Robert Lance Codey v Toll Ipec Pty Ltd
[2003] ACTSC 62
ROBERT LANCE CODEY v TOLL IPEC PTY LTD
[2003] ACTSC 62 (4 August 2003)
CATCHWORDS
NEGLIGENCE – personal injury – unsafe system of work – no issue of principle.
DAMAGES – personal injury – inguinal hernia – surgery causing nerve entrapment – no issue of principle.
Bankstown Foundry v Braistina [1986] 160 CLR 301
Occupational Health and Safety Act 1989
Fox v Wood [1981] 148 CLR 438
Griffiths v Kerkemeyer [1977] 139 CLR 161
No SC 170 of 2001
Coram: Master Harper
Supreme Court of the ACT
Date: 4 August 2003
IN THE SUPREME COURT OF THE )
) No SC 170 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: ROBERT LANCE CODEY
Plaintiff
AND:TOLL IPEC PTY LTD
Defendant
ORDER
Coram: Master Harper
Date: 4 August 2003
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff against the defendant in the sum of $563,500.00.
The plaintiff was born on 19 October 1953 and is 49 years of age. His action is for damages against the defendant, his then employer, arising out of an injury which he claims to have suffered in the course of his employment in November 1999.
The plaintiff was employed as a truck driver. His duties included loading and unloading his truck, which he described as a 4-tonne pantechnicon-type vehicle. He had been employed by the defendant for some fourteen or fifteen years, and his typical pattern was to start work at 5:30 am, unloading long-haulage semi-trailers, and reloading the goods onto his own vehicle for delivery around Canberra and its local surrounds. The defendant company is a large national haulage and delivery operator.
On a typical day, the defendant would spend the first three and a half hours unloading and loading his own vehicle for the day’s run. He would then spend the next four to five hours on his delivery round. He would have lunch, and then commence his pick-up run, returning to the depot at Fyshwick at about 5:00pm, where he would unload the pick-up items onto a conveyor belt, finishing by about 6:00pm. There was a range of goods he dealt with regularly, varying considerably in size, shape and weight. At one extreme there were beer kegs, and at the other small parcels and envelopes. To assist with the movement of heavier items, the plaintiff was provided with a two-wheel trolley which was kept in the back of the truck.
The plaintiff dealt with some regular customers, while other jobs were irregular or one-off. In November 1999, Butterworths, who were not a regular Canberra customer, were in the process of moving out of their retail premises in the Melbourne Building in Northbourne Avenue, Canberra City. They were principally a publisher of law books and reports. The move took place over a period. The plaintiff would take to their premises in the mornings a number of flat-packed cardboard boxes, perhaps ten or twenty. During the course of the day, these would be assembled by Butterworths’ staff who would pack them. The plaintiff would call during the afternoon of the same day to collect such boxes as were ready to be moved. The boxes were sealed and the plaintiff could not see what was in them, except for the odd occasion when the bottom came out of a box. His understanding was that the boxes were filled with books, files, binders and the like. Some were heavy, in the plaintiff’s estimate up to 30 kilograms. Others were lighter. The plaintiff identified during his evidence a standard archive box as being the same or approximately the same size as those which were used. These were identified in a report by Mr Ian Burn, a consulting engineer, as having dimensions of 400 x 540 x 270mm, with an empty weight of 0.95 kilograms, and a weight when filled with volumes of law reports of about 30 kilograms.
The offices of Butterworths were located on the upper floor of the Melbourne Building, and were accessible by stairs from a door to a rear laneway. There was a straight staircase of eighteen steps from ground level, then a landing, and a further set of seven steps to the Butterworths office level. There was no lift in the building. The plaintiff’s evidence was that he would load three or four boxes onto the trolley, with the heavier boxes at the bottom. He would wheel the trolley to the steps, and manoeuvre the load down by letting the trolley drop from step to step, leaning back, and controlling the trolley by pulling back on it at each step.
On the occasion in question, the plaintiff was engaged in such an exercise when he thought he pulled a muscle in his groin. This happened on a Friday, although the precise date was not established. On the following morning, his wrist had swollen and he had pain in the inner left groin area, about a hand length below the belt line. He said in evidence that it was lucky that it had happened on a Friday because he would not have been able to work the next day. He decided that he would not return to the Butterworths job, unless there was only one box to be moved. Otherwise, he would ask that one of the younger casual employees be sent out to pick up the boxes.
The plaintiff said that he did not immediately seek medical attention, as he hoped that his symptoms were temporary and would quickly recover. In fact, the swelling in his wrists went down quite quickly, but the pain in the groin, in his words, never went. At Christmas he attended at a medical centre in Queanbeyan where he was prescribed antibiotics, but these did not seem to do much at all. He took a few days recreation leave over Christmas at the end of 1999, thinking that if he gave it a rest it would probably fix itself up, but to no avail. On his first day back at work after Christmas, he was still very sore in the groin, and the next day he attended his usual general practitioner, Dr Gavranic at Bungendore. Dr Gavranic referred him for an ultrasound and gave him a certificate for time off work. He subsequently sent him for a further ultrasound, and referred him to a surgeon, Dr Hassan.
