Sampson v Thiess Pty Ltd
[2020] VCC 1568
•15 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-05712
| LEIGH MICHAEL SAMPSON | Plaintiff |
| v | |
| THIESS PTY LTD (ACN 010 221 486) | First Defendant |
| and | |
| SUEZ WATER PTY LTD (formerly DEGREMONT PTY LTD) (ACN 051 950 068) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 21, 22, 23 and 25 September 2020 | |
DATE OF JUDGMENT: | 15 October 2020 | |
CASE MAY BE CITED AS: | Sampson v Thiess Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1568 | |
REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords: Negligence – Occupational Health & Safety Regulations – causation – left knee injury – aggravation – pain and suffering
Legislation Cited: Wrongs Act 1958 (Vic); Occupational Health and Safety Act 2004 (Vic); Occupational Health and Safety Regulations 2007 (Vic); Evidence Act 2008 (Vic)
Cases Cited:Czatyrko v Edith Cowan University (2005) 214 ALR 349; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Erickson v Bagley [2015] VSCA 220; Browne v Dunn [1893] 6 R 67; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Smith v Gellibrand Support Services [2013] VSCA 368
Judgment: Claim successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Spitaleri | Maurice Blackburn Lawyers |
| For the Defendant | Mr S Smith QC with Ms G Cooper | Wisewould Mahony |
HER HONOUR:
Preliminary
1 Mr Sampson was employed as a labourer by the defendants, who were in a partnership, to construct the desalination plant in Wonthaggi. On 2 March 2012, Mr Sampson suffered an injury to his left knee whilst carrying buckets of rubble down scaffold stairs. Mr Sampson claims that as he reached the landing and turned to walk to the left, he felt excruciating pain in his left knee. Subsequent to this incident, Mr Sampson has undergone three surgical procedures to his left knee, including a reconstruction of his anterior cruciate ligament (ACL).
2 The last step on the scaffold had a rise of 325 millimetres, which was 100 millimetres greater than the maximum recommended height in the Australian Standard AS/NZS 1576.1:2010 Scaffolding Part 1: General Requirements (“the 2010 Standard”). Mr Sampson claims that this constituted negligence and/or a breach of the Occupational Health & Safety Regulations 2007 (Vic) (“the Regulations”), and that such breach was a cause of his left knee injury, for which he seeks pain and suffering damages.
3 Three months prior to this work incident, Mr Sampson had been diagnosed with a partial subacute rupture of his ACL. However, he claimed that this did not cause him any pain or ongoing restrictions.
4 The defendants deny they were negligent or breached their duty under the Regulations. However, they contended that, even if I considered the rise of the bottom step was unreasonably excessive, Mr Sampson had failed to establish that this was a cause of his left knee injury. Further, the defendants submitted that, even if I was satisfied that there was negligence or a breach of the Regulations which was a cause of Mr Sampson’s injury, the damages to be awarded to Mr Sampson should be modest, as they claim that within six months of the work incident, Mr Sampson had made a full recovery. The defendants submitted that Mr Sampson’s subsequent left knee problems were unrelated to the work incident and instead a result of Mr Sampson’s pre-existing left knee condition.
5 Mr Sampson was called to give evidence, as were several surgeons and biomechanical engineer, Mr Bill Contoyannis. Also in evidence were numerous medical reports, clinical records and other documents relevant to Mr Sampson’s claim. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
6 For the reasons that follow, I am satisfied that the defendants were negligent for the excessive step height on their scaffold stairs, and that they also breached their duty under the Regulations. I am satisfied this was a cause of an aggravation of Mr Sampson’s pre-existing left knee condition and that this aggravation has persisted. For such injuries, Mr Sampson is entitled to damages. However, in awarding Mr Sampson pain and suffering damages, I have taken into account the very real risk that, if not for the work incident, Mr Sampson’s pre-existing left knee injury would have significantly curtailed his recreational activities, and he may well have required surgical intervention, including an ACL reconstruction. I award Mr Sampson a sum of $120,000 for his pain and suffering damages arising from this work incident.
Mr Sampson’s background
7 Mr Sampson is presently 45 years of age. He said he left school at the age of 16 and subsequently undertook numerous jobs, including as a spray painter, driver and road repair worker for a local council. In 2008, Mr Sampson obtained employment with Victoria Police and worked as a police officer for two and a half years.
8 In June 2010, Mr Sampson commenced working for the defendants as a labourer. In this role, Mr Sampson said that he was required to perform a range of labouring duties onsite at the desalination plant including cleaning, traffic control, and jackhammering.
9 On 13 December 2011, Mr Sampson attended upon his general practitioner, Dr Chijioke Okeleke, at the Wells Road Medical Centre. At this attendance, Dr Okeleke noted Mr Sampson complained he suffered progressively worsening left knee pain which was aggravated by running and associated with swelling. It was noted that Mr Sampson requested a cortisone injection. On examination, Dr Okeleke noted that Mr Sampson’s left knee was slightly swollen with a vague tenderness anteriorly with some crepitus, no effusion, and a full range of motion. Dr Okeleke also noted his left knee was stable. At that time, Dr Okeleke referred Mr Sampson for a plain x‑ray.
10 On 15 December 2011, Mr Sampson reattended the Wells Road clinic and, on this occasion, attended upon general practitioner, Dr Effat Farag. The attendance note indicated that the recently performed x‑ray demonstrated no abnormality but, as Mr Sampson’s left knee was still swollen and he had moderate pain on certain movements, Dr Farag referred Mr Sampson for an MRI scan.
11 The MRI scan, taken on 15 December 2011, noted a clinical picture of knee pain, which was mainly located within the anterior and posterior of the left knee, with “status post side impact in July 2011”. The scan was reported as demonstrating a subacute subtotal ACL tear, moderate joint effusion, and medial femoropatellar joint chondromalacia grade 4.
12 On 19 December 2011, Mr Sampson attended upon general practitioner, Sugantha Jagadeesan. The attendance note recorded Mr Sampson was advised of the MRI results and the possibility of him requiring specialist investigation.
13 The clinical records from the Wells Road clinic then indicate that Mr Sampson did not return to the clinic prior to him suffering his work injury, the subject of this claim.
14 These records were put to Mr Sampson in cross-examination, and he said all he could recall was that he had experienced left knee pain after he had been running and, as it did not settle after a couple of days, he decided to see his general practitioner. Mr Sampson said he could not recall a side impact injury in July 2011. Further, Mr Sampson said although he recalled being sent for the MRI scan, he could not recall discussing the results with his doctor. Mr Sampson said he was not suffering any symptoms and so “returned to life as normal”, including undertaking his normal duties at work.
15 Mr Sampson described himself as “sports mad” and was very active in a range of sporting and recreational activities. Mr Sampson said in his spare time he did the following activities:
· Football. Mr Sampson said he had played over 300 games of football, initially at Bentleigh and then at Chelsea Football Club. He said he played in both the senior and reserve teams and, in addition to playing a match each Saturday, he would also train two nights a week.
Mr Sampson said in the middle of 2011 he stopped playing for a brief period, due to his work commitments. At that time he could not play matches as he worked on Saturdays, and could not always attend the mid-week training. However, Mr Sampson said in the summer of 2012, prior to the work incident, he participated in his club’s pre-season training. Mr Sampson explained the pre-season usually commenced in late October or early November and ran for six to eight weeks before Christmas, and resumed in mid-January. He said pre-season training involved running, weight training, as well as some practice matches. Mr Sampson said that, subsequent to the 2011 MRI scan, he had no difficulties participating in this training and considered that, in early 2012, he was the fittest he had ever been.
Mr Sampson said that for about 18 months prior to suffering the injury the subject of this claim, on occasion after a football match, he would experience swelling in both his knees. Mr Sampson said that would generally occur when he had spent a lot of time on the ground on his hands and his knees during the match.
