks requiring him to bend forward. Mr Barrett considered that the initial injury (in July 2007) was the major problem. After that incident, his prospects of ever returning to work had been markedly affected. Thus, if the second injury had not occurred (in October 2007), there was a substantial chance that the plaintiff’s injury would have deteriorated in any event. He stated that it was perfectly valid for the plaintiff to have attempted to return to work doing light duties in September 2007. However, the work which he was required to perform, moving the boxes in the attic, was the very type of work which was calculated to occasion him further injury.
In summary, Mr Barrett stated that after July 2007, the plaintiff had a permanent injury, which remained vulnerable to further aggravation. Nevertheless, after that first incident, the plaintiff had retained residual capacity for gainful employment. Mr Barrett considered that the second incident, of October 2007, totally removed the plaintiff’s residual capacity for further employment of any kind.
In his report, Mr Brownbill expressed the view that the work which the plaintiff performed on his return to work in October 2007 caused a deterioration in his condition. In cross-examination, he stated that after the July 2007 injury, the plaintiff had permanent damage to his back. He was likely to have, at the very least, fluctuating levels of lower back pain. He agreed that it was possible that the plaintiff would have further symptoms, and that his condition might deteriorate, with the passage of time. However, the prospects of such a deterioration were considerably magnified if the plaintiff subjected his lower back to higher physical strains. Mr Brownbill agreed that if the plaintiff had not performed the task, in October 2007, of moving the boxes, he might still be in the same physical condition today. However, equally, there was a good chance that he might not have suffered such a deterioration in his condition.
Mr Brownbill agreed (with Mr Casey) that the plaintiff’s evidence, as to his physical condition after he had performed the work in the attic on 3 October 2007, indicated a significant worsening of his condition. The performance by the plaintiff of that work converted an injury, which permitted light work, to an injury, which had prevented him working at all. Mr Brownbill stated that if the incident of October 2007 had not occurred, the plaintiff could have continued with light work, progressively increasing his hours of work, so far as possible. Mr Brownbill suspected that the plaintiff might not have been able to get back to working full time, but it is probable that he would have been able to continue doing part time light work. In re-examination, Mr Brownbill stated that he considered that both incidents, of July 2007 and October 2007, were significant, and that they each equally contributed to the plaintiff’s current condition.
Finally, in his reports, Mr Hunt expressed the opinion that the plaintiff had sustained an exacerbation of his symptoms following his return to work in October 2007. He considered that the work the plaintiff performed at the first defendant’s premises in October 2007 was responsible for the deterioration in his clinical state.
The totality of the evidence, which I have just summarised, establishes, on the balance of probabilities, that the work, which the plaintiff was required to perform in the attic of the first defendant on 3 October 2007, significantly exacerbated the pre-existing injury to his lumbo-sacral disc, and significantly increased the level of pain and disability suffered by the plaintiff. If the injury on 3 October had not occurred, I am satisfied that the plaintiff would have been able to return to working full time, albeit performing light office work, with appropriate restrictions. Certainly, a return to full time light work would not have been guaranteed. However, I am satisfied that, on the balance of probabilities, that if the second incident had not occurred, the plaintiff would have been able to return to, and continue, carrying out part time light office duties, and that he would have been able to increase his hours, and to have maintained full time light work.
In reaching that conclusion, it is important to take into account not only the physical effects of the second injury, but also its psychological impact on the plaintiff. It is clear that the plaintiff was distressed by the fact that, on his return to work in September 2007, he had been required by the first defendant to perform duties, for which he was unsuited, and that he had suffered further injury to his lower back as a result of doing so. It was only after the plaintiff sustained that second injury that he sought psychiatric treatment. Before he sustained that second injury, the plaintiff had been willing to return to work on a part time light work basis, and indeed he appeared to be quite keen to do so. By contrast, after he sustained the second injury, the plaintiff appears to have lost confidence that any return to work by him will be successful.
Taking those matters into account, I am satisfied that, as a result of the second incident, the plaintiff has sustained a substantial impairment of his past and future income earning capacity. As I stated, I am satisfied that if the plaintiff had not sustained injury in the second incident in October 2007, it is likely that he would have been able to build up to, and continue, working on a full time capacity, albeit in light office work. On the other hand, as a result of the second incident the plaintiff has been left with a capacity to do light work part time for limited hours.