It appears from medical records tendered in the defendant’s case that the plaintiff attended the Crawford Street Clinic in Queanbeyan on Saturday 18 December 1999 where he saw Dr Azoury. The history recorded was as follows:
Tender left testicle since one week, worse yesterday, difficulty walking. Vasectomy eight years ago, left scrotum painful since, right testicle usually bigger.
On examination, Dr Azoury recorded findings as follows:
Tender left epididymis. Right testicle has posterial cyst attached c/w epididymal cyst. Left testicle normal.
The doctor diagnosed epididymitis (inflammation of the epididymis) and prescribed antibiotic medication.
The plaintiff then attended the surgery of Dr Gavranic on 5 January 2000 complaining of pain in the left groin area. He gave Dr Gavranic a history consistent with his evidence. He said that on waking on the morning after the incident with the trolley, he had very sore wrists and tight swollen forearm muscles, which eventually settled well, as well as a painful left scrotum which did not settle down, and had continued at varying intensity in the general area of the left groin and scrotum since then. He told Dr Gavranic that he had consulted a doctor in Queanbeyan the previous week, but that the treatment prescribed had not helped. He also said that he had gone to work the day before (4 January) but could not continue because of the pain. Dr Gavranic found on physical examination a good deal of tenderness along the left side of the scrotum, along the perineum and above the pubis. He ordered a series of investigations which showed a small left indirect inguinal hernia. He referred the plaintiff to Dr Hassan, consultant surgeon at Deakin.
Dr Hassan saw the plaintiff on 27 January 2000 and was given the same history. He formed the view that the scrotal pain was most probably radiating from the stretched nerve at the neck of the hernia. He performed surgery on the plaintiff on 8 March 2000 at John James Memorial Hospital under general anaesthetic, described as left inguinal herniorrhaphy. This involved an incision, repair of the hernia with nylon stitching, the application of a small piece of mesh and a repair to reinforce the posterial wall of the inguinal canal. The plaintiff made an uneventful recovery and was discharged a couple of days after the operation with advice to convalesce for three weeks and restriction to light duties for the next six weeks. Dr Hassan also advised the plaintiff to avoid heavy lifting and strenuous exercise for three or four months.
At review appointments, the plaintiff continued to complain of attacks of pain and inability to walk properly. On 30 May 2000, Dr Hassan told the plaintiff his diagnosis was abdominal nerve entrapment, which was fairly common after such surgery, and should be resolved with an injection of local anaesthetic, perhaps combined with cortisone. He said that occasionally in severe cases, surgical exploration of the scar and division of the nerves might prove necessary, but that many such pains settled with time and it was a reasonable option for the plaintiff to leave things for perhaps a year after the surgery to see whether the pain had by then subsided. Probably not surprisingly, this was the plaintiff’s preference.
On further periodic reviews, Dr Hassan found that the left groin pain had increased although there had been occasional improvement. On 23 August, the plaintiff complained of waves of sharp darting pain in the groin. He was referred to Dr John Corry, rehabilitation consultant, who prescribed medication. After an unsuccessful trial on Epilim, Neurontin was prescribed and the effect was a dramatic decrease in the intensity of the groin pain. Unfortunately, Neurontin made the plaintiff drowsy and he was concerned about driving after taking it. By 21 December 2000, the plaintiff told Dr Hassan that the sharp nagging pain had begun to increase in intensity. On examination, the doctor found a moderate degree of tenderness along the anatomical course of the left ilio-inguinal nerve. In May 2001, Dr Hassan referred the plaintiff to Dr Colin Andrews, neurologist. Dr Andrews confirmed the diagnosis of entrapment of the nerve, which might need surgical release or avulsion. Dr Andrews suggested that injections of local anaesthetic and cortisone at the tender points might relieve the pain. The plaintiff declined this, on the basis that he had been told by one of his other doctors that it would not be helpful. In his evidence, the plaintiff explained that Dr Gavranic and Dr Andrew Morris (a doctor to whom he had been referred by the defendant or its workers compensation insurer) had told him that these injections amounted to no more than a “quick fix” which would provide only temporary relief. The plaintiff said that he was not keen on the idea of injected cortisone, and that the two doctors had advised him against agreeing to this form of treatment.
