Pritchard v Port Waratah Coal Services Ltd

[1999] NSWSC 1161

CITATION:	Pritchard v Port Waratah Coal Services Ltd [1999] NSWSC 1161
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	300146/96
HEARING DATE(S):	20/10/99, 21/10/99,25/10/99
JUDGMENT DATE:	1 December 1999
PARTIES :	Grant Barrie Pritchard (Plt) Port Waratah Coal Services (Def)
JUDGMENT OF:	Newman J

COUNSEL :	C R Callaway QC/P J Kirby (Plt) S J Harben (Def)
SOLICITORS:	Bale Boshev & Associates (Plt) Sparke Helmore (Def)
CATCHWORDS:
DECISION:	Judgment for the plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN J

WEDNESDAY, 1 DECEMBER 1999

NEWCASTLE: 146/96: PRITCHARD v PORT WARATAH COAL SERVICES LTD

JUDGMENT

1    HIS HONOUR: This is a claim for damages for personal injuries brought by the plaintiff who was at the time of an alleged incident, an employee of the defendant. While the plaintiff’s case is primarily based upon an allegation that the subject accident occurred because the system of work in which he was engaged was unsafe because a motor vehicle was involved in the incident, the case falls within the purview of the Motor Accidents Act 1988 as amended.

2    The subject accident is alleged to have occurred on Saturday, 3 July 1993 at about 1.30 pm. At that time the plaintiff was employed by the defendant as a plant operator. His duties involved driving machinery operated by the defendant including frontend loaders, fork lifts and similar devices.

3    On Saturday, 3 July 1993 the plaintiff was directed by his supervisor, who apparently was a Mr Selby Green, to assist a fellow plant operator, a Mr Leonard Marks, to pick up scrap material from the defendant’s yard. That scrap material consisted of off-cuts from machinery upgrades and included steel pipes, flat steel plate, angle iron, girders and rollers. To perform the task a Hiab crane truck was utilised.

4    Marks was driving the crane and the plaintiff was acting as a crane chaser. The truck itself was of the type known as a flat bed truck and the crane was mounted on its rear. As may be gained from the description of the metallic objects to be picked up they were irregular in shape.

5    The operation being carried out consisted of the truck being driven around the yard and the crane being utilised to lift the metallic objects on to the bed of the truck. To prevent the off-cuts sliding off the truck when it was in motion, steel bars were placed around the side of the truck - it being a flat bed truck it had no sides around its tray. From time to time the truck would drive alongside bins which were located in the yard and the metallic objects were hooked to the crane by the plaintiff after which Marks would operate the crane to deposit the scrap metal into the bins. When the scrap metal had been placed in the bin the plaintiff would then unhook the crane and the process of picking up and loading the truck would recommence.

6    It was the plaintiff’s case that the following method was employed to move the scrap metal from the body of the truck into the bin. The plaintiff would stand on the flat bed and hook the chains which were underneath the pieces of scrap metal to the crane. The plaintiff alleged that he was standing in a position on the truck’s bed where Marks could see him. The crane would then be operated so that initially the weight of the load would be taken up by the crane and when it appeared to be secure then the crane would be operated to lift the load from the bed of the truck into the skip.

7    On one such occasion the plaintiff deposed that the following occurred:

“Q. And as he proceeded to lift, what happened?
A. Well, as he proceeded to lift, the load underneath started to slide - the pipe must have been holding it in place. As he had taken the heavy weights off, the sheets beneath started to slide and slid towards me. I thought I was going to have my foot crushed, so I jumped off the back of the truck.”

8    In jumping off the side of the truck the plaintiff landed in a manner which he described as doing the splits. He immediately felt a pain in his left groin. However, as the shift which he was working was nearing an end the plaintiff decided to complete the shift. He said nothing to Marks at the time when the incident occurred about any injury occurring to him but at the completion of the shift he discussed the matter with Marks while they were heading to the showers.

9    Marks’ account of the events of the afternoon of 3 July was not inconsistent with that of the plaintiff. In chief Marks had this to say about the observation he made of the plaintiff while the plaintiff was on the truck:

“Q. But until he got off the truck would it be necessary for you to watch him?
A. Oh, he could be out of my sight around the other side of the truck.
Q. That is when he was off the truck?
A. Yeah.
Q. I am talking about until he got off the truck, was it necessary for you to watch him?
A. Oh, not really necessary. I’d be just watching the - not really, no, once everything was hooked up and right.
Q. Well, what happened after it was hooked up and you commenced to lift the load?
A. What happens?
Q. Yes?
A. Well, I’d just slew it off the truck and around into the bin.
Q. When would you do that in relation to where Mr Pritchard was?
A. Well, all depends. If you had a load that was swinging around the crane chaser could get on the same side as me on the truck and just guide it off the truck, or otherwise, if it was just a small load, he’d just get down off the truck into a safe spot where I could see him and then I’d slew it off into the bin.”

