Rayner v Brisbane City Council
[2016] QDC 100
•4 May 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Rayner v Brisbane City Council [2016] QDC 100
PARTIES:
CHRISTOPHER DAVID RAYNER
(plaintiff)
v
BRISBANE CITY COUNCIL
(defendant)
FILE NO/S:
2325 of 2011
DIVISION:
Trial
PROCEEDING:
Claim
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
4 May 2016
DELIVERED AT:
District Court at Brisbane
HEARING DATE:
14-16 September 2015
JUDGE:
CLARE SC DCJ
ORDER:
Judgment is for the Defendant
CATCHWORDS:
TORTS _ NEGLIGENCE – REQUIREMENTS FOR CLAIM OF NEGLIGENCE_ DUTY OF CARE- EMPLOYER AND EMPLOYEE – where driver claims he injured his neck twisting his body to look to the back of the bus – whether defendant liable for plaintiff’s injury – if so quantum of damages
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation[1983] 1 NSWLR 22
Hamilton v Nuroof (WA) Pty Ltd (1956-57) 96 CLR 18
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
R v Birks (1990) 19 NSWLR 677
Romeo v Conservation Commission of the Northern Territory (1997-98) 192 CLR 431
Smith v Advanced Electrics P/L [2005]1 Qd R 65
Wyong Shire Council v Shirt (1980) 146 CLR 40
COUNSEL:
GJ Cross for the plaintiff
MX Kehoe for the defendant
SOLICITORS:
Patinos Lawyers for the plaintiff
Brisbane City Legal Practice for the defendant
Introduction
This is an action for damages for negligence. Both liability and quantum are in dispute. Mr Rayner, the plaintiff, was a bus driver employed by the Brisbane City Council, the defendant. He was injured during the course of his employment on 13 May 2009 when he turned his neck to the left, while driving a bus. Clearly the defendant owed the plaintiff a duty to exercise reasonable care. The plaintiff contends the defendant breached its duty by failing to provide adequate training and a safe system of work. The defendant submits there was no causal link between any alleged breach of duty and the injury suffered. The conclusion of this court is that the evidence does not support the claim. For the reasons set out below, the defendant is not liable to compensate the plaintiff for his injury.
Common ground
It is common ground that at the relevant time the plaintiff was driving an A-type MAN 18.31 Volgren bus. The driver’s seat was an ISRI swivel seat, operated by the press of a button on the side. Swivel seats were introduced to reduce the need for drivers to turn their necks. The plaintiff had not swivelled his seat when he injured his neck by turning. The defendant admits that the plaintiff should have been trained in the use of the ISRI swivel. The applicable duty of care was under the common law. [1].
[1]While the pleadings also assert a breach of statutory duty, it was accepted that the amendments to Part 8 Chapter 5 of the Workers Compensations and Rehabilitation Act 2005 have no application because they postdate the incident.
The attack upon the plaintiff’s credit focused upon variations in his account of the event, the extent of his pre-existing injury, inaccuracies in his report of the medical history for his job applications and omission of relevant history to the investigating doctors.
The plaintiff was 52 years old at the time of the event. He now suffers a prolapsed disc and a significant level of impairment. There was a prior history of cervical spondylosis. A series of work related injuries to the neck date back to 1999 when the plaintiff was a glazier. In 2006 he moved to bus driving as a less strenuous occupation. He obtained a position with the defendant in 2008. He reported the injury in May 2009 and later attempted a return to duties but was ultimately terminated as unfit. He has not worked since.
The Plaintiff’s Evidence of the Event
The plaintiff testified to a commotion towards the middle and back of the bus. “I could see in the rear view mirror and here they were having a quite intense argument”. He said young people were “arguing and screaming at each other” in an “intense argument” with hand gestures.[2] It was noisy with a busy main road, air conditioning and lot of passengers. Mr Rayner pulled up at a bus stop for an elderly couple with a walking frame. His said:
“I thought I needed to sort it out before I – well, as I got to the bus stop. I pulled up. I applied the airbrake. And then I opened the door and …pushed the kneel position which… rolls the bus floor down. And then I reached over to use the swivel seat but it wasn’t there. And then I quickly turned to my left, and I turned rather suddenly and right around to the back to just review the passengers to get them to move up a bit….because there was a group of passengers that were just standing waiting to get off the bus, and I told them to move back. But before then …I’d told the passengers at the back would they please shut up…”[3]
[2]Transcript day 1, pp 20, 21 line 5, Rayner.
[3]Transcript day 1, p 21 line 27, (emphasis added) Rayner.
He described how he moved while still wearing the seat belt:
“I moved forward the upper trunk of my body, and at the same time I twisted leftward, right the way around and followed with my head, and as I got right to the end, I felt and heard a audible click in my neck and immediate onset of pain that went down my right hand side through my shoulder and into my hands.”[4] He said his movement was sudden. “It was sudden, because I only seconds to – only had – virtually had seconds. And I went down for the swivel seat, leaned forward, & quickly turned around to look on the rear…and it was a sudden movement”[5]
[4] Transcript day 1, p 22 line 30, Mr Rayner.
[5]Transcript day 1, p 23 line 42, Mr Rayner.
