| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RICHARDSON -v- WHYMARK NOMINEES PTY LTD [2002] WADC 253 CORAM : GROVES DCJ HEARD : 6-10 AUGUST 2001 DELIVERED : 3 DECEMBER 2002 PUBLISHED : 3 DECEMBER 2002 FILE NO/S : CIV 630 of 1999 BETWEEN : JASON JOHN RICHARDSON Plaintiff
AND
WHYMARK NOMINEES PTY LTD
Defendant
Catchwords: Employer's liability - Breach of duty - Personal injuries - Duty to instruct as to safe work practice in a confined space - Assessment of damages - Injury to thoracolumbar spine
Legislation: Nil
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Result:
Plaintiff awarded damages totalling $152,962.14 Representation:
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr M H Zilko
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Case(s) also cited:
Nil
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1 GROVES DCJ: The plaintiff was born on 12 November 1970. He claims damages for personal injuries alleged to have been suffered on the weekend of 18 and 19 May 1996 when in the course of his employment with the defendant he was required to sandblast the exhaust fan contained in a chute of the airconditioning turbine system unit mounted on the roof of the Ministry of Education building, Royal Street, East Perth.
2 Liability is denied by the defendant.
Background 3 The plaintiff left Armadale Senior High School in mid 1987 after completing the first semester of year 11. He had learning difficulties throughout his schooling, he was failing his subjects and this prompted him to join the work force. He straight away gained employment with Wormall Contracting as a full time labourer. He remained there until December 1988. He was then employed by Michael McKrill as a full time roof tiler through to June 1990. For a few months in 1990 he was employed by one Gary Mackiell as a casual furniture removalist. From September 1990 to October 1992 he was employed by L & N Harper as a full time grano worker. 4 In October 1992 he commenced employment with Action Blast as a full time sandblaster. Here he learned the trade of sandblasting and he engaged in this occupation for 12 months through to 18 October 1993. Thereafter he was employed by his father who operated Maida Vale News. The plaintiff worked as a full time newspaper delivery agent for 20 months through to 30 June 1995. In August 1995 the plaintiff suffered a fracture of the right femur and was out of work for some six or seven months. 5 On 26 March 1996 after an interview and a medical check-up the plaintiff was employed by the defendant trading as Mills Sign & Painting Services to work full time as a sandblaster. The plaintiff did not hold any trade qualifications or certificates for sandblasting. When he had previously been employed by Action Blast his work involved heavy industrial sandblasting removing paint from heavy equipment such as excavators and loaders and other machinery before repainting. This work was done in the outdoors. His work with the defendant was mainly undertaken in a sandblasting shed and sometimes outdoors and involved sandblasting machinery and sometimes pipes and rims. Before commencing work with the defendant he was asked if he knew how to use a sandblaster which he did by reason of his previous employment and was
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then sent to work. He received no instructions or training from the defendant. 6 Sandblasting as the name suggests involves sand being pumped under pressure from a supply hopper through a reinforced hose so that the sand coming out the hose nozzle is of sufficient force to remove paint from metal and other surfaces so as to render them clean for repainting. A simple analogy is water going through a garden hose through the nozzle producing a fine spray. For protection the worker wears a helmet similar to, but larger than, the type of helmet worn by racing motor cyclists which has a tube from a compressor which pumps fresh cool air into the helmet. The operator also wears a blast suit or heavy duty apron and safety gloves for protection. 7 On Friday 17 May 1996 the plaintiff was asked by his employer if he would like to do some overtime work on the weekend. He was told that the work was at the Education Department on Royal Street, Perth, and that he would meet another worker there who had done the type of work to be undertaken previously. The plaintiff duly attended the next morning, Saturday 18 May 1996 at 7.00 am, where he met another employee of the defendant, Geoff Oldfield. They then proceeded up onto the roof of the building where all the equipment to undertake the work was located, it having been left there from previous weeks when similar work had been undertaken.
The issues 8 By his statement of claim the plaintiff pleads the circumstances of his having sustained injuries and the defendant's liability therefor as follows: "7. On the weekend of the 18th and 19th May 1996 in the course of his employment the plaintiff was required to sandblast the exhaust fan contained in a chute of the airconditioning turbine system unit mounted on the roof of the Ministry of Education building, Royal Street, East Perth in the said State which necessitated him to work in a confined and insufficient space holding the hose delivering sand at high pressure causing excessive vibrations thus requiring a stronghold by both hands for long hours when he suffered injuries to his back ("the accident").
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(iii) involving the Plaintiff to life, carry, pull and push heavy objects without being able to maintain an ergonomically safe posture; (b) exposed the Plaintiff to a risk of damage or injury of which it knew or ought to have known in that the Defendant:- (i) required the Plaintiff to work without adequate rest breaks; (ii) set unrealistic deadlines for the work to be completed by the Plaintiff; (iii) requiring the Plaintiff to work in awkward positions for prolonged periods holding the hose delivering sand at high pressure causing excessive vibrations thus requiring a strong hold by both hands; (c) failed to provide a safe system of work for the Plaintiff in that the Defendant:- (i) failed to provide sufficient co-workers necessary to assist the Plaintiff with sandblasting duties; (ii) failed to instruct the Plaintiff as to how to work in a confined space without a risk of injury; (iii) failed to carry out a risk assessment in respect of the sandblasting duties on the exhaust fan contained in a chute of the air-conditioning turbine system prior to instructing the Plaintiff to carry out the job; (iv) failed to implement a safety policy in respect of sandblasting duties; (v) failed to warn the Plaintiff as to the risk in the event of him working in a confined space holding the hose delivering sand at high pressure causing excessive vibrations
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thus requiring a strong hold by both hands without adequate rest breaks and assistance; (vi) failed to render any or any sufficient supervision of the Plaintiff in his sandblasting duties. 12. The injuries pleaded in paragraph 8 hereof were occasioned to the plaintiff by reason of the negligence of the defendant, its servants or agents.
Particulars of negligence
(The plaintiff repeats the particulars (a)-(c) of paragraph 11 as above). 13. Further, or in the alternative, the injuries pleaded in paragraph 8 hereof were sustained by the plaintiff by reason of the breach of statutory duty pursuant to the provisions of section 19 of the (Occupational Health Safety and Welfare) Act on the part of the defendant, its servants or agents.