10    Marks recalled that the plaintiff had told him when they were heading towards the showers that he had hurt his groin when he had jumped off the truck.

11    In these circumstances, despite a challenge being made to the plaintiff’s evidence on the basis that the accident did not occur on that day, I accept the version given by the plaintiff.

12    Expert reports were tendered on behalf of both the plaintiff and the defendant. Dr Adams, an ergonomic and safety expert, expressed the view that the risk of part of an oddly associated load of the type involved here, moving as it was being lifted, was a possibility which should have been anticipated by the defendant.

13    He pointed to a number of preventative measures which he thought could reasonably have been put in place. These included:

1. The use of two trucks, namely the one which was utilised and a tip truck. The crane on the flat bed truck being used to lift scrap metal off the yard directly into the tip truck thus obviating the need to unload the material into skips as the tip truck, when full, could be driven to a dump.

2. That Marks and the plaintiff should have been directed to carry out their tasks in several stages so that only similar items would be picked up and unloaded during each complete stage.

3. That sufficient chains and cables should have been provided so that the bundle of scrap could be so lashed that the load would have been less likely to slide.

14    Dr Adams also made comments about the observations which Marks should have made while driving the crane. However, I need not go into those.

15    Dr Olsen, another expert in the same field as Dr Adams, had been given a somewhat different version of events. However, he concluded as follows:

“If the version given by Dr Adams is correct in that the crane driver elevated the load whilst the crane chaser remained on the back of the truck, then there was an unsafe system of work. This would be so on the basis that the load shifting can occur and given the relatively confined area on the rear of the truck, it is better safety practice for the crane chaser to get off the truck prior to actually lifting the load.”

16    Accepting as I do the version given by the plaintiff it is plain in my view, that the system of work being utilised on the day in question was unsafe. Because it is my view that the plaintiff suffered injury in the accident I am thus driven to the conclusion that the plaintiff has succeeded in establishing that the defendant was in breach of his duty to take reasonable care for his safety and the plaintiff is entitled to judgment in the matter.

17    The plaintiff’s case was that the injury he had suffered was one to his adductor longus tendon and his symphysis pubis as a result of the accident. There is in fact little dispute that the plaintiff suffered such an injury.

18    Dr R Opie, general surgeon, described his injury in these terms:

“Mr Pritchard’s accident on 3/7/1993 caused a tear and possibly a partial avulsion of the adductor longus tendon at its attachment to the pubis.”

19    The issue which emerged was not that the plaintiff had such an injury but in the light of his activities as a soccer player whether the disability he undoubtedly suffers is related to the accident of 3 July 1993 or to his sporting activities.

20    I should add that the plaintiff also suffers from a condition of plantar fasciitis which has been brought about by the plaintiff favouring his right leg over his left as a consequence of his groin injury.

21    I then turn to the plaintiff’s post injury activities. Evidence was led from him, in chief, that he continued on at work after the accident and indeed played soccer on a reasonably regular basis in 1993, 1994 and 1995. He denied suffering any frank injury to his groin while playing soccer either before or after the incident on 3 July 1993.

22    His case was that he expected that the injury would resolve in time and that he continued as far as possible to carry out normal activities. However, as time went by his injury not only did not improve but deteriorated.

23    While he returned to work on Monday 5 July 1993 he in fact saw a general practitioner, Dr Kochanski on 6 July 1993 who, while not making a specific diagnosis of the exact nature of the plaintiff’s injury, put him off work for two weeks and directed that he have physiotherapy. The plaintiff undertook such treatment.

24    He returned to work on 19 July 1993 on restricted duties. He continued to work until October 1994 when following another incident at work in which he injured his right elbow and shoulder. He was off work for some three months. This, of course, is totally unrelated to the injury under review.

25    However, when he returned to duties in February 1995 he continued this time carrying out, as I understand his evidence, normal duties but with persistent pain in his groin.

26    In November 1995 there was a substantial exacerbation of that pain which arose as a result of no particular incident. However, he, as a result in a change in his duties in early 1995 that is after his return from his shoulder and arm injury, he was required to climb on to the top of large items of equipment. One such item known as a stacker required him to climb, by utilising a combination of stairs and ladders, about ten flights, taking him about 100 feet from the ground. Similar climbing was involved when he had to work on an item of equipment known as a reclaimer.

27    He observed that the climbing caused an increase in the pain in his groin. Following the exacerbation in mid 1995 he had been referred to an orthopaedic surgeon, Dr P Mitchell who diagnosed the adductor longus tendon injury plus the symphysis pubic damage.

28    As time went by the pain caused the plaintiff to miss time from work so much so that by letter dated 25 March 1998 the defendant company wrote to him advising him that his absenteeism was unacceptable.

29    By July 1999 the plaintiff found it impossible to continue his duties and indeed his general practitioner certified that he was unfit for his duties. As I have indicated earlier there is no dispute that the plaintiff is unfit for his pre-injury duties.