Before he was excused he was asked about the suddenness of his turn. “I knew there was some urgency because of the time – time when I applied the handbrake and I put the kneel position down. By then, the elderly couple had been to embark on the bus, and I reached down to see the swivel seat and the I quickly – I realised that it didn’t – it wasn’t there, and then I quickly turned around, suddenly putting my trunk of my body forward and turning around, because there was some urgency about talking to the people and moving them down, because the elderly couple had already got onto the bus”.[6] But when asked why he had opened the door to the elderly couple before sorting out the disturbance, he hesitated before saying he did not think he needed to sort it out first. Then; “The only reason for that is because there were an elderly couple and …it’s a passenger service. You don’t just leave an elderly couple standing on the side of the road staring at a bus with the doors closed. They might think you’re not stopping. They might think you’ve gone. My first and foremost thing is to the elderly people on the bus. What could be sorted out at the rear of the bus could be sorted out, but it had to be done quickly…BC’s training …that the customers come first.”[7]
[6]Transcript day 2, p 37, Mr Rayner.
[7]Transcript day 2, p 38, Mr Rayner.
The plaintiff attested to a practice of using the swivel mechanism to turn. He said he used it every time he looked to the back of the bus which could be from once a month to once a week. The incident however happened two weeks after he had transferred to a new depot, with a different type of bus and a different type of swivel seat. He had not been trained in the use of the swivel mechanism.
Plaintiff’s Earlier Statements
The plaintiff was cross examined about previous accounts he had given. At different times he claimed to have turned to tell students to vacate seats or to tell passengers to move. For example, he told Dr Coroneos: “turned body to look to left to tell passengers to move, let elderly people moving into bus”.[8] The plaintiff told Intersafe investigators a group of “rowdy” passengers were misbehaving and “excitedly pushing each other around” in the front of the aisle,[9] whereas the Statement of Claim referred to misbehaving passengers at the rear of the bus. The plaintiff’s testimony put the aggressive passengers at the back of the bus, and ahead of another group of passengers waiting to get off.
[8]Transcript day 1, p 80, Coroneos.
[9]Exhibit 8, Intersafe report, fig 1.
Exhibit 17 is the defendant’s record of accounts given directly to officers of the defendant. The plaintiff first reported the matter to Tom Milovich 50 minutes after its occurrence. An Incident Report was written up. The plaintiff accepted that Mr Milovich had written down what the plaintiff had told him. The note of the precipitous event was simply: “stop at Annerly junction, turn my head to the left hand side to tell students to vacate seat, heard and click in lower left on neck…”.[10] The plaintiff had signed below that notation. There was no challenge to the accuracy of the note. The plaintiff appeared to agree that he had told Mr Milovich that the students were sitting in the seats reserved for infirm passengers.[11] He was cross examined about the absence of any reference to rowdy passengers or a sharp or sudden turn. He did not claim to have mentioned those matters to Mr Milovich.[12] It was unclear under cross-examination whether he adopted the truth of what he told Mr Milovich, or whether the students in the seats were in addition to the two lots of passengers described in his evidence in chief. Therefore, over time the plaintiff had separately described three quite distinct groups doing very different things, and he had indicated the same general area at the front of the bus for each group[13] without mentioning any interaction between them.
[10]Exhibit 17, emphasis added.
[11]Transcript day 1, p 35, Rayner.
[12]1, p 33, Rayner.
[13]Until the pleadings and his testimony put the rowdy passengers at the back.
The second part of Exhibit 17 concerned the investigation of Mr Ferguson. He questioned the plaintiff a week after the event, on 20 May 2009. His note of the interview with the plaintiff was: “conducted re-enactment with B/O Rayner and found he was not “swivelling” his seat to talk to passengers on board of his bus. Advised and recommended that he should always swivel the driver seat if he was to talk to passengers behind him on the bus. B/O Rayner “agreed” to the recommendation and will do so in the future”.[14] Those matters recorded by Mr Ferguson were not challenged.[15] However, there were conflicting versions about something else the plaintiff had said which was not in the report. Mr Ferguson testified that after the plaintiff told him he had turned his head to talk to students, Mr Ferguson explained the seat had the capacity to swivel. The plaintiff had then replied that he did not think of turning the seat.[16] The plaintiff’s evidence was the opposite. He denied making that comment. He testified that when Mr Ferguson had asked about the swivel seat “I basically told him I didn’t use it…I didn’t know where it was…I had no awareness of it. I said I reached my hand down but it wasn’t there. Couldn’t find it”.[17] “I said the first thing I did is reach down to…grab hold of the swivel seat that I’m accustomed to in the butter boxes”.[18] The plaintiff’s version was put to Mr Ferguson in cross examination, 6 ½ years after the conversation. Mr Ferguson accepted that it was possible the plaintiff had said he did not know where the switch was, but Mr Ferguson did not recall the plaintiff saying he did not know how to use it. Mr Ferguson affirmed his memory was the plaintiff saying he did not think to use the seat.[19] Mr Ferguson appeared to be an honest witness. He had recounted the plaintiff’s comment in a statement given 17 months after the incident, but he was criticised for leaving it out of the workplace report. The impact of that argument against Mr Ferguson’s credibility was blunted by the late emergence of the plaintiff’s own competing version of the conversation. It was not pleaded in either in the Statement of Claim, the Amended Statement of Claim, or even in the Reply after Mr Ferguson’s account had been pleaded in the Defence.[20] The omission was not limited to the conversation after the event. The actual claim of reaching for the swivel before turning does not appear in the pleadings or any of the exhibits. It was opened by the plaintiff’s counsel. Nonetheless, as the plaintiff was not cross examined about it, I place no weight upon either the late claim of reaching for swivel, or the late claim that Mr Ferguson was told about it.
[14]Exhibit 17, p 8.
