Ryan v A F Concrete Pumping Pty Ltd
[2012] NSWSC 723
•29 June 2012
Supreme Court
New South Wales
Medium Neutral Citation: Ryan v A F Concrete Pumping Pty Ltd [2012] NSWSC 723 Hearing dates: 20/06/2012 Decision date: 29 June 2012 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The first defendant is to pay the first plaintiff the sum of $100,000 by way of interim payment pursuant to s 82 of the Civil Procedure Act 2005 within 14 days.
(2) Costs are reserved.
Catchwords: PROCEDURE - claim by first plaintiff for interim payment pursuant to s 82(3)(c) Civil Procedure Act 2005 - first plaintiff sustained injury in industrial accident - mild traumatic brain injury and other physical injury - Court satisfied that, if the matter goes to trial, the first plaintiff would obtain judgment for substantial damages against first defendant - order for interim payment made Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Australian Standard AS 2550.15 of 1994: Cranes - Safe use, Part 15: Concrete placing equipment
WorkCover Code of Practice - Pumping Concrete
Workers Compensation Act 1987Cases Cited: Acko Dimkovski by his next friend Mita Dimkovska v Ken's Painting & Decorating Services Pty Ltd [1999] NSWSC 795
Forster v Hunter New England Area Health Service [2010] NSWCA 106
Matouk v Hungry Jacks [2009] NSWSC 1176Category: Procedural and other rulings Parties: Jeffrey Lawrence Ryan (First Plaintiff)
Reliance Pools International Pty Ltd (Second Plaintiff)
A F Concrete Pumping Pty Ltd (First Defendant)
GIO General Limited (Second Defendant)Representation: RA Cavanagh SC with CJ Callaway (Plaintiffs)
A Parker (First Defendant)
N Polin (Second Defendant)
Gillis Delaney Lawyers (Plaintiffs)
Walker Hedges & Co (First Defendant)
Gadens Lawyers (Second Defendant)
File Number(s): 2010/408063
Judgment
HER HONOUR: By notice of motion filed 28 October 2011 the first plaintiff seeks, pursuant to s 82(1) of the Civil Procedure Act 2005, that the Court order that the first and second defendants make payment to the first plaintiff of part of the damages sought to be recovered by the first plaintiff in the proceedings.
The plaintiff is Jeffrey Lawrence Ryan ("Mr Ryan"). The second plaintiff is Reliance Pools International Pty Ltd ("Reliance Pools"). Mr Ryan was the director of Reliance Pools. The first defendant is A F Concrete Pumping Pty Ltd. The second defendant is GIO General Limited ("the defendants").
Reliance Pools had been engaged to construct a swimming pool on the roof of a seven storey construction site at Brighton-Le-Sands. It was only a small pool. The contract with the principal, Vecco Holdings, required that Vecco Holdings provide concrete pumpers to get the concrete up to level 7. Vecco Holdings arranged for the first defendant to supply the pump and pump the concrete to the seventh storey. C&J Concrete Sprayers Pty Ltd ("C&J Concrete") was engaged to assist with the construction of the pool. C&J Concrete supplied a second pump and was responsible for the concrete spraying. C&J Concrete has gone into liquidation. C&J Concrete's insurer is the second defendant. Both defendants deny liability.
Mr Ryan relied on his evidentiary statement dated 2 August 2011 (Ex A), his affidavit dated 26 October 2011 and the affidavit of Amanda Bond dated 27 October 2011. A F Concrete Pumping did not rely upon affidavit evidence but tendered a medical report of Dr Selwyn M Smith dated 27 October 2011 (Ex 1D/1). GIO relied on a tender bundle of documents.
At this early stage, I should make it clear that this Court is considering the evidence it has before it. Some of this evidence is disputed so I have considered all of it but have not attempted to resolve any of these disputes.
On 15 July 2008, Mr Ryan sustained injury in an accident when concrete was blown or pushed through a hosepipe directly into his face and head. He sustained a closed head injury, post-concussion symptoms, shoulder injury, facial burns, broken tooth and shrapnel injuries with fragments embedded in his face and eyes. The plaintiff complains that after the accident he has cognitive processing problems and intense fatigue when he reaches his limit.