· Martial arts. Mr Sampson said he had done martial arts since approximately 12 years of age, including karate and taekwondo, for which he had a black belt. He said his involvement with taekwondo had been “on and off”, subject to his football commitments.
· Running. Mr Sampson said this was his “escape”, especially in the summer months. He said outside of football training, he would run three to four days a week, running a distance varying from 5 to 15 kilometres. Mr Sampson said he returned to running after the 2011 MRI scan.
· The gym. Mr Sampson said he attended the gym five nights a week.
· Skateboarding, wakeboarding, snowboarding, rock climbing, and hiking. Mr Sampson said he participated in all these sports and enjoyed doing “anything that was physical”.
The incident at the desalination plant on 2 March 2012
16 On the morning of 2 March 2012, Mr Sampson said he was tasked to clean up an area where there were various pieces of building debris. Mr Sampson said this task involved carrying buckets of the debris down scaffold stairs in two, 20-litre buckets. Mr Sampson said when he reached the bottom of the stairs it was necessary for him to turn left as there was not an option to go forward.
17 Mr Sampson said as he stepped off the last scaffold step, and turned to go left, he felt the most amount of pain he had ever experienced in his left knee and fell to the ground. Mr Sampson said the incident happened very quickly and in one motion.
18 Mr Sampson said after suffering his injury he had to be carried to the office of his boss. From there he was taken in an emergency vehicle to the onsite doctor’s office. There, Mr Sampson said he was examined and told his injury “didn’t look good”. Mr Sampson said that at the time he had bruising and “massive amounts of swelling” in his left knee.
19 A First Aid Treatment Record was prepared on the day of the incident, and noted that Mr Sampson was carrying a bucket of scrap plaster downstairs, and when he stepped off the bottom step his left knee went sideways. The doctor’s note referred to “immediate effusion” and a recommendation that Mr Sampson undergo an MRI and rest his knee.
20 On the same day, an Incident Record was completed by the defendants. In this report, it noted that Mr Sampson suffered his injury whilst removing rubbish from the plant room and bull nose areas. It noted Mr Sampson had descended the scaffold stairs carrying a plastic bucket, and that while stepping off the last step, his right foot landed awkwardly causing a twist in his right knee.
21 There was no dispute between the parties that this was an incorrect reference to the right knee, as the injury was to Mr Sampson’s left knee.
22 The Incident Record proposed corrective action be taken in the form of:
“an additional stable stepping platform is to be provided on the ground below last step to reduce the height of ‘rise’ to less than 225 mm as height found to be 325mm.”
23 Mr Sampson was cross-examined about the account of the work incident he provided to Mr Contoyannis in August 2020. In his report dated 24 August 2020, Mr Contoyannis noted that Mr Sampson could not recall if he felt the pain as he was stepping onto the landing or as he was turning towards the left. Mr Sampson accepted he told Mr Contoyannis this, but explained his reason for not being precise on this was that it all happened quickly and was one motion.
24 It was then directly put to Mr Sampson that the stepping down and turning was a two-motion process; one in which his foot landed on the landing, and then it turned to the left. Mr Sampson rejected this and said it all happened in one motion and could not be broken down into two separate actions.
25 Mr Sampson was then taken to a statement which he provided to an investigator on 24 July 2013. In this signed statement, he described the incident as follows:
“I was carrying two 20 litre buckets of rubble down some scaffold stairs. I stepped off the 2nd to last stair and I turned a corner and my left knee gave way.
I was unsure if my knee gave way and the bucket then hit it or if the bucket hit my knee which caused my knee to give way.”
26 In response to this, Mr Sampson again stated the movement he was undertaking at the time of this incident was one motion and occurred in “half a second of time”. Mr Sampson was adamant he felt the pain as he loaded through his left leg, whilst coming off the stair.
27 However, Mr Sampson accepted, based on that statement, there could be three possible ways in which he injured his knee: one was that his knee gave way when he stepped from the bottom step onto the landing; the second, that after he put his foot on the landing and turned to the left, his left knee gave way; and third, that one of the buckets had caused his knee to give way. Ultimately, Mr Sampson accepted, whilst giving evidence to the court, that he did not know which of the above led to the injury of his knee.
28 Mr Sampson was also taken to a medical report from occupational physician, Dr David Barton, who examined Mr Sampson in August 2016. At that time, Dr Barton obtained a history from Mr Sampson that he suffered his injury at the bottom of the stairs when he turned and twisted. Dr Barton noted that Mr Sampson was “not sure if he hit the knee with the bucket he was carrying or if he just twisted the leg. He said the last step ‘was not at regulation height’.”
29 When this aspect of Dr Barton’s report was put to Mr Sampson, he again accepted he was not certain if the bucket had hit his knee or not, or if the injury occurred when he twisted to turn to the left.
30 In re-examination, Mr Sampson was taken to a WorkCover claim form dated 5 March 2012. In answer to the question which asked how he was injured, Mr Sampson said that part of the claim form was written by someone else and stated as follows:
“I stepped off the bottom step of scaffold (left foot first and turned to the left as a landed and twisted then my knee gave out. (sic)”
31 Mr Sampson said he read the claim form before he signed it and that this was an accurate representation of what occurred at the time of the work incident.
Treatment and events following Mr Sampson’s work injury at the desalination plant
32 On 6 March 2012, an MRI scan was taken of Mr Sampson’s left knee. It was reported as demonstrating a “chronic high-grade ACL tear”, a complex undisplaced tear of the body and posterior horn of the medial meniscus, together with moderate knee joint effusion and full thickness chondral fissuring at the central trochlear.
33 On 4 April 2012, Mr Sampson was referred to orthopaedic surgeon, Mr Justin Lade. At that time, Mr Lade obtained a history from Mr Sampson as to the work injury, which he noted involved:
“a severe twisting injury to his left knee whilst stepping off some scaffolding while carrying buckets of rubbish. He felt a tearing sensation in his left knee with immediate pain particularly on the medial aspect.”
34 At that time Mr Lade obtained a history from Mr Sampson of no prior injury or problems with his left knee.
35 Mr Lade noted that, since the work injury, Mr Sampson complained of ongoing intermittent symptoms with pain and swelling in his left knee.
36 On 30 April 2012, Mr Lade performed a left knee arthroscopy on Mr Sampson. Mr Lade noted there was a significant tear affecting his medial meniscus which required partial resection. Mr Lade also noted the insufficient ACL, which he decided to treat conservatively and did not repair.
37 On 15 May 2012, Mr Lade reviewed Mr Sampson. At that time, Mr Lade noted Mr Sampson’s left knee already exhibited “an excellent range of movement” and that he was walking “relatively pain free”.
38 Mr Sampson soon thereafter returned to his employment with the defendants. He initially said he was on light duties which involved driving a bus. However, Mr Sampson said by early June 2012 he resumed his pre-injury duties. He said at that time he still had pain in his left knee, but needed to work.
39 On 17 June 2012, Mr Sampson’s employment at the desalination plant concluded, along with many other workers, as it was the end of the project. It was accepted that the cessation of Mr Sampson’s employment was unrelated to his work injury.
40 From 1 June 2012 until 16 August 2012, as part of Mr Sampson’s post-operative rehabilitation, he underwent physiotherapy at Back In Motion physiotherapy clinic in Aspendale Gardens. On numerous occasions throughout this period it was noted that Mr Sampson’s knee was “feeling great”, with “no problems at all”. It was also noted that during this time Mr Sampson had returned to running and cycling. In the clinical note of 16 August 2012, Mr Sampson was reported as stating that his knee was going very well, with no issues, and his reason for not returning to running was “more out of laziness than anything else”. When this was put to Mr Sampson in cross-examination, he accepted these records were a fair reflection of the state of his left knee during this period.