[15]I note that some words overlay whiteout, but it seems nothing turns on this. From what may be read through the paper the changes are of no moment e.g. it appears “swivelling” is written over “turning”. There was no suggestion of tampering or falsification of the document.
[16]T3 .32.
[17]Transcript day 1, p 6, line 40, Rayner.
[18]Transcript day 1, p27, Rayner.
[19]3.37 Ferguson.
[20]Para 4 [vii] of the Defence pleaded that the plaintiff had told Mr Ferguson that he had not thought to use the swivel”.
On the other hand the court may fairly refer to the record made at about the time of the conversation, the Workplace Investigative Report. The accuracy of the notations made by Mr Ferguson was not contested beyond the omission of the contested comment, so they should be considered when assessing the credibility of the competing claims about that missing comment. The notes are more consistent with Mr Ferguson’s account than that of the plaintiff. The recorded finding that the plaintiff was “not ‘swivelling’ his seat to talk to passengers” suggests Mr Ferguson found that this was not a one off incident but a reflection of the plaintiff’s personal practice. The suggestion is reinforced by the noted advice, recommendation and agreement that Mr Rayner was to use the swivel seat. Page 6 of the investigation report has a section on Training. Mr Ferguson had ticked “inadequate knowledge of hazards”. He did not select the first option, “inadequate training/skills/levels”. He listed the “possible contributing factors relating to training” as “moving head and body rather than swivelling driver seat”. While those notes would make sense in the context of an admission by the plaintiff of a clear omission, they are inconsistent with the reporting of an unsuccessful attempt, or an inability, to use the swivel. I prefer Mr Ferguson’s evidence of their conversation to that of the plaintiff. The plaintiff’s admission to Mr Ferguson is a direct contradiction of the plaintiff’s testimony of attempting to use the swivel seat.
The plaintiff has also been inconsistent is his account of the turning movement. His case at trial was that it was quick or sudden. That was his evidence and part of his description to some of the doctors. It was consistent with the pleadings. The Statement of Claim filed on 29 June 2011 pleaded that the plaintiff “lent forward and turned his head sharply”.[21] But on 10 September 2012 the plaintiff told a safety engineer preparing a court report it was a “slow and steady movement”.[22] The description was noted in the Intersafe Report. When cross examined about it, the plaintiff equivocated: he may have said it to Mr McDougal or it may have been misconstrued; he did say it by mistake; or he never said that to anyone. Ultimately he seemed to accept he said it.[23]
Issues of General Credit
[21]Emphasis added.
[22]Emphasis added.
[23]Transcript 1, pp 37-38, Rayner.
The plaintiff had been persistently unreliable in various applications for employment with the defendant. He had applied in 2006, 2007 and 2008. Each time he filled out a health questionnaire which asked “Do you or have you EVER suffered from any of the following” (original emphasis) list of health conditions. On every application the plaintiff ticked “no” to neck pain or back pain, and maintained those answers during each interview. Under cross-examination he accepted a proposition that he abandoned the first two applications because his history of neck and back injury was discovered. Such proposition however was contrary to the defendant’s own records. In re-examination the plaintiff was taken to the application documents which noted the plaintiff had abandoned the first application in the face of protracted medical testing and investigation into his cardiac history, and he had abandoned the second application after he was questioned about discrepancies in his answers about his health. When his history of diabetes was raised he withdrew the second application saying he wished to avoid another series of expensive tests. There was no record suggesting the defendant had any knowledge of a pre-existing neck or back injury. The cross examination was therefore misconceived, but the plaintiff’s erroneous concession has some significance. It reinforced an impression of suggestibility for the plaintiff.
The plaintiff maintained that his failure to disclose back or neck pain was an honest mistake. The form referred to “back pain, sciatica, lumbago, slipped disc”, and “neck pain, whiplash”. He said he was given no real time to fill out the form and he must have read the line as inclusive, that is, as meaning only neck pain from whiplash.[24] Applying the same reasoning he must have made the same mistake with the three variants listed after back pain. Yet in the line above, listing “arthritis, gout, rheumatism,” he had acknowledged gout, but neither of the other two conditions.
[24]Transcript day 1, pp 35 and 39, Rayner.
Analysis of the application records reveals a broader pattern of false denials. In the 2007 application the plaintiff wrongly denied previous medical testing with the Council. He also denied health conditions that he had acknowledged in the 2006 application. The discrepancies were the subject of a memorandum by Brenda Kirkwood in October 2007. She made some corrections to his 2007 form. According to a file note, after Ms Kirkwood counselled the plaintiff about the importance of truthful reporting, he disclosed that he had had diabetes for two years. That would mean that his denial of diabetes in the 2006 application, 10 months earlier, was untrue. In 2007 he told Ms Kirkwood he had quit smoking 5 to 6 years earlier. Yet in the 2008 application he indicated he had maintained a 10 year habit until 2008.
The irresistible conclusion is that through the course of the three applications, the plaintiff made multiple false representations about his medical history in order to secure employment. Despite having suffered three major injuries in the seven years before his first application he had consistently failed to mention any of those matters in any of the questionnaires, interviews or examinations. The concealment of the history of neck injury was probably deliberate.