These proceedings have been listed for hearing on 4 February 2013 for 10 days.
Application for interim payment
Mr Ryan seeks an interim order on the basis that the Court is satisfied that, if the proceedings went to trial, he would obtain judgment for substantial damages against the defendants (s 82(3)(c)). Mr Ryan seeks payment of $100,000 at this time and submitted that he is likely to recover substantial damages and the amount of the interim payment will only be a minor proportion of the damages recoverable.
Section 82 of the Civil Procedure Act relevantly reads:
"82 Court may order interim payments
(1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.
(2) The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings.
(3) The court may not make such an order unless:
...
(c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.
(4) The court may not make such an order if the defendant satisfies the court that:
(a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and
(b) the defendant is not a public authority, and
(c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made.
(5) The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion, are likely to be recovered by the plaintiff.
(6) In estimating those damages, the court is to take into account any relevant contributory negligence, and any cross-claims, on which the defendant may be entitled to rely...."
The defendants did not submit that any of the matters referred to in s 82(4) are applicable.
In Forster v Hunter New England Area Health Service [2010] NSWCA 106, the Court of Appeal set out the terms of the test to be applied under s 82(3)(c). At [25] the Court of Appeal stated:
"Taken together, the words do not require a plaintiff to do more than show that it is more probable than not that he or she will succeed at the trial in obtaining judgment for substantial damages."
In Forster at paragraph [32] the Court of Appeal (per Macfarlan JA with whom McColl JA and Sackville AJA agreed) stated:
"The application for interim payment required the primary judge to undertake a preliminary assessment, upon the basis of the evidence before him and on the balance of probabilities, of whether, if the proceedings went to trial, the applicants would obtain substantial damages. Such an assessment is in my view to be made upon the basis of the evidence put before the court as to the substantive issues and not on the basis of mere speculation as to what might or might not be the evidentiary position at the final hearing. Thus, it was for the judge here to consider on the negligence issue such of the evidence that was before him as was entitled to weight."
As to what constitutes "substantial damages", in Matouk v Hungry Jacks [2009] NSWSC 1176, Mathews AJ, acknowledging the issue may well depend upon the facts of each case, considered an award of $100,000 to be "substantial damages".
Counsel for Mr Ryan further submitted that the Court may consider that the evidence establishes that it is more likely that one defendant will be more liable than the other: see Acko Dimkovski by his next friend Mita Dimkovska v Ken's Painting & Decorating Services Pty Ltd [1999] NSWSC 795. In that case Adams J was satisfied that, if those proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the first plaintiff. He was not so satisfied in relation to the second defendant, without going "so far as to say that the second defendant would escape liability were the matter to proceed to trial" (at [4]).
Liability
The plaintiff, in his statement (Ex A) described the accident as occurring in this way:
"On the day of the accident there were two pumps located at the rear of the construction site at street level. There was a concrete truck on site delivering concrete into the hopper of the concrete pump.
AF Concrete was using its concrete pump but the pipes used to pump the concrete to the roof were a combination of those used by AF Concrete and C & J Concrete.
Most of the pipes were 100mm in diameter. On the top section of the roof a section of 50mm pipe, with a 50mm nozzle, was attached to the 100mm pipe. The pipes were attached using a clamp with a pin inserted through the clamp.
During the course of the day the walls and seats of the pool had been sprayed.
The pool was quite small. In order to pour the floor it was decided to tie down the concrete pipes and nozzle and secure plywood to the steel fixing over the top of the nozzle. This avoided the need to spray any of the floor.
Shortly before the accident I was on the roof watching the preparation by AF Concrete for the pour of the floor. I observed that AF Concrete appeared to be having some difficulties pumping the concrete to the roof. I was informed only some time after the accident that one of AF's personnel had asked someone from C&J Concrete if AF Concrete could use C & J's air line. The air line runs alongside the concrete line and attaches to the nozzle and is used to regulate the flow from the nozzle.
I observed an AF Concrete employee leave and then come back on the site elevator with 100mm flexible pipe. The pipes came through the stairwell and across the top deck of the roof towards the pool. The 50mm pipe was attached roughly halfway between the stairwell and the swimming pool.
