Re: Baker v Hanlon, Evans & Unity Dairy Foods - [1999] QSC 142

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.1271 of 1994
Before the Hon. Mr Justice Mackenzie
[re: Baker v Hanlon, Evans & Unity Dairy Foods]
BETWEEN:
  TREVOR MICHAEL BAKER
  Plaintiff
AND:
  GRAHAM HANLON
  First Defendant
AND:
  MARGARET EVANS
  Second Defendant
AND:
  QUEENSCO - UNITY DAIRY FOODS
  CO-OPERATIVE ASSOCIATION LTD
  Third Defendant

JUDGMENT - MACKENZIE J.

Judgment delivered 9 July 1999
CATCHWORDS: DAMAGES - General Principles - whether employer breached statutory duty under the Workplace Health & Safety Act 1989 - contributory negligence - Assessment of Damages.
Hyne & Son Pty Ltd v Tomlinson (Court of Appeal, Appeal No 8283 of 1997, unreported, 22 May 1998)
Hedge v Hedge (Court of Appeal, Appeal No 4911 of 1996, unreported, 7 November 1997)

Workplace Health & Safety Act 1989

Counsel: Mr R Trotter for the plaintiff
Mr R Morton for the defendant

Solicitors: Richardson McGhie for the plaintiff
Corrs Chambers Westgarth as town agents for
Quinlan Miller Treston for the defendants

Hearing Dates:                  30 April 1999, 4-5 May 1999
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.1271 of 1994
Before the Hon. Mr Justice Mackenzie
[re: Baker v Hanlon, Evans & Unity Dairy Foods]
BETWEEN:
  TREVOR MICHAEL BAKER
  Plaintiff
AND:
  GRAHAM HANLON
  First Defendant
AND:
  MARGARET EVANS
  Second Defendant
AND:
  QUEENSCO - UNITY DAIRY FOODS
  CO-OPERATIVE ASSOCIATION LTD
  Third Defendant
JUDGMENT - MACKENZIE J.