Dr Hassan saw the plaintiff again in September 2001 when arrangements were made to admit him to hospital for exploration of the left spermatic cord/inguinal canal and release or avulsion of the ilio-inguinal nerve. This surgery was performed at John James Memorial Hospital on 10 October 2001. Multiple adhesions were found and these were divided and the spermatic cord identified, but it proved impossible to identify the ilio-inguinal nerve. The end of the nerve was found and was avulsed (forcibly pulled away from its origin) to avoid further symptoms from the entrapment. Dr Hassan restored the previous hernia repair. Again the plaintiff made an uneventful recovery and went home after a couple of days. Dr Hassan reviewed him ten days after the operation when the plaintiff said that his pain had more or less abated although he was not comfortable. Dr Hassan accepted that the plaintiff continued to suffer from pain in the left groin in spite of the second operation. The plaintiff found it difficult to bend or lift anything heavy. Shooting pain in the groin interfered with his sleep if he turned in bed. He found it difficult getting in and out of his truck. An attempt to resume light work was unsuccessful. On examination three months after the second operation, Dr Hassan found a marked degree of tenderness still present in the groin, accompanied by numbness and reduced sensation of the skin. The plaintiff was continuing to take Neurontin occasionally, and painkilling medication as required. Dr Hassan had some difficulty in pinpointing the cause of the continuing pain in the left groin following the second operation, but accepted that it was genuine and thought that it could have been caused by injury to nearby structures such as the left inguinal ligament, the conjoint tendon or the ilio-femoral ligament of the left hip joint. His diagnosis, which he said was necessarily vague, was neurogenic or neuropathic pain which was by that time more or less chronic. From his experience in such injury cases, he thought that the prognosis was poor, and that the pain might even increase because of strain put on the left hip joint by the limp adopted by the plaintiff to minimise the existing pain. He did not think that the plaintiff was fit to resume his pre-injury work but thought that he might benefit from a rehabilitation program and that physically he ought to be capable of sedentary work.
Dr Hassan sent the plaintiff to Dr Nugent, a urologist, for a second opinion. Dr Nugent saw the plaintiff on 6 March 2002. He took a history from the plaintiff and had the benefit of background information from Dr Hassan. On examination he found tenderness over the left pubic tubercle especially when rolling the spermatic cord from side to side. The left testicle was slightly tender to palpation, and there was slight numbness below the wound on the left side. Dr Nugent concluded that the plaintiff had some neuralgia along the inguinal nerve which had not responded to the hernia repair or the attempt to relieve the nerve entrapment. He said that it was possible that the initial accident had caused the hernia which impinged on the nerve.
Dr Hassan reviewed the plaintiff on 7 March 2003, and found that he was still limping and had pain in the left groin if he sat for more than a few hours. On examination, he confirmed tenderness along the course of the left ilio-inguinal nerve and the left side of the suprapubic region. The plaintiff told him that he could not drive for long distances and could not walk for lengthy periods. Dr Hassan said that it seemed possible that the 1999 injury had initiated the left groin pain and that the surgery to repair the hernia had exaggerated the pain. By this time, Dr Hassan thought that further surgery could not be recommended.
Dr Hassan gave evidence at the hearing by telephone. Under cross-examination, he conceded that it was possible that the hernia had been caused in an incident in 1996, in which the plaintiff made a workers’ compensation claim for an injury which occurred when he stepped out of the back of a truck. The injury was described as a pulled muscle or tear in the groin. He was asked in re-examination to assume that the 1996 incident had caused the plaintiff to take only two days off work, after which the symptoms completely resolved, and that he had returned to heavy work and continued without symptoms until 1999. He expressed the opinion that on those facts, the hernia occurred as a result of the 1999 incident, and not the 1996 incident.
On 4 February 2002, the plaintiff was seen by Dr Eaton, a occupational physician, for the purposes of a report to the defendant in connection with the plaintiff’s continuing incapacity for work. Dr Eaton agreed with the diagnosis of chronic neurogenic/neuropathic pain disorder of the left inguinal region. He thought that the prognosis for further improvement in the management or control of the pain was poor, and that the pain was likely to continue indefinitely. The plaintiff was in his opinion totally unfit for work as a delivery driver and loader. He thought it highly unlikely that the plaintiff would ever be fit to return to his pre-injury work. He was fit for light sedentary work only, and even this type of work could be difficult when the pain was severe and unremitting. He regarded treatment with Neurontin as entirely appropriate, and thought that the plaintiff should take it more regularly for more effective pain control. If he was to rejoin the workforce, he would need to be redeployed and possibly retrained for a more suitable sedentary occupation. Dr Eaton’s report was tendered by the plaintiff without objection, and he was not required for cross-examination.
The plaintiff gave evidence that at about the time he saw Dr Eaton, he was called to a meeting to discuss going back to work. The suggestion was that he might drive a small van collecting and delivering airfreight items, which would be limited to mail and smaller parcels. He was telephoned, however, a couple of days before he was due to start work, and told that the defendant had no light work available. He telephoned a manager he had previously worked with at Fyshwick, Jim Hannaford, to see what had gone wrong. Mr Hannaford said it had nothing to do with him and that Sydney had determined that there were no light duties. The plaintiff was upset that Mr Hannaford had not rung him personally, and particularly to be informed that if he presented himself at the defendant’s premises he would be told to leave immediately. It was later explained to him by a female employee at the Sydney office of the defendant that regulations required this, in case the plaintiff hurt himself again. In May 2002 his employment was formally terminated.
Thereafter, the plaintiff’s evidence was that he looked for light work. He wrote letters of application and sent his resumé to potential employers, and made telephone calls. Inevitably he would be questioned about his work history, and typically would be told that the employer would get back to him. None of these endeavours resulted in his being offered employment.