The Medical History
In the decade preceding the incident, the plaintiff had suffered a number of substantial injuries to his neck. He said his neck had “been aggravated a couple of times but it’s always got better”.[25] While many of the medical records were not available, information could be pieced together from documents. The three worst injuries were in the course of his previous employment as a glazier. In 1999 he fell off a roof and was unable to work for five months. A permanent impairment of the cervical spine was then assessed at 7%. While there was cause to take an MRI scan a year after that accident, the plaintiff testified that the true ongoing problem was residual bruising and carpal tunnel syndrome. In 2003 the plaintiff had 6 months off work. His worker’s compensation application was assessed by a neurosurgeon. He was referred to an orthopaedic surgeon, Dr Keays, for “ongoing and intermittent problems with (his) neck”. In a report of January 2004 Dr Keays diagnosed “foraminal compression of degenerative origin with significant degenerative changes”. There was another work accident later in 2004 when the plaintiff was hacking out putty from a window. Again he was off work for four or five months. The assessment was a musculoligmanetous strain, with 2.5% impairment from the new accident, in the presence of pre-existing degeneration. An MRI scan of the neck in December 2004 showed disc ostephyte. The plaintiff was told he should avoid heavy labour and he gave up glazing.
[25]Transcript day 1, p 53, Rayner.
A report from Dr Stephenson on 23 March 2005 noted a complaint of symptoms in the plaintiff’s neck, with radiation down his right arm. In July 2007 the plaintiff sought medical treatment after home insulation work. He reported pain in his right shoulder, forearm and fingers and was referred to a neurosurgeon by general practioner, Dr Katri. Dr Katri’s referral indicated he had sent the plaintiff for X-ray a few years earlier. He referred to “old problem of spondylosis”. Neurologists then referred the plaintiff to the Princess Alexandra Hospital Spinal Surgery Unit for specialist evaluation. In August 2007 he completed a pain chart recording neck and back pain. He was placed on the waiting list for appointments with the spinal unit. In October 2007 Dr Fordyce, general practitioner, recorded a complaint of right sided sciatic to the lumbar spine.
Dr Fordyce had treated the plaintiff for other matters between 2006 and the event in 2009, but the only complaint to him of neck or back problems was the consultation in October 2007. In 2008 the PA hospital removed the plaintiff from the orthopaedics waiting list because he did not respond to follow up correspondence. It is not clear whether this was because the mail did not reach the plaintiff[26] or he had lost interest. However Dr Fordyce seems to have understood the same symptoms persisted because a year after the present injury he wrote to the orthopaedic outpatients department of the hospital (July 2010): “the patient was originally referred in 2007 to the PA for this problem and he has been on the waiting list for 3 years”.
[26]His current address is different to the address on the hospital’s letter.
The symptoms from the 2009 event related to pain in the right shoulder, right fingers and neck. It seems the symptoms after the 2009 event are described similarly to previous symptoms. For example in the incident report on the day of the accident: “Driver complaining of stiffness in lower right arm and right fingers tingling, also complaining if stiff neck. Right shoulder sore”; the plaintiff reported to Dr Fordyce on 14 May 2009 that after twisting on the bus he felt “right neck arm and hand pain”. The sites of pain are similar to those in the reports of Dr Stephenson in 2005 (neck pain with radiating arm pain),[27] Dr Katri in 2007 and perhaps the pain chart in 2007. There was a divergence of opinion about the 2007 pain chart. The occupational therapist, Mr Hoey, at first accepted the pain chart of 2007 was very similar to the pain chart the plaintiff prepared for him in 2015. It was consistent with the plaintiff’s history of longstanding neck, right upper trapezius and arm pain. “He’s certainly reporting similar symptoms and they’re the symptoms that’s he reported to me as being longstanding”.[28] Mr Hoey later corrected himself to say the charts were quite different. He said the earlier diagram showed the main shading in the thoracic spine, whereas in 2015 the plaintiff complained of pain in the cervical spine. The pain indicated on his arm at Mr Hoey’s 2015 assessment was “a completely different dermatome” to 2007 diagram “which means it’s a different part of the cervical spine…I’m sure the specialists could expand upon that”.[29] The treating specialist, Dr Campbell was examined about it the next day. Dr Campbell’s opinion was that the 2007 a diagram showed symptoms in the cervical spine with radiation down the plaintiff’s right arm, the same symptoms reported to Dr Campbell after the event in 2009.[30] Finally, the plaintiff’s evidence was that while the diagrams were similar, the main intense pain in the 2007 diagram was from the “forearm, not the neck and shoulder necessarily”.[31]
[27]Transcript day 2, p 59, line 60, Dr Walsh.
[28]Transcript day 2, p 9, Mr Hoey.
[29]Transcript day 2, p 12, line 45 and 13.
[30]Transcript day 3 page 15, Dr Campbell.
[31]Transcript day 1 page 63, Mr Rayner.
Before employing the plaintiff the defendant had required a health and fitness assessment. On 19 March 2008 the plaintiff was examined by a medical officer who noted slightly restricted range of motion for the upper limbs, but no associated pain.[32] A medical review on 9 April 2008 noted the need to follow medical advice. On 30 June 2008, the plaintiff’s own doctor, Dr Fordyce, assessed him as medically fit for the commercial driver’s licence. Dr Fordyce stated that in a “quite detailed investigation” he did not observe any restricted range of movement for the neck, or any issues regarding neck or back pain. Sadly the change in neck function and symptoms between June 2008 and Dr Fordyce’s examination after the event, on 14 May 2009, was significant. By 2015 Mr Hoey had assessed the plaintiff as unfit to drive.[33] His cervical extension had been halved and caused pain. He reported significant pain even in static posture.
[32]Exhibit 22.