Particulars of breach
The defendant failed to – (a) provide and maintain a work place, plant and system of work such that, so far as is practicable, the plaintiff was not exposed to hazards; (b) provide such information, instructions and training to, and supervision of, the plaintiff as was necessary to enable him to perform his work in such as manner that he was not exposed to hazards." 9 The defendant admits that it employed the plaintiff and that in the course of such employment he was required to undertake the work in question. The defendant otherwise denies the allegations and claims made against it by the plaintiff and further states:
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The plaintiff's evidence 10 The chute of the airconditioning turbine system can be described as follows (measurements approximate). Externally the casing is 1.87 m wide x 2.52 m high. The casing is cylindrical but tends to a point at the top. At either end the casing is vertical. There is an opening of 300 mm high x 870 mm wide on one of the cylindrical sides. The bottom of the opening is 1220 mm above the base level of the unit. On the opposite side from the entry there is a duct which takes cold air into the building. Inside the unit there is an impeller comprising what might simply be described as a number of fan blades which is located centrally and horizontally across the unit. The ends of the blades are 500 mm from the vertical sides of the unit. The length of the fan blades is about the same as the width of the opening, namely 870 mm. There is a clearance of some 560 mm-585 mm between the edge of the fan blades and the internal cylindrical wall of the unit. There is no flat floor inside the unit as the bottom (beneath the fan blades) follows the unit's cylindrical shape. 11 The work to be undertaken required sandblasting of the fan blades internal walls, cleaning out of the unit, applying a primer to the cleaned areas and then applying a final coat of paint. The job had to be completed over the weekend. The airconditioning was not required whilst the building was unoccupied over the weekend. It was the plaintiff's evidence that his co-worker, Oldfield, told him that he had previously done two other chutes and that the work was not good enough because they had been done from the outside through the entry opening. The plaintiff was told that he would have to go inside the chute to sandblast the fan blades. Preparatory work involved taping up internal areas of the unit with plastic
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and tape. Oldfield went inside the unit and taped up the airconditioning duct so as to ensure that sand did not go through into the ducting. The plaintiff was instructed to go inside the unit and start blasting. As to gaining entry into the unit it was his evidence: "The helmet wouldn't actually fit in there with me wearing it, so we had to put it in sidewards; it was too small, the gap. So I put the helmet in there and all the hoses, and you got up onto a stepladder because the opening is fairly high because you know the stepladder was about three steps and I had to get in sort of legs first and then pull my head back and get that in there because its not a very big gap and then trying to get a footing and I just couldn't get a footing because it was all rounded and a big fan in the middle. So I couldn't even stand up in there…" 12 Once inside the job was to sandblast the fan and all the sides of it and the inside walls of the chute Asked if he received any instructions as to what he should do it was the plaintiff's evidence that Oldfield simply told him "sandblast everything inside." The preparatory work took about two to three hours and sandblasting commenced between 10-11 am. It was his evidence that he "…would have been in there for five or six hours." Oldfield remained on the outside refilling the sand pot when it became empty. Not being able to stand up the plaintiff adopted the position of lying in the bottom of the chute underneath and fan and working above himself. It was his description that: "Some of it I had to stretch my arms up as much as I could and just put my other arm – just put my other arm and somehow I just had to twist around and try and get as far as I could up, you know, while laying down. I mean I was having trouble getting parts of the fan and things. The fan itself wasn't too bad because it was loose and just free wheeling so I could push that around but to actually get up the sides up the top and that it was very difficult. I mean a lot of it I – you couldn't see if you'd got it or not." 13 Whilst in the chute the plaintiff took a few breaks while he was lying on the bottom of the chute. He got out once for a toilet stop of about 20 minutes and got out at lunch time when a had a break of about one hour. He described the difficulty which he had in working in such a confined space both insofar as positioning and moving and twisting his body was concerned, coupled with wearing the safety equipment and helmet, manoeuvring the hoses and the vibration of the hose whilst it was
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emitting sand under high pressure. He had never previously been engaged in sandblasting in a confined space. 14 It was his evidence that by about lunch time his lower back was quite painful. He mentioned this to Oldfield. Nevertheless he continued sandblasting after lunch. The sandblasting was completed before they finished work that day. It was his evidence that at no time did Oldfield do any of the sandblasting. Before leaving and because of soreness in his back he told Oldfield that he didn't really want to work the next day. Oldfield's response was that he couldn't contact the boss and said "You've got to come in because we have to have two people to do the job. One stand on the outside and watch while the other person's doing the job." The plaintiff said that he went home and had a shower and went straight to bed. When he woke up next morning his lower back was very sore but nevertheless he turned up for work at 7.00 am. On the Sunday the plaintiff and Oldfield took it in turns of getting into the chute to clean down the walls and vacuum the sand. The vacuum cleaner remained outside the chute. When the vacuum cleaner filled with sand it then was emptied of sand into 20 litre steel buckets. It took the two of them to lift the vacuum cleaner to empty it with the consequence that whoever was in the chute had to get out to help the other empty the vacuum cleaner. Vacuuming took about three or four hours. They ended up with four buckets each half to two thirds full, and the vacuum cleaner full of sand. When this work was done it was necessary to carry the buckets of sand across the roof and over a meshed walkway and down two flights of stairs. They together carried the vacuum cleaner down the stairs. Part way down the plaintiff had to take a rest and complained to Oldfield of his back soreness. He estimated that the weight of the vacuum cleaner filled with sand weighed about 50, 60 kilos. They finished work between 3.30 and 4.00 pm and the plaintiff went straight home, showered and went to bed with his sore back. 15 It was the plaintiff's evidence that on Monday morning he telephoned his employer to say that he wanted the day off to go to see a doctor. He was told that there was too much work on and that he was needed there and being concerned that he might lose his job if he didn't attend he went to work. He commenced sandblasting some large metal pipes but after about two hours the pain worsened, he was unable to stand upright and was in a great deal of agony. He left work and went to his parent's home and his mother made an appointment for him to see his general practitioner Dr Offer the next day. X-rays were taken and he was prescribed analgesic medication and subsequently referred to Dr John Ker. Since then he has received conservative treatment including physical
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therapy programmes, medication and attendance on various medical practitioners. He engaged in work trials in January 1997 at Coventrys as a storeman in September 1997 at Melville Nurseries as a gardener's assistant and in December 1997 at an Ampol service station in Kelmscott. He also attempted a work trial at Ginger's Gull Roadhouse at Upper Swan. None of these work trials lasted very long because he developed pain in his back and was not able to be usefully engaged. The work trial at Upper Swan involved travel of about 45 minutes and by the time he arrived there he was in no condition to work by reason of pain in his back. 16 His present complaints include pain in the lower back, the middle back and in the area of the shoulders and neck. The pain in the lower back persists most of the time. He also suffers frequent headaches requiring him to take medication and rest. As a consequence of his physical problems he has also sought treatment for depression. He had none of these problems of which he complained at trial before this incident. Nor has he returned to or engaged in any form of employment other than the work trials and nor has he applied for any employment. He feels that his condition is such that he simply cannot undertake any form of employment. He said that if he had not suffered an injury he would have gone to the north west of Western Australia to work where he knew there were opportunities for workers with his skills and experience. Had he remained fit and able he intended to work for the rest of his life to age 60 or 65 years. 17 Cross-examined about his arrival for work on the Saturday morning he denied that his boss Merv Perry was present at the time. Furthermore he denied that Oldfield did any sandblasting inside the chute. The plaintiff reiterated that Oldfield went into the chute to tape up the airconditioning duct but apart from that did not otherwise get into the chute on the Saturday. The plaintiff was adamant that Oldfield stayed on the outside and observed progress and filled up the sand pot every time it got low. He also rejected the suggestion that breaks were taken every 20 minutes to fill the sand pot and it was the plaintiff's evidence that he stayed in the chute while Oldfield filled the hopper outside and that the only time he got out of the chute was for the toilet stop and for lunch. 18 The plaintiff was cross-examined extensively about the number of hours he claimed to have been in the chute sandblasting. He maintained his estimate as to the length of time he spent in the unit. He was cross-examined also as to the alleged vibrations of the sandblasting hose. It was a smaller unit than those he had previously operated but even so he maintained that there was vibration and that to counter the pressure he
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either held the hose with both hands or used one hand to support the other hand holding the hose when in an awkward position 19 It was put to the plaintiff that at no time either on the Saturday or Sunday did he complain to Oldfield of a back problem. The plaintiff stood by his earlier evidence. 20 It was put to the plaintiff that by resting his back against the curve of the wall of the chute he could comfortably position himself so that he could work along the blades of the fan quite simply. The plaintiff's response was that the inside of the curved surface was smooth and slippery and to try that posture only led to sliding down and under the fan blades. In relation to the posture depicted in the diagram, Exhibit 36, he maintained that it was not possible to adopt that posture because the walls were too slippery and the person would slide down and end up in the bottom of the unit in any event. It is noted that the sketch is a simplistic "stickman" diagram and does not indicate the person wearing the safety helmet and protective gear with the air hose or the sandblasting hose which all would undoubtedly make it more difficult to adopt the position demonstrated. 21 As to his position in the bottom of the unit he said: "Sometimes I'd lay long ways sometimes I'd twist around so my back was sort of here and I could sort of blast here and then sort of turn then until I could blast it. Sometimes I'd have to lay on the bottom and point it against the edges." 22 It was his evidence that after being in the chute and sandblasting for about an hour that he first felt pain in his back and that was just before lunch on the Saturday. He claimed that there was no way he could position himself up any higher or stand up because of the position of the fan in the middle and necessarily he had to adopt a bent position to do the work. Asked "How did you injure your back doing that" he answered "Twisting around in there from side to side with all the hoses underneath me and the air hoses as well underneath me." 23 The plaintiff was also extensively cross-examined about what he told each of the doctors whom he saw following the incident insofar as the extent of his sandblasting and the time when he first noticed pain The plaintiff's response was that the doctors had misunderstood what he told them and they had all got it wrong. I will comment on these matters later in these reasons.