The plaintiff lives on a 50-acre (20-hectare) rural block near Bungendore. Before the injury, he ran sheep and cattle, and looked after crutching, fencing, collecting and cutting firewood and most physical tasks on the property. He rode a horse and a motorcycle in the course of these activities. In addition, he was responsible for what he described as the normal things around the house. Following the injury, he is unable to do any of the heavier work on the property, and little around the house. His twenty-year-old son Luke lives at home with the plaintiff and his wife, and Luke and Mrs Codey do most of the work.
Two or three years ago, the plaintiff purchased a larger property, 560 acres (about 220 hectares) at Murrumbateman. He had been looking for such a property for some time and bought it reasonably cheaply, but said that it has not worked out. He runs thirty cattle on the property, and has an arrangement where some friends agist sheep and horses, in return for which they help the plaintiff with work on the property.
The loss of the capacity to work on the properties is, it is submitted, a significant one for the plaintiff, who enjoyed rural outdoor life and working with stock. The plaintiff left school after Year Eight and has some difficulty with reading and writing. He now has few if any other interests or hobbies. The loss of his outdoor activities has had a greater impact on him because of this.
The injury has also had an a negative impact on the sexual relationship between himself and his wife. This was an active relationship prior to the injury, and has almost entirely disappeared by reason of the pain which afflicts the plaintiff on the occasions when he has attempted intercourse. This has had a predictable effect on the relationship generally, and on the plaintiff’s level of contentment with life.
The plaintiff, asked in chief about how he saw his future, said that he wanted to try to find a suitable job and wanted to work, but he did not know what kind of work might be available which he could do.
He was extensively cross-examined. It was put to him that as an employee of the defendant, he had been instructed that if he needed help, he was to ask for it. He said that this was not correct. He was specifically asked about a supervisor named Steve McNally, and it was put to him that Mr McNally had told him that if he needed assistance he was to call for it. The plaintiff agreed that this was the arrangement if a driver got into too much trouble. He was asked whether he had ever asked for assistance, and he said that he had on one occasion, when he had delivered a keg of beer to a tavern, and removed it from the back of the truck. It turned out that the tavern was closed, and he was unable to lift the keg back onto the truck. In those circumstances he had called for help which had been forthcoming.
He was asked about Butterworths as a customer of the defendant. He agreed that he had been there previously from time to time to deliver the occasional carton of books. He described Butterworths as a very small customer in Canberra, though a major customer of the defendant Australia-wide. The staff of Butterworths in Canberra were all female. He had been given no specific instructions about how to carry out the work for Butterworths on the occasion of their office move. He had never been given any instructions on how to operate the trolley provided to him. No supervisor from the defendant had been asked to assess the job. He was asked whether he could have removed the boxes by loading a smaller number of boxes on the trolley, and making more trips up and down the stairs. His answer was that three or four boxes were necessary to balance the trolley properly. He was asked whether the method he adopted for lowering the trolley down the stairs was one which he had previously adopted on other jobs. He said that he had not, and that other jobs where he had needed to use the trolley had been on the flat.
He was cross-examined about what complaints he had made to Mr McNally immediately after the accident. It was put to him that he had not entered the injury in an injury book maintained by the defendant, in which such incidents were required to be recorded. His answer was that he informed Mr McNally of the incident, and assumed that Mr McNally would make the entry. The plaintiff said that he did not have access to the injury book himself. In the event, Mr McNally was not called on behalf of the defendant to give evidence. There was no explanation for his absence, and I draw the available inference that his evidence would not have assisted the defendant’s case.
It was also put to the plaintiff in cross examination that he could have made greater efforts to obtain employment within his capacity, such as service station console work. There was no evidence given on behalf of the defendant to the effect that any such work was available, nor as to the requirements of such work.
Counsel directed some questions to the plaintiff’s activities on his property at Bungendore, preparatory to showing video film taken on 26 September 2002, in which a man could be seen erecting a scaffolding framework. The plaintiff’s evidence, however, was that the man was not the plaintiff but his son Luke, and this aspect of the cross-examination was not pursued. It can be inferred from this, I think, that investigators instructed on behalf of the defendant conducted surveillance at the plaintiff’s property but saw nothing inconsistent with the plaintiff’s evidence as to his level of disability and the impact of that disability on his activities.
Corroborative evidence was given by the plaintiff’s wife and son. Mrs Codey, who is employed as an NRMA claims consultant, said that prior to the 1999 incident, the plaintiff was a normal healthy man, able to do basic stock and farm work, including riding horses and his motorbike, and also able to do whatever needed to be done around the house. Since then, he had been unable to do those things unassisted. Immediately after the incident, at the end of 1999 and the beginning of 2000, he required assistance with bathing and showering for a couple of weeks. The work he used to do around the property had been, and continued to be, carried out by herself, their son Luke and their other sons. Her estimate was that the total time taken in this regard amounted to a couple of days a week. In October 2001, there had been an intense period where he had required personal assistance for a few days, thereafter reducing as time went on. The plaintiff’s personality had changed mentally, emotionally and socially. He appeared frustrated and depressed. There had been no improvement in this regard over the last two years, and if anything, he had got worse.