In calculating damages to compensate the plaintiff for the loss of income earning capacity occasioned to him as a result of the second incident, it is necessary to take into account that, if the second incident had not occurred, there is a real chance that the plaintiff might have suffered ongoing exacerbations of his lower back injury, which might have interrupted his capacity to continue working on an intermittent basis. I shall also take into account that although, in the absence of the second incident, the plaintiff would probably have increased his hours to full time light work, there is a possibility that he might not have been able to continue working full time throughout the balance of his working life.
Damages for loss of earning capacity
Based on the foregoing, it is appropriate to assess the plaintiff’s past loss of earnings on the basis that, if the second incident had not occurred, the plaintiff would, from October 2007 to the present date, have gradually built up his working capacity, and, after some time, he would have been able to work in full time light restricted office duties.
It is of course not possible to re-construct, in hindsight, how quickly or otherwise the plaintiff would have been able to develop a capacity for full time light work. However, based on the plaintiff’s then condition, it is appropriate to assess this aspect of the plaintiff’s damages on the basis that he would have continued working three days a week, for four hours per day, according to his then return to work program, for a period of two months. In the next six months, the plaintiff would have progressed from that basis to working full time, that is, from working twelve hours per week, to working forty hours per week. Thus, for that period it would be appropriate to assess damages on the basis that the plaintiff would have worked, on average, twenty one hours per week. Thereafter (from June 2008) the plaintiff would have worked full time performing light office duties. In his evidence, Mr Dixon stated that, when the plaintiff returned to work in October 2007, there was an expectation that he would be able to gradually build up his hours with the aim to getting him back to full time light work with the first defendant.
The plaintiff has not adduced any evidence as to the appropriate rate of pay to which he would have been entitled in performing full time light work duties with the first defendant. However, on 13 December 2007 the first defendant made an offer of return to work to the plaintiff. That offer stated that the plaintiff’s rate of pay would be $700.34 per week in accordance with his award. Assuming a tax rate of 20 percent, the plaintiff would, according to that job offer, have been paid $14 net (or $17.50 gross) per hour. I am satisfied that the plaintiff, since October 2007 to the present date, has been totally disabled from returning to work. That disability has been significantly due to the injury to his lower back, but has been compounded by the plaintiff’s ongoing psychiatric state.
In determining the plaintiff’s past loss of earnings, it is appropriate to take into account the fact that, if the second incident had not occurred, the plaintiff would have been vulnerable to intermittent exacerbations of his lower back injury, which might have caused him to cease work, or be off work, for varying periods of time. It is appropriate to discount the plaintiff’s past damages for past loss of earnings, for that factor, by 10 percent.
Taking into account those considerations, I therefore assess the plaintiff’s past loss of earnings as follows:
12 hours multiplied by $14 multiplied by 2 months $1,344 21 hours multiplied by $14 multiplied by 6 months $7,644 40 hours multiplied by $14 multiplied by 4 years 4 months $126,000 Subtotal $134,988 Less 10 percent $13,498 TOTAL $121,490
I calculate the plaintiff’s past loss of superannuation (9 percent of gross wages) as follows:
12 hours multiplied by $17.50 multiplied by 2 months $1,680 21 hours multiplied by $17.50 multiplied by 6 months $9,555 40 hours multiplied by $17.50 multiplied by 4 years 4 months $157,500 Subtotal $168,735 (Gross) Less 10 percent (vicissitudes) $16,873 Subtotal $151,862 (Gross wages) At 9 percent (superannuation rate) Total $13,667 (past loss of superannuation)
I assess the plaintiff’s future loss of earning capacity in the following manner. If the plaintiff had not suffered further injury in the incident on 3 October 2007, he would have continued to work to the age of 65 years. Based on the first defendant’s return to work offer, of 13 December 2007, the appropriate rate of pay to apply is $560 net per week. Because of the aggravation of the plaintiff’s injury as a result of the second incident, the plaintiff will be limited to working approximately one third of each week, on average, on light duties. Thus, the plaintiff’s present net weekly loss would amount to $375. Given the fact that the plaintiff, following July 2007, was susceptible to ongoing exacerbations of his injury, and the fact that, because of the injury he sustained in July 2007, he might not have always been able to secure and retain suitable light work employment, it is appropriate to discount the plaintiff’s claim for loss of future earning capacity by 30 percent to take into account those factors and the usual vicissitudes of life. It is agreed that the appropriate multiplier to the age of 65 years is 720.3. On that basis, I assess the plaintiff’s loss of future earning capacity in the sum of $189,000.