41 On 19 November 2012, Mr Sampson was involved in a motorcycle accident in which he suffered a fracture to his right scaphoid and right distal radius (“2012 transport accident”).
42 In April 2013, Mr Sampson said that whilst descending a spiral staircase in his home he mis-stepped and felt his left knee give way. Mr Sampson explained he had been walking down the stairs, step by step. He said his right foot had reached a step, and he intended for his left foot to then go on that same step. However, it missed and his left foot ended up on the step below. In the process, Mr Sampson said his left knee buckled inwards.
43 On 30 April 2013, Mr Sampson attended upon Dr Okeleke and reported an exacerbation of left knee pain after this incident on his stairs at home. On examination, Dr Okeleke noted that Mr Sampson had a swollen left knee with generalised tenderness, guarding, and effusion. Dr Okeleke also noted a significantly reduced range of movement. At that time, Dr Okeleke referred Mr Sampson to Mr Lade for further review.
44 On 5 June 2013, Mr Sampson re-attended upon Mr Lade, who obtained a history that Mr Sampson had developed instability symptoms in his left knee. Mr Lade noted the first episode of instability occurred whilst he was running in September 2012, and the second involved the incident on his stairs at home. Mr Laid examined Mr Sampson and noted that he was unable to fully extend his knee and there was an effusion with anteromedial joint line tenderness. Mr Lade considered that Mr Sampson had suffered an exacerbation of his original work-related injury and recommended Mr Sampson undergo a left ACL reconstruction.
45 On 2 December 2014, Mr Lade performed an ACL reconstruction on Mr Sampson. During the surgery, Mr Lade noted a significant medial meniscal bucket handle tear of the meniscal remnant.
46 Mr Lade reviewed Mr Sampson on several occasions in the post-operative period. By 16 January 2015, Mr Lade considered that Mr Sampson was progressing “very nicely”, and by that time was pain free and walking with confidence without any instability.
47 Following the ACL reconstruction, Mr Sampson underwent further physiotherapy at Back In Motion in Aspendale Gardens. In approximately February 2015, Mr Sampson developed symptoms similar to those which he had experienced prior to the ACL reconstruction, such that he complained of medial knee pain and instability. At that time, it was also noted that Mr Sampson developed a limp due to the pain.
48 On 21 April 2015, Mr Sampson attended upon Dr Okeleke and complained of an exacerbation in his left knee pain whilst performing a lunge during physiotherapy treatment approximately six weeks prior. At that time, Dr Okeleke referred Mr Sampson to Mr Lade for further review.
49 The following day, Mr Sampson attended upon Mr Lade, who noted that both clinically and radiologically there was further tearing of his medial meniscus remnant, but his ACL graft was still intact.
50 On 8 May 2015, Mr Lade performed a further left knee arthroscopy on Mr Sampson. The surgical findings indicated further fraying of the medial meniscus remnant and also a femoral trochlear lesion and a small medial femoral condyle chondral flap, which was debrided. During this surgery, Mr Lade confirmed that Mr Sampson’s ACL graft was still intact.
51 After such surgery, Mr Sampson again underwent further physiotherapy. He said after the conclusion of that physiotherapy his left knee felt better but was “nowhere near what he would deem as normal”. He said he felt his knee was still unstable, and felt he was still suffering impingement in his knee. Mr Sampson also said if he bent his knee into a squat, he would experience pain in his left knee and subsequent swelling.
52 In June 2016, Mr Sampson said he undertook some work operating a backhoe and excavator. He said he only lasted about eight weeks in that role, as getting in and out of the machine multiple times a day was difficult for him and, at the end of the day, his knee was “absolutely throbbing”.
53 In 2017, Mr Sampson obtained employment working as an OH&S supervisor on a construction site. He said he worked in that role for approximately 10 months. Subsequent to that he obtained a role as an OH&S supervisor for the Skye Road Rail Crossing Removal project. Mr Sampson said that work was not difficult, but did involve walking kilometres on site, which he said took a toll on his knee. He said that, on his weekly day off, he would simply sit and relax to allow the swelling in his knee to go down.
54 On 3 August 2018, Mr Sampson was involved in a further motorbike accident (“2018 transport accident”). He said that, in this accident, he suffered an injury to his left ulnar nerve, as well as “serious grazing” to his right knee.
55 In July 2019, Mr Sampson was referred to orthopaedic surgeon, Mr Samuel Joseph. At that time, Mr Joseph noted that Mr Sampson complained of ongoing left knee pain which was localised to the medial aspect of his knee. Mr Joseph also noted that Mr Sampson complained of occasional right knee pains, but these were less than his left knee pains. Mr Joseph noted Mr Sampson complained that his pain was present most days and woke him at night approximately once a week. Mr Joseph noted Mr Sampson was able to complete all his activities of daily living, but found descending stairs problematic, and was unable to do lunges. Mr Joseph considered, at that time, Mr Sampson was likely to have suffered a medial meniscus tear and there were signs of early arthritis in his left knee.
56 In a report dated 1 July 2019, Mr Joseph stated he wanted to delay knee replacement surgery in Mr Sampson for as long as possible, and another treatment option may include a tibial osteotomy.
57 Mr Sampson accepted that, for the period from mid-September 2015 until early 2020, he had attended his general practitioner on 45 occasions with no recorded complaint of left knee pain. Mr Sampson said this was because he understood there was nothing further to be done for his knee.
58 On 11 February 2020, an MRI scan was taken of Mr Sampson’s left knee. It was reported as demonstrating the prosthetic ACL was intact. There were features of chondromalacia patella grade 2, together with moderate suprapatellar knee joint effusion with features of synovitis. No definite meniscal tear was seen.
59 In the middle of 2020, Mr Sampson said he was experiencing a pinching, burning sensation in his left knee, as well as swelling and a constant feeling in this knee that “something wasn’t right”.
60 In early July 2020, Mr Joseph administered a cortisone injection into Mr Sampson’s left knee. Upon review on 13 July 2020, Mr Joseph noted that Mr Sampson had no clicking in his left knee and had managed to undertake bike rides of five kilometres. It was noted Mr Sampson had occasional grinding in his left knee, but that this had been longstanding and was not painful. It was also noted that Mr Sampson’s knee swelled on occasion. On examination, Mr Joseph noted there was a full range of movement, with small effusion and some tenderness along the medial joint line. In the circumstances of Mr Sampson’s positive response to the injection, Mr Joseph was of the opinion that Mr Sampson should continue with non-operative measures and encouraged him to participate in bike-riding and lose some weight.
61 Mr Sampson has recently obtained employment as a trainee inspector for WorkSafe.
62 Mr Sampson said that since the cortisone injection in July 2020, his left knee has been good. He said he has been able to return to cycling, but only as a leisurely activity limited to a couple of kilometres at a very slow pace. He said he has experienced occasional swelling since this injection, but acknowledged it had improved his pain. Mr Sampson said he does “push” his left knee, as he has been advised that although he may not feel pain, he was at risk of injuring it further.
63 Mr Sampson said his left knee injury prevents him from walking long distances and hiking. He said he has tried to go on a hike a couple of times but has “paid the price for it the next day”. He said it resulted in a lot of swelling and pain in his knee, which took several days to settle down. Mr Sampson also said he does not walk on uneven ground, as he is worried that if he flexes his knee in the wrong direction he will damage it further.
64 Mr Sampson said he has not returned to playing football at Chelsea Football Club since his work injury. Mr Sampson said he hates that he can no longer play football, and had intended, once his senior football career ended, to play in the league for over 35-year-olds. He said he is no longer able to run, unless he “absolutely had to”.
65 Mr Sampson said he no longer goes to the gym, as most of the gym training involves being on his feet.
66 Mr Sampson also stated he has not been able to fully participate in taekwondo, as it is “very kick focused”. He said he was able to do some teaching of the basics to young children, but felt he was not progressing his own taekwondo.