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The plaintiff's complaints
24 Prior to the weekend of 18 and 19 May 1996 the plaintiff was a fit healthy and outgoing type of person who had experienced no previous problems with his back. He did heavy labouring work involving bending, lifting and carrying without any trouble. In about October 1995 he sustained a broken leg but made a satisfactory recovery prior to commencement of his employment with the defendant. He said that he had given thought to going up to the north west of Western Australia where he knew that there were jobs offering for experienced sandblasters. He would have stayed up there while he had work. It was his intention that he would work for the rest of his life to age 60 or 65 years. He had no intention nor qualifications to do other than physical labouring type work. He had participated in various sports including water skiing, soccer, martial arts, fishing, indoor cricket and bush walking. He used to go nightclubbing with friends but does not any more. He has not participated in any of those recreations since he sustained his injury. 25 As to his present symptoms he described having a lot of sharp stabbing type pain in his lower back which was pretty much constant. He experiences pain in the middle back and in the shoulders and neck region. The pain in those areas started approximately twelve months after the incident. From time to time he has pins and needles down both legs. He has headaches every couple of weeks with not much relief from medication. The headaches comprise a throbbing at the back of his head which cause him to feel sick. He had not previously experienced these severe headaches. When his shoulders are tired and sore he will have his mother give him a massage to the area. Whereas he used to be an easy going type of person the pain causes aggravation and has led to him experiencing symptoms of depression. He used marihuana to reduce to reduce his level of pain although he ceased this some six months prior to trial on medical advice. He claims to only have three hours sleep at night because he is woken by pain in his back. Since his workers' compensation payments ceased on 2 August 1999 he has been in receipt of social security benefits. For all his complaints he is taking a plethora of medication. Doxepin a sedative antidepressant, Cipromil, Digesics as painkillers, Celebrex, and Zyprexin for depression. All medication has been prescribed. Sitting for long periods causes back pain. As to housework he has done some washing up and cooking but is unable to lift any heavy items such as taking out bags of rubbish or lifting groceries, etc. He is, it would seem, pampered in the home environment by his parents and by two sisters who live at home.
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26 He has not attempted to resume his employment as a sandblaster. He has undertaken work trials in 1997 but without success. He worked reduced hours for six weeks at Coventry Motors as a storeman. The work involved bending, lifting, climbing a ladder and carrying boxes but he claims he was not able to continue because it hurt his back. He did two hours for two days light work at Melville Nursery but this involved walking on uneven ground and this caused back pain to flare up. In December 1997 he trialed at an Ampol Service Station in Kelmscott where he did a few hours for a few days but could not carry out his duties again because of back pain. In December 1997 he trialed at Gingers Gull Roadhouse at Upper Swan. The 45 minute drive from home left him with pain in the back and on arrival he was immediately sent home. It was his evidence that by reason of his bad back and the pain which he experiences and because of his early learning difficulties that he does not know of any type of job that he could undertake.
27 In cross-examination he acknowledged that he used marihuana prior to this incident although he said he only continued using after to relieve the pain. He acknowledged also that he had since the incident lost his driving licence because he had not been able to pay fines incurred for speeding offences. That would indicate that he has been able to drive a motor vehicle and do so at speed and on multiple occasions.
Evidence of defendant's witnesses Oldfield and Perry 28 Geoffrey David Oldfield is a qualified sandblaster and industrial painter and had worked as a sandblaster for 20 years. At the material time he worked on sub-contract to Mills Sign & Painting Services and he worked on all eight of the airconditioning chutes on the Education Department building. The job required two workmen and on all the other chutes he was assisted by a Mr Ken Blake. He had completed two chutes prior to the occasion when he worked with the plaintiff. It was his evidence that on Saturday 18 May 1996 he arrived at site at 7.00 am. The plaintiff was there and he recalled "…as far as I remember…" being met by Merv Perry who was in charge of the blasting and painting for Mills Signs. There was some discussion with Mr Perry but he could not recall if Mr Perry actually went up to the roof of the building. 29 The following passage from Mr Oldfield's evidence in chief serves to illustrate a lack of certainty on his part as to what actually did take place on this particular morning:
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"Was there an arrangement between you and Mr Richardson as to who was going to do the work?---Well, the arrangement that I had set up originally was that I was going to do the blasting, the bulk of it, and I went in first and started the job, yes. Alright, and how long were you in there for?---Probably about an hour to an hour and a half. Did Mr Richardson then go in after that?---Yes, he had a turn, yes. How long was he in there for?---From memory I'd probably say around about half an hour to three quarters of an hour. Why was he in there for that period of time?---Well generally – I'd done the bulk of them before so I was just having a break for a bit of a rest and then I proceeded to back in after that. Alright, and was he working quickly or slowly from your observation?---Well, obviously I was more qualified than him so I'd say he was probably going slower than I was, yes. Were you happy to do the blasting?---Yes it didn't bother me at all. Mr Richardson…in his evidence…said that he was in there doing the blasting, save for coming out for lunch for about an hour and save for going to the toilet for 20 minutes – he says he was in there for five to six hours. What do you say about that?---No, I don't think that's right. What do you say happened on the day? Is that as you have just told us in your evidence?---I would say I did the bulk of it, yes. How long do you estimate he was in there for all told?---I really don't remember; possibly maybe two hours, something like that. You say he was in there for half an hour to three quarters of an hour. Did he then come out and you go back in?---Generally what happens is when you blast you have got a pot size – a pot which the sand is in. Its normally got an expectancy of about three quarters of an hour to an hour and it runs out and you have got to refill the hopper."