Luke Codey is a fourth-year apprentice carpenter, aged twenty. Before his father’s injury, he used to do some work around the property, but, in his words, nowhere near as much as he does now. The work includes cutting wood, feeding, mustering, drenching and fencing. He does similar work as required at the other property at Murrumbateman. His father helps out to an extent, but basically in a supervisory capacity.
Luke Codey confirmed that it was he who had been engaged in building a shed at Bungendore, consistent with the activity seen on the videotape. He was not cross-examined.
The plaintiff was referred by his solicitors to Dr Griffith, a consultant surgeon, for opinion for the purposes of the action. Dr Griffith was provided with copies of the reports of the treating practitioners, and himself prepared two reports which were tendered. Dr Griffith gave evidence by telephone. His physical examination of the plaintiff in June 2002 was consistent with the opinion expressed by the treating doctors, and he found the plaintiff a most unhappy man, intensely frustrated by his enforced idleness. He expressed the opinion that the plaintiff was suffering from a chronic pain state with a major element of psychological decompensation as a consequence of his injury. He thought that the initial hernia was reasonably related in a causal fashion to the episode at the end of November or early December 1999 described by the plaintiff. The complications were not primarily due to the hernia, but were post-operative and attributable to the hernia repair process. He recognised the plaintiff’s natural reluctance to have a third operation without any guarantee of success. He thought that additional medication in the form of anti-inflammatories or tricyclics might provide the plaintiff with some relief. He was totally incapacitated, but might be able to be retrained into a more sedentary occupation which accommodated his inability to sit for prolonged periods. Dr Griffith reviewed the plaintiff in March 2003. Prior to that appointment, he was informed that in 1989 the plaintiff had sought treatment from his general practitioner for work-related low back pain. He noted that the plaintiff had recovered completely from this incident and resumed normal work, and said that the incident had nothing whatever to do with the present claim in his opinion. Physical examination was again consistent with the history and presentation, and Dr Griffith was confirmed in the opinion he had previously expressed.
He remained of the view that the plaintiff should try injection of local anaesthetic at the point of focal tenderness. If this led to temporary relief, steroid treatment was almost certain to be effective. In oral evidence, Dr Griffith said that the worst that could happen if this treatment was attempted was no improvement. At best, the treatment might lead to masked relief which would be essentially local. On being informed of the 1996 incident, Dr Griffith conceded that the plaintiff may then have suffered an injury which predisposed him to the herniation he ultimately suffered in 1999. This could not be proven or excluded. It was unlikely that a clinical examination at that time would have revealed any herniation or weakness of tissue. On balance he thought it unlikely that the 1996 incident was related to the later injury.
The solicitors for the defendant arranged for the plaintiff to be examined for the purposes of the action by Dr Saboisky, a consultant psychiatrist, and Associate Professor Oakeshott, a very experienced medical practitioner with qualifications in surgery and rehabilitation medicine. Their reports were tendered but neither gave oral evidence.
Dr Saboisky ruled out any psychiatric illness but otherwise appears to have accepted the plaintiff as genuine.
Unfortunately Associate Professor Oakeshott based his opinion in large measure on a false premise, that the plaintiff had undergone a bilateral vasectomy on 8 November 1999. He thought that the plaintiff’s symptoms, apparently including the inguinal hernia, could possibly have arisen as a complication of the vasectomy. In fact the vasectomy had been performed nine years earlier, on 8 November 1990. Dr Oakeshott, on being informed of this, prepared a very brief supplementary report. He did not see the plaintiff again. Although he resiled from his original opinion that the hernia was causally related to the vasectomy, he remained of the view that the symptoms of which the plaintiff complained were not related in any way to any work injury on or around November 1999. This was because he had been unable to identify any causal relationship between those symptoms and any work injury. It does not appear that Associate Professor Oakeshott was asked to assume that the plaintiff suffered an injury as pleaded, and in these circumstances his expert opinion is of little assistance. Dr Griffith explained in his oral evidence that in any event a vasectomy is performed in the neck of the scrotum and does not involve the inguinal nerve, or barely does so. The plaintiff’s symptoms were quite different to the symptoms which might be expected from any complication following a vasectomy.
I am satisfied that the plaintiff suffered an injury, in the form of a small inguinal hernia on the left side, as a result of the incident which occurred when he was moving boxes of law reports, books and other office materials from Butterworths’ office, and in particular when manoeuvring those boxes down the stairs of the Melbourne Building. No other incident which might have caused the injury has been identified, and the plaintiff’s symptoms developed within a time frame consistent with the injury having occurred as he described it.