It was at this point that the 50mm pipe was detached and replaced by the AF Concrete employee with the 100mm pipe. I observed that the hose was left hanging in the pool. The pipe (the 50mm pipe) had previously been tied to the steel to stop it moving around. The AF employee simply left the pipe hanging in the pool without tying it down.
Having observed that the pipe was left untied, I followed the AF worker to ask him what he was doing. I was concerned that he should not have left the hose untied. I said to him words to the following effect: "Why have you untied the secured and tied down line?' I explained that this was extremely dangerous and needed to be rectified. The AF worker told me that they were trying to get the concrete moving again in the line. I didn't understand his answer and returned to the roof to ensure that the line was made safe again.
Having spoken to the AF worker, I returned to the roof. My intention was to ensure that the pipe was tied down again. I tilted my safety helmet back and looked into the pool. At that instant I heard another of the worker's shouting "Turn if off". Suddenly, the concrete burst out of the pipe, almost propelling the worker that was holding the pipe out of the pool. Concrete struck me in the face.
As part of the process of clearing the pipes in the final stages of the concrete pour, the concrete pumpers will usually place a sponge in the pipe. That is then pumped up through the pipe and scrapes out all the concrete. The sponge is deposited in the pool and it is just a matter of removing the sponge For reasons unknown to me, the concrete pumpers placed a ball inside the pipe. The ball was also propelled out and I assume struck me in the head with the concrete shrapnel. I fell onto the concrete floor."
Mr Ryan remained on the concrete floor until the ambulance arrived. He was taken to St George hospital.
WorkCover NSW investigated the accident. WorkCover produced its file in response to a subpoena issued by GIO. The files reveals:
On 15 July 2008, at about 2.00pm, Inspector Hill attended the complex to investigate. He interviewed several persons on site, including Mr Low, foreman employed by UNO Constructions, which was developing the apartment complex, Mr Couroupis, project manager employed by UNO Constructions, Mr Du Plessis employed by Reliance Pools, Mr Christian employed by Reliance Pools, Mr Webb employed by A F Concrete Pumping, Mr Fragomeli, director of A F Concrete Pumping, Mr C Polianos and Mr Felton, both employed by C&J Concrete.
After having conducted his interviews, Inspector Hill summarised the events. They read:
"The following events led to the incident:
AF set out the concrete line from Bay Street Ground floor through the back stairwell to the 7th floor using a 4 inch line.
C&J attached their 2-inch concrete spray line to the AF 4-inch line with a reducer. C&J sprayed the entire pool. When it came to blow out stage C&J secured the end of their line to the frame of the pool by placing plastic sheet over the 2 inch line to prevent concrete spraying.
According to Reliance Pools AF concrete started to "go off", harden which in turn resulted in AF being unable to blow out effectively using C&J's 2 inch line. As a result, AF replaced the 2 inch line with a non-secured 4 inch line. This causing the line to thrash violently spraying concrete resulting in an incident."
The plaintiff's expert Ashok Verma (Report 6/11) reported the following. First, the correct procedure for concrete pumping, in particular, clearing the line, is detailed in the WorkCover Code of Practice - Pumping Concrete and Australian Standard AS 2550.15 of 1994: Cranes - Safe use, Part 15: Concrete placing equipment.
Second, C&J Concrete and A F Concrete Pumping did not develop a Safe Work Method Statement ("SWMS") for pumping concrete. If a SWMS had been developed, it would have required the line to be cleared in accordance with the procedure detailed in the Code of Practice. The Code of Practice required the end of the line to be inspected and secured, before it was blown out.
Third, C&J Concrete and A F Concrete Pumping did not clear the line for the pump in accordance with the procedure detailed in the Code of Practice. C&J Concrete and A F Concrete Pumping did not secure the end of the line and four inch drop hose at all, before the line was blown out. Mr Verma recommended the use of a catchment device, namely, an end trap basket. He said:
"In my opinion, and as per the industry practice, it is the responsibility of the pump operator or his/her supervisor to ensure that a discharge end trap basket is fitted as required."