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30 He was then asked about the plaintiff's evidence of having made complaint to him about pain in his back. The transcript records his evidence as follows:
"He also says that he felt pain in his back before lunch on that Saturday and he told you about the pain in his back at lunch time. What do you say to that?---No. No to what?---No I don't remember him saying anything like that at all, no. Did he tell you about the pain at the end of that day?---No. Did he tell you about pain the next day?---He didn't work the next day, as far as I can recall. On the Sunday?---Yes. He says he came into work with you on the Sunday as well?---Well, I'm sorry, I don't remember. I don't think he did. …did he actually ask you if he could give Sunday – take Sunday off?---I don't recall. Because of the pain in his back?---No I don't recall that at all no." 31 He said that the first he knew of the plaintiff's back injury was when it was mentioned to him at lunch time at the Mills Signs yard on the Monday. Cross-examined about that he was asked if he then discussed the job at the weekend and the plaintiff's back complaint with Mr Perry and it was his response that he wasn't really interested and it was not then discussed. That is relevant in the context that he left Mills Signs employment in about 1996 or 1997 and was not asked to recall the events of this weekend until some four years later which was approximately one year before trial for the purpose of speaking with "Safety Advisory Bureau" investigators. 32 Mr Oldfield demonstrated how he positioned himself whilst he was sandblasting in a chute. He demonstrated a sitting position with his back against the curvature of the inside of the chute and sandblasting in front of the face area of his helmet and to the sides. The sandblasting hose was held with one hand and the other used to turn the blades around while blasting. To do the inside surfaces of the chute involved essentially sitting underneath the fan blades and blasting the inside surface opposite up to
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the height of the air duct and then standing and reaching up to blast above that. Mr Oldfield described it as being "quite comfortable" and he did not accept it was a confined space and he described it as being easier than some of the other places where he had previously worked. 33 The compressor being used was known as a Mighty Mite which delivered sand at the nozzle of 70 p.s.i. It could be held and operated with one hand with the nozzle 10-20 cm from the surface being cleaned. It did not cause any substantial vibration and did not require to be held with two hands. 34 As to the sitting position in the unit he said that by pushing his feet into the sand at the bottom prevented him from sliding down the curved wall and effectively with his feet in the sand he could brace his back against the curvature of the chute and would not slip down. Asked if he would describe the working position as awkward he said "To me, no." Asked if he gave any assistance when the plaintiff was in the chute he responded: "The only assistance that he needed is the assistance that he got, which was for me to stand outside and monitor." Asked if there was anything else he could have done to supervise the plaintiff and protect him it was his response: "No. He knew the job, he knew the procedure that had to be followed before he went into the particular unit. I actually showed him what was required inside the unit before we started. A couple of times when he first started I am sure he actually stopped – he stopped the unit and just asked me a couple of other questions that he wasn't quite sure of. I verified those with him and away he went again." 35 In cross-examination it was his recollection that on the Sunday his co-worker was Ken Blake and not the plaintiff. Nor could he "answer for sure" whether the buckets of sand that had been used for sandblasting were removed downstairs on the Saturday or the Sunday. Mr Oldfield had very little knowledge about the plaintiff's prior sandblasting experience and was not aware, for example, as to whether or not he had worked in confined spaces previously. He acknowledged that all he knew was that the plaintiff could sandblast and he had seen him do so in the shed at the yard a couple of times and it appeared he knew what he was doing. When asked about the plaintiff working on the Sunday Mr Oldfield went from the position of saying "I'm sure he wasn't there on the Sunday" to "I'm
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pretty sure he was not there" to saying, in response to the question "But you agreed that he could have been there?" "No I'm not going to agree on that at all because I can't recall." He accepted that he was the more experienced sandblaster of the two of them. As to the pressure of sand from the nozzle of the hose he said "…It's got a fair bit of air pressure behind it…" and asked if the operator had to keep a firm hold of the hose he said "that depends on your experience…" All too frequently it was apparent that Mr Oldfield was relying on his general recollection rather than any actual recollection of this particular weekend's work. 36 As to instructions given by Mr Oldfield to the plaintiff it was his evidence that he told the plaintiff "how to do the hopper the first thing in the morning". In cross-examination: "Did you tell him, 'Now, when you're in there, lean your back up against the wall of the chute and then aim the sandblaster at the fans and then when you've done one fan you turn it around and keep turning it around.' Did you tell him that?---I instructed him how to do the job. Could you answer my question?---Yes, I instructed him how to do the job. What did you say?---That would have turned around and included what you just asked. What did you say to him?---I instructed him how to blast, where to start blasting where to finish and how to do the job, including the fans. …Tell his Honour what instructions you gave to Mr Richardson?---The instructions I gave Mr Richardson is exactly the same procedure that I followed on the units previous, which is exactly how I did it. What did you say?---I told him how to start, where to blast, what areas to blast and how to do it and what procedure. What did you say to him? What were the actual words you used to him?---The words I would have used to him is, 'you start blasting on the floor, you work onto the impellers, then you work your way up the side from there.'
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And that was it?---That's exactly all he needed to know to do the job. And that's all you told him?---That's all I needed to tell him. That is all you told him:?---Yes, that's all I needed to tell him. No, not a question of what you needed to tell him, I'm asking you is that all you told him?---That's all I told him." 37 Mervyn James Perry was in 1996 contract supervisor for Mills Signs with whom he had been involved for some 28 years. It was he who interviewed and employed the plaintiff as a sandblaster. 38 It was his evidence that he met both Mr Oldfield and the plaintiff at 7.00 am on the Saturday morning. According to him there are seven airconditioning chutes on top of the Education Department building in East Perth and he attended every weekend on the Saturday morning and sometimes on the Sunday morning when they started each job. He met them down at the carpark and assisted taking of blasting sand and possibly paint up onto the roof. He was aware that the sandblasting unit being used on this job was one known as the Mighty Mite which blasts sand at a pressure of around 80-85 p.s.i. He said that normally the hose can be controlled with one hand although sometimes two hands might be used for comfort. He described that when in use the pressure from the hose was harder than "a fairly strong garden hose…but it wouldn't be like a fire hose." He said there was no vibration from use of the hose and to hold it when in operation the pressure was not such as to cause the worker to have to tense the body to withstand the force exerted by the sand under pressure from the hose. 39 Mr Perry did not stay long on the Saturday morning and could not recall whether he went to site on the Sunday morning. It was his evidence that the plaintiff did not go in to work on the Monday but says he received a telephone call from the plaintiff to say that he wasn't coming in because he had hurt his back. He denied, as was the plaintiff's evidence, that he said he wanted him to come in because they had a lot of work to be done. He told the plaintiff to go to the doctor. It was his evidence that the plaintiff returned to work some two to three weeks later after the doctor had told him to try to work. Contrary to Mr Oldfield's evidence Mr Perry agreed that the job time sheet (Exhibit 28) did indicate that the plaintiff worked on site on the Sunday.