67 Mr Sampson also stated he had not been able to return to wakeboarding or snowboarding since his work injury. Mr Sampson stated that since March 2012 he has gained approximately 30 kilograms in weight, which he is self-conscious of.
68 Mr Sampson also claimed his left knee injury had significantly restricted his ability to undertake work on tier 1 building construction sites. He said he is resentful of that because jobs on such sites pay “excellent money”.
69 Mr Sampson said that, in relation to the injury he suffered in the 2012 transport accident, he had surgery performed on his right wrist on 17 May 2013. Mr Sampson said his right wrist was initially very weak after surgery, but with time it improved. Mr Sampson said he has been left with a lack of flexibility in his right wrist, and still suffers from some arthritic pain in it, especially on cold and hot days. However, Mr Sampson said he does not require any ongoing treatment for his right wrist.
70 Mr Sampson said that in relation to the injuries he suffered in the 2018 transport accident, he underwent a surgical procedure on 21 December 2018 for the damage to his left ulnar nerve. Mr Sampson said he does not have any ongoing treatment for his left arm.
71 For the purpose of assessing the injuries which Mr Sampson suffered in the 2018 transport accident, he was examined by orthopaedic surgeon, Mr Garry Grossbard in August 2019. Mr Grossbard’s report of 12 August 2019 was tendered in evidence and Mr Sampson was cross-examined on aspects of it. Mr Sampson accepted that he injured his right knee in the 2018 transport accident, had swelling in his right knee for more than 12 months after it, and difficulty kneeling on it. Mr Sampson could not give an exact date of when these issues with his right knee resolved, but said that they settled over time with physiotherapy in the pool and gym.
72 Mr Sampson also accepted he told Mr Grossbard he suffered lower back pain after the 2018 transport accident, and that this back pain caused him problems with sitting and standing for long periods. It was also noted that Mr Sampson reported increasing pain and numbness in his left hand and was unable to use his left hand for trade work as a result.
73 Mr Sampson said that, at present, he does not experience pain in his left arm, but has weakness of grip in his left hand and weakness in his left forearm. Mr Sampson said his back pain has improved since the time of his examination with Mr Grossbard.
74 In cross-examination, Mr Sampson accepted he would be unable to work in tier 1 construction sites now given the injuries to his right and left hands.
Mr Lade’s evidence
75 Mr Lade provided several reports in relation to his treatment of Mr Sampson. These were tendered, together with his operation reports. Mr Lade was cross-examined on the opinions in these reports.
76 Prior to giving evidence, Mr Lade was of the understanding that Mr Sampson had no symptoms in his left knee prior to the work incident and was unaware of the December 2011 MRI scan. After being taken to this MRI report, Mr Lade stated this was radiological evidence of Mr Sampson having a pre-existing deficiency in his ACL, which rendered his left knee vulnerable to twisting type injuries.
77 Mr Lade was taken to the physiotherapy records from Back In Motion for the period 1 June to 16 August 2012. Mr Lade stated this indicated to him that Mr Sampson made an excellent recovery from the April 2012 arthroscopy. Mr Lade accepted these records indicated that, by the end of such physiotherapy treatment, Mr Sampson’s left knee had returned back to the condition it was prior to the work incident.
78 Mr Lade accepted that, given pre-existing vulnerability and insufficiency in Mr Sampson’s left knee, the incident on the stairs at home was sufficient to have caused the same damage to the ACL, irrespective of the work incident. Further, Mr Lade considered that Mr Sampson would have therefore been in the same situation as he is now.
79 Further, Mr Lade accepted that, given the chronic insufficiency in Mr Sampson’s left ACL prior to the work incident, it was also possible his previous recreational activities of football, hiking and taekwondo, could have caused a rupture to his ACL.
80 Mr Lade explained that the number of times the knee gets injured affects the rehabilitation of the muscles surrounding the knee, and muscle wasting can then make the knee “more prone to being unstable.” However, Mr Lade commented that what would have occurred if not for Mr Sampson’s work incident was “conjecture”, “theoretical” and “difficult to prove.”
Medico-legal evidence
81 In August 2014, Mr Sampson was examined by orthopaedic surgeon, Mr Russell Miller. In his report dated 11 August 2014, Mr Miller referred to Mr Sampson’s work injury, the 2012 transport accident, and the incident on his stairs at home. In this report, Mr Miller noted that Mr Sampson had suffered some left knee soreness in approximately 2011, but made no reference to the MRI report of December 2011. Given that the MRI scan reported a subacute tear of Mr Sampson’s ACL, the absence of such critical information from Mr Miller’s report is such that I gained little assistance from Mr Miller’s opinion in respect of Mr Sampson’s left knee injury.
82 In July 2020, Mr Sampson was examined by orthopaedic surgeon, Mr Iain McLean. In his report dated 9 July 2020, Mr McLean noted that Mr Sampson’s past history involved some soreness and swelling in his knees prior to the work injury, and that he had undergone x‑rays and MRI studies of his left knee in December 2011. Mr McLean then noted that subsequent to that, Mr Sampson reported his knees settled down and were “all fine”. Mr McLean then obtained a history in relation to the work injury and the subsequent medical treatment which Mr Sampson received. Mr McLean then noted Mr Sampson returned to work on light duties in early June 2012 and that his employment ceased on 17 June 2012. Thereafter, Mr McLean understood that Mr Sampson developed an ongoing awareness of variable pain and insecurity in his left knee, with periods of it giving out. Mr McLean was then aware of the incident which occurred on the stairs at Mr Sampson’s home in April 2013.
83 In his report, Mr McLean stated he was of the opinion that the mechanism of stepping down from the scaffolding stairs onto a concrete surface at work, with Mr Sampson “loading and then twisting on his left knee with it giving way”, was “certainly consistent with anterior cruciate ligament injury/insufficiency and then resulting in further meniscal and chondral pathology”.
84 Mr McLean was aware of the 2011 MRI scan. He stated that some patients may have such damage in their ACL but are not aware of it and have not suffered any rotational instability. Mr McLean stated that such pathology indicated the person’s left knee was “possibly being more vulnerable” and that when a particular loading incident occurred, the knee becomes symptomatic and problematic from that date. Mr McLean considered that was consistent with what occurred in Mr Sampson’s left knee in the work incident.
85 Mr McLean was of the opinion that Mr Sampson’s prognosis was guarded and that, in the future, he was at risk of requiring an osteotomy or other intervention, including knee replacement surgery, at a time earlier than would have been anticipated.
86 Mr McLean was called to give evidence and was cross-examined as to the contents of his medical report.
87 Mr McLean stated he understood Mr Sampson suffered his injury when he was in the process of “stepping down and turning” and that this was one movement. Mr McLean explained that with a fixed foot and the body turning, there is a pivotal movement in the knee.
88 Mr McLean confirmed his written opinion that the ACL was ruptured in the work incident, and that at the same time Mr Sampson also stretched the secondary restraints in his knee and injured the medial meniscus and cushioned surface. Mr McLean later explained such damage creates a disability in the quadriceps, which can predispose a person to further instability when coming down stairs or pivoting. Mr McLean stated that, in relation to Mr Sampson, there was a build-up of a number of events, and that one thing is “consequential” to the other.
89 Mr McLean was challenged in respect of his opinion as to the incident on the stairs at home being related to the work incident. In offering this opinion, Mr McLean had understood that Mr Sampson had remained on restricted duties, and had ongoing pain and insecurity in his left knee. However, it was then put to Mr McLean that Mr Sampson had returned to his pre-injury duties before he was made redundant, and the records of Back In Motion were also summarised. Having been taken to such evidence, Mr McLean agreed that Mr Sampson appeared to have made an excellent recovery from the April 2012 arthroscopy. However, Mr McLean noted the physiotherapy records suggested only Mr Sampson’s straight line activity had been tested and said you cannot deduce from such information that Mr Sampson had no instability or ACL insufficiency. Therefore, Mr McLean said he did “not totally” agree with Mr Lade’s opinion that, by approximately July 2012, Mr Sampson’s knee had returned to its pre-work incident condition. Mr McLean explained that, in order to assess a patient, you would need to test them in respect of twisting, turning and rotational type activities.