Finally, C&J Concrete and A F Concrete Pumping used the wrong air-compressor to blow out the line. C&J Concrete's air compressor, which had a 190 CFM internal blower, was too powerful. According to Mr Verma, A F Concrete Pumping's air compressor should have been used. It was less powerful, having a 20 CFM internal blower, and recommended by the manufacturer for the blow out procedure. Mr Verma said:
"Another point that really astonished me was that the decision was not made to use a standard air supply line for blowing out operations of the concrete pump (provided by AFCP) as recommended by all manufacturers, and required by the standard industry practice. The decision to use a much stronger compressor belonging to the second pump (supplied by CJCS), in my opinion, played a major part in this tragic incident."
Consequently, Mr Verma concluded that the conduct of both C&J Concrete and A F Concrete Pumping was deficient for the following reasons: C&J Concrete and A F Concrete Pumping had failed to develop a SWMS for the concrete pumping, in particular, the task of clearing the line; C&J Concrete and A F Concrete Pumping failed to inspect the end of the line, before blowing it out; C&J Concrete and A F Concrete Pumping failed to secure the end of the line and four inch drop hose using a catchment device, before blowing out the line; C&J Concrete and A F Concrete Pumping used an air compressor to blow out the line that was too powerful; and the self-evident communication failures.
Mr Verma noted:
"In summary based on the limited documentation provided to me, I am of the opinion that a number of factors contributed to the incident under consideration. These included but are not limited to:
- Not following standard procedures and industry practice...
...
- No development of SWMS and implementation of the same.
...
- Connecting flexible hose with no restraint to the end of the 100mm diameter fixed pipeline.
- Commencement of pipeline blow-out operation without appropriate inspection and authorisation. Under normal circumstances, this activity is the responsibility of the pump operator or his/her supervisor.
- Use of an external and more powerful air supply line for the blow-out operation instead of the inbuilt air supply line of the pump."
Counsel for GIO submitted that it was apparent Mr Verma had not been instructed as to the circumstances surrounding the use of A F Concrete Pumping's air compressor. This may be so but it is not necessary that this contention is addressed by this Court on this application.
The second defendant's expert Dr John Cooke (Report 15/3/12) agreed with Dr Verma that the operators of the pump, A F Concrete Pumping, did not follow correct procedure when conducting the blow out. In particular, the lack of restraint at the end of the four inch fixed pipeline was a contributor to the incident.
However, Dr Cooke continued:
"...Mr Verma has not attempted to distinguish between the two defendants ... His opinion is therefore not reasonable and sustainable to the extent that his list of causes of the accident does not draw any distinction between the contractual responsibilities of the two defendants and their actions on site and their resulting obligations to the first plaintiff."
At [6] and [7] Dr Cooke concluded that, in the circumstances, A F Concrete Pumping was entirely responsible for the operation of the concrete pump and the supply of the concrete to the pool area where it was to be sprayed by C&J Concrete. On the basis of the assumptions that he had been asked to make about the actions of A F Concrete Pumping on the day of the accident, A F Concrete Pumping devised and implemented the blow-out procedure, after obtaining permission to use C&J Concrete's air compressor.
Dr Cooke was of the opinion that A F Concrete Pumping's conduct was not reasonable or appropriate in the circumstances because it failed to follow correct practice by ensuring that the line was tied down before commencing the blow out and failed to secure an appropriate catch basket to the end of the line. A F Concrete Pumping also failed to have a responsible assistant positioned to monitor the discharge end of the pipeline and, in addition, one of its employees ignored the warning from Mr Felton that the line was not safe because it was not tied down.
Senior Counsel for Mr Ryan submitted that it was an accident that was easily preventable. Within seconds of him seeing that the line had been left unsecured, he informed the A F Concrete Pumping's worker but A F Concrete Pumping went ahead and blew out the pipe in any event. According to the first plaintiff, the negligence is clear and there is no basis on which A F Concrete Pumping can avoid liability.
According to the plaintiff, C&J Concrete was responsible for the concrete spraying. It allowed A F Concrete Pumping to use its compressor to blow the line and it failed to communicate with A F Concrete Pumping to ensure that the pumping work undertaken by A F Concrete Pumping for the purposes of C&J Concrete's work was done properly and safely. It participated in the change from the safe system of pumping the concrete into the pool to the one adopted by A F Concrete Pumping for the purpose of blowing the line.