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40 In his evidence in chief Mr Perry was asked to recount step by step the procedure undertaken from arrival on the Saturday morning. He commenced to give an account of what "would have" been done on that occasion and against objection was directed to only give an account of what he recalled actually happening on that morning. Despite that direction his recollection was still punctuated with his belief as to what "would have" been done and what he "would have done". The following exchange is perhaps indicative as to the quality of this witness' recollection. After being directed to confine himself to the actual events he recounted that "We would have unloaded the Ute…" and then after having set everything up "…went through what we had to do; then went through with Jason familiarising exactly what we're going to do…"
"You say you went through that with Jason. Did you go through that with Jason?---I would have shown him what we were going to do, Yes. No no not "I would have"?---Yes, yes. Sorry. I would have went through that with Jason, sorry about that. You actually recall doing that? That's what I want to know?---Yes. I did that every time someone else started there so its – yes. Then did you show him what had to be done in terms of the blasting?---Yes. I would have taken – we have to take the cover off that was on there and just stand outside and look through and tell Jason, 'these parts is what we've got to do – the rotators and everything else in here we've got to do it.' Is there anything else you could have told him apart from that?---No, just mainly that – the boys have been laying inside there. They actually get inside and lay in there and do this, do the impeller and everything else and then do all the floor and then work their way round from each side to the rest of it. So how does all that - -?---Normally, I'm on the site. I would've stayed on the site for about an hour, an hour and a half. Then what happens after that?---They start taping up. Now, you weren't there but tell us from your experience what would happen?---They would have started – they would have had to tape up, cover up everything so there was sand or
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anything that got in there which usually takes about two to three hours, probably a little longer, then they would have set the hose up in there. Jason would have got inside---" at which point objection was taken by plaintiff's counsel. 41 Later he was asked approximately what time he left site on the Saturday morning to which his response was "It would have been around the 8.30 mark." On his evidence that would have been before sandblasting commenced. He had no further contact with the plaintiff until the plaintiff rang on the Monday morning. That evidence would seem to confirm the fact that Mr Perry did not attend site on the Sunday. 42 Cross-examined as to whether there were seven or eight airconditioning chutes on the building he was not certain (Oldfield's evidence was that there were eight) and he agreed that with the passage of some five years his recollection was not certain. He agreed that it was not possible to stand upright once inside the chute and that the internal surface of the chute is slippery. He agreed that the internal area, the blades of the impeller and the interior surface required a lot of sandblasting and that so far as access to all areas were concerned that it was "a very active job". Asked about instructions given to the plaintiff his evidence went as follows: "You did not give Jason any instructions as to how he should go about his work, did you?---I did give Jason instructions. When?---When we went up there I showed Jason what was involved with the job and said, 'This is how we do it' and left it to him and Geoff (Oldfield). I showed Jason inside the job and said 'That's how we did it in there. We actually lay there and blast it all and then we come from the outside and get the rest of it.' But you didn't go inside the chute with him?---No I didn't go inside the chute. No. And you didn't go into detail as to how he should go about his job. You just told him what you required, namely that the impeller should be blasted and so should the internal walls?---Yes. And that was the extent of the instruction you gave him, wasn't it?---That's correct yes.
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43 Cross-examined about his knowledge of the plaintiff's experience he conceded that he had never asked the plaintiff what experience, if any, he had in sandblasting in confined spaces. He had no knowledge as to whether the plaintiff had worked inside confined spaces. Cross-examination concluded with the following exchange: "Your footing is on a curve isn't it?---Its on a curve but its not as if you are on a stark curve that you're going like that all the time. Its not a very sharp curve, as what I class as a sharp curve, no. And your feet can slide can't they?---Depends on how you do it, but normally inside those, no. Given that did you think it might not be appropriate to tell young Jason 'Look you're going into this new type of work. It isn't the usual sandblasting, its in a chute' and just tell him to go about his work, what method he should adopt to do it. Did you not think it appropriate to tell him how to go about this work?---Not particularly, because he come to us as an experienced sandblaster. Alright so you just left it at that; credited him with a knowledge of how to work in confined spaces like that?---That's correct, yes."
Evidence of the experts Associate Professor Nedved and Ms Miller 44 Milos Nedved is an Associate Professor in the Faculty of Communications Health and Science at Edith Cowin University. He obtained his doctorate in safety engineering. He has published widely on the subject of occupational safety and health and has presented papers on the subject at conferences internationally. Although he has no formal qualifications as an ergonomist he was teaching ergonomics at a tertiary level well before the subject held the status it now has. His experience both in the work place and academically make him well qualified nevertheless to address issues relevant to that discipline.
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45 Assoc Prof Nedved inspected the airconditioning fan unit at the building on 3 May 2000. The unit was switched off and the entry door opened to enable him to make measurements of the dimensions internally. He produced a drawing of the front and side views of the unit with the dimensions marked (attached to Exhibit 17A). He was not permitted to enter the unit or take any photographs. It was his opinion that the area within which the plaintiff was required to work constituted a confined Space. The difficulties of working in such a space he said would be self apparent. He identified Australian Standard AS2865 – 1995: "Safe Working in a Confined Space" as providing relevant detail on the identification of hazards and design of control strategies.
46 9.1 of the Standard states: "For any work proposed, the employer shall identify any confined spaces and the hazards associated with working in those confined spaces." 47 Under the heading "Risk Assessment" par 10.1 commences: "An employer shall ensure that a risk assessment is undertaken by a competent person before carrying out work involving entry into a confined space." 48 Factors to consider when undertaking a risk assessment are identified in par 10.3 and include, inter alia: "(i) all hazards which may be encountered; (j) the status of fitness and training of those persons involved in confined space work; (k) adequate instructions to those persons in any work procedure required, particularly those which are unusual or non-typical." 49 In his evidence he identified the difficulties in working in this confined space, namely the curvature of the unit, the smooth internal surface, the limited space within which to work and the possible need to adopt awkward bodily positions to undertake the work. Need to manoeuvre with the safety helmet and air hose attached and wearing the safety apron whilst holding and directing the blasting hose and counteracting the force of the nozzle all made working in that environment more difficult. It was his opinion that the combination of
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factors indicated a potential for muscular injury in the nature of strains and sprains and potentially spinal injury. 50 The Australian Standards do not have the force of law although they are a guide to employers as to what is considered to be reasonably practicable when the need for a person to work in a confined space arises. 51 As to time engaged in a confined space the witness identified two independent problem areas. The first one being that a person can develop an injury when trying to twist or change the position in a confined space and only a short time in a confined space might be sufficient for that to occur. The second potential for injury is that the longer time the worker is working in a certain fixed position the higher potential for another type of injury. A preventative aspect in common practice in industry would be for the worker to get out of the confined space every 20 minutes or so to relax the back muscles. 52 Jennifer Rosemary Miller was called on behalf of the defendant. She holds a Master of Science degree specialising in ergonomics and a Bachelor degree in physiotherapy. She is in business as a consultant ergonomist. Ms Miller attended and inspected the airconditioning unit on 14 July 2000 in company with Messrs Perry and Oldfield. The unit was turned off and the entry hatch opened to view the inside of the unit. She too was not allowed to enter or photograph inside the unit. She said that: "Actually when I spoke to both Mr Perry and Mr Oldfield, they were the ones who indicated that you climbed in feet first; you braced yourself with your back against the side of the unit here, you're working in front of yourself, and yes, your feet were on the floor, sort of wherever you could put them, underneath the fan." 53 Adopting that posture as was described to her, she concluded that there was sufficient space for the plaintiff to work in a supported posture. Sandblasting for less than half an hour in that posture, she said, would not place the plaintiff at risk of injury. On the basis of what she was told she was of opinion that "to sandblast the impeller the posture of lying on one's back against the side of the unit would provide support while working with arms directly in front. The trunk would be supported and there would be little risk of injury to the back. She identified what might be described as a safe working posture in diagrammatic form (Exhibit 36). The stick figure of the person working inside the unit indicates the knees in a bent position. It was her evidence that after having prepared the
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diagram Mr Perry indicated to her that the person's legs would be straight and not bent. It is problematic that a worker adopting that posture could have held it for any length of time. 54 On Ms Miller's assessment, formed on the basis of her observations and what she was told by Messrs Perry and Oldfield she concluded that there would be little risk of injury for a worker adopting a posture braced against the side of the unit provided that regular breaks were taken so as to relax and straighten up the back muscles. 55 From a risk assessment view point that may well be the case. In fact her evidence was illustrative as to how an injury might have been prevented given the necessity to work in the confined space. Adopting the posture of having the back braced against the side of the unit would also counteract against the force of the sandblasting hose being held whilst working. It was her view that there was actually no need for the worker to brace his neck or shoulder muscles to counteract that force because the worker was actually braced against the side of the unit. 56 Whilst Ms Miller asked questions of Perry and Oldfield and has based her opinion on that information there was no evidence that in fact they described to her the posture adopted by the plaintiff inside the unit whilst he was sandblasting. It is all very well to describe a posture to be adopted which would avoid or reduce the risk of suffering any injury but that is not helpful insofar as the court is concerned if no opinion is expressed so far as the actual posture adopted and the risk of sustaining injury in that posture are concerned. 57 In the course of cross-examination Ms Miller was asked about what Mr Oldfield had told her in the course of which she was referred to her report (which was not tendered). The cross-examination was: "He told you that the only work that he did inside, sandblasting, was half an hour's work and that Mr Richardson did all the rest. He told you that?---No, the other way around. He said that he, Mr Oldfield did the majority and Mr Richardson did the impeller. (Counsel, quoting from the report) 'Geoff stated he did approximately half an hour sandblasting, then came out and asked the plaintiff to finish off the job.' That's what you recorded?---Ok, sorry, yes.