30    Dr M Tarrant who saw the plaintiff on behalf of the defendant, while acknowledging the existence of the plaintiff’s injury, was somewhat suspicious as to the aetiology of the injury having regard to his sporting endeavours in 1993 through to 1995.

31    Dr R Opie, who had originally opined on 7 May 1998 that the plaintiff’s prognosis for a full recovery was doubtful and that his condition was caused by the incident on 3 July 1993, felt, when advised of the plaintiff’s soccer playing activities from 1993 through to 1995, that he had made a full recovery from his injuries and that it was no longer possible to ascribe his present condition to the episode of 3 July 1993.

32    Dr Mitchell, who has been his treating specialist, has suggested that surgery may be of assistance to him although the plaintiff has indicated to Dr Mitchell that he is not agreeable to surgical intervention. Dr Mitchell is of the view that the plaintiff is now fit only for sedentary work.

33    Ex facie the fact that the plaintiff played soccer for some two years after the episode of 3 July 1993 is a matter which could give rise to suspicion as to whether his present disability is in fact related to his work injury of July 1993.

34    While it is true that the plaintiff did not disclose the full nature of his soccer playing activities to Dr Opie when he saw him I accept the plaintiff’s explanation that as it was not directly raised he did not mention it.

35    I accept the plaintiff’s evidence that he accepted advice given to him by a Dr Hicks that the matter might resolve and advice to him by a physiotherapist that he should not keep himself in cotton wool.

36    In short, on balance, I am of the view that the plaintiff’s present disabilities are in fact related to his injury of 3 July 1993 and that he has done his best to persist with work and carry on as far as he could, a normal life following the work incident which included playing soccer.

37    In the absence of any evidence of any frank injury while playing soccer I do not find that his soccer playing is causative of his present condition. I thus find that the plaintiff did suffer damage to his adductor longus tendon on 3 July 1993 and as a consequence of that injury has missed time from work and also has not been able to work as much overtime as he otherwise would have due to his injury. Since 28 July 1999 the plaintiff’s condition is such that he is now fit only for sedentary employment.

38    The plaintiff is now aged forty-one having been born on 1 August 1958.

39    Prior to commencing employment with the defendant in June 1987 he had worked in a variety of occupations including work as a spare parts salesman, a crane driver and marking lines on roads and car parks. Accordingly, the effects of his injury will therefore cause him grave difficulties in obtaining suitable work as he has no clerical experience.

40    His sporting activities will be circumscribed as a consequence of the injury - albeit it is doubtful that at the age of forty-one his soccer playing would have continued in any event. He still is, as I would understand his evidence, able to play the occasional game of golf.

41 Pursuant to s 79 of the New South Wales Motor Accidents Act I am required to assess his damages for non-economic loss on the basis of a percentage of the most extreme case. Having regard to his age and the continuing and indeed permanent effects as I would find them, of his injury, I am of the view that I should assess his damage for non-economic loss on the basis of 35% of the most extreme case which quantifies at $95,550.

42    Out-of-pocket expenses have been agreed in the sum of $12,280.75 and I thus award him this amount.

43    I turn then to the question of past economic loss. Two employees of the defendant, namely Messrs Mullington and Cheetham were advanced as being comparable earners to the plaintiff. Taking the mean of their average weekly earnings to 28 July 1999 as against the earnings of the plaintiff, a loss of $82,173 emerges for the period from 3 July 1993 to 28 July 1999, the date when the plaintiff ceased work.

44    While, as I understand the matter, he is still technically employed by the defendant there seems to be, on the evidence, no prospect that he will return to the defendant’s employ because there are no duties of a sedentary type available to him. I am of the view that the plaintiff, having regard to the extent of his injury, should be regarded as being totally incapacitated from 28 July 1999 to the last day of the trial, namely 25 October 1999. That gives rise to a further loss of $14,508. Accordingly, adding that figure to the one previously mentioned, the sum of $96,681 emerges.

45    I turn then to the question of future economic loss. The plaintiff is now, as I have said, fit only for sedentary work. I should add that the plaintiff acknowledges that he has a capacity for work. As I understand the parties, they have agreed that suitable work in a sedentary capacity would result in the plaintiff being able to earn, as an operator grade 2, the sum of $566 per week. It seems to me that having regard to the mean earnings of Cheetham and Mullington at $1,116 per week it is appropriate to assess the plaintiff as suffering from a present economic loss of $500 per week. Using a multiplier 733.7 as being appropriate to his age when utilising the 5% tables it gives rise to a raw figure of $366,850. After deducting 15% for vicissitudes a final figure of $311,822.50 emerges.

46    I thus tabulate my findings as to damages as follows:

Out-of-pocket expenses 12,280.75
Past wage loss 96,681.00
Future economic loss 311,822.50
Damages for non-economic loss 95,550.00
516,334.25

47    I shall defer formally entering a judgment and the making of any orders as to costs or interest (should such be allowable) until after the delivery of these reasons.

Last Modified: 12/03/1999