The plaintiff says that both defendants will be found negligent. Counsel for the second defendant said that its position was that it substantially agreed with the plaintiff's version of events but that it did not cause the accident or alternatively, it is the first defendant, who bears the primary responsibility, that should be responsible for the interim payment. The second defendant did not contest the payment being in the sum of $100,000.
Counsel for A F Concrete Pumping submitted that the accident did not occur the way the plaintiff says it did. In support of this proposition he referred to portions of histories recorded in medical reports by Drs Harrison, Glozier and Schutz. Dr John Harrison (Report 11/6/09) recorded that:
"They had brought a line pump in, operated by a firm called A & P Pumping. Some sort of blockage in the cement pump process had occurred, evidenced on the seventh floor and Mr Ryan had gone down two floors to talk to the contractor. By the time Mr Ryan came back unbeknown to him, the line pump had apparently changed a segment of the concrete pump section to a rubber 100mm hose ending and he went back up on to the seventh floor where he noticed there was simply a dribble of concrete coming out of the end of the pump. Mr Ryan then heard a noise as if they were "blowing" the hose as he stood about two and a half metres away from the end with his safety helmet on and he inadvertently moved towards the hose ending which suddenly blew wet concrete into his face with such force that he was knocked backwards and knocked out."
This record puts the plaintiff talking to the contractor about the blockage two floors down but does not differ in its recording of wet concrete being blown through the hose into the plaintiff's face.
Associate Professor Nick Glozier (Report 21/11/10) recorded a history that Mr Ryan suffered a chemical burn and shrapnel injury to his face when concrete was expelled at high pressure from a concrete hose. Mr Ryan stated to him that the last definitive memory he had was of the hose "starting to snake", one of his co workers grabbing it and him thinking that this worker would be flicked off the roof. While this account recorded a co-worker grabbing the hose, this does not alter how the accident occurred, ie, by the concrete being expelled from the hose into the first plaintiff's face.
Dr Schutz (Report 13/12/11) recorded that Mr Ryan told him that on the day of the accident there were various problems on the building site. Mr Ryan had become aware of a problem concerning pumping concrete and he rushed down seven storeys to ask. Having not understood the problem he went up on the roof. The report recorded that Mr Ryan said that the only other person on the roof was one of his employees and the end of the concrete pumping pipe was free and unrestrained.
The plaintiff's evidence is that it was an A F Concrete Pumping worker who left the pipe unsecured. The WorkCover summary identifies A F Concrete Pumping as replacing the two-inch line with a non secured four-inch line and this caused the line to trash violently spraying concrete resulting in the incident. The plaintiff's expert, Dr Verma's opinion is that both defendants' conduct was deficient, whereas Dr Cooke concludes that A F Concrete Pumping's conduct was not reasonable or appropriate in the circumstances because, firstly, it failed to follow correct practice by ensuring that the line was tied down before commencing the blow out; secondly it failed to secure an appropriate catch basket to the end of the line; thirdly, it failed to have a responsible assistant positioned to monitor the discharge end of the pipeline; and finally, one of its employees ignored the warning from Mr Felton that the line was not safe because it was not tied down.
While counsel for A F Concrete Pumping referred to the accounts reported in medical reports, these do not say that the accident occurred in a significantly different way to what has been alleged by the first plaintiff, other than the account where it was recorded that only the plaintiff and one of his employees were on the roof. At trial, witnesses will be called and any factual disputes will be resolved. However, on the evidence I have before me, it is my view that it is more likely than not that the first defendant will be found to be negligent. The position of the second defendant is less clear. For these reasons it should be the first defendant who should make the interim payment. I must now decide whether it is more likely than not that the damages will be substantial.
Damages
At the time of his accident Mr Ryan was a director of Reliance Pools. He had started the business in 1996. He was a leader in the pool design and construction industry. He was a published author in the area and had just recently attained an MBA.
Mr Ryan's financial affairs were complicated, in that he acted as a director of Reliance Pools, as well as being a beneficiary of the Reliance Trust. After adjustments, taking account of the trust arrangement, Mr Ryan's income for the period 30 June 2006 to 30 June 2009 varies from $195,000 down to $155,000. The plaintiff's economic loss is summarised at page 6, table 7 of his accountants' Stephen Crouch & Associates report (29/11/10). If he has no capacity his economic loss is estimated at $1,645,735 and if he has a reduced capacity it is estimated at $1,269,495. The economic loss that Mr Ryan might recover is limited by virtue of s12 of the Civil Liability Act 2002.