90 Further, Mr McLean stated his comments on the positive recovery Mr Sampson made were in the context of the surgery performed, and not to do with the actual pathology.
91 Mr McLean accepted that, as the treating surgeon, Mr Lade was in a better position to comment on Mr Sampson’s condition after the work incident, but that Mr Lade’s opinion was “dependent on what he was questioning relative to the rotational instability” in Mr Sampson’s left knee.
92 Mr McLean stated that a person with a “normal healthy knee” should be able to safely navigate a step with a rise of 325 millimetres. Further, he stated that a person with ACL instability should also be able to navigate such a step, provided they are moving in a straight line. However, Mr McLean stated that a loading and twisting mechanism can create a problem with the ACL as there is pivoting of the knee. Mr McLean said the extra 100 millimetres beyond a standard step height “adds that little bit more acceleration and force”.
93 Mr McLean was questioned in respect of whether, absent the work injury, the incident on the stairs at home would have been sufficient to cause damage to Mr Sampson’s left knee. Mr McLean did not agree with Mr Lade’s opinion that the incident would of itself be sufficient to cause the damage Mr Lade subsequently treated. Mr McLean explained that Mr Sampson had a pre-existing partial tear with minor trauma, and then a later work injury which was more significant. Mr McLean stated that resulted in an increase in insufficiency and laxity in the ACL. The pre-existing condition created a vulnerability which gave rise to the potential of further injury, but that this was only a possibility. Mr McLean considered this less likely as people with a mild degree of ACL instability can go about their daily living without knowing it.
94 Mr McLean stated that a person with an ACL deficiency, and partial rupture, may not be aware of any ongoing significant problems with instability. However, Mr McLean also acknowledged that such a deficiency gives rise to a vulnerability in such a person suffering injury from activities including hiking, football and taekwondo. He accepted that, if not for the work incident, Mr Sampson was at risk of suffering an ACL injury whilst undertaking such activities.
95 In August 2020, Mr Sampson was examined by orthopaedic surgeon, Mr Stephen Doig. In his report dated 18 August 2020, Mr Doig detailed the history he obtained from Mr Sampson as to the condition of his left knee prior to the work injury, the circumstances of the work injury, the subsequent treatment he received, and the two further episodes of instability and swelling, including the incident on the stairs at home. In circumstances where, immediately following the work incident, Mr Sampson developed swelling in his left knee, Mr Doig was of the opinion that in that incident he had suffered a complete ACL rupture. Mr Doig was then of the opinion that the incident on the stairs at home was also related to his work injury, as it was an event which should not have caused a problem, but in fact caused a significant problem with marked swelling at the time and subsequent need for an ACL reconstruction.
96 Mr Doig noted that, subsequent to the MRI scan of December 2011, Mr Sampson told Mr Doig he had been able to return to normal football training and “do everything that he wanted to do”. Mr Doig explained that, although the MRI scan taken in December 2011 indicated some damage to the ACL, it was only a partial rupture. Mr Doig stated many people can cope with this and do everything they want, for a prolonged period of time. However, he also acknowledged that other people will not be able to do so, and, as they have a vulnerability in their knee, are “more liable to having an ACL rupture from what would appear to be a reasonably innocuous incident”.
97 Mr Doig stated that treatment for subacute chronic subtotal rupture of the ACL depends upon the symptomatology of the patient and the clinical assessment of the knee stability. Mr Doig stated that if a patient is able to cope and undertake their normal activities without sensation of instability or giving way, there is no indication for surgery. However, for a patient whose knee is grossly unstable with ongoing symptomatology, then it is reasonable to undergo an ACL reconstruction, and this is performed in about 60 per cent of people who have this condition. However, he noted that many people are able to cope without the need for surgery, as there is some part of the ACL which remains.
98 In relation to the incident on Mr Sampson’s home stairs, Mr Doig was of the opinion that this incident further aggravated his left knee condition. He accepted Mr Sampson’s suggestion that this aggravation should not have occurred, given the minor extent to which his knee twisted in the incident, and the implication of this being that Mr Sampson’s left knee was more vulnerable at that time.
99 Mr Doig was called to give evidence and was cross-examined on the opinion expressed in his medical report.
100 As was done with Mr Lade and Mr McLean, Mr Doig was taken by defendants’ counsel to the physiotherapy notes from June to August 2012. Mr Doig said that, based upon the physiotherapy notes, it appeared Mr Sampson had made a good recovery from the April 2012 arthroscopy. However, Mr Doig said the absence of complaints of instability did not necessarily mean there was no instability, as straight line running does not stretch the ACL. In view of this, Mr Doig did not agree with Mr Lade’s opinion that, by July 2012, Mr Sampson’s knee had returned to its pre-work incident condition.
101 Mr Doig stated he could not express an opinion in relation to Mr Lade’s opinion that, immediately prior to the incident in his home in April 2013, Mr Sampson’s left knee was in the same condition it had been before March 2012. Mr Doig considered this would depend on whether, in examining Mr Sampson, Mr Lade had expressly asked his patient about this.
102 Mr Doig stated that, given the pre-existing insufficiency in Mr Sampson’s ACL prior to the work incident, he was at risk of rupturing the ACL in stepping off a 225 millimetre step and twisting his knee, as well as when stepping off a 325 millimetre step. Mr Doig said the fact that the step was almost a foot, did not make a lot of difference, and the ACL was just as likely to rupture.
103 Mr Doig did not agree with Mr Lade’s opinion that, absent the work incident, the incident on the steps at home was sufficient to cause the damage to the ACL which required surgical treatment. Mr Doig accepted there was an insufficiency that created a vulnerability in Mr Sampson’s knee. However, Mr Doig said it was difficult to quantify the risk of this happening. Ultimately, Mr Doig said he could not describe the risk of this occurring as a real risk.
Liability evidence
104 In support of his claim that the defendants were negligent and breached the Regulations, Mr Sampson relied upon an opinion from Mr Contoyannis. In his report, Mr Contoyannis detailed the instructions he had received and the assumed facts he formed his opinion on. This included Mr Sampson’s account as to how the accident occurred, including that the incident happened very quickly and he could not recall if he felt pain as he was stepping onto the landing (from the bottom step), or as he was turning towards his left, “as it all happened quickly (and more or less in one action).”
105 Mr Contoyannis noted that the Incident Record completed on the day of the accident referred to the height of the bottom step as having a rise of 325 millimetres, whereas the rest of the steps on the scaffold were 225 millimetres, which complied with requirements for scaffolds.
106 Mr Contoyannis explained that the 2010 Standard set out the design and operational requirements for scaffolding systems. Clause 3.11.3.1 of those standards sets out the requirements in respect of temporary stairways for scaffolding, and states that where temporary stairways are used, they shall comply with the requirements, which include that:
“All rises and all goings, in the same flight of stairs, shall be of uniform dimensions …
A rise shall be not less than 150 mm and not greater than 225 mm.”
107 Mr Contoyannis was of the opinion that the temporary stairway which Mr Sampson was descending at the time of his injury did not comply with the 2010 Standard, in that the riser of the bottom step was 100 millimetres greater than the maximum allowed height of 225 millimetres.
108 Mr Contoyannis was of the opinion there were four biomechanical factors that could have caused Mr Sampson’s knee injury:
· the lower-limb biomechanics when descending the stairs and stepping onto the landing;
· the larger step height of the bottom step;
· the weight that he was carrying in each bucket; and
· the likely change of direction as he stepped onto the concrete landing.