The duty of an employer to take reasonable care to avoid exposing an employee to unnecessary risk of injury is a high one – see, for example, Bankstown Foundry v Braistina [1986] 160 CLR 301, where Mason, Wilson and Dawson JJ referred to the influence of changing community standards on what is considered to be a reasonable level of care by an employer. Mr Burn, consulting engineer, referred in his report to the availability of stair trolleys, that is trolleys with three wheels on each side, designed for use on a staircase; and of stair climbers, described as battery-powered devices capable of carrying substantial loads up and down stairs using a remote control panel. He also referred to the possibility of using a builders’ lift from an upstairs window, to lower a load to street level. There was no evidence of the cost involved in these alternatives, or whether the latter two would require the involvement of additional staff. The stair trolley, however, is, as a matter of common knowledge, readily available and not significantly more expensive than a standard trolley with a single wheel on each side of similar size. I accept Mr Burn’s conclusion that the injury sustained by the plaintiff arose from the use of inappropriate equipment, and that other equipment more suited to the task, in the form of a stair trolley, could easily have been provided. I am of the view that the use of a stair trolley would have reduced the risk of injury to the extent that, more probably than not, the plaintiff would not have sustained the injury which he did. Alternatively, if the plaintiff had been provided with assistance in the form of at least one additional worker, the boxes could have been carried, with the same effect in relation to the risk of injury.
The task being performed by the plaintiff was a manual handling task governed by the Occupational Health and Safety (Manual Handling) Regulations. I have found that the task was causally related to an injury suffered by the plaintiff in his capacity as an employee. The task was one likely to be a risk to health and safety. It should have been examined and assessed pursuant to regulation 5. The employer was obliged to take reasonably practicable steps to minimise the risk, but failed to do so. The plaintiff’s claim is not pleaded as a breach of statutory duty, and properly so having regard to section 95 of the Occupational Health and Safety Act 1989. That section provides that nothing in the Act is to be taken to confer a right of action in civil proceedings for a breach of the Act. This must, I think, be construed as extending to a breach of the regulations. Notwithstanding section 95, it seems to me that a breach of the regulations is something which I can take into account in considering whether or not the defendant has been negligent under the general law.
In the statement accompanying the originating application, the plaintiff provided the following particulars of the negligence alleged against the defendant:
a) Failure to provide a safe system of work;
b) Failure to take any or any adequate precautions for the safety of the plaintiff;
c) Exposing the plaintiff to a risk of injury of which it knew or ought to have known;
d) Failure to inspect Butterworths before the plaintiff was required to commence work therein, so as to ensure that the same was safe for use by the plaintiff;
e) Failure to adequately warn the plaintiff of the dangers incidental to his work at Butterworths;
f) Requiring the plaintiff to do the work without assistance when it knew or ought to have known that to do so would present a danger to the plaintiff;
g) Failure to provide the plaintiff with any or any adequate skills or equipment to carry out the work without risk of injury;
h) Requiring the plaintiff to perform the work when it knew or ought to have known that to do so would cause injury to the plaintiff in that:
i. the boxes were too heavy, and/or
ii. there were too many boxes, and/or
iii. access and egress to Butterworths was unsafe, and/or
iv. the plaintiff had no assistance, and/or
v. the plaintiff had no adequate equipment with to which to move the boxes safely
It seems to me that the system of work adopted in relation to the removal of boxes from Butterworths’ premises on the first floor of the Melbourne Building to street level was inherently an unsafe one, from the perspective of the health and safety of the plaintiff. Mr Lunney of counsel for the defendant drew attention to evidence given by the plaintiff that he had been instructed by the dispatcher, Mr McNally, that if there was a situation in which he required assistance, then he should seek that assistance. He had done so on at least one previous occasion. This was part of the system of work. The failure of the system was not a result of any negligence on the part of the defendant, but rather resulted from the plaintiff’s failure to invoke the system at the appropriate time. Having regard to the fact that the plaintiff’s work took him to the premises of many different customers, it was commercially impractical to expect the employer to undertake an inspection of each location where the plaintiff was required to pick up and deliver, at least in the absence of some trigger which might put the employer on notice of some unusual characteristic of a particular location.
I find myself unable to accept this as the correct analysis of the system of work. The defendant was a company carrying on business nationally, and the delivery and collection of goods of varying weights and sizes was its primary area of operation. No doubt today most city buildings are equipped with lifts, but it is common knowledge that there are older buildings without lifts, particularly buildings of only two storeys like the Melbourne Building. For a company in the position of the defendant it was reasonably foreseeable that the plaintiff might be called upon from time to time to deliver and collect heavy items to or from upper floor premises in such a building. The only equipment provided to the plaintiff to assist him with his task was a standard trolley designed for flat surfaces. He had been given no instruction in how to manage the trolley on a staircase, or in how to move a large number of heavy boxes from first floor premises to street level in a building without a lift. It is not good enough for an employer to direct an employee to take responsibility for his own system of work, and call for assistance when he arrives at the view that he requires it. An employer is expected to realise that employees may not be capable of making that kind of judgment. Despite his experience, the plaintiff was not an employee of any seniority within the corporate hierarchy. I am satisfied that the plaintiff’s injury occurred in circumstances which resulted from the failure of the defendant to provide the plaintiff with a safe system of work. Specifically, I find that the plaintiff was not provided with adequate instruction, or with adequate equipment, to enable him to undertake the task in hand with safety.