Judgment delivered 9 July 1999

This is an action for damages for negligence and for breach of statutory duty under the Workplace Health & Safety Act 1989. The plaintiff was employed by the third defendant. He was injured in an accident at his place of work when he fell off the back of a semi-trailer, owned by the second defendant and driven by the first defendant. There is no dispute that he fell while loading empty plastic milk crates into the vehicle. The circumstances in which the accident occurred are in dispute.
To load the vehicle, it was reversed into a loading bay with the rear doors open. Three metal flaps on the loading bay, which were hinged to the edge of the bay and could hang down approximately vertically or stand in an upright position at about 60 degrees to the surface of the bay (as shown in Exhibits 10 and 26) could be positioned to form a bridge between the loading bay and the vehicle by resting them on the floor of the vehicle when it was being loaded. The crates were stackable because of a 5 to 10 millimetre rim at the bottom which interlocked with the crate below. Each crate was about 1 foot x 1 foot x 1 foot.
As pleaded, the plaintiff's case was that on 28 October 1992, he was loading milk crates onto the vehicle. While he was doing so the first defendant suddenly and without warning drove the vehicle away from the loading bay causing the plaintiff to fall heavily to the ground. The defendant alleged that the plaintiff caused or contributed to his injuries by lowering one of the steel flaps at the end of the loading ramp onto the trailer and getting back on after the loading had finished to replace some fallen crates and failing to take any notice of advice given by a fellow employee not to bother.
At the time the truck was being loaded fellow employees Ray Lusk and Alex Raleigh were in the vicinity. All had been engaged in dragging stacks consisting of six crates, two stacks at a time, by means of a hook onto the truck. There is a dispute whether the first defendant was assisting. The plaintiff said that he was not and assumed that he was sleeping in the cab of the truck. The plaintiff said that for the last two or three minutes of the loading he was the only one loading the crates. The first defendant and Mr Raleigh said that the first defendant was helping.
According to the plaintiff, Mr Lusk, who was not called to give evidence, and Mr Raleigh were leaning on a rail at the side of the dock at the time he fell. He said that by the time the loading was finished there was only about six inches of space between the crates and the edge of the flaps resting on the back of the truck. He said that the last column of crates loaded was on the far left-hand side of the truck facing into the back of the truck. He said that as he was turning away and taking the hook out his hand dislodged the two top crates. He said that he was in the process of turning away when the crates fell and they landed on the ramp itself behind him. He said that when that happened he picked one empty crate up and put it back on top of the empty crate and then picked up the other and reached to put it back onto the stack. At that point, he said, the truck moved and he fell. The truck moved about five feet before stopping. He said that neither Lusk, who was smoking a cigarette, nor Raleigh were looking in his direction when he fell. He said he received no warning that the vehicle was about to move. He neither heard the engine start nor felt vibrations indicating that the vehicle had started.
According to the plaintiff, immediately after the fall Mr Porter, the Health & Safety Officer, came to where he was lying and said that he had caused the vehicle to stop. The plaintiff said he was the first on the scene but was joined almost immediately by Lusk and Raleigh.
The plaintiff gave evidence that the ordinary practice was for the last person to place crates in the truck to put in spreader bars. These are bars which clip into holes on the sides of the vehicle to hold the load in place. He also said that ordinarily a bulkhead of cardboard or plywood was put in, although on this occasion it was left on the loading bay. He said when all that had been done the practice was for someone to bang on the side of the truck, which was made of fibreglass as a signal to the driver that loading was complete. The metal flaps would be raised by hand prior to that and left upright. The vehicle would then drive forward some distance to allow the rear doors to be closed (which could not be done while the vehicle was at the dock). The plaintiff said that the incident in which he was injured happened before the bars were put in. He said that none of the other procedures referred to above were done either. He said that normally the spreader bars were put about two feet from the floor, and two feet from the roof at about the level of the bottom of the second crate.
Mr Raleigh gave evidence that the driver had assisted in the loading and that the truck had been fully loaded. The spreader bars had been put in place by the truck driver. No ply or cardboard bulkheads had been put in. In his experience they were used only when crates full of certain kinds of dairy products were being transported. They were not used when empty crates were being transported. He gave evidence that the three flaps had been lifted. He said that he and the plaintiff stood on the dock and Mr Lusk began to walk away. He said that the driver walked to the cab of the truck. No-one remained in the back of the truck at this time. Then, he said, a couple of crates fell off the right-hand stack. The plaintiff then put a flap down while the truck driver was not in view, got the crates and went to put them back on the stack from which they had fallen. At that stage the truck commenced to move and the plaintiff fell. The flap fell down into a vertical position as he did so. He said that he had said to the plaintiff at the time he began to attend to the fallen crates not to bother about it because two crates out of 1,500 were not really going to matter much and that it was not worth putting himself in danger. He recalled that the right flap was the flap that fell down.