Reliance Pools acted as Trustee for the Reliance Trust. Various estimates are made as to the loss suffered by Reliance Trust. Dr Stephen Crouch, expert financial accountant, summarised the economic loss suffered in total by Reliance Pools and Mr Ryan at between $1.9M and $4.1M. The loss claimed by Reliance Pools is not limited by s 12 of the Civil Liability Act.
As at the time of the accident, Mr Ryan estimates that the business had a $2.6M turnover. Reliance Pools had just employed a full time Production Manager, Mr Christian, with a view to allowing Mr Ryan to spend more time marketing and developing the business. Reliance Pools had been established for the purposes of a joint venture with a Qatar based construction company. An information memorandum had been supplied and a consultant engaged. Mr Ryan saw significant potential in the Qatar and Middle Eastern market.
While the amounts of economic loss set out in the accountants' reports are substantial, in the end the amount the plaintiff would recover depends upon Mr Ryan's capacity to work. One quantification is dependant upon the plaintiff being totally incapacitated for work. This situation does not seem to be borne out by all the medical reports, however, I accept that to a large extent it will depend on the trial judge's view of the evidence of Mr Ryan and that of his wife.
As a result of the accident Mr Ryan suffered alkaline burns, shrapnel wounds and injury to his eyes. The shrapnel was gradually removed over a period of one to two months. There remains some scarring to his face. The injury to his eyes does seem to have been resolved, although there are scattered lumpy areas consistent with impregnation of concrete and gravel still present in his right upper eye. So far as his left shoulder is concerned it seems to cause him to experience some periods of discomfort. He was diagnosed with a mild traumatic brain injury and this is the current main cause of his disabilities. Initially, Mr Ryan was off work for three months. He was not able to return to his former work in any meaningful way as a result of fatigue, anxiety, lack of concentration and inability to make decisions. Neither the Qatar venture nor the contracted work proceeded. Reliance Pools was placed into liquidation. The family home was sold and he and his wife were rendered bankrupt.
Mr Ryan says that he has suffered considerably physically, mentally and emotionally. Prior to the accident he perceived himself to be an extremely busy and active man engaged in a wide range of activities other than just his work. He is now in receipt of workers compensation payments totalling $392 net per week. He works part time for the Misfit Group Pty Ltd a few hours a week but he has not been paid since April 2011. He and his wife live in a two bedroom rented house.
Mr Ryan says that he has ongoing psychological difficulties. While initially he suffered from Post Traumatic Stress Syndrome the doctors says that this condition has largely resolved. Whatever the full nature and extent of his injuries and disabilities, he portrays himself as having gone from an active, confident, very successful businessman to a person suffering from considerable stress and anxiety and psychological symptoms, without a business and with limited capacity to earn.
Dr Hutton (Mr Ryan's treating general practitioner) and Drs Assem and Rowe's reports support the plaintiff's position. Dr Rowe, consultant neurologist (Report 15/9/09), reported that he had previously administered neuropsychological testing which identified severe impairments in the area of sustained attention, discrimination and vigilance within the first thirty minutes of testing consistent with findings of other brain injured patients. On later testing he also began to show significant executive function impairments consistent with his reported difficulties with planning, organisation and problem solving. Neurophysiological testing also identified an abnormal increase in theta and alpha EEG activity consistent with brain injury and PCS.
Mr Ryan reported to Dr Rowe that he felt as though he has not made any significant improvement in his functioning over the past six months. Rather he said he has had to reduce his workload, which he said has been frustrating. Mr Ryan said that he continues to suffer from fatigue and cognitive difficulties particularly when trying to complete multiple tasks during the day. He told Dr Rowe that even when he is required to complete a number of simple tasks such as cooking plus organise children plus get some shopping done he has difficulty. He said that he has to complete only one task per day if he is to feel well. He said that it does not take much for him to be completely overwhelmed by the tasks even though they are minor.