109 Mr Contoyannis acknowledged that other factors should be considered in relation to the cause of Mr Sampson’s injury, including his pre-existing condition and the medical presentation immediately following his injury. Mr Contoyannis acknowledged that such matters are for an expert medical opinion.
110 In explaining his opinion in respect of the biomechanical forces at play at the time of Mr Sampson’s injury, Mr Contoyannis explained that when descending a stair, a person’s foot is “plantarflexed”, which means the toes are pointing to the ground and the ankle is unloaded. Mr Contoyannis explained that just prior to the work incident, as Mr Sampson descended the stairs and the contact point with the ground was approached, Mr Sampson would have activated his ankle and the loading surfaces of his ankle joint prepared for taking weight. Further, he explained the muscles around the knee are used as the main decelerator of the body when this action occurs. Mr Contoyannis stated that disruption in this process can result in a misstep, including hyperextending of the knee or buckling of the knee. Mr Contoyannis stated that if a change of direction occurs, this misstep, combined with the loading of the body, can result in serious injuries to either the knee, ankle or both.
111 Mr Contoyannis was of the opinion that Mr Sampson’s left foot likely continued to plantarflex further than anticipated by the larger than expected step, and disrupted the alignment of the aforementioned ankle surfaces and exposed him to the risk of injury. Mr Contoyannis also noted that a variation in step dimensions can also impact on the gait cycle timing, which can also lead to a misstep or stumble, exposing the person to a risk of injury.
112 Mr Contoyannis was of the opinion that the defendants could have prevented exposing Mr Sampson to a risk of injury by taking the following measures:
(i) By ensuring that the temporary stairway was suitably designed/or rectified to meet the requirements of the 2010 Standard;
(ii) By raising the landing area with platforms to reduce the height of the bottom step;
(iii) By reinstalling the temporary scaffold stairway in such a way that ensures that all step dimensions were consistent throughout the stairway.
113 Mr Contoyannis was called to give evidence and was cross-examined in respect of his opinion. He explained the contribution of the larger step height and its role in Mr Sampson suffering his injury. Mr Contoyannis stated that with a larger rise in a step, the biomechanics of how a person steps down changes. He said that when descending in the usual manner, the ankle locks and the knee bends to take all the weight. However, with a larger rise, Mr Contoyannis explained that the foot reaches lower and extends more, and the knee bends less. In addition, the ankle may not be in the right position to lock properly.
114 Mr Contoyannis also stated that even for a person with a “normal healthy knee”, there was a risk of injury where the last step had an increased riser. He explained that “the risks increase with the increasing riser of the last step”. Further, Mr Contoyannis stated the risk of injury increases if a person goes up and down the stairs repeatedly.
115 Mr Contoyannis was cross-examined in respect of the four factors which he said “could” have contributed to Mr Sampson’s injury. Mr Contoyannis accepted that each of the four factors could have caused Mr Sampson’s injury, but also noted the factors were “interconnected”. Mr Contoyannis stated that the larger step height influences the lower limb biomechanics.
116 Mr Contoyannis accepted that if the step was at regulation height, the injury could still have been sustained.
117 The defendants did not call any evidence in respect of liability. They accepted that the last step on the mobile scaffold had a height of 325 millimetres and that the 2010 Standard-allowed height was 225 millimetres.
Credibility
118 Mr Sampson was cross-examined at length in relation to his account of the work incident, as well as the histories he provided to different doctors in respect of the consequences he claimed to suffer from this injury, and from the two transport accidents in which he had suffered injuries.
119 The different accounts of how the accident happened are detailed above. In circumstances where the injury was suffered in a split second, I consider that nothing turns on the slight discrepancy in the different accounts given of the work incident. Further, I consider Mr Sampson’s refusal to deny the possibility that the bucket may have knocked his left knee and contributed to the incident, an example of his credibility as a witness. I am satisfied that Mr Sampson made a genuine attempt to describe to the court the work incident, as best he could recall at this time – noting it was over eight years after the event.
120 Notwithstanding my acceptance that Mr Sampson was a credible witness in respect of his evidence regarding the work incident, I accept that to some degree Mr Sampson has been selective in his complaints of injuries, depending upon which compensation claim he was being assessed for. For example, when Mr Sampson swore an affidavit in support of a serious injury certificate for the injuries he suffered in the 2012 transport accident, he detailed a number of the restrictions which he claimed to suffer as a consequence of a reduced grip and range of motion in his right wrist. In his affidavit, Mr Sampson stated that prior to that transport accident he had been an avid football player, and that since the accident he had difficulty marking and punching the football as well as tackling.
121 When this was put to Mr Sampson in cross-examination, he stated he had not returned to football from the time of the work incident to the time of this transport accident. Mr Sampson sought to explain that this part of his affidavit was a reference to attempts he made to have a social kick of the football with family members in that intervening period. After somewhat protracted cross-examination, Mr Sampson ultimately accepted the impression this aspect of his affidavit gave, which was that his right wrist injury had caused him to stop playing football, whereas, on his evidence before the court, he had ceased playing football following the work injury.
122 Also in this affidavit, Mr Sampson claimed that his right wrist injury caused difficulty in his taekwondo training, with no reference to the restrictions he claimed his left knee had caused him.
123 I accept the defendants’ submission that this affidavit is not an accurate reflection of the actual consequences arising from this transport accident. However, in circumstances where the claim before me is in respect of Mr Sampson’s work injury for his left knee, my reservations as to his lack of candour in the affidavit for his transport accident claim bears only a moderate impact upon my assessment as to his credibility and reliability as a witness.
Mr Sampson’s claim in negligence
124 As Mr Sampson’s employer, the defendants were obliged to provide him with a safe system of work, which included a duty to take reasonable care to avoid exposing him to unnecessary risk of injury.[1]
[1] Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12]
125 Mr Sampson alleged that the defendants were negligent for permitting the last scaffold step to have a height of 325 millimetres. In support of this allegation, it relied upon the 2010 Standard and alleged that the defendants ought to have foreseen there was a risk of injury to an employee arising from this non-compliant step.
126 Mr Contoyannis explained the biomechanics associated with an increased rise in step height. I note that the rise in the defendants’ step was 10 centimetres greater than the recommended standard. As the only witness to give evidence on the biomechanical forces associated with an increased step height, I accept Mr Contoyannis’ evidence that this creates an increased risk of injury to a person descending stairs.
127 Mr Sampson also relied upon the defendants’ own Incident Record, in which corrective action was recommended so as to reduce the last step height to 225 millimetres. I accept this was a contemporaneous assessment by the defendants, shortly after the incident, that the step height was excessive.
128 An employer will be negligent if the nature of the harm that occurred and the circumstances in which the harm occurred was reasonably foreseeable, and the defendant failed to take adequate steps to protect its workers from such harm.[2] It is not necessary for the defendant to foresee the particular circumstances in which the plaintiff suffered injury.[3]
[2]Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301
[3]Erickson v Bagley [2015] VSCA 220 at [33]
129 Having accepted Mr Contoyannis’ evidence, which was consistent with the safety requirements of the 2010 Standard, and noting the admission by the defendants after the incident that the stair should be rectified, I am satisfied that the defendants were negligent for having the bottom step of this scaffold at a height of 325 millimetres. I am satisfied that the risk of injury from this excessive step height to a person descending the stairs was reasonably foreseeable and was not farfetched or fanciful.
130 However, for Mr Sampson to succeed in his claim, he must satisfy me that this negligence was a cause of his left knee injury.
Was the defendants’ negligence a cause of Mr Sampson’s injury?