He said that he was not sure what made the crates fall. When asked for an explanation in cross-examination he advanced the theory that because the metal ramp was curved and the last stack was very close to its edge it was often necessary to twist the stack to get it to stand upright. In his experience sometimes crates came loose and fell.
Mr Porter gave evidence that he had been in the truck workshop which was at least sixty feet away from the place where the accident happened. His attention was attracted by the sound of employees yelling although he could not distinguish what was being said. He turned around and saw what appeared to be a person lying on the ground. By the time he arrived to render first aid Mr Lusk and Mr Raleigh were there. He had no recollection of saying to the plaintiff, as the plaintiff alleged, that it was he (Mr Porter) who had stopped the truck. The vehicle was six to eight feet from the dock when he got there. Initially, he said that the ramps were hanging down. However, he thought that there were two but on seeing the photographs accepted that there were three. His final position appears in the following quotation:
"How many flaps did you think were on this loading dock?-- Keeping in mind that we would probably have about 3 dozen ramps like that, I would have thought it was two.
Did you make any particular note of whether the flaps were up and down or some up and some down on the day you were attending Mr Baker on the grounds?-- I looked up at one stage because I had concerns if they are up and you happen to be in under them and one happened to come down on top of you and clout you in the back of the head and probably wind up with more injuries than what Trevor had.
Did you take any particular notice how many were up and how many were down?-- No. I made sure that area where Trevor was on the ground and the area I was treating him I was safe myself."
Mr Hanlon, the truck driver, said that he was helping load the crates on the day of the accident. He said that his procedure upon completion of the loading was to walk to the cab, start the truck, release the brakes and move forward slowly to minimise the risk of crates dislodging before the doors were shut. He said that if the truck was full spreader bars were not used. He said that it was not his practice to drive the truck away from the loading dock while the ramps were still resting on the truck because there was a risk of the truck's tail lights being damaged if they fell downwards. He had no specific recollection whether the truck was fully loaded on this day or not. He said that he followed his usual procedure of checking in the rear vision mirror and seeing the workers walking away before he started to move the vehicle. He heard someone calling out on this occasion and stopped the vehicle immediately. He said normally he would pull away and wait for a signal that there was enough room to close the doors before stopping the vehicle. He agreed that no-one had specifically signalled for him to go and nobody had signalled how far forward he should move to close the doors. He considered both of those procedures unnecessary.
This is a case where there are problematical aspects in the evidence of each of the witnesses to the incident. My impression of the plaintiff was that he would have been conscientious in attending to the duties of his position. It is however difficult to accept his evidence that he was unaware that the truck's motor had been started prior to his falling, even though there is some evidence that the workplace was noisy at least at times. It is also difficult to accept that he was aware in the way he described that neither Lusk nor Raleigh were looking in a direction which would have enabled them to observe what happened. His recollection that Mr Porter told him that he stopped the truck seems incorrect. The fact that he had fallen and been injured may account for the confusion as to the last matter.
Mr Raleigh was definite about the core elements of his evidence that after the loading had finished the plaintiff got back onto the truck by putting down one of the ramps for the purpose of replacing the fallen crates. However, at times he gave his evidence on other aspects of the matter somewhat defensively.
I am satisfied that Mr Porter was doing the best he could to give an accurate recollection. However, by the time of trial it was about 6½ years since the accident. I accept that his main focus was on attending to the plaintiff and rendering him first aid, and that his evidence on other matters of detail has to be viewed with that in mind. Mr Hanlon's demeanour while giving evidence was at times also defensive and diffident.
Against this background I make the following findings of fact. I prefer the version that when loading had been completed two crates fell from one of the stacks. While there was a good deal of attention paid to whether it was possible for the crates to fall, I am satisfied that it was not impossible if they had been left in an unstable state. The plaintiff put the right bridging flap down and proceeded to attempt to replace the two crates on the stack from which it had fallen. The engine of the vehicle was started either prior to his climbing back on the truck or while he was on it. The driver who was at this time in the cabin adopted his usual practice of looking in his mirrors and saw workers leaving the area of the back of the truck. He began to drive the truck forward slowly so that the rear doors could be closed. The plaintiff fell when the truck moved and the flap dropped because it no longer had support from the floor of the truck. I do not consider the fact that the first defendant expressed sorrow for what had happened necessarily implies acceptance of the plaintiff's version of events. Nor do the brief and general reports compiled by Mr Porter after the accident.