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Alright? So that the plaintiff was doing about 15 to 20 minutes and he did the rest. No, 'Geoff stated that he…' Geoff '…did approximately half an hour sandblasting'?---That's right. 'Then came out and asked the plaintiff to finish off the job'?---That's right. That's what you recorded, wasn't it?---That's right, and the plaintiff then did 15 to 20 minutes worth. That's what he said at that time, did he?---That's correct, yes." 58 Ms Miller agreed that by flexing and twisting the posture of the trunk while holding the arms forward does place strain on the lower back. The more contorted or twisted the posture the higher the risk and the posture does not need to be adopted for any substantial length of time to risk injury. Even for a relatively short period of time putting undue strain on the musculo-skeletal system increases the risk of injury. It was her evidence that "What places strain on the lumbar spine is when you have got forward flexion, so you're bent forward, how much you bend forward. If you bend and then twist, that's going to place strain on the lumbar spine which is that situation that you're referring to earlier with that report that I was talking about. It depends really what you're talking about by bending. If you're talking about side bending which instead of going forward you're talking about bending sideways that doesn't – it places a slightly increased load but that's not going to be or increase the risk of injury as much as if someone's bending right forward and if they're bending right forward and twisting." 59 In cross-examination she said, inter alia: "…would you agree that as an ergonomist, someone who wants to prevent accidents in the work place, (a confined space risk assessment is) something that you would recommend?---You would look at it if they were having to adopt awkward postures. The issue here is the posture that someone adopts. Yes, it’s a confined space but the important thing is what posture they can adopt because that's where the risk of injury lies."
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60 In referring to the Australian Standards she acknowledged:
"Yes, you've got to make sure that people don't have to adopt awkward postures, that it would be appropriate that instruction and direction be given to a worker who had not previously worked in a confined space, that training be provided to all persons required to work within a confined space and that 'the importance of training is in ensuring that they know that they need to be able to work and support postures. That's the reason why you do it.'" 61 Furthermore: "It’s the poor posture that raises the risk of injury. If you add a time factor into it you're obviously increasing it a bit further." 62 Her premise that there would be little risk of injury to a worker adopting an appropriate posture was premised on the information provided to her by Mr Oldfield. She had assumed that the plaintiff had adopted the same posture that Mr Oldfield described to her. She said that the risk comes from two factors – the awkwardness of the posture and the time that the person has to adopt that posture. There is an increased risk of injury the more awkward the posture is.
Plaintiff's prior work history 63 The plaintiff called evidence from his former employers. Raymond John Warmall conducts business as Warmall Contracting engaged in deep sewerage and drainage works. He employed the plaintiff in 1987 for approximately 18 months as a labourer and general hand. He described the plaintiff as being enthusiastic and willing to carry out physical work and overtime when available. He had no problems with the plaintiff. 64 Robert Stephen De Moll employed the plaintiff for 12 months from October 1992 in his business Action Blast. He trained the plaintiff as a sandblaster and he described him as being a hard worker and ultimately one of his better sandblasters. The nature of his work involved work in the field cleaning heavy equipment, machinery, bridges and columns. He did not undertake jobs which required sandblasting in any confined areas
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and hence the plaintiff had no experience with him in working in confined spaces. 65 Lloyd Edwin Michael Harper operated a concreting business and he employed the plaintiff for two years from September 1990 to October 1992. He was engaged initially as a trainee concreter and his work also included digging trenches, laying concrete slabs and screed and trowel work. He described the plaintiff as being hard working and willing. They worked six days a week. 66 The evidence of his former employers would indicate that the plaintiff was willing and capable of undertaking physical work of a labouring nature and that he was a willing worker able to train in different fields and able to undertake the tasks presented to him.
Evidence of the plaintiff's parents 67 The plaintiff's father John Richardson's evidence was to the effect that pre-accident the plaintiff enjoyed life and all that he did. He had employed him in his newsagency business for 20 months doing wrapping and delivery of papers between 11.00 pm and 10.00 am. Since the accident however the plaintiff has been unable to participate in recreational activities or do any manual work around the house. Mr Richardson described the plaintiff as being initially confident that he would get well and get back to work. As time progressed the pain seemingly did not subside and that led to depression. A year or so after the accident he described the plaintiff as becoming quite irritable. Both Mr Richardson and his wife do everything around the house for the plaintiff. The plaintiff can do some cooking and washing up but could not carry out rubbish from the kitchen because of strain on the back. He had observed the plaintiff ironing clothes. They cater to his every need, accompany him on doctor's appointments and to the chemist and he said that his wife spends a lot of time comforting the plaintiff. The plaintiff had purchased a house in early 1998 and lived in that house until he returned home to live at the end of 1999. The plaintiff was not able to do any work around that house. He denied however that by their attending to his every need that the plaintiff was being mollycoddled. 68 The plaintiff's mother Helen Iris Richardson's evidence was to similar affect. Whereas the plaintiff had previously been a happy go lucky boy and never a complainer, he was now withdrawn, lacks confidence in the company of others and stays mainly in the home watching videos, playing computer games and doing some cooking. Even
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to assist with the washing up she said that the plaintiff has to take a break after five to seven minutes.. 69 So far as is relevant to the issue of liability it was Mrs Richardson's evidence that she first became aware of the plaintiff's complaint "…when he came back – he actually did mention that he was a little bit sore on the Saturday. He had mentioned that to me and said his back was hurting but he had to go back to work on the Sunday and then on the – he went to work on the Monday, he was told he had to go into work and he came back home about 1.00 o'clock and said that he needed to go to the doctor." 70 The earliest that she could get him to see their family doctor was on the Tuesday. She said that after the plaintiff returned home on the Monday that he lay on a mattress on the floor in the lounge room.
The medical evidence 71 The plaintiff has had extensive reviews by eminent medical practitioners in a range of fields to assess his condition and prognosis. The plaintiff called eight such witnesses and the defendant six such witnesses. 72 Dr John Offer is a general practitioner and he was the family doctor. The plaintiff had been a patient of his since 1988. The plaintiff attended on him on Tuesday 21 May 1996. His report of 22 November 1996 records: "He told me that he had been working bent over in some ducting for a total of about 16 hours, whilst sandblasting. His back was painful, but he was better when he was lying down. On examination his extension was quite good but painful, and he was able to flex forward to his ankles. He was tender to palpitation around the lumbar spine. I made a diagnosis of back strain, and prescribed an analgesic." 73 The pain in the plaintiff's back did not subside and Dr Offer arranged for x-rays and a CT scan. The scan of the lumbar spine indicated at L5/S1 there was a central posterior herniation of the disc. Because of the lack of resolution of the injury he referred the plaintiff to Mr John Ker, a specialist in rehabilitation medicine.