Finally, I assess the plaintiff’s loss of future superannuation as follows. If the plaintiff had not been injured in the second incident in October 2007, he would have continued to earn at the rate of $700.34 gross per week. He would have continued to work to the age of 65 years. As I stated, I am satisfied that, following the second incident in October 2007, the plaintiff will be only able to work for about 30 percent of a full week on average. Again I shall apply a discount of 30 percent for vicissitudes (taking into account the plaintiff’s vulnerability to further lower back injury arising out of the incident in July 2007). On that basis, I calculate that the plaintiff’s claim for loss of future superannuation would be assessed in the sum of $31,780.
Thus I assess the plaintiff’s pecuniary loss damages as follows:
Past loss of earning capacity $121,490 Past loss of superannuation entitlements $13,667 Loss of future earning capacity $189,000 Loss of future superannuation entitlements $31,780 Total pecuniary loss damages $355,937
To that figure, it will be necessary for the parties to add an appropriate figure for Fox v Wood[5] damages. As discussed with counsel in final address, I shall leave it to the parties to calculate the amount of those damages, based on my findings relating to past loss of earning capacity.
[5](1981) 148 CLR 438.
General damages
I assess the plaintiff’s general damages for pain, suffering and loss of enjoyment of life on the basis that as a result of the negligence of the first defendant, and in consequence of the injuries, which the plaintiff sustained in the second incident on 3 October 2007, the plaintiff has suffered a substantial aggravation of his earlier injury to his lower back. As I have found, that aggravation has had the result that the plaintiff’s future income earning capacity has been substantially impaired. Instead of being able to undertake full time light office work, the plaintiff will be, permanently, restricted to performing that work for a limited number of hours. As such the plaintiff will be deprived of the normal fulfilment of being able to work full time in a useful income earning capacity. Equally, as a result of the aggravation of the plaintiff’s injury in October 2007, the plaintiff has suffered, and will continue to suffer, substantially more pain than that to which he would have been subject otherwise. If the incident of 3 October 2007 had not occurred, the plaintiff would have been subjected to intermittent bouts of lower back pain, and no doubt he would have suffered, on an ongoing basis, stiffness and restriction of his lower back. However, since the second incident, the plaintiff has suffered ongoing pain, for which he has needed to have prescribed substantial analgesic medication. Furthermore, the plaintiff’s ongoing pain and disability, and the medication which he has been taking for it, have significantly restricted, and will continue to significantly restrict, the plaintiff’s enjoyment of his life. While the plaintiff would not have been able to lead a pain free, or restriction free, life, if the incident of October 2007 had not occurred, his level of pain and restriction has been substantially increased as a result of that incident.
In addition, as a consequence of the incident of October 2007, and the injury which the plaintiff sustained arising from it, the plaintiff has suffered a substantial psychiatric reaction which is secondary to his physical condition. There appears to have been no sign of any such reaction before the plaintiff attempted to return to work with the first defendant in late September 2006. On the contrary, according to Dr Brophy, the plaintiff was willing to return to work, and he was cooperative in the efforts to get him back into the workforce. The plaintiff was significantly aggrieved as a result of being required to perform duties for which he was quite unsuited, and as a consequence of sustaining injuries arising out of the performance by him of those duties. As Dr Brophy stated, it was as a result of those factors that the plaintiff became depressed, and required to consult a psychiatrist.
Based on those considerations, I assess the plaintiff’s general damages, for past and future pain, suffering and loss of enjoyment of life, arising from the injuries which the plaintiff sustained in consequence of the negligence of the first defendant on 3 October 2007, in the sum of $150,000.
Summary of conclusions
For the reasons which I have set out in this judgment, I have reached the following conclusions:
(1)I am not satisfied that there was negligence or breach of statutory duty by the first defendant or the second defendant, which caused injury to the plaintiff on 14 July 2007.
(2)I am satisfied that there was negligence by the first defendant, which caused injury to the plaintiff on 3 October 2007.
(3)I am not satisfied there was any contributory negligence by the plaintiff in respect of the injury which he sustained on 3 October 2007.
(4)I assess the plaintiff’s damages against the first defendant, in respect of the injuries which he sustained on 3 October 2007 as follows:
(a) Pecuniary loss damages $356,000 To that figure it will be necessary to add an appropriate amount for Fox v Wood damages, which are to be calculated by the parties.
(b) Pain and suffering damages $150,000
I shall hear from the parties in relation to the amount (if any) of compensation, paid under the Accident Compensation Act 1985, which must be deducted from the award of damages for pecuniary loss damages, and as to the amount of interest to be awarded to the plaintiff in respect of his claim against the first defendant.