131 The defendants submitted there were multiple versions as to what happened at the time Mr Sampson suffered his left knee injury, and that I could not be satisfied the height in the last step was a cause of his left knee injury. They emphasised that, in his oral evidence, Mr Sampson could not precisely recall when or how he suffered his injury. However, as stated above, I consider Mr Sampson’s evidence on this in 2020, given the lapse in time, is understandable and does not reflect on his credibility.
132 I consider that the Incident Record, First Aid Report and Claim Form, are contemporaneous documents consistent with Mr Sampson suffering his injury as he stepped off the bottom step and turned to the left. I am satisfied this is the more probable account as to how he suffered his injury, rather than the possibility of him hitting his knee with the bucket.
133 I do not accept that Mr Sampson’s inability to distinguish whether his pain came on as his foot landed or as he turned to the left, means he has failed to satisfy me that the greater step height was a cause of his injury. I accept Mr Sampson’s evidence that the stepping down and turning motion occurred instantaneously. I consider it is artificial to try and separate the two actions involved in this incident.
134 Both Mr McLean and Mr Doig rebuffed Mr Smith’s attempt to separate the act of landing on the step and the act of turning to the left. Both doctors stated that they considered this was one movement – the stepping down from the last step, with the intention of turning.
135 I am satisfied that as Mr Sampson reached the bottom landing with the intention of turning to the left, his knee and ankle were positioned in a way so as to enable him to do this. I am also satisfied that whilst executing this pivotal movement, Mr Sampson suffered his injury.
136 The defendants submitted that even if I was so satisfied this occurred as the one movement, I could not find that the step height was a cause of Mr Sampson’s injury. They relied in part upon the evidence of Mr Lade and Mr McLean that a person with a healthy knee should be able to step down such a height without incident. This does not, however, eliminate the reasonable foreseeability that a healthy person could suffer a knee injury stepping off such a height.
137 The defendants also relied upon Mr Doig’s evidence that a person with a vulnerable ACL injury was “just as likely” to rupture their ACL if the rise was 225 millimetres. I accept that if this was the only evidence relevant to causation, Mr Sampson would not succeed in his claim that the increased step height was a cause of his injury. However, Mr McLean accepted that, although a person could tear their ACL from a height of 225 millimetres or 325 millimetres, the additonal10 centimetres added further acceleration and force.
138 The defendants also relied on the fact that although Mr Contoyannis’ opinion that the range of factors, including the excessive step height, could have caused the injury, he did not state that it would have caused the injury. However, I consider that Mr Contoyannis limited his opinion to this as he recognised, having identified such factors, the decision as to the cause of Mr Sampson’s injury, in part, depended upon the ultimate determination by me as to what Mr Sampson was doing at the moment of injury, and upon expert medical opinion, which he was not able to give.
139 I note that Mr Contoyannis stated that those factors were inter-related. I accept Mr Contoyannis’ explanation as to how the increased step rise increases the loading of weight through the knee and ankle. I am satisfied that the substance of Mr Contoyannis’ evidence is that the extra 100 millimetres increased the risk of injury to Mr Sampson as he descended the steps carrying two buckets of rubble.
140 Having considered the whole of the evidence and taking a common sense approach to causation, I am satisfied that the excessive step height was a cause of the aggravation of Mr Sampson’s left knee injury and rupture of his ACL.
Mr Sampson’s claim in respect of the Regulations
141 Regulation 3.5.1 of the OHS regulations provides that part 3.5 of the Regulations applies to scaffolds.
142 Regulation 3.5.23 of the OHS regulations provides that an employer must, so far as is reasonably practicable, identify all hazards to health and safety associated with the installation, commissioning, decommissioning, dismantling, erection and use of plant and the systems of work associated with that plant.
143 Mr Sampson contends that the defendants breached regulation 3.5.23 of the OHS regulations because they did not have a system to identify hazards associated with the use of the scaffold stairs that he was descending at the time he suffered his injury, and in particular the excessive step height.
144 Regulation 3.5.24 provides that an employer must ensure that any risk associated with plant is eliminated or reduced, so far as is reasonably practicable.
145 Mr Sampson contends that the defendants breached regulation 3.5.24 of the OHS regulations because they did not take measures to eliminate or reduce the risk, which they could and should have done by installing an additional stable stepping platform on the landing, so as to reduce the last step to be a height rise of no more than 225 millimetres.
146 The defendants accepted these Regulations applied to the scaffold steps which Mr Sampson was on at the time he suffered his injury. Further, in the absence of any evidence that a hazard assessment had been performed, the defendants accepted they could not challenge a finding by me that they had breached such Regulations. However the defendants submitted that I could not be satisfied any such breach of the Regulations was a cause of Mr Sampson’s injury.
147 I am satisfied the defendants failed to identify the hazard associated with the excessive step height. I am also satisfied that if they had identified this hazard, then just as they did after Mr Sampson’s work injury, they would have determined it was reasonably practicable for them to take measures to then eliminate or reduce the risk of injury to workers, by installing an additional platform to reduce the step rise to 225 millimetres. I am satisfied that if this had been done, then it is probable, for the same reasons detailed above, Mr Sampson’s injury would have been avoided. I am therefore satisfied that the defendants’ breach of the Regulations was a cause of Mr Sampson’s injury.
Damages
148 Having determined that the defendants were negligent, and breached their duty under the Regulations, and that such negligence and breach were a cause of injury to Mr Sampson, it is now necessary for me to assess Mr Sampson’s damages.
149 Mr Sampson claims damages for his pain and suffering and loss of enjoyment of life. The assessment of his claim must take account of his pre-existing left knee injury.
150 The defendants alleged that within six months of the work accident, Mr Sampson had made a full recovery and that the incident on the stairs at home, and his need for further surgery and ongoing pain and restriction of his left knee, was a consequence of his pre-existing left knee ACL instability and not the work incident.
151 The defendants relied upon Mr Lade’s oral evidence in support of their submission, and I was urged to prefer his opinion to that of Mr McLean or Mr Doig, as Mr Lade was the surgeon who examined and surgically treated Mr Sampson prior and subsequent to the April 2012 arthroscopy, and the incident on his stairs at home.
152 However, Ms Spitaleri urged me to prefer the opinions of Mr McLean and Mr Doig, and she described Mr Lade’s evidence on this aspect of Mr Sampson’s claim as ambiguous and against the weight of the evidence.
153 In closing submissions, Mr Smith submitted that Ms Spitaleri had failed to put to Mr Lade her challenge in respect of his opinion on Mr Sampson’s knee returning to the condition it was prior the work incident. It was submitted that in accordance with the rule in Browne v Dunn,[4] Ms Spitaleri should have put to Mr Lade:
[4][1893] 6 R 67
(i) that he failed to ask Mr Sampson whether his left knee was the same as before the work incident; and
(ii) Mr Sampson’s evidence that his left knee did not return to what it was like before the work incident.
154 However, Ms Spitaleri rejected this assertion that the rule in Browne v Dunn applied in respect of Mr Lade’s evidence. Ms Spitaleri submitted that, as she called Mr Lade without leave of the court, she was not permitted to cross-examine him.[5] Whether or not leave was required, or whether Ms Spitaleri could have put such aspects of the history to Mr Lade in re-examination for the purpose of clarifying Mr Lade’s opinion, is not necessary for me to decide. I consider it was only after Mr McLean and then Mr Doig gave evidence, that it was apparent that straight line testing was an incomplete indicator as to whether there was instability in Mr Sampson’s ACL. As this was not in their written reports, Ms Spitaleri was unable to put this to Mr Lade for comment, as he was the first medical witness called.
[5]S 38 Evidence Act 2008 (Vic)
155 Further, it was only Mr Doig who explained the significance in the need to compare activities which Mr Sampson could do before the work incident and those which he could do after his recovery from the April 2012 arthroscopy. Once again, as this was not in Mr Doig’s report, Ms Spitaleri was unable to put this aspect of the evidence to Mr Lade. Therefore, I do not consider that the rule in Browne v Dunn was breached by Ms Spitaleri.