Mr Ryan said to Dr Rowe that following the removal of his company responsibilities in May-June 2009 he said that he thought that much of his fatigue and cognitive difficulties would resolve. Mr Ryan said that he thought that his problems were due to not being able to complete the high level business work and transactions, which he performed efficiently prior to his head injury. However, he said that he has noticed that the symptoms have continued in simple day to day tasks despite being better rested and despite the activities being easy and uncomplicated.
Mr Ryan reported that he is "ok" with completing physical activities such as surfing but has difficulty with problem solving activities. For example, he was not able to resolve a simple computing and internet problem he was having at home. Nor was he able to call their internet service provider to explain the nature of the problem.
Mr Ryan also told Dr Rowe that he has abandoned more complicated hobbies such as his intellectual interests and research. He said that he will not read anything of an intellectual nature anymore and has difficulty completing an interest book. He said he has stopped attending his martial arts classes but has been advised to persevere. He said that he had an interest in learning German and Guitar but has had "massive" difficulty, can be easily overwhelmed and can only manage once per week at best, otherwise he becomes overloaded, forgets what he has done, and loses motivation.
With regards to activities of daily living the first plaintiff says that he is reasonably capable but can only perform one activity per day otherwise he becomes overwhelmed, tired and unmotivated. He can learn a new activity but has to proceed at an extraordinary slow rate, for example studying a new activity on only one or two sessions per week. He appears to be limited to approximately thirty minute to one hour work sessions at a time with a maximum of eight hours per week depending on the complexity of the task.
In terms of social activities, Mr Ryan also told Dr Rowe that he has suffered in the area of socialisation. He said that now he is either unable to put in the effort or if he does he needs to have his wife to accompany him if he is to function in a manner slightly resembling his premorbid state. He said that at home things are more difficult as he has trouble reading his wife and children with respect to their needs and at times can be unintentionally unsympathetic or lack awareness.
Counsel for A F Concrete Pumping submitted that Mr Ryan's damages would not be substantial and referred to Dr Smith's report to support this proposition. He also submitted that Mr Ryan would not exceed the threshold of 15 percent, s 151Z of the Workers Compensation Act 1987 would come into play and there would be a reduction of the plaintiff's damages due to his contributory negligence.
Dr Selwyn Smith, a psychiatrist, is of the view that there was no clinical evidence to support a traumatic closed head injury nor a post concussive syndrome nor a cognitive injury. Dr Smith says that Mr Ryan retained an excellent memory and was cognitively intact and that his symptoms were more likely related to heightened levels of anxiety and in particular an adjustment disorder with anxious mood and that Mr Ryan did not reveal diagnostic criteria for a depressive disorder but has developed marked avoidant, and to a degree, dependent behaviour. It was Dr Smith's opinion that Mr Ryan's prognosis was relatively good. So far as future employment is concerned, Dr Smith says that Mr Ryan is fit to engage in employment and has capacity to increase his hours. Dr Smith opined that Mr Ryan's present condition would not preclude him from engaging in full time work. This view is not reflected in the other doctors' reports.
The first defendant has pleaded that Mr Ryan contributed to his injury, loss and damage by firstly, having observed an unidentified worker untie a previously tied pipe, failed to ensure that the pipe was secured again before allowing any further concreting activity to be undertaken; and secondly, having observed an unidentified worker untie a previously tied pipe, failed to take sufficient care and precaution for his own safety by moving away from the area where the unsecured pipe was located.
While it is possible there may be a small reduction for contributory negligence, the damages the plaintiff would be awarded will be substantial. They will well exceed $100,000, being the amount the plaintiff is seeking to be paid.
I am satisfied that if these proceedings went to trial the plaintiff would obtain judgment for substantial damages against the first defendant A F Concrete Pumping Pty Ltd. I make an order that the first defendant is to the plaintiff the sum of $100,000 by way of interim payment pursuant to s 82 of the Civil Procedure Act within 14 days.
Costs are reserved.
The Court orders that:
(1) The first defendant is to pay the first plaintiff the sum of $100,000 by way of interim payment pursuant to s 82 of the Civil Procedure Act 2005 within 14 days.
(2) Costs are reserved.
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Decision last updated: 29 June 2012
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