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74 The plaintiff had no prior history of injury to the back. In the years since the plaintiff continued to consult Dr Offer on a fairly regular basis up to the time that Dr Offer retired in January 2001.
75 Dr Offer acknowledged that at the outset he considered the plaintiff's complaint to be a minor back strain and he was surprised that the muscle strain did not improve. He could find no reason for the plaintiff's ongoing symptoms. He agreed that the symptoms were inconsistent with what he had seen in other back injury patients. For that reason he simply accepted the truthfulness of what the plaintiff was telling him so far as symptoms were concerned. He consistently based his assessment on the plaintiff's ability to work on the subjective complaints of the plaintiff and he agreed that there were no objective clinical signs to support the symptoms complained of. The plaintiff also complained to him of chewing causing pain in his back and reporting that when he needed to open his bowels he had pain in his back. Plain x-ray and ultrasound of his abdomen and other tests which included a urine examination and full blood picture all came back negative. He acknowledged that anatomically he could not link those and other complaints to the back injury. 76 Mr John Ker is a specialist in rehabilitation medicine. The plaintiff attended on him on 3 August 1996, 1 November 1997 and the last occasion was in March 1998. Following the first consultation Mr Ker reported that: "As I understand it, his pain problem commenced in and around the 18/05 and 19/05/96 on a sandblasting project at the Ministry of Education in East Perth. He was obliged to work in really quite cramped conditions, where his back was flexed for quite a period of time. It was following these two days that he became aware over the next two days of persisting back pain in the thoraco-lumbar junction and in the lower lumbar spine, but without obvious radiation to either lower limb. …following some reasonable rest (he) has had various physical treatments involving mobilisation, ultrasound and some hydrotherapy. However, essentially these have really not benefited his pain. Indeed he finds most forms of physical activity produce back pain and as a consequence he avoids them. … he undertakes little in the way of physical activity around his home…he describes tenderness in a number of
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diffuse areas in the lower thoracic spine, thoraco-lumbar junction and over the lower lumbar spine particularly at the lumbo-sacral junction. …Neurologically I really could not fault him on examination. …I noted also the CT scan of the lumbar spine, where he is said to have some minor bulging of the L3/4 and L4/5 intervertebral discs. I really do not think that this was pathological. However, there is no doubt that there is a central disc protrusion from L5/S1. This is clearly not causing any neurological compromise. However, by a process of exclusion I feel we have no option but to accept that this has arisen from the episode of injury in May this year. There certainly is no past history of back injury in this case. I feel that this young man's programme should however remain physical. It does seem to me that he has become very apprehensive about experiencing back pain. I believe that he would benefit from a programme where in fact he was positively supported during undertaking (simple spinal mobility forms of exercise), that he then had an opportunity to sustain over a longer period of time such physical treatments and in so doing overcome what appears to me to be somewhat undue apprehension with respect to mobilising his back. With respect to the longer term vocational future, this is clearly guarded. Jason has always been involved in predominantly labouring work and given the disc abnormality at L5/S1, I have very clear reservations about returning him to such work." 77 Under Mr Ker's suggestion the plaintiff commenced in late June 1997 a structured physiotherapy programme at Royal Perth Rehabilitation Hospital designed to maintain the plaintiff's back mobility and settle his low back pain. By the end of August the programme had achieved a situation where the plaintiff was largely pain free. He then went into a part-time work trial at the Melville Nursery but this produced a change in his level of symptoms (a flare-up) which were noted when the plaintiff presented to Mr Ker on 1 November 1997. Mr Ker's report (Exhibit 21(b)) noted that at the time of consultation clinically the plaintiff had some lower lumbar spine tenderness and restriction of movement. He noted:
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78 Mr Ker had not seen the plaintiff since March 1998. In cross-examination counsel outlined to him the symptoms presently complained of, medication being used and the attention being heaped on him in the home environment. Mr Ker's response was: "I think what you are describing, if that be the case, is a great deal more than somebody who is just very apprehensive. I would regard given my experience of him, albeit four years ago, that is quite an abnormal presentation for a person with basically back pain due to a single level disc lesion." 79 Mr Desmond Williams is an orthopaedic surgeon. The plaintiff attended on him on 19 February and 19 March 1998. Mr Williams reports dated 9 March and 13 July 1998 were tendered (Exhibit 15 (a) and (b)). His first report notes: "His current problems are consistent back pain felt in the thoraco-lumbar area. There is stiffness in his neck and shoulder area and there has been headaches in the occipital area that have been significant over the last eight months. In the cervical spine there was a normal range of movement demonstrated with no instability seen. There was no degenerative change affecting the intervertebral discs or joints. In the lumbar spine all the lumbar discs were normal in width. Normal alignment was maintained. There were no abnormalities in bone density. The sacroiliac joints were normal in appearance.
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Overall in the spinal films there is no evidence of traumatic or degenerative abnormality." 80 The latter report notes: "A bone scan study carried out on 26 February 1998 identified a mildly increased uptake in the right laminar at L2 and L3 suggesting some remodelling in the laminar area perhaps reflecting his repetitive stress in the work situation." He noted also mild central disc bulging at L5/S1. He concluded that he did not believe the plaintiff would return to his employment as a sandblaster or heavy work activities or labouring activities. He concluded that: "He needs training in a lighter sedentary work situation where there is avoidance of stresses on his lower lumbar area. He needs to avoid awkward postures and repetitive bending and heavy lifting activities." 81 The plaintiff was next referred by his solicitors to Andrew C Harper, an occupational physician. The plaintiff attended on Prof Harper on 4 December 1998 and 1 August 2001. His reports dated 7 December 1998 and 2 August 2001 were tendered (Exhibit 22(a) and (b)). Prof Harper took a detailed history from the plaintiff and undertook a physical examination. The history was that the plaintiff worked "for approximately 10 hours sandblasting…towards the end of the first day he started to have a bit of a problem. He says he was 'fairly sore' in the lower back on the right side on the first night." In summary his first report concluded: "He is permanently incapacitated for manual work. He is currently capable of limited hours in a non-manual capacity. The prognosis is for improvement in his work capacity with physical rehabilitation. His employability has been markedly reduced due to his disability…Provided he finds appropriate employment I do not anticipate this injury compromising the duration of his working career." Treatment would require intermittent use of analgesic medication. There was no indication for invasive measures. Management was to be exercise, muscle strengthening, improvement in posture, maintaining physical fitness and avoiding aggravating circumstances.