It was submitted on behalf of the defendant that the plaintiff was guilty of contributory negligence, particulars of which were set out at length in the defence. Mr Lunney ultimately relied on the plaintiff’s failure to seek assistance, having been instructed that he should do so in appropriate circumstances. I am satisfied that it is unreasonable to expect the plaintiff to have formed the judgment that assistance was required. In the absence of any specific instructions, he was attempting to undertake a task he had been directed to perform, in a manner in which he no doubt thought, until the injury occurred, was within his capability. I am not satisfied that his failure to seek assistance amounted to contributory negligence, nor that any of the other particulars of contributory negligence pleaded against him have been made out. It follows that the plaintiff is entitled to succeed without reduction.
The injury was an extremely unpleasant one, and surgical complications have left the plaintiff with permanent pain. He has lost his job with the defendant and is unable to engage in the kind of work he did for many years. The enjoyment he gained from working with stock on his properties is now denied him. His sexual relationship with his wife has virtually disappeared because of his groin pain. The combined effect of these sequelae of the injury has been extremely adverse to his self esteem and his relationship with his wife, as well as his enjoyment of life generally. For this plaintiff in particular, the position is worsened by his lack of other hobbies and interests, and by his limited education and literacy skills.
In the opinion of some doctors, there is treatment available to him which might lead to some improvement, although not unreasonably to date he has avoided it.
An appropriate award of general damages in my assessment is $65,000.00, which I apportion as to $35,000.00 to the past and $30,000.00 to the future. Although it is less than four years since the injury, and there is no reason to suppose that the plaintiff will not live for at least another thirty years, nevertheless it seems to me that the worst of the plaintiff’s pain and suffering is behind him, and that the apportionment is an appropriate one.
The conventional rate for the calculation of interest on the past component of general damages is 4% per annum. Where it can be said that the past component should be notionally distributed evenly over the period from the date the cause of action arose until the date of judgment, either the interest rate or the resulting award is halved. In this case, the past component is weighted somewhat more heavily towards the period immediately after the injury and the subsequent surgery. Taking that into account, I award an amount of $1,000.00 for interest on past general damages for pain and suffering and loss of enjoyment of life.
It was agreed that the plaintiff had incurred treatment and other out-of-pocket expenses up to the date of trial of $24,997.67. Taking account of the evidence as to his continuing need for prescribed medication, and the period which has elapsed since trial, I award $25,500.00 for such expenses to the date of judgment. Almost none of this amount was paid out by the plaintiff personally: most of it was met by the defendant’s workers’compensation insurer. In the circumstances there is no claim for interest on that component of the damages.
The plaintiff is almost fifty years of age. According to Table 3A in the Appendix to Luntz, Assessment of Damages for Personal Injury and Death, Fourth Edition, the present value of a loss of $1.00 per week for a male aged fifty years until death, assuming compound interest at 3% per annum and mortality according to the Australian Life Tables 1997-1999, is $980.90. The calculation of an award for future out-of-pocket expenses is not one which ought to be approached by precise mathematical calculation. Doing the best I can, I think that it is reasonable to assume that the plaintiff will be subject to a liability in the future for medication and medical treatment which will average, over his life, $20.00 per week (over and above such expenditure as he might have incurred regardless of the injury). I note that reducing the resulting figure by the conventional 15% to take account of the vicissitudes of life would result in a figure of about $17,000.00. This seems to me a reasonable amount to compensate the plaintiff for future treatment expenses, and I award $17,000.00 in that regard.
I am satisfied that the plaintiff has been fully incapacitated for work for the period claimed, and I accept the calculations in this regard set out in the report of Macquarie Reporting Services dated 7 February 2003. Adding a figure to cover the periods from the date of the report to the date of the hearing, and from hearing to judgment, I assess an amount of $140,000.00 in respect of net lost earnings to date. I reduce that amount to take account of the vicissitudes to which the plaintiff might have been subject if the injury had not happened, to $135,000.00. Interest is recoverable on the difference between that amount and the net incapacity payments received by the plaintiff from the workers’ compensation insurer. Workers’ compensation payments up to 28 April 2003 amounted to $72,476.07. Allowing for the period from hearing to judgment, I arrive at a figure of almost precisely $10,000.00, and I award that sum.
As to future economic loss, the Macquarie Reporting Services figures are based on information provided by the defendant’s solicitors as to the earnings of three comparable employees. Macquarie have taken the average of those three employees for the three years ending 30 June 2002 and arrived at a figure of $771.00 per week after tax and work-related deductions. By reference to Table 3A in the Appendix to Luntz, the present value of a loss of $1.00 per week to a male aged fifty, assuming compound interest of 3% per annum, is $442.10 to age sixty and $608.30 to age sixty-five. Assuming a total loss of earning capacity, these figures would suggest a range of $340,000.00 to $470,000.00 as the present value of the plaintiff’s future earning capacity, depending on the retirement age selected. In the absence of any specific evidence, it seems to me that a man in the plaintiff’s position would more likely have chosen to retire at age sixty, having regard to the manual nature of the work and to his rural interests.