. 16 So far as the third defendant is concerned, I am satisfied it was negligent and in breach of statutory duty not to have a system in place under which the driver was informed in some clear way whether by words or signals that it was safe to move the truck from the loading bay. As regards the driver and his employer, I am satisfied that they are liable for negligence in that the driver drove the vehicle forward without receiving any direct indication from the staff of the third defendant that it was safe to do so, in reliance on a system which had previously worked without incident in this bay but was inadequate.

However, I am satisfied that the plaintiff's action in reentering the truck when there was a risk that the driver may believe that the loading had finished and that the vehicle might be moved contributed significantly to his injury. I also accept that he reentered the truck notwithstanding that Raleigh had voiced his concern to him. I assess his degree of contribution at 40 per cent.
As to quantum the plaintiff was 43 at the time of trial. In the fall he suffered injuries principally to his ribs and left leg. The rib injury resolved within a relatively short time but he has residual problems with the left leg. He has been diagnosed as having reflex symptomatic dystrophy, which was described by Dr Farmer as a poorly understood condition which follows trauma. The causation is over- activity of the autonomic nervous system which causes pain. As it concerns the autonomic nervous system it is beyond conscious control and the treatment according to Dr Farmer's evidence is variable and controversial and is subject to change. It involves attempting to block the nerves and the precise treatment depends on the part of the body being treated and the severity of the condition. 19 He has residual problems with his left leg. It has wasted and he has stiffness of the knee which requires him to wear a knee brace. The preponderance of evidence is that a chondral fissure was traumatic in origin. He also has diabetes but the trend of the evidence is that this was not significant in the development of the condition. Nor was it seen as something which would independently have caused him major problems in the short to mid term. He also had some changes in his spine but once again they were not of such a degree of severity as to be a major problem except in the sense that he may if he continued in a manual labouring occupation develop problems at a later stage.
The overall impression of the evidence in this regard is that regard must be had to the diabetes and the possibility of his back causing problems in the future but not to a degree which significantly shortened his working life. I assess the damages as follows:
Pain suffering and loss of amenities  $40,000.00
Interest ($15,000 x 2% x 6.5 years)  1,950.00
Special damages (medication and kneeguards)  1,453.00
Future medication and kneeguards  3,487.00
Hospital expenses)  880.00
Medical expenses)   paid by WCB  4,647.03
Other expenses)  183.79
Fox v Wood  3,313.40
Past Economic Loss  100,000.00
Interest ($36,000 x 5% x 6.5 years)  11,700.00
Future Economic Loss  175,000.00
Past care and assistance   8,450.00
Interest (2% for 6.5 years)  1,100.00
Future care and assistance  15,000.00
Past Superannuation  6,458.00
Future Superannuation  17,250.00
Past travel to doctor  487.00
Future travel to doctor  1,200.00
Total             $392,559.22
With regard to past economic loss, I have used the second scenario in the accountant's report and applied a discount notwithstanding the submission that because of the plaintiff's good work record no discount should be made. Interest has been calculated using Mr Morton's methodology. So far as future economic loss is concerned, I have calculated the figure on the basis that in my view the plaintiff is not without earning capacity although the extent to which he can exploit it is limited.
With respect to care and assistance, I have worked on the basis of 2½ hours per week being the appropriate quantum.
With respect to future superannuation, I have considered the approach referred to in Hyne & Son Pty Ltd v Tomlinson (Court of Appeal, Appeal No 8283 of 1997, unreported, 22 May 1998) and Hedge v Hedge (Court of Appeal, Appeal No 4911 of 1996, unreported, 7 November 1997). The judgment of Shepherdson J, comments that the allowance of 6 per cent of future economic loss is a rough guide only. I take that to mean that where in an individual case there is a sufficiently cogent assessment of loss of future superannuation benefits the proposition in Hyne v Tomlinson may yield. A precise calculation depends on the assumption the law will remain no less favourable to a worker with regard to contributions to superannuation. I am prepared to act on that basis as being a reasonable assumption to make at this time. The sum allowed reflects a discounting of about 25 per cent on the amount calculated under scenario two in the accountant's report.
Applying the apportionment to the damages calculated the sum before refund is $235,535.53. Deducting the Workers' Compensation Board refund of $35,292.10 the amount of the judgment will be $200,243.43. I give judgment against each of the defendants in the sum of $200,243.43 with costs to be taxed.