[33]The occupational therapist Mr Hoey concluded that whilst the plaintiff had an expansive well documented history of medical impairment, he was able to persevere working as bus driver until the 2009 event. “For some reason this intervening event caused him increase in pain to a level where he was unable to continue working as a bus driver.” Transcript day 2, p 11, Hoey.
The Specialist Opinions
Three specialists testified: neurosurgeon Dr Walsh, neurologists, Dr Campbell and Dr Coroneos. All recognised a substantial pre-existing condition, but they maintained three different opinions about the result of the turning on 13 May 2009. It was Dr Coroneos’s view that all symptoms and impairment related to the pre-existing changes shown on prior imagining. Although Doctors Walsh and Campbell each concluded there was a new injury, they disagreed about the nature of it. Dr Walsh reported a disc protrusion at C7, whereas Dr Campbell concluded it was a soft tissue musculoligamentous injury. Doctor Walsh relied upon changes he identified in the imaging but the other specialists did not find any discernible change. They did not identify fresh injury from the CT scan, MRI or EMG taken after the 2009 event. Nonetheless Dr Campbell accepted there was a new injury because of the coincidence of the event, the plaintiff’s report of pain and his apparent incapacity to continue working. Dr Campbell assessed 50% of the permanent impairment to be new.
Dr Walsh accepted that the previous scans and nerve conduction study showed significant degenerative changes in the cervical spine. “It was the neck of a person who would be prone to injury”.[34] He explained why he considered there to be a new injury at C7. A CT scan after the event suggested a disc protrusion at C6/7. He performed his nerve conduction study to measure acute changes through electrical activity. The study indicated that at that time there were acute changes at C5. Further investigation through an MRI report confirmed something at C7. Subsequently, a nerve root block applied at C7 temporarily relieved symptoms, and thereby reinforced C7 to be the site of the pain. Dr Walsh did not view the previous images but compared the radiologist reports for an MRI in 2005 with the report for the 2009 MRI. A lesion at C7 had been noted by the radiologist in 2005. Dr Walsh concluded from a comparison of the 2005 report and the radiologists report in 2009 that the lesion was larger by the later report. The disc protrusion at C7 was more significant. In 2005, the nerve was reported to exit normally.[35] He was thus satisfied from his reading of the reports that the injury at C7 came after the 2005 MRI.
[34]Transcript day 2, p 60, line 38, Dr Walsh.
[35]Transcript day 2, pp 56, 59, 63 & 67, Dr Walsh.
Dr Coroneos did not view Dr Walsh’s nerve conduction study, but he saw imagining that predated the 2009 event. He reviewed an X-ray, MRI and CT scan from 2004. They disclosed a longstanding cervical spondylosis which was progressing with age. The disc osteophyte complex at C6/7 was longstanding. The 2009 investigations did not show any new injury. He considered all changes described in Dr Walsh’s nerve conduction study and EMG to be longstanding chronic cervical muscular denervation.[36] All changes were degenerative and the pain had been there for many years. Without structural change there was nothing to indicate an aggravation of the old injury.[37]
Mechanism of Injury
[36]Transcript day 1, p 71, Dr Coroneos.
[37]Transcript day 1, p 86, Dr Coroneos.
For Dr Campbell, the likely cause of the injury was the combination of turning more than 180 degrees and the possible extreme posture plus the past medical history of neck injuries.[38] He indicated the extremity of the movement rather than the speed of it was more relevant. “I think both those mechanisms (speed or slow and steady) are likely to be the cause of the problem. His symptoms came on immediately…so there’s a very strong cause and effect. Obviously the first mechanism where he has twisted suddenly and extremely is more likely of the two to cause an injury, but I believe both those mechanisms could cause the injury”.[39] The pre-existing injury caused intermittent and ongoing neck pain. It also made the plaintiff “susceptible to a catastrophic injury”.[40] Without the pre-existing condition, any injury from extreme turning was less likely.[41] Furthermore, but for the pre-existing pathology, “his injury would not have been as severe…it may have been minor and niggling and enabled him to get back to work over a period of time, if the pre-existing pathology wasn’t there”.[42]
[38]Transcript day 3, p 7, line 42.
[39]Transcript day 3, p 7, Dr Campbell.
[40]Transcript day 3, p 19, line 1, Campbell.
[41]Transcript day 3 p 23, line 26, Dr Campbell.
[42]Transcript day 3 p 23, line 15, Campbell.(emphasis added)
Dr Walsh considered that the protruded disc at C7 could have resulted from a turn of the head which was forceful. He said the capacity for such an injury was dependent upon the “physical properties of the turn and the movement and the injury”.[43] “[I]t is possible, depending on how quickly and forcefully the head was turned. It is possible that a very forceful turn of a head could make a disc which was weak prolapse”. As for a “slower” turn of the head: “It is less likely but not impossible. But it is less likely… If we’re looking at propulsing … the pulp of the disc through the side of an injured disc, if it is a slow movement with little force, that is a completely different thing to a forceful movement. So it’s to do with energy”.[44]
[43]Transcript day 2 p 66, Dr Walsh.
[44]Transcript day 2 p 66, Dr Walsh.
Dr Coroneos thought whether it was a sudden or steady movement was irrelevant. It was a trivial incident. That would be so even if the plaintiff had leaned forward and twisted his body and neck to see past the bulkhead. “Yes. Low velocity. Low impact. Low loading, normal range of movement activity is a trivial incident. There’s no loading. There’s no significant disruption of any cervical structures.”[45]
[45]Transcript day 1 pp 75, 8, 83.