156 None of the surgeons examined Mr Sampson prior to the work incident. Therefore, a true comparison between how he was then and how he was by July 2012, or immediately prior to the incident on his home stairs, is impossible. I accept, as did Mr McLean and Mr Doig, that Mr Lade has some advantage in commenting on the state of Mr Sampson’s knee, as he performed the April 2012 arthroscopy and reviewed him in the post-operative period. However, in circumstances where this was on one occasion only and only two weeks after the surgery, I consider Mr Lade’s advantage as the treating surgeon is somewhat limited.
157 I accept Mr Doig’s explanation that the best way to assess the extent to which Mr Sampson’s left knee had recovered from the work injury, and the condition it was in immediately prior to the incident on the stairs at home, was to compare what he could do before the work incident with what he could do after it. It was agreed between the parties there was no evidence as to what Mr Lade had asked Mr Sampson in relation to this. There is of course no criticism of Mr Lade in respect of this. As a treating surgeon, I appreciate his focus would be on diagnosing and treating a patient’s injury, not taking a detailed history to assist in commenting on causation in a damages claim eight years later.
158 I consider Mr Lade’s evidence that, by July 2012, Mr Sampson’s knee returned to as it was prior to the work incident, is not to be taken in a literal sense. Such a statement is inconsistent with Mr Lade’s opinion that Mr Sampson had suffered a complete rupture of his ACL in the work incident. Further, Mr Lade gave evidence that the more times a knee is injured, the surrounding muscles are prone to further instability.
159 Mr McLean and Mr Doig both explained that the work incident resulted in a rupture of the ACL, with associated muscle damage. Despite Mr Sampson’s reported improvement following physiotherapy and his ability to resume running and cycling, Mr McLean and Mr Doig both noted this did not exclude ongoing instability in his knee, as he was only tested with straight line tasks.
160 Therefore, although on a functional level it appeared that Mr Sampson’s knee returned to as it was prior to the work incident as he was able to return to normal work duties, running and cycling, I am satisfied that there were pathological changes in his left knee which persisted beyond July 2012 and existed at the time of the incident on the stairs at his home – namely the ACL rupture and associated muscle damage. I accept such pathological injuries made Mr Sampson vulnerable to further injury, including the event when he mis-stepped on his stairs at home in April 2013. Therefore, I reject the defendants’ submission that Mr Sampson’s damages should not extend beyond this six-month period.
Assessment of damages in the context of Mr Sampson’s pre-existing subacute subpartial ACL tear
161 Having accepted that the aggravation to Mr Sampson’s left knee injury suffered in the work incident has persisted, in assessing his damages it is necessary for me to take account of the pre-existing condition in his left knee. Mr Sampson’s damages for the past and future must be adjusted to reflect the degree to which his left knee would have progressed, if not for the work injury.
162 In Malec v JC Hutton Pty Ltd,[6] the High Court held the likelihood of both past or future hypothetical events are to be taken into account when assessing damages. In doing so, it was noted that questions regarding the future effects of a physical injury or degeneration “are not commonly susceptible of scientific demonstration or proof”.[7]
[6](1990) 169 CLR 638
[7]Ibid at 643
163 In Malec, Deane, Gaudron and McHugh JJ said:
“… If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise awarded. … .”[8]
[8]Ibid
164 In Seltsam Pty Ltd v Ghaleb,[9] Ipp JA noted that:
“To the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations —not proof on a balance of probabilities.”
[9][2005] NSWCA 208 at paragraph [105]
165 Further, in Seltsam, Ipp JA stated that in a case with past and future hypothetical events, the following principles applied:
“a. In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
b. The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
c. The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
d. These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.”[10]
[10] Ibid at paragraph [103]
166 The principles outlined in Seltsam were endorsed by the Court of Appeal in Smith v Gellibrand Support Services.[11]
[11][2013] VSCA 368
167 I am satisfied that Mr Sampson ruptured his left ACL in the work incident. As stated above, I accept that, notwithstanding his apparent good recovery from the April 2012 arthroscopy, Mr Sampson’s left knee injury was not fully tested thereafter and it remained vulnerable to exacerbation as was demonstrated in the relatively innocuous event when he mis-stepped on the stairs at home in April 2013.
168 I am satisfied that, following the incident on his home stairs, Mr Sampson required an ACL repair and has subsequently required a further arthroscopy and cortisone injection.
169 It is uncertain how Mr Sampson’s left knee condition would have progressed, if not for the work incident. All of the surgeons acknowledged that Mr Sampson had a pre-existing vulnerability in his left knee and that the ACL may have ruptured with the performance of his everyday activities – be that playing football, doing taekwondo, hiking or simply overstepping when descending stairs in his home.
170 None of the surgeons could provide a precise figure as to the prospect of a complete rupture occurring. It was, as Mr Lade described, “conjecture”. However, it is a matter of conjecture which I must consider in assessing Mr Sampson’s damages.
171 I am satisfied that the prospect of Mr Sampson aggravating his left knee injury and suffering a rupture of his left ACL was a real and not insubstantial risk, and certainly more than a remote possibility, as suggested by Ms Spitaleri. Therefore, when assessing Mr Sampson’s damages, I must reduce these damages to reflect the vicissitudes associated with his pre-existing left knee condition.
172 If Mr Sampson’s ACL had ruptured when doing any of these non-compensable activities, there was a real prospect that Mr Sampson would have required an ACL repair, although this was not a matter of certainty. I accept Mr Doig’s evidence that some people who suffer an ACL rupture can avoid surgery, often through the modification of activities. However, it follows then that the recreational activities Mr Sampson gave up following the work incident, may very well have been given up in any event, so as to help him avoid such surgery. On either scenario, pursuant to the principles in Malec, a reduction in Mr Sampson’s damages is required to reflect these risks.
Summary
173 In her closing submissions, Ms Spitaleri invited me to award Mr Sampson damages of $300,000.
174 In the defendants’ closing submissions, Mr Smith suggested that Mr Sampson’s damages should be very modest, to reflect his pre-existing vulnerabilities, as well as the impact the unrelated injuries which he suffered in the two transport accidents had upon him in respect of both pain and suffering and enjoyment of life. Mr Smith suggested an appropriate award of damages would be $50,000.
175 I accept that as a consequence of the work incident, Mr Sampson ruptured his ACL. He has required three surgical procedures, with extensive physiotherapy after each surgery. Mr Sampson’s ability to undertake his recreational activities was significantly curtailed as a result – he no longer played competitive football, was limited in his taekwondo, and could no longer wakeboard or snowboard. In addition his cycling and running has been very limited. Mr Sampson went from being at the prime of his physical fitness, who lived for sport, to a man who has gained weight from inactivity. I accept that the dramatic interference with his sporting activities, has greatly impacted on Mr Sampson’s enjoyment of life.
176 I am satisfied that following the surgical procedures, the pain Mr Sampson experiences in his left knee is now modest and relatively manageable.
177 I also note that Mr Joseph’s most recent report was relatively optimistic, with Mr Sampson reported as having a full range of movement in his left knee with no clicking, and that his pain improved following the cortisone injection. This favourable report is relevant to my assessment of his current and future pain and suffering damages.
178 Another factor relevant to the assessment of Mr Sampson’s damages is that the injuries he suffered in the 2012 and 2018 transport accidents were also likely to impact, to a degree, on his recreational activities of football and taekwondo, irrespective of his left knee injury. So too, his career prospects in the construction industry.
179 Taking into account all of these matters, including a reduction for the real risk that his left ACL would rupture irrespective of this work incident, I am satisfied that Mr Sampson should be awarded a sum of $120,000 for his pain and suffering damages.
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