In my view it is likely that the plaintiff will continue to improve to the extent where he will have some residual earning capacity. Whether or not he will choose to exercise it is a matter for speculation. Mr Crowe of counsel for the plaintiff submitted that damages for loss of earning capacity for the future should be calculated as assumed for the purposes of the Macquarie Reporting Services report. The assumption was that the plaintiff’s residual earning capacity was equivalent to 25% of a base wage. The calculations were based on 25% of the base rate under the Toll Ipec (Canberra) Transport Workers’ Agreement 2001, which was $577.60 gross per week at the date of the Macquarie report (2 February 2003). Twenty-five percent of this figure is $144.00 gross per week, or $138.00 net, assuming no other taxable income.
Rather than adopt this somewhat artificial approach, it is in my view preferable to reduce the amount representing a total loss of earning capacity by a greater percentage than the usual 15% reflecting the vicissitudes of life. I propose to reduce the total by 30% to reflect the vicissitudes, the prospect of improvement through further treatment, including the prospect that advances in medical science and technology may operate in the plaintiff’s favour, and also the prospect that his residual earning capacity may be reflected in future earned income. Adopting this approach, I arrive at a figure of $238,000.00 by way of compensation for loss of earning capacity for the future.
As mentioned above, the plaintiff has received incapacity payments from the defendant’s workers’ compensation insurer, but has been obliged to pay tax on the payments so received. He will be required to reimburse the insurer, or give the defendant credit, for the gross amount paid out by the insurer in this regard. He is thus entitled to recover as a component of his damages, pursuant to the decision in Fox v Wood [1981] 148 CLR 438, an amount equal to the tax deducted by the insurer from the payments. This was calculated at the time of hearing at $8,443.00: to reflect the tax on further payments between hearing and judgment, I allow $9,000.00 under this head.
There is a claim for the commercial value of services provided to the plaintiff by his wife and children, and also for work formerly carried out by the plaintiff around the house and on the rural properties. Mr Lunney conceded that damages were recoverable in respect of personal assistance provided by the plaintiff’s wife after the two operative procedures, but submitted that the other work should be seen as a reallocation of family duties resulting from the plaintiff’s continuing disability and thus not compensable under the principle recognised in Griffiths v Kerkemeyer [1977] 139 CLR 161 and refined in subsequent decisions. I am satisfied that the work around the house and on the properties goes well beyond a reallocation of duties, and is in the category of work which needs to be done and which used to be done by the plaintiff but which must now be done by other members of the family if the engagement of outside labour is to be avoided. Mr Lunney did not argue with the rate suggested by Mr Crowe of $15.00 per hour, which has been customarily accepted in this court for a number of years. I accept that the assistance and other work carried out by family members have occupied on average at least ten hours per week since the injury, and I am satisfied that the amount claimed by Mr Crowe for the past period in the sum of $20,000.00 is modest and entirely justifiable. I allow interest on that sum to date in the amount of $3,000.00, which I calculate by reference to the methodology endorsed in Grincelis v House [2000] 201 CLR 321. For the future, I allow what I regard as the modest amount claimed by the plaintiff in the sum of $15,000.00.
If the plaintiff had remained in employment, his employer would have been obliged to make contributions to a superannuation fund on his behalf. The amount required to compensate for the loss of this benefit has been calculated in the Macquarie Reporting Services report, on the assumption that the plaintiff would have remained in employment until age sixty-five, at $38,528.00. Mr Lunney, whilst challenging the extent of the plaintiff’s disability and thus the foundation of this aspect of the claim, did not argue with the methodology adopted or the mathematics of the calculation. Because of my conclusion that the plaintiff would more probably than not have retired at age sixty rather than sixty-five I award $25,000.00 by way of compensation for loss of employer-funded superannuation benefits.
The total of the individual components is:
General damages $ 65,000.00
Interest on past component of general damages 1,000.00
Treatment & out-of-pocket expenses – past 25,500.00
- future 17,000.00
Past loss of earnings 135,000.00
Interest thereon 10,000.00
Loss of earning capacity 238,000.00
Fox v Wood 9,000.00
Griffiths v Kerkemeyer – past 20,000.00
-interest 3,000.00
- future 15,000.00
Loss of superannuation benefits 25,000.00
$ 563,500.00
I am satisfied that the total arrived at represents an appropriate award of damages, proportionate to the losses suffered by the plaintiff as a result of the defendant’s negligence. There will be judgment for the plaintiff in the sum of $563,500.00. I will hear the parties as to costs and any other consequential orders.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 4 August 2003
Counsel for the Plaintiff Mr Crowe
Solicitor for the Plaintiff Baker Deane & Nutt
Counsel for the Defendant Mr Lunney
Solicitor for the Defendant Dibbs Barker Gosling
Date of hearing 5 & 6 May 2003
Date of judgment 4 August 2003
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