In summary doctors Campbell and Walsh considered extremity of movement and the force involved was relevant to the risk of injury. For all doctors, the risk of injury and the severity of injury was magnified by the pre-existing condition. The plaintiff was susceptible to “catastrophic injury”. As to whether a minor head turn could cause such an injury in a person of the plaintiff’s age without the degree of pre-existing degeneration, doctors Walsh[46] and Coroneos thought not. Dr Campbell accepted it was less likely but could not exclude it.[47]
Findings of Fact
[46]Transcript day 2 page 66 Walsh
[47]Transcript day 3 page 23 line 26 Campbell
The defendant accepts that the plaintiff was injured during the course of his employment on 13 May 2009 when he turned his neck to the left while driving a bus in Annerley. There was no dispute that to look to the back of the bus from the driver’s seat would require an extreme movement. Beyond the turn to the left, the circumstances of the plaintiff’s movement are in dispute. The plaintiff was the only witness to the event. His evidence was troubled by credibility issues. A pre-existing condition had left his cervical spine vulnerable to further injury. He had previously acted to conceal the medical history from the defendant. His version at trial was unlikely. Moreover, he has given materially different accounts of the event, in particular, the reason for the turn and the nature of his movements. His very first account, within a short time of the injury, was about students in bus seats. If there had been a loud and aggressive argument between standing passengers, it would be odd to mention only the more mundane issue of seating. It might also be questionable to send the students towards that argument. In any event, while the plaintiff‘s testimony stressed the speed, and by implication, the urgency of the turn, he struggled for a credible explanation for such urgency.
I do not accept the plaintiff’s evidence that he tried to use the swivel mechanism before he turned on this occasion. His testimony directly contradicted the earlier admission to Mr Ferguson. If the plaintiff told his employer he did not think to use the swivel mechanism it was almost certainly the truth. There was no apparent reason for him to lie or be confused about it. I do not accept the plaintiff’s evidence that he did not use the swivel because he was not trained in its use. He did not use it because he never thought to do so. Interestingly, the plaintiff testified that he had always used the swivel when he needed to turn to the back. A habit of using the swivel might suggest some concern to protect his body. That was the image the plaintiff sought to convey. His evidence was that his practice was to turn his neck “slowly and steadily” when driving. A practice of careful movement would not be surprising for someone with the plaintiff’s longstanding history of neck and back pain. It would tend to make the earlier description to Mr McDougall of a “slow and steady movement” more likely than a sudden turn, when there was no need for immediacy. Conversely, the notion that someone burdened by the plaintiff’s spinal issues would choose to contort his body into the extreme posture needed to look beyond the bulkhead when it was neither necessary nor urgent, does not seem plausible. On the plaintiff’s version, the bus was parked. Therefore he could have got out of the seat if he wanted to see passengers otherwise obscured by the bulkhead. He already had a view but not a complete one, with the rear vision mirror. If it was only about the need to be heard, one might expect that he would turn to the side and speak.
The plaintiff has proved that he suffered an injury when he turned his neck, but his case is based upon a sharp and extreme movement. Without credible evidence of those circumstances, they cannot be accepted. I do not accept the plaintiff’s evidence about the event beyond the fact of a turn of the neck to the left.
THE TEST
As the employer the defendant owed the plaintiff a duty to take all reasonable steps to provide a safe system of work.
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”[48]
[48]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
It follows that the duty of care upon an employer is not absolute. It does not extend to protecting employees from all perils. The employee must not be exposed to a foreseeable risk of injury where that risk could be avoided by reasonable steps.[49]
[49]Hamilton v Nuroof (WA) Pty Ltd (1956-57) 96 CLR 18 at 25, 34.
The immediate cause of the plaintiff’s new injury was the turn of his head. Even if a minor injury from such an ordinary activity would have been foreseeable by a reasonable employer, I am satisfied that the risk of a substantial injury was not reasonably foreseeable.[50] The underlying cause of the plaintiff’s injury was his pre-existing condition. Hindsight suggests that, notwithstanding the clearance from his doctor, the plaintiff’s cervical spine was too fragile for bus driving. There is no evidence that the defendant knew or ought to have known that. Despite the defendant’s reasonable enquiries, the plaintiff had withheld relevant information. The defendant is not liable for the plaintiff’s proven unsuitability for the job. A significant injury from a turn of the head was not reasonably foreseeable from the defendant’s position. In any event there was nothing the defendant could have done to avoid it, short of shutting down the bus service.
[50]Reasonably foreseeable, in the sense that the risk was not farfetched or fanciful. Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [33].
The protective steps required are limited to what is reasonable.[51]
“The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries. The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact. That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.”[52]
[51]Koehler v Cerebos (Australia) Ltd, at [35] joint judgment of McHugh, Gummow, Hayne and Heydon JJ.
[52]Romeo v Conservation Commission of the Northern Territory (1997-98) 192 CLR 431 at 488 per Hayne J.
The plaintiff’s case for breach of duty hinged upon an extreme movement. It did not suggest that the need for turning the head could be avoided. Release and operation of the swivel seat was to minimise the risk of injury from protracted and repetitive turning while the bus was stationary. It was not intended to, nor could it, remove the need for turning the head while driving. Turning the head to the left was an unavoidable and basic incident of driving. For example, bus drivers need to constantly check the left hand mirror to change lanes, or monitor traffic. There was no suggestion that the ordinary requirements of driving could be replaced. There was no practical means of neutralising any foreseeable risk.