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82 After review in August 2001 Prof Harper's second report was much more grim:
"In the future I would not expect him to be capable of returning to a manual job at any stage. At present I feel he is incapacitated for all forms of gainful employment…this injury precludes him from physical and manual work which was the only work he was capable of doing prior to his injury…I feel his only real prospects for employment are to work in a family business where he would be employed part-time by his father, or to work in a sheltered work situation. My recommendations for treatment are to continue with psychiatric care. He requires physical rehabilitation to address his muscular dysrhythmia, muscular back pain, poor posture, lack of physical mobility and physical condition." 83 Prof Harper acknowledged that his diagnosis was based almost entirely (80-90 per cent) on what he had been told by his patient rather than on objective factors. I reject his evidence which is at the most extreme. His conclusion is not consistent with the vast majority of all the objective evidence about the plaintiff. To the extent that it warrants mention I note that Prof Harper agreed that a lack of physical exercise had been a factor in the plaintiff's deconditioning. That would suggest that between the two attendances (December 1998 and August 2001) the plaintiff had not actively engaged in any real physical exercise programme. 84 Prof Harper made an assessment of permanent disability of 20 per cent loss of effective function of the thoraco-lumbar spine equating to a whole body disability of 20 per cent. 85 Mr Soni Narula is a neurosurgeon to whom the plaintiff was referred by his solicitors. Mr Narula saw the plaintiff on 22 July 1999 and 23 July 2001. His reports (Exhibit 2 (a) and (b)) indicate a guarded prognosis in view of the fact that the plaintiff had symptoms arising from multiple levels of the spine. He concluded that future work definitely precluded sandblasting or undertaking strenuous physical activity. He would however be suited to work as a parking attendant or some similar position which gave him the capacity to sit, stand and walk around as and when needed. At the second review the plaintiff demonstrated objective evidence of improvement in his spinal condition. He acknowledged also
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that to some extent he was reliant on the subjective history in giving his prognosis. 86 Dr Ross S Goodheart is a consultant neurologist. The plaintiff attended on him on 14 November 2000 and 26 July 2001. Dr Goodheart's reports (Exhibit 16(a) and (b)) are consistent in that he reports that in his opinion, based upon the history provided by the plaintiff, his examination findings and a review of the medical notes, is that the plaintiff is suffering a 10 per cent disability with respect to the cervical spine and a 20 per cent disability with respect to the thoraco-lumbar spine. He found no nerve injury. Whilst he thought it likely that the plaintiff's symptoms would persist for the foreseeable future he did not express a view on the plaintiff's capacity for any type of work. 87 Because of his depressed state which had developed about 12 months after the incident he was referred for psychiatric review. Initially he saw Dr Ann Bell the last occasion being in July 2000 before she left for overseas. There was then a gap until 2 July 2001 when the plaintiff attended on Dr John Booth, a consultant in psychological medicine. Dr Booth saw him on four occasions. His report of 18 July 2001 (Exhibit 11) describes the nature of the plaintiff's psychiatric condition as that of major depressive disorder. He attributes the disorder to being a consequence of his physical injury. He assessed a permanent psychiatric disability of 43 per cent. I will comment further upon his evidence later in these reasons. 88 The medical practitioners called by the defendant were Mr Geoffrey James Gee, consultant in pain management; Stewart William Brash, orthopaedic surgeon; Andrew Marsden, occupational physician; Zelko Mustac and Sam Febbo, both consultant psychiatrists and Harold Raymond Schaeffer, consultant neurosurgeon. 89 Mr Gee saw the plaintiff on 31 March 1998. The plaintiff informed him that he had sustained injury while sandblasting inside a turbine and found the position very uncomfortable. The following day he found that his back was painful and by Monday he had severe pain. Mr Gee saw the plaintiff on a number of occasions throughout 1998 during which time the plaintiff undertook and completed a 10 week physical training programme with some positive result. The plaintiff attended for consultation with Mr Gee on 3 July 2001. Mr Gee reported (Exhibit 28(i)) that the plaintiff's then symptoms related to neck pain with associated headaches. He also reported being troubled by mid dorsal pain "…predominantly on the right, although this seems to change sides." He further noted:
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"His diagnosis I believe, relates to a soft tissue injury to his dorso lumbar spine in 1996. Apart from the localised tenderness, I could not provide you with a clear physical diagnosis for his ongoing symptomatology." Asked were there any inconsistencies between the plaintiff's reported symptoms and restrictions and his findings on clinical assessment, Mr Gee responded: "There seemed to be correlation between the localisation of Mr Richardson's symptoms and his clinical tenderness, however there would appear to be inconsistency between his inability to return to employment and his clinical findings." Mr Gee concluded his report by stating: 90 Mr Brash saw the plaintiff on 11 June 1998, 13 July 1999 and 10 July 2001. The plaintiff informed him that he was working on the airconditioner turbines where he had to lie down and he was twisting with a hose under his back. When he got up his back was sore and then he had to carry equipment across the iron roof. There was low back pain. Mr Brash took a history and reviewed the x-ray and CT scans. He disagreed that there was a central posterior herniation at the L5/S1. Whilst he observed a bulge it was his view that the outline of the bulge blends well in with the circumferential outline of the disc and there is no break in the continuity of that outline. He would place that as a normal anatomical bulge. His initial report (Exhibit 30(a)) concluded that he was not able to find any objective evidence of pathology that he could relate to the gradual onset of symptoms complained of. He considered there could well be functional or non-organic factors present. From an anatomical point of view he believed the plaintiff was fit for the full activities of daily living. That opinion was maintained by Mr Brash in his subsequent reports (Exhibit 30(b) and (c)). His final report concluded:
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"This man is completely physically capable of performing the full activities of daily living without restriction and this includes returning to his pre-accident occupation as a sandblaster." 91 The plaintiff was referred to Dr Marsden by the defendant's workers' compensation insurer. He attended on Dr Marsden on 24 November 1998, 12 July 1999 and 21 August 2000. The plaintiff told him that: "…he was sandblasting in an awkward confined area for a whole day, in an area which was difficult to stand up straight, with a lot of twisting to get into awkward spaces. He said he did 10 hours on the first day and had some vague low backache towards the end of the day, but had no specific sudden injury such as a slip, trip or fall and had no specific lifting event which led to discomfort. He just had vague backache that evening." Consistently in his reports (Exhibit 27(a), (b) and (c)) Dr Marsden assessed a permanent 5 per cent loss of efficient function of the thoraco-lumbar spine. He was of the opinion that the plaintiff was unfit to work as a sandblaster but could work on a full time basis as a console operator, storeman, petrol pump attendant or light storekeeping role with a limitation on lifting. He did comment however that there may be difficulties with his employability due to other independent factors (referring to the history of intellectual difficulties particularly with his literary skills of which the plaintiff had informed him). His most recent report dated 21 August 2000 noted "inconsistent signs" in his presentation and expressed the view that the plaintiff had "become generally physically deconditioned". It was his opinion that the plaintiff was permanently unfit to return to heavy manual labouring jobs. 92 The plaintiff attended on Dr Mustac on 5 May 1999, 27 November 2000 and 2 August 2001. Dr Mustac reported consistently (Exhibit 26(a), (b) and (c)) that there was no evidence of the plaintiff suffering from any form of mental illness. He commented after noting that rehabilitation efforts had been unsuccessful that the issue of motivation was a significant factor to be addressed. He did not share the view of Dr Booth that the plaintiff had a permanent psychiatric disability. 93 Dr Febbo saw the plaintiff on 10 August 1999 and 28 February 2000. The plaintiff told him that: "…he was sandblasting an airconditioning turbine. He was working in a confined area 'lying down, upside down twisting'. He worked for 10 hours that day and he did not experience pain
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while he was doing the work, but he did experience some lower back pain that night." 94 From the history Mr Febbo noted that the plaintiff described having experienced some deterioration in his mental state some time previously with an increased tendency towards tears, a rather pervasive low mood and irritability. However he found no history to suggest the presence of a major depression or an anxiety disorder. He noted the earlier low mental state as being related to the plaintiff's continuing physical symptoms, incapacity and concern over his circumstances. He recommended that antidepressant medication should continue in the median term. His reports are Exhibit 25(a) and (b). On the second consultation Mr Febbo noted that there appeared to have been some deterioration in the plaintiff's mental state since the earlier review. He concluded that from the plaintiff's history "some significant residual depressive symptoms remain…but that "…it is my view that his mental state can still be improved upon". |