It follows that I am not persuaded on balance of probabilities that the plaintiff’s injury was caused by any breach of the defendant’s duty of care. There will be judgment for the defendant.
Training
The amended Statement of Claim offered many particulars for the negligence of the defendant in relation to the system of work and training. Many of those were repetitious or not pursued at trial. The principal complaint was a failure of training, in relation to the operation of the swivel seat and its protective purpose,[53] but also in relation to unruly passengers. There was also a complaint about the absence of a public address system. Because the plaintiff has not proved that his injury was caused by more than an innocuous movement, the particulars relied upon have no real relevance. Nonetheless I make some observations.
[53]Amended Statement of Claim, para [6]: for example: “the defendant...failed to train the plaintiff in respect of the swivel system in all of the buses the plaintiff was required to drive …”.
The defendant provided swivel seats for its bus drivers. The plaintiff was experienced in the use of the Bremche swivel seat. He swore that his practice was to use the swivel mechanism whenever he needed it. The event however occurred in an ISRI seat, soon after he had transferred to the Willawong depot. It had a different swivel operation. He had not been trained in the use of that swivel mechanism. A duty to train him in the use of the seat was admitted.
The uncontested evidence was that the ISRI seat was the state of the art bus seat. It was self-levelling, with lumbar support as well as the swivel. The purpose of the swivel was to reduce the driver’s need to turn his neck. The swivel capacity was limited to 25 degrees to the left. That allowed the driver to face a line-up of passengers coming through the front door without pressure on the driver’s body. It was useful to avoid prolonged, repetitive twisting. After the event, the safety officer recommended the use of the swivel. But his advice was questionable. The swivel was not intended for momentary turns or use when the vehicle was moving.[54] Moreover, it was not designed to eliminate any need to look to the back of the bus. The depot manager, Mr Mackenzie explained it in this way:
“Rather than having your body at an angle, you turn around so you’re facing directly onto the passengers…Obviously people can twist their body for a short period of time. You can turn to talk to a passenger. You can turn to look in your blind spot, but when you’re going to be turning for an extended period of time, that’s when you want to use the swivel.”[55]
A bus driver could not avoid turning his head. At times, a driver would have to react quickly.[56] The plaintiff estimated that he would need to turn his head from side to side “a fair few times” per shift, but he swore he would generally do it “slowly and steadily”, even in response to a beeping horn.[57]
[54]Transcript day 2, p 23, McDougal.
[55]Transcript day 3, p 60, Mackenzie.
[56]Transcript day 3, p 51, Mackenzie.
[57]Transcript day 1, p 43, 44 Rayner.
The plaintiff remembered being trained in seat adjustment on the MAN buses, but could not recall training on the use of the swivel seat on any bus. His initial response was equivocal: “No I can’t remember. No I don’t believe so”.[58] Later in the evidence he was more forceful. He said he mastered the operation of the swivel on the butter box buses through experience.
[58]Transcript day 1, p 14, Rayner.
Mr Mackenzie gave some evidence of the defendant’s training program. New drivers were given a six week course, with four weeks in training school before route training. Training documents were tendered. The program listed “vehicle familiarisation” on day 14. “Vehicle familiarisation” included the use of the swivel seat. The heading “seat adjustment” also included the operation of the swivel seat. Mr McKenzie said for that part of the course, drivers were taken to different depots to explore the functionalities of the various types of buses in the fleet. There was also induction training with new buses upon transfer to the Willawong depot.
The records indicated that in May 2008 the plaintiff was trained with all bus types listed, including the MAN gas vehicle.[59] All of the MAN buses had exactly the same ISRI swivel seat. According to the defendant’s driver logs, the plaintiff had spent 404 hours, or the equivalent of 50 shifts, driving MAN buses before the event.[60]Counsel for the plaintiff submitted that unchallenged evidence of substantial experience with the ISRI seat should be ignored because the plaintiff’s testimony about the log was not challenged. But the plaintiff’s evidence did not negate the significance of those records. Under cross-examination, he was shown the logs and indicated recognition. He was told without objection, that the highlighted parts related to MAN buses. It was put to him that all MAN buses were fitted with the ISRI seat. The plaintiff said he did not know if it was only ISRI seats, but he clearly understood the significance of the question because he volunteered that the highlighting represented no more than 20 hours of driving. His calculation error was apparent on the face of the document. Mr McKenzie explained the information in the logs. His evidence that the MAN buses only had ISRI seats was not contradicted.
[59]Transcript day 3, p 54, Mackenzie.
[60]Transcript day 5, p 52, Exhibit 33.
Mr Ferguson produced training materials handed out on the first day of training to new drivers. They included a bus operations workplace health and safety guide that showed how to use the swivel seats, and a driving posture guide on how to avoid postural stress. The course allocated 7 ½ hours to the first day. The plaintiff signed an attendance sheet for the first day indicating he was present for only 45 minutes. The explanation for that is unknown. There was no individual record of the plaintiff’s receipt of those documents, because receipting was not enforced. Mr McDougal recalled the plaintiff saying he had a copy of the operators’ handbook, but could not recall seeing it during induction.[61]
[61]Transcript day 2, p 24, McDougal.
The plaintiff conceded he had attended a group demonstration of seat adjustment, but swivel operation was not shown. Mr Mackenzie said training on seat adjustment and operation of the swivel went together. The use of the swivel was one of the “fundamental issues. It’s very unlikely they would miss that”.[62] I do not accept the plaintiff’s evidence that he was not trained in the use of the ISRI swivel. In any event on balance, he must have known how to use it by May 2009, given the extent of his actual driving experience with the ISRI seat and the regularity with which he claimed to swivel.
[62]Transcript day 3, p 58, Mackenzie.
While particulars in para [10] of the Amended Claim include “a failure to advise the plaintiff that the bus had a seat which allowed the driver to swivel around and talk with passengers”, at trial the plaintiff did not claim ignorance of the swivel or it’s potential. Indeed, his claim that he tried to use the swivel was an acknowledgment that he had understood he ought to use it.
The need for a public address system was said to arise because of the noise levels on the buses: if the plaintiff had access to speakers he would not have needed to turn his neck to be heard. Putting aside the threshold question as whether the defendant had a reasonable duty to provide a speaker system, I am not satisfied that the plaintiff turned his head to speak. It cannot be said that the absence of a speaker system contributed to the injury.
Similarly, in the absence of credible evidence of rowdy passengers, an absence of training on how to react to such situations was irrelevant. In any event, the plaintiff’s own case was that he was injured by the way he moved his body, rather than an inappropriate reaction to passengers. On his own case, psychological training would not have saved him.
The plaintiff’s submissions cite breaches of the rule in Browne v Dunn. The rule is procedural. Its central purpose “is to secure fairness in the conduct of adversary proceedings”.[63] Fairness will define both the requirements and consequences of the rule. The rationale for the rule was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation[64] and cited by Fryberg J In Smith v Advanced Electrics P/L:[65]
“There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.”
[63]R v Birks (1990) 19 NSWLR 677 at 688-689, Gleeson CJ.
[64][1983] 1 NSWLR at 22-23.
[65][2003] QCA 432; [2005]1 Qd R 65 (02/7725), McMurdo P, Jerrard JA and Fryberg J.
There was an absence or limited cross examination of the plaintiff on some relevant issues, notably the unrecorded part of the disclosure to Mr Milovich and training. But the plaintiff was not deprived of his opportunity to respond. The pleadings gave adequate notice of the nature of the dispute for those matters. The plaintiff was examined about them by his own counsel. The failure of the defence counsel to test him was to the plaintiff’s advantage. There was opportunity to cross examine the defence witnesses on the issue. No unfairness was identified.
Quantum
Despite the conclusion on liability it is prudent to address the issues of quantum. If liability was in respect of an injury caused by a left turn of the neck, chronic injury was not foreseeable. I would allow a global sum of $15,000 for a temporary injury. If liability was for an injury through extreme movement I would allow $364,523.90 based upon the following calculations.
General Damages
The plaintiff was aged 52 at the time of the new injury. I accept the assessment of Dr Campbell of a 7% whole person impairment, with half of that attributable to the event. Having regard to the plaintiff’s comparative schedule of judgments, an appropriate assessment for pain, suffering and loss of amenities may be $40,000. Of this, I assign $25,000 to pre-trial loss, on which I allow interest of $3,490 (calculated at 2% per annum over 6.98 years).
Past Economic Loss
Following the accident the plaintiff was off work for one month. There followed a return to part time work and light duties before his employment was terminated in January 2010. He has not worked since. Applying the last weekly pay rate of $620 per week for 344 weeks, I would allow $213,280 for past economic loss, and interest at 5% per annum for 6.6 years, being $70,275.76.
Loss of Future Income
The plaintiff had worked for the defendant for less than a year. He had intended to continue in that employment. His work history had suffered because of previous injuries. Of the 10 years leading up to the present event, he had missed perhaps two years of work due to injury or related unemployment. Whilst his duties as a bus driver were lighter, they still required a range of movement. His degenerative condition was symptomatic before the subject event and he was vulnerable to serious injury from normal activity and the effects of aging. In considering future loss of earning capacity I am mindful that the pre-existing degeneration was likely to cause a loss of future earning capacity and accelerated retirement. Given the gravity of that condition, it is appropriate to assess future economic loss until the age of 60 (a discount of seven years).
The plaintiff claims at a rate of $620 per week. The present value of loss of $620 per week over 19 weeks until the plaintiff reaches 60 years, is $11,780. That is the allowance made for future economic loss. Given the short period involved it has been calculated without reference to the multiplier or exigencies.
Loss of Superannuation Benefits
The plaintiff claims the loss of past superannuation benefits at the rate of 9% of the sum of $213,280, being the sum $19,195.20.
The plaintiff’s loss of future super benefits at the rate of 11% per annum for 0.37 of a year is $479.44.
Past Special Damages
The defendant has met most of the special damages. I would allow $1,500 for special damages and interest at the rate of 5% for 6.98 years, being the sum of $523.50.
Future Special Damages
The plaintiff claims the cost of therapy, future medication and travel in the amount of $7,884.04 for future special damages. Having regard to the treatment which might otherwise be required for the pre-existing condition, I would allow a global amount of $4000.
In summary assessment of damages would be:
Pain, suffering and loss of amenities $40,000 Interest on pain, suffering and loss of amenities $3,490 Past economic loss $213,280 Interest on past economic loss at 5% $70,275.76 Loss of past superannuation entitlements at 9% $19,195.20 Future economic loss $11,780 Loss of future superannuation entitlements at 11% $479.44 Past special damages (less WorkCover refund) $1,500 Interest on past special damages $523.50 Future special damages $4,000 Total $364,523.90 Orders
There will be judgment for the defendant. I will hear submissions as to costs. Those submissions are, or if there is agreement, a proposed draft order is, to be filed within 14 days.
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